SECOND SECTION

CASE OF FATİH TAŞ v. TURKEY (No. 4)

(Application no. 51511/08)

JUDGMENT

STRASBOURG

24 April 2018

FINAL

24/07/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Fatih Taş v. Turkey (no. 4),

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Işıl Karakaş,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 3 April 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 51511/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Fatih Taş (“the applicant”), on 26 September 2008.

2. The applicant was represented by Mr İ. Akmeşe and Ms Y. Polat, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent,

3. The applicant alleged under Article 10 of the Convention that the criminal proceedings brought against him on account of the content of two books - Dağlarda Yaşamın Dili (“The Language of Life in the Mountains”) and Tufanda 33 Gün (“33 Days in the Deluge”) ‒ published by his publishing company had constituted a breach of his right to freedom of expression.

4. On 18 September 2013 the complaint concerning the alleged breach of the applicant’s right to freedom of expression was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. By a letter dated 22 June 2017 the President of the Section requested the parties to submit to the Court copies of the books entitled “The Language of Life in the Mountains”and “33 Days in the Deluge”. On 8 August 2017 the applicant submitted a copy of the book entitled The Language of Life in the Mountains. On 25 September 2017 the Government informed the Court that they had been unable to obtain a copy of the book entitled 33 Days in the Deluge. By a letter dated 20 October 2017 the applicant informed the Court that he ‒ likewise ‒ did not have the book in his possession since there had been an order for copies of the book to be seized and the copy which should have been attached to the file of the case lodged against him could not be located.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1979 and lives in Istanbul. He was the owner and the editor-in-chief of a publishing house, namely Aram Basım ve Yayıncılık, at the time of the events giving rise to the present application.

7. In June 2001 and March 2003 the applicant’s company published two books entitled Dağlarda Yaşamın Dili (“The Language of Life in the Mountains”) and Tufanda 33 Gün (“33 Days in the Deluge”), respectively.

8. On 29 August 2001 the public prosecutor attached to the Istanbul State Security Court filed an indictment with the Istanbul State Security Court charging the applicant with aiding and abetting the PKK, an illegal armed organisation, under Article 169 of the former Criminal Code, on account of the publication of the book entitled The Language of Life in the Mountains.

9. On 24 July 2002 the Istanbul State Security Court convicted the applicant as charged.

10. On 1 May 2003 the Court of Cassation, on appeal, upheld the judgment of 24 July 2002.

11. On 23 September 2003 the public prosecutor attached to the Istanbul State Security Court requested that the court revise its judgment of 24 July 2002 since Article 169 of the former Criminal Code had been amended on 7 August 2003. The Istanbul State Security Court accepted that request.

12. By Law no. 5190 of 16 June 2004, state security courts were abolished. The case against the applicant concerning the book entitled The Language of Life in the Mountains was transferred to the Istanbul Assize Court.

13. On 16 August 2003 the public prosecutor attached to the Istanbul State Security Court filed an indictment with the Istanbul State Security Court charging the applicant with aiding and abetting the PKK under Article 169 of the former Criminal Code on account of the publication of the book entitled 33 Days in the Deluge. According to the indictment, on pages 129, 130 and 135 the struggle of the PKK and its leader, Abdullah Öcalan, was praised and the applicant had therefore aided the PKK through the medium of the press.

14. On 30 April 2007 the Istanbul Assize Court decided to join the proceedings concerning The Language of Life in the Mountains and 33 Days in the Deluge.

15. On 7 December 2007 the Istanbul Assize Court convicted the applicant under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) for disseminating propaganda in favour of the PKK twice, because he had published two books, and sentenced him to a total of twenty months’ imprisonment. With regard to the publication of 33 Days in the Deluge, the assize court considered that on pages 129, 130 and 135 the PKK and its leader, Abdullah Öcalan, were praised and the offence of dissemination of propaganda in favour of a terrorist organisation had therefore been committed. The assize court furthermore found that the book allowed for the transmission of the opinions of the PKK to the public and was aimed at bringing more sympathisers into that organisation.

16. On 25 June 2009 the Court of Cassation quashed the judgment of 7 December 2007, holding that the first-instance court should not have joined the two cases, since the case concerning The Language of Life in the Mountains was a re-qualification of the applicant’s previous final conviction (uyarlama yargılaması).

17. On 7 December 2009 the Istanbul Assize Court convicted the applicant once again under section 7(2) of Law no. 3713 on account of the publication of The Language of Life in the Mountains and sentenced him to a fine.

18. On 3 June 2013 the Court of Cassation quashed the first-instance judgment.

19. On 13 November 2013 the Istanbul Assize Court decided to suspend the execution of the sentence pronounced in its judgment of 7 December 2009.

20. In the meantime, the Istanbul Assize Court resumed the trial concerning the publication of 33 Days in the Deluge following the Court of Cassation’s decision of 25 June 2009.

21. On 21 October 2009 the Istanbul Assize Court convicted the applicant under section 7(2) of Law no. 3713 for disseminating propaganda in favour of the PKK on account of the publication of 33 Days in the Deluge and sentenced him to ten months’ imprisonment. In its judgment, the assize court reiterated that on pages 129, 130 and 135 the PKK and its leader, Abdullah Öcalan, were praised and the offence of dissemination of propaganda in favour of a terrorist organisation had therefore been committed. The court held that the turns of phrase used on those pages were not protected by Article 10 of the Convention and constituted an abuse of the right to freedom of expression. The assize court further found that the book permitted the opinions of the PKK to be transmitted to the public and was aimed at bringing more sympathisers into that organisation and thus at destroying the unitary nature of the State of the Republic of Turkey.

22. The applicant appealed.

23. On 15 February 2012 the Court of Cassation decided to discontinue the proceedings concerning the publication of 33 Days in the Deluge, holding that the prosecution was time-barred.

II. RELEVANT DOMESTIC LAW

24. Until 7 August 2003 Article 169 of the former Criminal Code provided as follows:

“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes, or facilitates its operations in any manner whatsoever, shall be sentenced to not less than three and not more than five years’ imprisonment ...”

By Law no. 4963, which entered into force on 7 August 2003, the phrase “or facilitates its operations in any manner whatsoever” was removed from the aforementioned text.

25. Between 7 August 2003 and 18 July 2006, section 7(2) of Law no. 3713 read as follows:

“Any person who assists members of the aforementioned organisations [terrorist organisations] or who disseminates propaganda inciting others to violence or other methods of terrorism shall be liable to a term of imprisonment of between one and five years and a judicial fine of five million liras to one billion liras ...”

The first sentence of section 7(2) of Law no. 3713 was amended by Law no. 5532, which entered into force on 18 July 2006, as follows:

“Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of between one and five years ...”

The first sentence of section 7(2) of Law no. 3713, amended on 30 April 2013 by Law no. 6459, currently reads as follows:

“Any person who disseminates propaganda in favour of a terrorist organisation by justifying, praising or encouraging the use of methods constituting coercion, violence or threats shall be liable to a term of imprisonment of between one and five years ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

26. The applicant complained that the criminal proceedings brought against him on account of the pu