CASE OF SELAHATTİN DEMİRTAŞ v. TURKEY
Remainder inadmissible;No violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect)
András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano
9. The applicant was born in 1973 and lives in Diyarbakır. At the time of the events giving rise to the present application, the applicant was a member of the DTP (Party for a Democratic Society), a pro-Kurdish political party whose dissolution was ordered by the Constitutional Court in 2009, and a member of the Parliament of Turkey. The applicant is currently the co-chair of the HDP (People’s Democratic Party). 10. In 11 October 2007 an article entitled “Turk, here is your enemy” (Türk, işte karşında düşmanın) was published in a Bolu local newspaper, the Bolu Express. The article in question was also published on the newspaper’s website. In it, the author, Mr I.E., made the following statements: Here are some newspaper titles from the last few days: - A landmine exploded in Diyarbakır. One non-commissioned officer was martyred and three privates were injured. - Twelve village guards were killed while returning to their village in Beytüşşebap. - Attack on a military unit with a rocket-propelled grenade in the Başkale district of Van. A soldier was martyred. - A landmine exploded in the region of Namaz mountain, in Şırnak. A specialist sergeant was martyred. - Ambush in the region of Gabar mountain, in Şırnak. 13 soldiers were martyred. These are news articles which we have come across by chance over the last week or ten days. I would not be surprised if, after research, we found other similar news stories. For almost 25 years, you have deceived us with statements such as ‘they will be avenged’, ‘we are more determined than ever’ or ‘we will eradicate it’. We have had enough of your lies and fairy tales. Civilians and the military, are you fooling children? Or are you mocking the nation? Can there be a State or an army which cannot defeat three to five thousand ‘looters’? Shame on you, since you cannot defeat them. If you are a State, be a State. If you are the Legislature, act as one. If you are the Government, govern. If you are the Judiciary, do what you have to do. It is enough. This has been the last straw! We went crazy when we heard that thirteen soldiers from the Bolu Commando Brigade had been killed last Sunday. How can one preserve one’s sanity? While the instigators of the terrorists who kill our soldiers, policemen, civilians and our protectors without hesitation are under the roof of the Grand National Assembly of Turkey, While there are DTP mayors and provincial and district administrators who call these terrorist murderers ‘my brothers/my sisters’ and who wash the carcasses of terrorists who die like dogs, Is it right to chase those who are in the mountains? Are the hit men the real murderers? Do you know who the real murderers are? The real murderers are those who use yellow, green and red, the colours of the PKK, in their political party’s flag. They are those who back the bullets of the members of the PKK, murdering bastards, and who call them their brothers and sisters. The real murderers are those who instigate murder. They are: the President of the DTP (Party for a Democratic Society) A.T; the DTP’s Members of Parliament, namely A.A.A., B.Y., M.N.K., A.B., Selahattin Demirtaş, G.K., A.T., P.B., S.T., E.A., S.S., M.N.Y., O.Ö., İ.B., S.B., H.K., Ş.H., F.K., Ö.Ü.; the members of the DTP’s executive council ... and all DTP mayors and presidents of DTP provincial and district branches. Great Turkish Nation, here is your enemy. These persons will be the target of ‘civilian patriots’ as the enemies of Turks, if they do not state that the PKK is a separatist terrorist organisation and that its members are traitors. Instead of chasing the terrorists in the mountains, a few microbes should be ‘wiped out’ and the question should be put to them – ‘one from us, five from you: do you still wish to continue?’ Of course, there will be patriots who will be able to do this. This is society’s intense desire. It is now the majority’s wish that for every security officer who is killed, one of these people should share the same fate. It is time to cut out those organs which suffer from necrosis. ... May God rest the souls of our martyrs and give patience to their families. We sincerely share their pain. We also offer our condolences to the Bolu Commando Brigade. Tomorrow is the sacred Eid. Could you celebrate if you were the parents or siblings of one of the thirteen brave soldiers who lost their lives for their country in the region of Gabar mountain, in Şırnak? Think about it. May your Eid be blessed although it is sad and painful.” 11. On 2 November 2007 the applicant’s lawyer filed a petition with the Bolu public prosecutor’s office, requesting that a criminal investigation be initiated and that Mr I.E. be punished for incitement to commit a crime and incitement to disrespect the law, and for insulting his client. The lawyer also noted that Mr I.E. had committed these offences through the press. In his petition, the applicant’s lawyer stressed that two recent murders (those of Andrea Santoro, a Catholic priest, and Hrant Dink, the editor-in-chief of AGOS, a bilingual Turkish-Armenian newspaper published in Istanbul) had been committed subsequent to publication of articles on the Internet. He stated that the content of the article openly incited society to kill the persons listed in it, including the applicant, and that by using the expression “murderer” in respect of the applicant, the author had insulted him. 12. On an unspecified date Mr I.E. sent a petition to the Bolu public prosecutor containing his defence submissions. He maintained at the outset that he had defended the Turkish Republic and the Turkish military forces throughout his life. He further contended that, had he committed an offence in his article as alleged by the complainant, then he had committed it under severe provocation. He submitted that the complainant had never condemned the PKK’s activities and that he had referred to PKK members as “brothers and sisters”. Mr I.E. noted that he had been demonstrating solidarity with the families of the martyrs killed by the terrorists and that, were his solidarity to be regarded as an offence, then as a Turkish nationalist he was proud of