SECOND SECTION
Application no. 52428/08
Osman BAYDEMİR and others
against Turkey
lodged on 28 October 2008
STATEMENT OF FACTS
A. The circumstances of the case
The applicants, whose names, dates of birth and places of residence appear in the appendix hereto, are Turkish nationals. At the time of the events giving rise to the present application, they were the mayors of various towns and cities in Turkey and members of the DTP (Party for a Democratic Society). One of the applicants, Mr Mehmet Selim Demir, died on 22 February 2009. His wife and four children informed the Court that they wished to pursue the proceedings. The applicants are represented before the court by Ms R. Yalçındağ Baydemir and Mr Cihan Aydın, lawyers practising in Diyarbakır.
The facts of the case, as submitted by the applicants, may be summarised as follows.
In 2005 the Government of Turkey requested the Government of Denmark to revoke the broadcasting licence of ROJ TV, a Kurdish satellite television channel registered in and broadcast from Denmark, on account of its alleged connections with the PKK, an illegal organisation.
On 21 December 2005 the applicants signed a letter addressed to the Prime Minister of Denmark, Mr Anders Fogh Rasmussen. They stated, inter alia, that they had drafted the letter in order to inform Mr Rasmussen about their concerns regarding the discussion revolving around ROJ TV. In the letter, the applicants further stated that ROJ TV could not broadcast in Turkey due to a number of legal and administrative obstacles and that they wished that one day it would be able to broadcast in Turkey and be one of the private TV channels broadcast in Kurdish supported by the Government. They noted that ROJ TV had millions of viewers in Turkey and abroad. They maintained that while adherence to the policies of ROJ TV and the content of the programmes was a question of discussion, the existence of ROJ TV was of utmost importance with regard to the protection and promotion of freedom of expression in Turkey. The applicants concluded that were ROJ TV to be banned in Denmark, an important mechanism in the struggle for democracy, human rights and the fundamental freedoms of the democratic civilisation would be lost.
On an unspecified date the Diyarbakır public prosecutor started an investigation into the applicants.
In December 2005 and January 2006 a number of newspaper articles containing the text of the applicants’ letter and information regarding the investigation were published.
On 13 June 2006 the Diyarbakır public prosecutor filed a bill of indictment with the Diyarbakır Assize Court against the applicants and three other mayors, charging them with membership of a terrorist organisation on account of aiding and abetting an illegal organisation knowingly and intentionally under Articles 220 (7) and 314 of the Criminal Code and section 5 of the Prevention of Terrorism Act.
On 15 April 2008 the Diyarbakır Assize Court rendered its judgment in the case. It first found, having regard to the content of the letter, that the applicants had not committed the offence proscribed in Articles 220 (7) and 314 of the Criminal Code as alleged by the public prosecutor. The assize court however convicted the applicants under Article 215 of the Criminal Code of praising a crime and a criminal. Citing the content of a number of news programmes, the Diyarbakır Assize Court noted that ROJ TV had connections with the PKK and that it broadcast in line with the aims of the PKK. The assize court concluded that the applicants had praised ROJ TV as they had qualified the TV channel as an actor struggling for democracy, human rights and the fundamental freedoms of the democratic civilisation. The Diyarbakır Assize Court sentenced the applicants to two months and fifteen days’ imprisonment. The court then commuted the prison sentences to a fine of 1,875 Turkish liras (TRL) (approximately 900 euros (EUR)). The court held that its judgment was final as the amount of the fines did not exceed TRL 2,000.
The applicants lodged a petition for appeal.
On 20 April 2008 the Diyarbakır Assize Court examined the appeal submitted by the applicants and held that its judgment of 15 April 2008 had been final. In its judgment, the court noted that according to Article 305(2) 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 nevertheless noted that the applicants could lodge an appeal against its decision.
The written copies of the judgment of 20 April 2008 were served on the applicants’ representatives on 8 May 2008.
On 3 June 2008 an order for the payment of the fine was served on the first applicant, Mr Baydemir. He paid the fine in question on 26 June 2008.
On an unspecified date the applicants lodged an appeal against the decision of 20 April 2008.
On 15 July 2010 the Court of Cassation dismissed their appeal holding that the judgment of 15 April 2008 had been final.
B. Relevant domestic law and practice
Article 215 of the Criminal Code (Law no. 5237) reads as follows:
“Any person who approves of an offence committed, or praises a person on account of an offence he or she has committed, shall be liable to a term of imprisonment of up to two years.”
