CASE OF İMRET v. TURKEY (No. 2)
Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström
4. The applicant was born in 1958 and lives in Batman. At the time of the events giving rise to the present application, he was the head of the Batman branch of the People’s Democratic Party (DEHAP) and subsequently the Party for a Democratic Society (DTP). 5. On unspecified dates in 2005 and 2006 the Batman public prosecutor’s office initiated at least four criminal investigations against the applicant. On 18 October 2005, 6 December 2005, 1 February 2006 and 23 March 2006 the applicant made statements before the Batman public prosecutor in relation to his attendance at a number of public meetings. 6. In particular, when he was questioned on 18 October 2005 the applicant was asked about his participation in an event commemorating a number of deceased members of the PKK (Kurdish Workers’ Party, an illegal armed organisation) held on 22 August 2005. The applicant responded that he had become aware of that event when demonstrators had started to march to the cemetery where the deceased were buried. As he was the head of the Batman branch of DEHAP, he had attended the march in order to keep the demonstrators under control and to prevent any possible disturbances in the town. 7. When questioned on 6 December 2005, the applicant stated that on 17 August 2005 he had been the head of the DEHAP branch in Batman and that he had not praised the leader of the PKK in his speech. The applicant added that although Abdullah Öcalan, the leader of the PKK, was in prison, he was regarded as a political actor by the local population. The applicant’s intention had been to express that social fact and he was against any kind of violence. When the public prosecutor reminded him of the violent acts of the PKK, the applicant once again stated that he was against violence regardless of whom it emanated from. 8. On 1 February 2006 the Batman public prosecutor asked the applicant why he had referred to the PKK leader as “Esteemed/Mr (Sayın) Öcalan” during one of his speeches. The applicant responded that he had used the word “Sayın” as a matter of courtesy. He stated that he had not intended to disseminate propaganda in favour of the PKK or to praise a criminal. 9. Lastly, on 23 March 2006 the applicant was questioned by the Batman public prosecutor in the context of a criminal investigation opened against him on suspicion of membership of the PKK. He stated that he had participated in several demonstrations and readings of press statements in his capacity as the head of the Batman branch of DEHAP and the DTP, and that he had not committed any offence during those events. He denied the veracity of the allegation that those public meetings had been organised in accordance with the instructions of the PKK. When he was asked about a sentence condemning both the death of Turkish soldiers and PKK members which he had uttered during a speech, the applicant stated that he would utter that sentence again without hesitation. He also stated that the petition campaign entitled “I accept Abdullah Öcalan as a political actor” had not been started upon the instructions of the PKK. He accepted that he had demanded an end to the solitary confinement of Abdullah Öcalan and addressed the latter as “Esteemed/Mr (Sayın) Öcalan”. However, he denied the allegation that he had had the intention of disseminating propaganda in favour the PKK. The applicant contended that he had attended the demonstrations and meetings in question in order to control the crowds and to prevent any possible disturbances. Lastly, he claimed that his aim was to contribute to peace and democracy. 10. On 23 March 2006 the applicant was brought before the Batman Magistrates’ Court and questioned in respect of his involvement in a demonstration held on 16 February 2006 in Batman. He submitted that he had attended the demonstration with a view to preventing violence, since he was the head of the DTP at the material time. The court ordered the applicant’s remand in custody. 11. On 24 March 2006 the Batman public prosecutor decided to transfer the investigation to the Diyarbakır public prosecutor’s office, holding that the offence which the applicant had committed, namely membership of a terrorist organisation and carrying out membership activities, was not within his office’s jurisdiction. 12. On 26 April 2006 the Diyarbakır public prosecutor filed an indictment with the Diyarbakır Assize Court, charging the applicant and a certain M.G., under Article 220 § 8 of the Criminal Code, with disseminating propaganda in favour of the PKK on ten occasions. In the indictment the public prosecutor listed a total of ten marches and demonstrations which the applicant had attended. He noted that during those marches and demonstrations, demonstrators had chanted slogans and carried banners praising the PKK and its leader, Abdullah Öcalan, and that the applicant had made speeches in Kurdish at nine of those ten assemblies. 13. On 30 May 2006 the Diyarbakır Assize Court held the first hearing on the merits of the case. During the hearing, the applicant contended that he was the head of the Batman branch of the DTP. Although he had participated in the public meetings indicated in the indictment, he had not chanted any slogans or carried banners containing illegal expressions. He further submitted that he had not directed demonstrators to commit any illegal acts. The applicant stressed that in general he attended such public meetings at the request of the security forces, since the latter asked him to be present in order to prevent any possible clashes between themselves and the demonstrators. 14. During the second hearing held on 18 July 2006 the public prosecutor submitted his observations on the merits of the case. The public prosecutor contended that the applicant had attended various illegal public meetings between 19 February 2005 and 16 February 2006 and that he had made speeches in which he had praised the PKK and its leader. The public prosecutor alleged that those events had been organised either in line with the policies of the PKK or under its instructions with a view to supporting that organisation. Taking into account the intensity, variety and continuity of the applicant’s activities, the public prosecutor considered that the applicant’s acts constituted knowingly and willingly aiding the PKK. He then asked the Assize Court to convict the applicant under Articles 220 § 7 and 314 § 2 of the Criminal Code of membership of the PKK. 15. On 26 September 2006 the Diyarbakır Assize Court held the fourth and the last hearing in the case and convicted the applicant and his coaccused of membership of an illegal organisation under Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 7 and 314 § 3 of the same Code, finding it established that the applicant had knowingly and willingly aided the PKK. The applicant was