CASE OF FATİH TAŞ v. TURKEY (No. 4)
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
6. The applicant was born in 1979 and lives in Istanbul. He was the owner and the editor-in-chief of a publishing house, namely Aram Basım ve Yayıncılık, at the time of the events giving rise to the present application. 7. In June 2001 and March 2003 the applicant’s company published two books entitled Dağlarda Yaşamın Dili (“The Language of Life in the Mountains”) and Tufanda 33 Gün (“33 Days in the Deluge”), respectively. 8. On 29 August 2001 the public prosecutor attached to the Istanbul State Security Court filed an indictment with the Istanbul State Security Court charging the applicant with aiding and abetting the PKK, an illegal armed organisation, under Article 169 of the former Criminal Code, on account of the publication of the book entitled The Language of Life in the Mountains. 9. On 24 July 2002 the Istanbul State Security Court convicted the applicant as charged. 10. On 1 May 2003 the Court of Cassation, on appeal, upheld the judgment of 24 July 2002. 11. On 23 September 2003 the public prosecutor attached to the Istanbul State Security Court requested that the court revise its judgment of 24 July 2002 since Article 169 of the former Criminal Code had been amended on 7 August 2003. The Istanbul State Security Court accepted that request. 12. By Law no. 5190 of 16 June 2004, state security courts were abolished. The case against the applicant concerning the book entitled The Language of Life in the Mountains was transferred to the Istanbul Assize Court. 13. On 16 August 2003 the public prosecutor attached to the Istanbul State Security Court filed an indictment with the Istanbul State Security Court charging the applicant with aiding and abetting the PKK under Article 169 of the former Criminal Code on account of the publication of the book entitled 33 Days in the Deluge. According to the indictment, on pages 129, 130 and 135 the struggle of the PKK and its leader, Abdullah Öcalan, was praised and the applicant had therefore aided the PKK through the medium of the press. 14. On 30 April 2007 the Istanbul Assize Court decided to join the proceedings concerning The Language of Life in the Mountains and 33 Days in the Deluge. 15. On 7 December 2007 the Istanbul Assize Court convicted the applicant under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) for disseminating propaganda in favour of the PKK twice, because he had published two books, and sentenced him to a total of twenty months’ imprisonment. With regard to the publication of 33 Days in the Deluge, the assize court considered that on pages 129, 130 and 135 the PKK and its leader, Abdullah Öcalan, were praised and the offence of dissemination of propaganda in favour of a terrorist organisation had therefore been committed. The assize court furthermore found that the book allowed for the transmission of the opinions of the PKK to the public and was aimed at bringing more sympathisers into that organisation. 16. On 25 June 2009 the Court of Cassation quashed the judgment of 7 December 2007, holding that the first-instance court should not have joined the two cases, since the case concerning The Language of Life in the Mountains was a re-qualification of the applicant’s previous final conviction (uyarlama yargılaması). 17. On 7 December 2009 the Istanbul Assize Court convicted the applicant once again under section 7(2) of Law no. 3713 on account of the publication of The Language of Life in the Mountains and sentenced him to a fine. 18. On 3 June 2013 the Court of Cassation quashed the first-instance judgment. 19. On 13 November 2013 the Istanbul Assize Court decided to suspend the execution of the sentence pronounced in its judgment of 7 December 2009. 20. In the meantime, the Istanbul Assize Court resumed the trial concerning the publication of 33 Days in the Deluge following the Court of Cassation’s decision of 25 June 2009. 21. On 21 October 2009 the Istanbul Assize Court convicted the applicant under section 7(2) of Law no. 3713 for disseminating propaganda in favour of the PKK on account of the publication of 33 Days in the Deluge and sentenced him to ten months’ imprisonment. In its judgment, the assize court reiterated that on pages 129, 130 and 135 the PKK and its leader, Abdullah Öcalan, were praised and the offence of dissemination of propaganda in favour of a terrorist organisation had therefore been committed. The court held that the turns of phrase used on those pages were not protected by Article 10 of the Convention and constituted an abuse of the right to freedom of expression. The assize court further found that the book permitted the opinions of the PKK to be transmitted to the public and was aimed at bringing more sympathisers into that organisation and thus at destroying the unitary nature of the State of the Republic of Turkey. 22. The applicant appealed. 23. On 15 February 2012 the Court of Cassation decided to discontinue the proceedings concerning the publication of 33 Days in the Deluge, holding that the prosecution was time-barred.