A description of the relevant domestic law and practice regarding Article 305(2) of the Code of Criminal Procedure as well as the Constitutional Court’s decision of 23 July 2009 finding this provision incompatible with the Constitution can be found in Bayar and Gürbüz v. Turkey (no. 37569/06, §§ 14-16, 27 November 2012).
COMPLAINTS
The applicants maintain under Article 10 of the Convention that their conviction under Article 215 of the Criminal Code constituted a breach of their right to freedom of expression.
The applicants complain under Article 13 of the Convention that they did not have an effective domestic remedy against the judgment of 15 April 2008 as they could not lodge an appeal.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicants’ right to freedom of expression within the meaning of Article 10 of the Convention?
2. Did the inability of the applicants to lodge an appeal against the judgment of the Diyarbakır Assize Court constitute a disproportionate interference with their right of access to a court, in violation of Article 6 § 1 of the Convention?
APPENDIX
No.
Firstname LASTNAME
Birth year
Place of residence
1
Osman BAYDEMİR
1961
Diyarbakır
2
Abdulkadir AĞAOĞLU
1972
Mardin
3
Abdullah AKENGİN
1971
Diyarbakır
4
Seyfettin ALKUM
1949
Mardin
5
Hurşit ALTEKİN
1975
Hakkari
6
Süleyman ANIK
1944
Mardin
7
Fırat ANLI
1971
Diyarbakır
8
Mehmet Nasır ARAS
1965
Muş
9
İsmail ARSLAN
1950
Şanlıurfa
10
Nuran ATLI
1977
Mardin
11
Seyfettin AYDIN
1954
Siirt
12
Şükran AYDIN
1957
Diyarbakır
13
Abdülkerim ADAM
1971
Mardin
14
Şeyhmus BAYHAN
1975
Diyarbakır
15
Nadir BİNGÖL
1950
Diyarbakır
16
Aydın BUDAK
1968
Diyarbakır
17
Demir ÇELİK
1959
Muş
18
Murat CEYLAN
1972
Diyarbakır
19
Emrullah CİN
1963
Şanliurfa
20
Mehmet Selim DEMİR (Cahide DEMİR,Özcan DEMİR, Evin DEMİR, Mehmet Can DEMİR,Mehmet Şah DEMİR)
1967
The applicant died on 22 February 2009. His heirs live in Batman.
21
Abdullah DEMİRBAŞ
1966
Diyarbakır
22
Faik DURSUN
1953
Şırnak
23
Ayhan ERKMEN
1973
Mardin
24
Songül EROL ABDİL
1972
Tunceli
25
Ahmet ERTAK
1965
Şırnak
26
Leyla GÜVEN
1964
Viranşehir
27
Mehmet Tahir KAHRAMANER
1947
Muş
28
Hüseyin KALKAN
1962
Batman
29
Ramazan KAPAR
1970
Mardin
30
Zülküf KARATEKİN
1965
Diyarbakır
31
Mehmet KAYA
1964
Diyarbakır
32
Fikret KAYA
1970
Diyarbakır
33
Osman KESER
1960
Adana
34
Mukaddes KUBİLAY
1955
Ağrı
35
Muhsun KUNUR
1956
Şırnak
36
Burhan KURHAN
1971
Batman
37
Hüseyin ÖĞRETMEN
1950
Şanlıurfa
38
Zeyniye ÖNER
1958
Mardin
39
Orhan ÖZER
1965
Muş
40
Yurdusev ÖZSÖKMENLER
1952
Diyarbakır
41
Resul SADAK
1959
Şırnak
42
Ethem ŞAHİN
1970
Şanlıurfa
43
Gülcihan ŞİMŞEK
1971
Van
44
Mulla ŞİMŞEK
1964
Konya
45
Cihan SİNCAR
1957
Mardin
46
Mehmet TANHAN
1954
Mardin
47
Kutbettin TAŞKIRAN
1954
Diyarbakır
48
Metin TEKCE
1972
Hakkari
49
Hurşit TEKİN
1975
Hakkari
50
Esat ÜNER
1966
Batman
51
Ali YILDIZ
1962
Muş
52
Mehmet Salih YILDIZ
1949
Hakkari
53
Muzaffer YÖNDEMLİ
1961
Aydın
Full & Egal Universal Law Academy