CASE OF DÜNDAR AND AYDINKAYA v. TURKEY
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
Paul Lemmens;Stéphanie Mourou-Vikström
5. The applicants, Mr İrfan Dündar and Mr Fırat Aydınkaya, were born in 1972 and 1979 respectively and live in Istanbul. At the material time, the applicants were the legal representatives of Abdullah Öcalan, the leader of the PKK, an illegal armed organisation. 6. On 29 and 30 April 2004 the newspaper Ülkede Özgür Gündem published two interviews with the applicants. The interviews contained the applicants’ statements following meetings with their client, Abdullah Öcalan, in prison. The first interview was included in two articles in the issue of 29 April 2004 entitled “Lawyers convey Abdullah Öcalan’s opinions concerning developments within the KONGRA-GEL” and “The pain of change”. The second interview published on 30 April 2004 was entitled “Abdullah Öcalan is an opportunity for Turkey” and “Abdullah Öcalan’s opinions are important for an enduring peace”. 7. In their interviews published on 29 April 2004 in the two articles cited above, the applicants commented on the following issues: the difficulties they encountered in getting to İmralı island, where Abdullah Öcalan was detained, their need to have a meeting with their client prior to the hearing to be held before the European Court of Human Rights on 9 June 2004, their client’s state of health , the alleged fake news published in some newspapers regarding the applicants’ meetings with their client, their client’s opinions regarding the current state of politics in Turkey, in particular his view that democrats in Turkey should form a coalition with a view to establishing social peace and enabling Turkey’s access in European Union, Abdullah Öcalan’s views on the conflicts occurring within the KONGRAGEL, and in particular, his views that democratisation of the “Kurdish organisations” would allow the State of Turkey to be more democratic, his opinions on the pro-Kurdish legal political parties, and his view that individuals should liberate themselves before trying to liberate others. 8. In the interview published the following day, 30 April 2004, the applicants made statements on the following issues: Abdullah Öcalan’s criticism of the failure of the pro-Kurdish political groups during the municipal elections held on 28 March 2004, the view of Abdullah Öcalan and his lawyers that “the Kurdish movement” had failed to take into account Abdullah Öcalan’s opinions and projects, the criminal and disciplinary investigations and the criminal proceedings instituted against the applicants for disseminating their client’s views, Abdullah Öcalan’s criticism of “Kurdish organisations”, problems between Abdullah Öcalan and the leaders of the “Kurdish movement”, the applicants’ role both as legal and political representatives of Abdullah Öcalan and their meetings with individuals close to the State of Turkey as well as representatives of foreign States on behalf of their client, and the applicants’ view that Abdullah Öcalan’s opinions offered an opportunity for resolving the Kurdish issue in a democratic/political manner and that his opinions had transformed the State of Turkey. 9. On 30 April 2004 the public prosecutor at the now defunct Istanbul State Security Court filed a bill of indictment under section 7(2) of the Prevention of Terrorism Act (Law no. 3713), charging the applicants with disseminating propaganda in favour of the PKK/KONGRA-GEL on account of the interview published on 29 April 2004. In the indictment, the applicants were accused of acting on Öcalan’s instructions and conveying messages from him about the PKK’s strategy. Subsequently, criminal proceedings were launched against the applicants before the Istanbul Assize Court. 10. On 7 May 2004 the Istanbul public prosecutor filed a second bill of indictment against the applicants, again charging them with disseminating propaganda in favour of the PKK under section 7(2) of Law no. 3713 on account of the interview published in the 30 April 2004 issue of the newspaper. 11. On 24 August 2004 the Istanbul Assize Court decided to join the two sets of criminal proceedings against the applicants owing to the factual and legal similarities between them. 12. During the proceedings the applicants maintained that they had made the statements with a view to providing information to the press, since the case against Abdullah Öcalan had attracted media interest, but that they had been misquoted to a certain extent in the newspaper. They stressed that they had not acted with the intention of disseminating propaganda in favour of any illegal organisation. 13. On 18 February 2010 the Istanbul Assize Court convicted the applicants of disseminating propaganda in favour of the PKK/KONGRAGEL under section 7(2) of Law no. 3713. It sentenced them to ten months’ imprisonment each, but decided to suspend pronouncement of their convictions on condition that they did not commit another intentional offence for a period of five years, in accordance with Article 231 of the Code of Criminal Procedure. 14. In its judgment, the Istanbul court held that the applicants had overstepped the limits of the lawyer-client relationship and made statements in a manner that induced and promoted the adoption, dissemination and enrootment of Abdullah Öcalan’s opinions in society. The first-instance court considered that in the light of the applicants’ role, the readers they targeted, the aim of the publication, and the manner in which their applicants’ interviews were perceived by the readership, the interviews could not be deemed to be protected by the right to freedom of expression or the privilege of the lawyer-client relationship. The court further considered that the right to freedom of expression carried with it duties and responsibilities and could be restricted for the purpose of protecting national security and territorial integrity in a democratic society. The Istanbul Assize Court concluded that the reported interviews were aimed at disseminating propaganda in favour of the PKK/KONGRA-GEL and found the applicants guilty. 15. On 20 September 2010 the applicants’ objection to the assize court’s judgment was dismissed by the same court.