Communicated on 18 January 2017
SECOND SECTION
Application no. 39047/11
Ahmet KINIK
against Turkey
lodged on 22 April 2011
STATEMENT OF FACTS
The applicant, Mr Ahmet Kınık, is a Turkish national who was born in 1957 and lives in Diyarbakır. He is represented before the Court by Mrs M. Beştaş and Ms M. Danış Beştaş, lawyers practising in Diyarbakır.
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the time of the events giving rise to the application, the applicant was director of the district branch of the Democratic People’s Party (Demokratik Halklar Partisi – DEHAP) in Ergani, Diyarbakır.
On 15 February 2005 the Ergani district branch of DEHAP organised a gathering in front of the district branch office in order to read out a press statement. The applicant read the statement in question.
On 2 March 2005 the police questioned the applicant regarding the event of 15 February 2005. The applicant was asked whether he had committed the offence proscribed by Article 312 of the former Criminal Code, that is to say, incitement to hatred and hostility on the basis of a distinction between regions. The applicant denied that he had chanted slogans but admitted to having read the press statement.
On 31 May 2005 the Ergani public prosecutor filed a bill of indictment with the Ergani Criminal Court against twenty-six persons, including the applicant, charging them with breach of the Marches and Demonstrations Act (Law no. 2911) on account of their participation in the above-mentioned event. The accused were accused of their participation in the gathering and carrying banners with slogans such as “The solution is in İmralı”, “Solitary confinement is a crime against humanity”, “Not E.U., not U.S., Öcalan has the solution”, “The youth is Öcalan’s fedai”[1], and “Freedom to Öcalan”, as well as posters of Abdullah Öcalan. The accused were also accused of chanting slogans such as “To the sun, to freedom”, “Long live the brotherhood of peoples”, “May those hands which aim to damage peace be broken”, “A tooth for a tooth, blood for blood, we are with you Öcalan” and “AKP, be careful, do not abuse our patience”.
On 5 October 2006 the Ergani Criminal Court decided that it lacked jurisdiction to examine the case. It held that the impugned acts constituted an offence proscribed by section 7(2) of Law no. 3713 and that the accused should therefore be tried by the Diyarbakır Assize Court.
On an unspecified date the Diyarbakır Assize Court remitted the case file to the Ergani Criminal Court.
On 19 March 2007 the Ergani Criminal Court once again decided that the Diyarbakır Assize Court had jurisdiction over the case.
On 10 August 2007 the Sixth Chamber of the Diyarbakır Assize Court began the trial in the case.
On 15 April 2010 the Diyarbakır public prosecutor submitted to the first-instance court his observations on the merits of the case. According to those submissions, the public prosecutor considered that the applicant should be convicted under section 7(2) of Law no. 3713 as the press statement read by him referred to Abdullah Öcalan as “honourable Kurdish people’s leader”.
On the same day the Diyarbakır Assize Court convicted the applicant of disseminating propaganda in favour of a terrorist organisation under section 7(2) of Law no. 3713. The court based its judgment, among others, on a police report regarding the reading out of the press statement dated 15 February 2005 and a report on the examination of a police video recording of the event of 15 February 2005. The court judgment read as follows:
“... it has been decided that Ahmet Kınık and R.A. committed the offence proscribed by section 7(2) of Law no. 3713 as they participated in the reading out of a press statement organised by the DEHAP in Ergani on 15 February 2005 on the anniversary of the arrest of Abdullah Öcalan and chanted slogans such as ‘The solution is in İmralı’, ‘Solitary confinement is a crime against humanity’, ‘Not E.U., not U.S., Öcalan has the solution’, and ‘The youth is Öcalan’s fedai’. They marched and chanted these slogans without obtaining prior permission.”
The Sixth Chamber of the Diyarbakır Assize Court sentenced the applicant to ten months of imprisonment but decided to suspend the pronouncement of the judgment (hükmün açıklanmasının geri bırakılması) for a period of five years, pursuant to Article 231 of the Code of Criminal Procedure.
On an unspecified date the applicant objected to the decision of the Assize Court to suspend the pronouncement of the judgment.
On 22 November 2010 the Fourth Chamber of the Diyarbakır Assize Court dismissed the applicant’s objection.
COMPLAINTS
The applicant complains under Article 10 of the Convention that his conviction under section 7(2) of Law no. 3713 constituted a violation of his right to freedom of expression.
QUESTION TO THE PARTIES
Has there been a violation of the applicant’s right to freedom of expression, protected by Article 10 of the Convention, on account of his conviction under section 7(2) of the Prevention of Terrorism Act (Law no. 3713)?
The Government are invited to submit a copy of the case file pertaining to the criminal proceedings against the applicant, including the police video recording of the event, the police report on the examination of the video recording and the police report concerning the event.
[1]. The word “fedai” (from Arabic) has two meanings in Turkish: 1. A person who gives his or her life for another person or for a cause; 2. A person who protects another person or a place.
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