CASE OF KAR AND OTHERS v. TURKEY
Violation of Art. 6-1;Violation f Art. 10
5. The applicants were born in 1972, 1969, 1969 and 1968 respectively and live in Turkey. Between 20 March 1997 and 8 April 1997 they took part in a play, entitled “An Enemy of Justice” (Bir Hak Düşmanı), as actors. The play was staged on eight occasions in a number of towns and cities in Turkey. 6. A number of newspapers and TV stations devoted coverage to the play and several provisions of the Criminal Code, which the applicants were supposed to have breached, were cited in some of those newspapers. On 20 April 1997 the daily Hürriyet newspaper ran the headline “The play that led the general to rebel”, referring to an army general having severely criticised the ruling Refah Party and its leader Necmettin Erbakan because of the play staged by the applicants. 7. On 24 April 1997 the first, third and fourth applicants were arrested by police officers from the anti-terror Branch of the İzmir police headquarters and placed in custody. The second applicant was arrested and detained the following day. The reason for their arrest was a criminal investigation opened by the prosecutor at the Ankara State Security Court in connection with the play. The applicants did not have access to their lawyers while in police custody. 8. On 1 May 1997 the applicants appeared before the judge at the State Security Court in Ankara. According to the verbatim records of this meeting, the applicants were accused of the offence of “incitement of the public to an armed uprising against the armed forces”, contrary to Article 149 § 1 of the Criminal Code in force at the time. 9. The applicants all stated that there was nothing in the play which could be interpreted as an incitement to an uprising. Nevertheless, the judge ordered their detention on remand, pending the introduction of criminal proceedings. 10. On 26 May 1997 the prosecutor at the Ankara State Security Court filed an indictment with that court and charged the applicants and 35 other persons with the above mentioned offence. One of the 35 persons is the playwright. The other 34 people had assisted in the staging of the play in various cities in one way or another. 11. According to the indictment, the play was based on the perception that there was a risk of an attack, in the form of a military coup, against Muslims. In one part of the play, a number of Muslims are gathered and discuss possible ways of avoiding that risk. One person suggests that Muslims should establish an armed force as a deterrent, regardless of the existence or otherwise of the risk of a military coup. At the end of the play a military coup takes place and the leader of the Muslims is sentenced to death. 12. Criminal proceedings commenced before the First Chamber of the Ankara State Security Court (hereinafter “the trial court”) while the applicants were being held in detention pending the outcome. One of the three judges on the bench of the trial court was a military officer. In their defence petitions submitted to the trial court, the applicants stated, inter alia, that the play was set in an imaginary country called “Zargonya” and had nothing to do with Turkey; the dialogue in the play constituted “artistic events”. The play included a number of expressions and opinions, but it was not possible to regard them as incitement to armed rebellion. 13. During the criminal proceedings, the prosecutor requested the trial court to convict the applicants of the offence of “incitement to hatred or hostility on the basis of a distinction between social classes, race, religion, denominations or region”, contrary to Article 312 § 2 of the Criminal Code then in force, and not for the offence mentioned in the indictment. 14. On 11 September 1997 the trial court found the applicants guilty of the offence under Article 312 § 2 of the Criminal Code and sentenced them to two years and four months’ imprisonment and the payment of a fine. The playwright was sentenced to three years’ imprisonment. The other 34 defendants were acquitted. 15. The applicants appealed against the judgment and argued that the mental element (mens rea) of the offence was lacking; the words uttered by them as actors should be regarded as “artistic events”. 16. The prosecutor also appealed against the judgment and argued that the applicants had staged the play at various locations and, as such, they should have been convicted and sentenced separately in respect of each occasion. 17. On 23 March 1998 the Court of Cassation quashed the judgment in so far as it concerned the applicants and the playwright, and upheld the acquittal of the other 34 defendants. The Court of Cassation, in line with the prosecutor’s submissions, held that the applicants had staged the play at various locations and, therefore, they should have been convicted and sentenced in respect of each occasion. 18. Following the decision of the Court of Cassation, the case was referred back to the trial court and the criminal proceeding against the applicants recommenced. In their observations submitted to the trial court, the applicants argued that the play staged in the eight locations had been based on the same script. They could not, therefore, be regarded as multiple offences. 19. On 4 August 1998 the trial court convicted the applicants once more of the offence under Article 312 § 2 of the Criminal Code and sentenced them to two years’ imprisonment for each time the offence had been committed, i.e. 16 years, and the payment of a fine. In assessing the sentence, the trial court considered as aggravating factors “the time and the locations where the plays were staged, the identities and personalities of the applicants and their social status”. 20. The applicants appealed and argued that they were students and young amateur actors who were not well known. The play had been staged in theatres with an audience of approximately 150-200 persons. Due to the fact that the staging of the play in different locations was regarded both as an aggravating element as well as a separate offence, they were being punished multiple times. The applicants also submitted that, although they had staged the play a total of eight times, in three of the locations they had staged the play twice in one day, which, they argued, should count as one offence only. 21. On 22 February 1999 the Court of Cassation quashed the judgment and held that the staging of the play on the same day on more than one occasion should have been regarded as one offence for the purpose of sentencing. 22. On 13 May 1999 the trial court again convicted the applicants of the offence defined in Article 312 § 2 of the Criminal Code and sentenced each applicant to five years and six months’ imprisonment as well as to the payment of 4,729,999 lira fine (approximately 12 US dollars at the time). Taking into account the time the applicants had already spent in prison, i.e. 2 years and 18 days in the case of the second applicant and 2 years and 19 days in the case of the remaining applicants (see paragraph 7 above), the trial court ordered their release. The playwright was sentenced to 11 years’ imprisonment for having written the script. 23. Parts of the script that were reproduced in the trial court’s judgment, included the following: “– So, what else did Allah mention in his book, did he mention taking up arms and rebelling against the State? – If that State does not rule by the rules of Allah and instead adopts laws as it wishes, enforces those laws against its citizens in order to force them to obey, resorts to the use of arms when they refuse to obey, then yes, just like the State behaves.” 24. According to the trial court, the play had given a message to Muslims about a perceived need for the public to take up arms against the armed forces of the State. By mentioning the possibility of a military coup, the military had been portrayed as an oppressive group. Members of the armed forces were referred to as non-religious persons or as persons affiliated to other religions. A need by real Muslims to take up arms against such members of the armed forces had thus been depicted in the play. This, in the opinion of the trial court, amounted to incitement to hatred and enmity on the basis of a distinction based on class, race and religion, within the meaning of Article 312 § 2 of the Criminal Code. 25. The appeal lodged by the applicants was rejected by the Court of Cassation on 11 October 1999. 26. A full description of the relevant domestic law may be found in Incal v. Turkey, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, §§ 21-33.