SECOND SECTION
Application no. 15028/09
Selahattin DEMİRTAŞ against Turkey
lodged on 13 February 2009
STATEMENT OF FACTS
The applicant, Mr Selahattin Demirtaş, is a Turkish national who was born in 1973 and lives in Diyarbakır. He is represented before the Court by Mr F. Duran, a lawyer practising in Ankara.
The facts of the case, as submitted by the applicant, may be summarised as follows.
In October 2007 an article was published in a local newspaper in Bolu, “Bolu Express”. The author, Mr Işın Erşen, made the following statements in the article:
“...
We were out of our minds when we heard that thirteen soldiers from the Bolu Commando Brigade had been killed last Sunday.
How can one preserve one’s sanity?
While the instigators of the terrorists, who kill our soldiers, policemen, civilians and our protectors without hesitating are under the roof of the Grand National Assembly of Turkey,
While there are DTP mayors and provincial and district administrators who call these terrorist murderers “my brothers/my sisters” and who wash the carcasses of terrorists who die like dogs,
Is it right to chase those who are in the mountains? Are the hit men the real murderers?
Do you know who the real murderers are?
The real murderers are those who use yellow, green and red, the colours of the PKK, in their political party’s flag. They are those who back the bullets of the members of the PKK, murderer bastards, and who call them their brothers and sisters. The real murderers are those who instigate murders.
They are: the President of the DTP (Party for a Democratic Society) Ahmet Türk; the DTP’s Members of Parliament, namely Ayla Akat Ata, Bengi Yıldız, Mehmet Nezir Karabaş, Akın Birdal, Selahattin Demirtaş, Gülten Kışanak, Aysel Tuğluk, Pervin Buldan, Sebahat Tuncel, Emine Ayna, Sırrı Sakık, M. Nuri Yaman, Osman Özçelik, İbrahim Binici, Sevahir Bayındır, Hasip Kaplan, Şerafettin Halis, Fatma Kurtulan, Özdal Üçen; the members of the DTP’s executive council ... and all DTP mayors and presidents of DTP provincial and district branches.
Great Turkish Nation, here is your enemy.
These persons will be the target of “civilian patriots” as the enemies of Turks if they do not state that the PKK is a separatist terrorist organisation and that its members are traitors.
Instead of chasing the terrorists on the mountains, a few microbes should be “wiped out” and the question should be put to them - “one from us, five from you: do you still wish to continue?” Of course, there will be patriots who will be able to do this. This is society’s intense desire.
It is now the majority’s wish that for every security officer who is killed, one of these people should share the same fate. It is time to cut out those organs suffering from necrosis.
...”
On 2 November 2007 the applicant’s lawyer filed a petition with the Bolu public prosecutor’s office, requesting that a criminal investigation be initiated and that Mr Işın Erşen be punished for incitement to commit a crime and incitement to disrespect the law and for insulting his client, and alleging that Mr Işın Erşen had committed these offences through the press. In his petition, the applicant’s lawyer stressed that two recent murders (of Andrea Santoro, a Catholic priest, and Hrant Dink, a journalist) had been committed subsequent to publication of articles on the internet. He further stated that the content of the article openly incited society to kill the persons listed in it, and that by using the expression “murderer” in respect of the applicant, the author had insulted him.
On an unspecified date Mr Işın Erşen made submissions to the Bolu public prosecutor. He maintained that he had criticised the ideology and the activities of the DTP in his article and that he had intended to inform society.
On 7 December 2007 the Bolu public prosecutor decided not to bring criminal proceedings against Mr Işın Erşen. The public prosecutor stated that the author had articulated public reaction and anger in the face of the killings by a terrorist organisation, the PKK, and had heavily criticised the DTP members who had not condemned the PKK’s activities. The Bolu public prosecutor maintained that the article should be considered as using freedom to disseminate information and to comment, given that it contained somewhat exaggerated criticism of a political party, its members and activities.
In his decision, the Bolu public prosecutor considered that the case was comparable to another case. According to the judgment in that case, which contained a reference to the Court’s case-law, if a factual basis existed, then certain expressions could not be regarded as extreme. Considering that freedom of the media included the expression of social reactions and opinions using strong language, and referring to the above-mentioned judgment, the public prosecutor concluded that there was no reason to bring a case against Mr Işın Erşen.
On 30 July 2008 the applicant objected to the decision of 7 December 2007.
On 21 August 2008 the Düzce Assize Court dismissed the applicant’s objection. On 18 September 2008 this decision was served on the applicant’s lawyer.
On 15 October 2008, through the public prosecutor’s office at the Court of Cassation, the Ministry of Justice applied to the Court of Cassation and requested that the decision of 21 August 2008 be quashed.
On 30 September 2009 the Court of Cassation dismissed the Ministry’s request holding that the Düzce Assize Court’s decision was in accordance with the law.
COMPLAINTS
The applicant complains under Article 2 of the Convention that he ran the risk of death on account of the content of the article published in Bolu Express, which contained an invitation to kill him and a number of other members of the DTP.
Under Articles 9 and 10 of the Convention, the applicant complains about the Bolu public prosecutor’s assessment that there existed a factual basis for the content of the article. In this connection, the applicant contends that his political opinions were judged and he was not protected by law on account of his political opinions.
The applicant complains under Article 13 of the Convention that the domestic authorities breached his right to an effective remedy, since they did not communicate to him the decision of 7 December 2007 in a timely manner and failed to punish the perpetrator of the offences committed against him.
Lastly, the applicant complains under Article 14 of the Convention that, as a result of the domestic courts’ decisions, he was discriminated against on the basis of his political opinions.
QUESTION TO THE PARTIES
Has there been a violation of Article 8 of the Convention in the present case? In particular, did the national authorities fulfil their positive obligation to protect the physical and moral integrity of the applicant?
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