sentenced to six years and three months’ imprisonment. The judgment of the Assize Court, insofar as relevant, reads as follows: “In the indictment dated 26 April 2006 it was alleged that Abdulcelil İmret had committed the following acts: 1. Attendance at the reading out of a press statement and an illegal march held on 19 February 2005 in the Mem-u Zin Park in Batman during which the demonstrators chanted slogans in favour of the PKK and Abdullah Öcalan; 2. Attendance at the event commemorating a deceased PKK member held in the Batman cemetery on 31 March 2005, making a speech in Kurdish and making participants say prayers in Kurdish; 3. Attendance at the reading out of a press statement at the Batman branch of DEHAP on 16 August 2005 regarding the petition campaign entitled “I accept Abdullah Öcalan as a political actor”; 4. Attendance at the illegal demonstration held on 22 August 2005 to commemorate seven members of the PKK killed by the security forces in an armed clash which had occurred in Batman; 5. Attendance at the demonstration organised by DEHAP and held on 9 November 2005, during which the demonstrators chanted illegal slogans, and making a speech in Kurdish addressed to the press and the demonstrators; 6. Attendance at the demonstration held on 16 November 2005 during which the demonstrators chanted slogans in favour of the PKK and Abdullah Öcalan and carried banners, and making a speech in Kurdish addressed to the press and the demonstrators; 7. Attendance at the demonstration held on 30 November 2005 protesting against the attempts to close down ROJ TV, the alleged solitary confinement of Abdullah Öcalan and the statement by Deniz Baykal, the leader of the CHP (People’s Republican Party) regarding the events that had occurred in Yüksekova during which the demonstrators chanted slogans in favour of Abdullah Öcalan, and making a speech in Kurdish addressed to the press and the demonstrators; 8. Attendance at the reading out of a press statement and at a march held on 21 December 2005 protesting against the solitary confinement of Abdullah Öcalan, during which the demonstrators chanted illegal slogans and carried banners, and making a speech in Kurdish addressed to the press and the demonstrators; 9. Attendance at the march and the reading out of a press statement held on 8 February 2006 in Batman, during which illegal slogans were chanted, and making a speech in Kurdish; 10. Attendance at the illegal demonstration and the reading out of a press statement held on 16 February 2006 close to the DTP Batman branch, during which illegal slogans were chanted and banners were carried, and making a speech in Kurdish; ... In his defence submissions Abdulcelil İmret stated that he had participated in the demonstrations and the reading out of press statements mentioned in the indictment but that he had neither chanted slogans nor carried banners. He stated that he had not directed demonstrators to chant slogans or to carry banners. Abdulcelil İmret submitted that he had attended those meetings at the request of the security forces and that the latter had asked him to warn the crowds not to resist them and to work with them with a view to preventing possible disturbances. ... The file contains police reports, photographs and video recordings of the events which the accused attended and the speeches he made. On the basis of the evidence in the file, it has been understood that during all the demonstrations and marches held in Batman which Abdulcelil İmret attended, slogans in favour Abdullah Öcalan were chanted and the demonstrators carried banners. It has also been understood that the speeches made by the accused praised Abdullah Öcalan. It is established that the accused attended the public meetings in question and organised them. Although the accused submitted that their aim had been to prevent clashes between the demonstrators and the security forces and [that they] had not had the intention of disseminating propaganda in favour of the PKK when they had participated in the demonstrations and marches in question, taking into account the content of the case file and their acts during those meetings, their defence submissions have been found to be baseless. As a result of the trial and in the light of the evidence, It has been established that Abdulcelil İmret worked as the head of the Batman branch of DEHAP and that subsequent to the closure of DEHAP he was the head of the Batman branch of the DTP. He attended ten marches and demonstrations held between 19 February 2005 and 16 February 2006, organised by the above-mentioned political parties. Illegal slogans were chanted and illegal banners were carried during those meetings. In some of those meetings, Abdulcelil İmret read press statements containing expressions praising Abdullah Öcalan. All of the marches and demonstrations in question were illegal within the meaning of section 23/b of the Marches and Demonstrations Act (Law no. 2911). ... It has been established that all of those marches and demonstrations were organised in line with the ‘Democratic Political Struggle’ strategy adopted by the PKK recently; that the media broadcasts in line with the PKK’s strategies had announced those marches and demonstrations prior to them, and that the same media organs had used those demonstrations as propaganda materials after they had been held. Abdulcelil İmret and M.G. organised several illegal demonstrations in line with the PKK’s instructions and during those demonstrations they addressed the demonstrators who chanted slogans and carried banners containing expressions in favour of the PKK and Abdullah Öcalan. In their speeches the accused praised the PKK’s leader. Taking into account the continuity and nature of their acts, it is considered that those acts went beyond the offence of dissemination of propaganda in favour of a [terrorist] organisation and amounted to the offence proscribed by Article 220 § 7 of the Criminal Code, that is to say, ‘knowingly and willingly aiding an illegal organisation without being in the hierarchical structure’. Therefore, it has been decided to convict the accused under Article 314 § 2 of the Criminal Code. ...” 16. On 13 April 2010 the Court of Cassation upheld the first-instance judgment. 17. By Law no. 6352, which entered into force on 5 July 2012, paragraph 7 of Article 220 of the Criminal Code was amended. The applicant applied to the Diyarbakır Assize Court requesting it to examine whether the amended version of that provision could be considered to be in his favour and, if so, whether the execution of his sentence could be suspended. He added that he was currently serving his prison sentence. 18. On 16 August 2012 the Diyarbakır Assize Court decided to reduce the applicant’s sentence to five years, two months and fifteen days’ imprisonment. The court rejected the applicant’s request to have the execution of his sentence suspended.