CASE OF BAYAR v. TURKEY
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time)
Paul Lemmens;Stéphanie Mourou-Vikström
5. The applicant was born in 1982 and lives in Bern, Switzerland. At the time of the events giving rise to the present application, he was the editorin-chief of Ülkede Özgür Gündem, a daily newspaper published in Turkey. 6. On 6 July 2004 an article written by Mr B.G. entitled “Analysing the Kurdish dynamic correctly” was published in Ülkede Özgür Gündem. In his article, Mr B.G. stated his views on the role of Abdullah Öcalan, the leader of the PKK (an illegal armed organisation), a number of organisations associated with the PKK in regional and international politics and political developments in Turkey. Next to the article a photograph of Abdullah Öcalan shaking hands with a group of armed men was published. 7. On 8 July 2004 the public prosecutor at the Istanbul Assize Court filed a bill of indictment, charging the applicant with disseminating propaganda in favour of the KONGRA-GEL under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) on account of the article published on 6 July 2004. In the indictment, the public prosecutor quoted the following passage from the article: “... Abdullah Öcalan, who has contributed to the essential dynamic of the Kurdish movement and the HPG, the PJA and the KONGRA-GEL, organisations which have acted as military, political and ideological leaders and which have represented his leadership,... [must be well understood]”. The public prosecutor stated that a photograph of Abdullah Öcalan in which he was standing in a rural area holding a weapon had been published in the newspaper, next to the article. The public prosecutor considered as a result that the applicant had disseminated propaganda in favour of a terrorist organisation inciting others to violence or other methods of terrorism. Subsequently, criminal proceedings were launched against the applicant before the Istanbul Assize Court. 8. During the proceedings the applicant maintained that the article in question had been a news article and had not contained propaganda inciting to violence. 9. On 24 May 2005 the Istanbul Assize Court convicted the applicant of disseminating propaganda in favour of the PKK/KONGRA-GEL under section 7(2) of Law no. 3713 and sentenced him to six months’ imprisonment and a fine. In its judgment, the Istanbul Assize Court held that the content of the article and the publication of Abdullah Öcalan’s photograph amounted to dissemination of propaganda in favour of the PKK/KONGRA-GEL. 10. The applicant appealed. In his appeal petition, referring to a number of the Court’s judgments, the applicant claimed that he had not had the intention of disseminating propaganda in favour of a terrorist organisation and that his criminal conviction had been in breach of Articles 6 and 10 of the Convention as he had been exercising his right to impart information. He also noted that the first-instance court had failed to examine the article in its entirety. 11. On 16 May 2006 the principal public prosecutor at the Court of Cassation returned the case file to the first-instance court and requested that the latter revise its judgment in the light of the recent legislative amendments. 12. On 28 September 2006 the Istanbul Assize Court once again convicted the applicant under section 7(2) of Law no. 3713, with the same reasoning that it had adopted on 24 May 2005. The court sentenced the applicant to a fine of 1,802 Turkish liras (TRY). 13. The applicant appealed. 14. On 18 November 2009 the Court of Cassation upheld the judgment of 28 September 2006. 15. According to a document dated 15 January 2010, signed by the President of the Istanbul Assize Court and the Istanbul public prosecutor, the applicant was required to pay the fine of TRY 1,802.