SECOND SECTION
Application no. 603/09
Hasan BAYAR and Ali GURBUZ
against Turkey
lodged on 15 September 2008
STATEMENT OF FACTS
The applicants, Mr Hasan Bayar and Mr Ali Gürbüz, are Turkish nationals, who were born in 1982 and 1971 respectively and live in Bern and Cologne. They are represented before the Court by Mr İ. Akmeşe, a lawyer practising in Istanbul.
The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The circumstances of the case
The applicants were respectively the editor-in-chief and the owner of Ülkede Özgür Gündem, a daily newspaper published in Turkey.
On 5 September 2004 an article entitled “Mahkemeden infial” (“The court says unrest”) was published in Ülkede Özgür Gündem. The article concerned a court order to detain thirty-five persons. Those persons had served as human shields in south-east Turkey with a view to deterring the Turkish military forces from targeting members of the PKK. They were charged with causing unrest in society.
At the end of the article, a statement by the HPG (Peoples’ Defence Forces, the armed wing of the PKK, an illegal organisation) was also published. According to this statement, the HPG defined the human shield action as a peaceful act and considered that this type of peaceful act should be used by the youth with a view to fostering the struggle for democracy. The HPG also noted that the guerrillas were also a human shield to protect the people.
On the same day the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court charging the applicants with publishing a terrorist organisation’s declarations under section 6(2) of the Prevention of Terrorism Act (Law no. 3713).
On 8 September 2005 the Istanbul Assize Court decided that it did not have jurisdiction over the case and sent it to the Beyoğlu Criminal Court of First Instance.
On 21 September 2006 the Beyoğlu Criminal Court also issued a decision of lack of jurisdiction and sent the case-file to the Court of Cassation.
On 11 December 2006 the Court of Cassation decided that the Istanbul Assize Court had jurisdiction over the case.
On 14 May 2008 the Istanbul Assize Court held that the applicants had published a declaration by a terrorist organisation and convicted the applicants as charged. The applicants were sentenced to a fine of 1,591 Turkish liras (TRY) and TRY 3,182 respectively.
On 26 June 2008 the applicants appealed.
On 31 October 2011 the Court of Cassation dismissed the appeal by the first applicant, Mr Bayar, holding that according to Article 305 of the former Code of Criminal Procedure, judgments sentencing the accused to a fine of an amount less than TRL 2,000 were not subject to an appeal. The Court of Cassation quashed the judgment in so far as it concerned the second applicant, Mr Gürbüz, holding that the Constitutional Court had amended section 6(4) of Law no. 3713 and that the owners of periodicals were no longer criminally liable under Law no. 3713 for the content of periodicals. The case was subsequently sent back to the Istanbul Assize Court in so far as it concerned the second applicant.
On 21 December 2011 the Istanbul Assize Court acquitted the second applicant of the charges against him.
On 28 February 2012 the judgment of 21 December 2011 became final.
B. Relevant domestic law
A description of the relevant domestic law and practice in force at the material time can be found in Gözel and Özer v. Turkey (nos. 43453/04 and 31098/05, § 23, 6 July 2010) and Bayar and Gürbüz v. Turkey (no. 37569/06, §§ 14-16, 27 November 2012).
COMPLAINT
The first applicant, Mr Hasan Bayar, complained under Article 10 of the Convention that his conviction by the Istanbul Assize Court was in breach of his right to freedom of expression.
QUESTION TO THE PARTIES
Has there been a violation of the right to freedom of expression of Mr Bayar, contrary to Article 10 of the Convention, on account of his conviction under section 6(2) of the Prevention of Terrorism Act?
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