Communicated on 1 July 2016
SECOND SECTION
Application no. 2257/11
Abdurrahman BAKIR
against Turkey
lodged on 14 January 2011
STATEMENT OF FACTS
The applicant, Mr Abdurrahman Bakır, is a Turkish national who was born in 1953 and lives in Diyarbakır. He is represented before the Court by Mr M. Biçen, a lawyer practising in Diyarbakır.
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the material time, the applicant was the president of the Ergani district branch of the DTP (Party for a Democratic Society).
On an unspecified date a criminal investigation was instituted against the applicant on account of his having disseminated propaganda in favour of an illegal organization, namely the PKK (Kurdish Workers’ Party). The allegations against the applicant were based on (i) speeches that he had allegedly made in a village coffee house in which he had allegedly praised the PKK and its leader, Abdullah Öcalan, and stated that the activities of the organisation should be supported, and (ii) his actions during his nephew’s wedding party in 2008.
On 6 March 2009 the Diyarbakır public prosecutor filed an indictment with the Diyarbakır Assize Court charging the applicant, under section 7 (2) of the Prevention of Terrorism Act (Law no. 3713), with disseminating propaganda on behalf of an illegal organisation. The public prosecutor noted that the applicant had disseminated propaganda in favour of the PKK in a village coffee house that he had visited often and that he had waved a piece of cloth symbolizing the PKK and chanted the slogans “Leader President Öcalan” (“Serok Apo”) and “Long live Öcalan” (“Biji Apo”) during his nephew’s wedding party.
On 2 June 2009 the applicant was detained pending trial.
On 5 June 2009 the court received an expert report regarding the video footage of the wedding party of the applicant’s nephew. According to this report, in the video footage the applicant was seen dancing and waving a red, yellow and green flag, allegedly symbolising the PKK, while a group of people were shouting slogans and carrying banners praising the PKK and Abdullah Öcalan, and displaying photographs of the latter and flags of the so-called “Confederation”.
On 18 August 2009 the Diyarbakır Assize Court convicted the applicant under section 7(2) of Law no. 3713 of disseminating propaganda in favour of an illegal organisation, on the basis of the testimonies of two anonymous witnesses, the defence statements of the applicant, the video footage of the wedding and the expert report. The applicant was sentenced to three years of imprisonment.
In its reasoning, the assize court firstly noted that according to his statements to the public prosecutor and during the trial, the applicant did not consider the PKK to be a terrorist group but an organisation which fought for the rights of the Kurdish people, and he regarded Abdullah Öcalan as the leader of the people of Turkey. The court also referred in its judgment to the statements of two anonymous witnesses, Salihli X1 and Salihli X2. According to the court these persons’ identities had been kept secret for fear of their being targeted by the PKK. The assize court noted that Salihli X1 and Salihli X2 had stated that the applicant had frequented the village’s coffee house, where he had made speeches praising the PKK, its activities and its leader Abdullah Öcalan, and had stated that families should encourage their children to learn Kurdish and to join the PKK. The witnesses also confirmed the findings of the aforementioned expert report regarding the wedding party of the applicant’s nephew. In its judgment, the trial court also noted the content of the expert report in question.
On the basis of the contents of the case file, the Diyarbakır Assize Court concluded that the applicant had praised the PKK and Abdullah Öcalan in his speeches to gatherings in the village coffee house and that those gatherings had consequently constituted illegal demonstrations. The court also concluded that the applicant’s actions during his nephew’s wedding party, that is to say waving a red, yellow and green flag, had prompted other persons to chant slogans and wave banners in favour of the PKK and its leader. The assize court consequently found the applicant guilty of disseminating propaganda in favour of a terrorist organisation.
On 7 September 2009 the applicant lodged an appeal against the judgment of 18 August 2009. In his petition, the applicant contended that neither he nor his lawyer had been able to question the anonymous witnesses and that his requests to examine those witnesses had been rejected for no reason. The applicant further contended that his opinions, which he had expressed when he had made a statement to the public prosecutor and which did not constitute propaganda in favour of a terrorist organisation, had served as a basis for his criminal conviction.
On 15 July 2010 the Court of Cassation upheld the first-instance court’s judgment.
COMPLAINTS
Relying on Articles 5, 6, 7, 9, 10, 11, 13, 17 and 18 of the Convention, the applicant complains that his conviction constituted a violation of his right to freedom of expression and that he did not have a fair trial because the domestic court failed to provide him with the opportunity to cross-examine the anonymous witnesses whose identities remained unknown to the applicant.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to freedom of expression within the meaning of 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 applicant able to examine Salihli X1 and Salihli X2, the anonymous witnesses against him, as required by Article 6 § 3 (d) of the Convention? If not, has there been a breach of the applicant’s right to a fair trial provided by Article 6 §§ 1 and 3 (d) of the Convention on account of his inability to examine those witnesses?
In this connection, the Government are requested to submit a copy of the complete investigation file, including any statements taken from the applicant by the public prosecutor and the investigating judge, as well as copies of the contents of the file in respect of the case brought against the applicant before the Diyarbakır Assize Court.
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