committing the offence in question. He also claimed that he had criticised the DTP’s ideology and activities in his article and had intended to inform society. He contended that a case had been brought before the Constitutional Court for the DTP’s dissolution, and that the content of his article had been similar to the indictment brought by the Chief Public Prosecutor at the Court of Cassation in that case. He had not used the word “Kurdish” in his article, since he accepted all citizens of Turkey as Turkish. Until the complainant stated “How happy is he who says ‘I am a Turk’”, he would struggle against him. He also maintained that in view of the hundreds of cases brought against DTP members on charges of separatism, aiding and abetting the PKK and hostility towards the State, the complainant had been shameless in daring to file a complaint against him. He further noted that he had targeted those who were terrorists, that is, PKK members, and if the complainant considered himself the subject of the article, then he (Mr I.E.) had been right to identify him as a target. Mr I.E. maintained that nobody had been hurt as a result of his article, but that many people had died as a result of terrorism. At the end of his submissions, he again noted that the applicant had been unable to say “How happy is he who says ‘I am a Turk’” and that, therefore, the applicant’s Turkishness was open to doubt. 13. On 7 December 2007 the Bolu public prosecutor decided not to bring criminal proceedings against Mr I.E. In his decision, the public prosecutor stated that the article had been drafted as a reaction to the PKK, an organisation recognised internationally as a terrorist organisation, which had carried out acts of terrorism and killed both civilians and soldiers. According to the public prosecutor, after listing the killings committed by the PKK, the author had stated his opinion as to why society and the State should act together against the killings committed by the PKK and had articulated public reaction and anger in the face of those killings. The author had even criticised the State’s activities in relation to acts of terrorism. The Bolu public prosecutor held that Mr I.E. had severely criticised the DTP, which had not condemned the PKK’s illegal activities and which was considered to have failed to act side by side with society and the State. The public prosecutor considered that the article expressed the author’s opinions and offered a number of proposals with a view to eradicating the terrorist organisation in issue. 14. The Bolu public prosecutor further noted that the PKK’s supporters had described the organisation’s so-called political aims in the press and elsewhere, although its activities had created great anger and hatred in society. The public prosecutor maintained that articles had also appeared in the press expressing society’s anger and hatred. In spite of all these publications, there had been no armed conflict between different ethnic groups in Turkey, due to the culture of tolerance, respect and understanding which existed in the country. The Bolu public prosecutor stated that in the light of the aforementioned sociological and political background in Turkey, the article should be considered as using freedom to disseminate information, to criticise and to comment within the context of freedom of the media, given that it contained somewhat exaggerated criticism of a political party, its members and activities. 15. In his decision, the public prosecutor considered that the case was comparable to another case. According to the judgment in that case, which contained a reference to the Court’s judgment in Prager and Oberschlick v. Austria (26 April 1995, Series A no. 313), in cases concerning defamation, if a factual basis existed, then certain expressions could not be regarded as extreme. Considering that freedom of the media included the expression of social reactions and opinions using strong language, and referring to the above-mentioned domestic judgment, the public prosecutor concluded that there was no reason to bring a case against Mr I.E. 16. On 30 July 2008 the applicant’s lawyer objected to the decision of 7 December 2007. In his pleadings, the lawyer reiterated the arguments contained in the submissions of 2 November 2007. He further maintained that the content of Mr I.E.’s article had been alarming and that the DTP members who were named in the article had been marked as targets on account of their adherence to a political opinion. He also noted that the applicant had not been alone in being affected by the article’s content; it posed a further threat to society as a whole. Lastly, the applicant’s lawyer contended that the public prosecutor’s finding that there had been a factual basis for the author’s expressions in the article demonstrated that he had taken the applicant’s political identity into account in issuing his decision. 17. On 21 August 2008 the Düzce Assize Court dismissed the applicant’s objection, holding that the decision of 7 December 2007 had been correct. On 18 September 2008 this decision was served on the applicant’s lawyer. 18. In October 2008 a number of news reports were published in the national press and on the Internet, according to which Mr Mehmet Ali Şahin, Minister of Justice at the relevant time, had set out his position with regard to the investigation into Mr I.E. Mr Şahin stated that, in his view, the content of the article in issue should not have been protected within the scope of the right to freedom of thought and expression. The Ministry of Justice would therefore apply to the Court of Cassation and request that the decision of 21 August 2008 be quashed. 19. On 15 October 2008, through the public prosecutor’s office at the Court of Cassation, the Ministry of Justice applied to the Court of Cassation. 20. On 30 September 2009 the Court of Cassation issued its decision on the Ministry’s request. It noted that the applicant had lodged his objection to the decision of 7 December 2007 outside the relevant time-limit and that the Düzce Assize Court had incorrectly examined the decision on the merits. Considering that the Düzce Assize Court’s decision had nevertheless brought about the correct result, namely dismissal of the objection, the Court of Cassation dismissed the Ministry’s request.