Communicated on 7 September 2016
SECOND SECTION
Application no. 52897/10
Ragıp ZARAKOLU and Nur Mehmet GULER
against Turkey
lodged on 18 August 2010
STATEMENT OF FACTS
The applicants, Mr Ragıp Zarakolu and Mr Nur Mehmet Güler, are Turkish nationals who were born in 1948 and 1971 respectively and live in Istanbul and Van. They are represented before the Court by Mr Ö. Kılıç, a lawyer practising in Istanbul.
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant, Mr Zarakolu, is the director and owner of Belge Uluslararası Yayıncılık, a publishing house in Istanbul.
In May 2010 Belge Uluslararası Yayıncılık published a book written by the second applicant, Mr Güler, entitled KCK Dosyası: Global Devlet, Devletsiz Kürtler (“The KCK case: Global State, Stateless Kurds”)[1].
On 24 May 2010 the Istanbul Assize Court ordered the confiscation of all copies of the book and suspended its sale and distribution, pursuant to section 25 of the Press Act (Law no. 5187), as certain passages in the impugned book were deemed to constitute propaganda in favour of a terrorist organisation, the PKK/KONGRA-GEL (Kurdistan Workers’ Party/People’s Congress of Kurdistan), an illegal armed organisation. According to the court, the passages in question depicted the PKK as an indispensable part of the Kurdish movement, and thus maintained that it should be included in the process to resolve the Kurdish problem. The author further referred to the KCK as a democratic entity, and members of the organisation as “guerrillas”. He also included quotations from statements issued by the organisation following various congresses, as well as statements of Abdullah Öcalan.
On 4 June 2010 the applicants’ written objection to the confiscation and suspension order was dismissed. Consequently, the order was executed.
Neither the applicants nor their representative participated in the ex parte proceedings before the Istanbul Assize Court.
On 3 and 15 June 2010 the applicants gave statements to the Istanbul public prosecutor within the context of the investigation initiated against them regarding the publication of the book in issue. The applicants stated that the impugned book had been written for purely academic reasons in order to inform the public about a matter of interest to the Turkish society, and in no way contained propaganda in favour of a terrorist organisation.
On 25 June 2010 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, charging the applicants with disseminating propaganda in favour of the PKK/KONGRA-GEL under section 7(2) of the Prevention of Terrorism Act (Law no. 3713).
On 10 March 2011 the Istanbul Assize Court convicted the applicants of disseminating propaganda in favour of an illegal organisation under section 7(2) of Law no. 3713. It gave the first applicant a fine of 16,660 Turkish liras (TRY), and sentenced the second applicant to one year and six months’ imprisonment. The applicants appealed against the judgment.
On an unspecified date the public prosecutor at the Court of Cassation transferred the case file back to the first-instance court, asserting that the case should be reviewed in the light of provisional section 1(1)(b) of Law no. 6352, which had entered into force on 5 July 2012 and which stipulated that the institution of cases concerning crimes committed through the press and media, and the relevant sentences imposed, were to be suspended.
On 13 August 2012, pursuant to provisional section 1(1)(b) of Law no. 6352, the Istanbul Assize Court decided to suspend the criminal proceedings brought against the applicants under section 7(2) of Law no. 3713 for a period of three years, on condition that they did not commit an offence through the press, media or other means of expressing ideas and opinions.
On 16 January 2013 the confiscation order dated 24 May 2010 was renewed.
On 8 Mart 2013 the applicants’ objections to the decision of 16 January 2013 were dismissed.
COMPLAINTS
The applicants complain under Article 10 of the Convention that the confiscation of KCK Dosyası: Global Devlet, Devletsiz Kürtler and the suspension of its sale and distribution infringed their right to freedom of expression.
The applicants complain under Article 6 §§ 1 and 3 of the Convention that they were not able to participate in the proceedings before the Istanbul Assize Court, and that the court decided to confiscate all copies of the impugned book and suspend its distribution and sale without obtaining their submissions in defence. They further contend under Article 13 of the Convention that they did not have a domestic remedy by which to challenge the lawfulness of the national court’s decisions, as their objections to the confiscation order were dismissed without a hearing.
Lastly, the applicants complain under Article 1 of Protocol No. 1 that the confiscation order constituted an unjustified interference with their right of property.
QUESTIONs TO THE PARTIES
1. Is Article 6 § 1 of the Convention, under its civil or criminal head, applicable to the proceedings relating to the confiscation and suspension of the sale and distribution of the book entitled KCK Dosyası? If so, were the applicants able to defend themselves effectively, as required by Article 6 §§ 1 and 3 of the Convention?
2. Has there been a violation of the applicants’ right to freedom of expression, within the meaning of Article 10 of the Convention?
3. Has there been a violation of the applicants’ right to the peaceful enjoyment of their possessions, within the meaning of Article 1 of Protocol No. 1?
[1]. KCK: Union of Communities in Kurdistan (Koma Civakên Kurdistan).
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