SECOND SECTION
Application no. 76224/12
Nejdet ATALAY against Turkey
lodged on 17 September 2012
STATEMENT OF FACTS
The applicant, Mr Nejdet Atalay, is a Turkish national who was born in 1978 and lives in Batman. He is the mayor of Batman province. At the time of the events giving rise to the present application, the applicant was the President of the Diyarbakır branch of the DTP (Party for a Democratic Society). He is represented before the Court by Mr M. Yıldız, a lawyer practising in Batman.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 26 March 2006 fourteen members of the PKK, an illegal organisation, were killed by security forces during a military operation carried out in an area between Diyarbakır, Muş and Bingöl in south-east Turkey.
On 28 March 2006 a funeral was held in Diyarbakır for four of the deceased members of the PKK. The applicant attended the funeral, during which some of the mourners began to demonstrate, and there were clashes between demonstrators and security forces.
On 4 April 2006 the applicant was arrested and taken into police custody on suspicion of aiding and abetting the PKK.
On 5 April 2006 the applicant made statements before the Diyarbakır Public Prosecutor and a judge at the Diyarbakır Assize Court. He contended that he had attended the funeral in his capacity as President of the Diyarbakır branch of the DTP and in order to keep the demonstrators under control. He pointed out that he was part of the committee set up by the Diyarbakır Governor’s office with a view to maintaining public order during the funeral.
On the same day the judge at the Diyarbakır Assize Court ordered the applicant’s pre-trial detention.
On 23 May 2006 the Diyarbakır Public Prosecutor filed a bill of indictment with the Diyarbakır Assize Court charging the applicant with membership of an illegal organisation under Article 220(6) and (7) of the Criminal Code which, at the time of the events, read as follows:
“(6) Anyone who commits a crime on behalf of the organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation.
(7) Anyone who aids and abets an organisation knowingly and intentionally, even if they do not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation.”
The Diyarbakır Public Prosecutor noted in the bill of indictment that video footage showed that the applicant was among the demonstrators and wore the photo of one of the deceased on the lapel of his jacket.
On 20 July 2006 the applicant was released pending trial.
On 11 March 2008 the Diyarbakır Assize Court convicted the applicant of disseminating propaganda in favour of the PKK under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and sentenced him to ten months’ imprisonment. The court noted that the applicant was marching next to the coffins and the crowd were chanting slogans such as “Long live President Öcalan” (“Biji Serok Apo”), “An eye for an eye, we are with you Öcalan” (“Dişe diş kana kan seninleyiz Öcalan”) and “Youth are the guardsmen of Öcalan” (“Gençlik Aponun Fedaisidir”). The Assize Court considered that as the applicant was not a relative or a neighbour of the deceased, there had been no reason for him to attend the funeral. Besides, he had worn the photo of one of the deceased on the lapel of his jacket and he had not left the funeral after seeing banners in favour of the PKK and the PKK flag, or when the demonstrators had begun acting violently. According to the first-instance court, this meant that the applicant had played a part in the propaganda of the terrorist organisation.
On an unspecified date the applicant appealed.
On 2 February 2012 the Court of Cassation upheld the judgment of 11 March 2008.
On 11 April 2012 the decision of the Court of Cassation was deposited with the registry of the first-instance court.
On an unspecified date in July 2012 the applicant applied to the Diyarbakır Assize Court and requested that the execution of his prison sentence be suspended.
On 25 July 2012 the Diyarbakır Assize Court rejected the applicant’s request.
The applicant objected to the decision of 25 July 2012.
On 9 August 2012 his objection was dismissed.
COMPLAINTS
The applicant complains under Article 10 of the Convention that his conviction for attending the funeral and wearing a photo of one of the deceased on the lapel of his jacket was in violation of his right to freedom of expression. He submitted, in particular, that his conviction was not prescribed by law. Nor were the reasons for his conviction “relevant and sufficient”.
The applicant further complains under Article 6 § 1 of the Convention that the criminal proceedings brought against him were not concluded within a “reasonable time”.
QUESTIONS
1. Has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention, on account of his conviction under section 7(2) of the Prevention of Terrorism Act (Law no. 3713)?
2. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
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