CASE OF ÇAMYAR AND BERKTAŞ v. TURKEY
Remainder inadmissible;Violation of Art. 10;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
5. The applicants were born in 1968 and 1958 respectively and live in Istanbul. The first applicant is the owner of a publishing house in Istanbul which published a book giving rise to the present application. The second applicant is the editor and author of the book in question. 6. On 25 April 2000 the public prosecutor at the Istanbul State Security Court commenced an investigation in connection with a book, entitled Hücreler, published and written by the first and second applicants respectively as a critique of the Turkish penitentiary system. The book contains nine articles, five of which are written by the second applicant, in which the authors criticise the cell system in Turkish prisons. By way of examples from other countries and personal anecdotes, the second applicant claims in her articles that the cell system facilitates illtreatment and leads to deaths in prison. The introductory part of the book states the following: “This book is a salute to the new generations who fascism is trying to separate from our history of resistance and tradition of unity. It is a white page handed over by those who made courage and sacrifice the norm and created future revolutionary fighters. It is a message from those who, like a magnet, carried new powers from generation to generation to our ranks. We did not and will not allow [future generations] to forget the traditions and norms that were created during humanity's, revolutionists' and communists' struggle and revolt against slavery, genocide, fascism and national and class exploitation ... In this book, we transmit our conscience and hearts to those who are fighting for a better future.” 7. The book also contains four other articles written by persons serving prison sentences, following their conviction for having been involved in an illegal armed organisation called the TIKB (Bolşevik). In their articles, entitled “Isolation cells are death cells”, “She was in [prison], I was out”, “Empty the dungeons, free the prisoners” and “Prisons and health”, the authors criticise the isolation of prisoners, ill-treatment of detainees and poor prison conditions and recount their personal experiences of imprisonment. Furthermore, the book comprises newspaper clippings concerning the real events on which the articles are based. 8. On 23 October 2000 the public prosecutor filed a bill of indictment against the applicants, accusing them of disseminating propaganda that undermined the territorial integrity and the indivisible unity of the Republic of Turkey through publishing, and of aiding and abetting an illegal armed organisation, namely, TIKB (Bolşevik), in certain parts of the book. The charges were brought under sections 5 and 8 subsections 1, 2 and 4 of Law no. 3713 and Articles 36 and 169 of the now defunct Criminal Code. The Government noted that TIKB (Bolşevik) had been involved in a number of terrorist acts with a view to detaching part of the territory of Turkey and forming a political regime based on Marxist-Leninist ideology. The organisation, which was qualified as a terrorist organisation under the domestic law of Turkey, disseminated separatist propaganda within the Kurdish community and incited hatred and hostility by making distinctions on the basis of race and region. 9. At the first hearing, held on 24 January 2001, the Istanbul State Security Court invited the applicants to present their defence arguments against the bill of indictment filed by the public prosecutor. Both applicants requested an extension of the time-limit for the preparation of their defence, which was granted. The applicants were informed that they were expected to present their defence arguments at the next hearing and that otherwise they would be deemed to have waived their defence rights in so far as the bill of indictment was concerned. 10. At the second hearing, on 11 April 2001 the applicants requested a further extension. The first applicant, Elif Çamyar, claimed that she had appointed a new lawyer who had prior engagements, and the second applicant argued that she had encountered problems in meeting with her lawyer due to the searches conducted on lawyers visiting the prison. The State Security Court dismissed the applicants' request for a further extension and indicated that that interim decision could be appealed against along with the decision on the merits. 11. At the third and fourth hearings, on 11 July 2001 and 24 October 2001 Nevin Berktaş requested extensions of the time-limit for submission of her defence arguments, whereas Elif Çamyar or her representative did not attend. The court granted the extensions requested and ruled that at the next hearing the applicants were required to be present and make their final submissions. 12. On 7 November 2001 the Istanbul State Security Court heard the applicants' defence submissions. The applicants pleaded not guilty and argued that in the book they had merely criticised fascist policies in Turkey and, particularly, had expressed their opinion about the prison system. They claimed further that their trial by a State security court for publication of a book had constituted a violation of Articles 6 and 10 of the European Convention on Human Rights. Following this hearing, the State Security Court rendered its judgment and convicted the applicants under Article 169 of the now defunct Criminal Code of aiding and abetting the illegal armed organisation TIKB (Bolşevik). The court sentenced the first applicant to three years and nine months' imprisonment, convertible to a fine of 4,152,330,000 Turkish liras (TRL), and the second applicant to four years, four months and fifteen days' imprisonment in view of her previous conviction of membership of the TIKB (Bolşevik). The State Security Court did not make reference to any specific passages or pages of the book, but rather based its conviction on a review of the book as a whole. 13. By petitions dated 8 and 12 November 2001 the applicants appealed against the above-mentioned judgment and requested the Court of Cassation to hold a hearing. The Court of Cassation decided to hold a hearing in respect of Nevin Berktaş but dismissed the request of Elif Çamyar on the grounds that the conditions required under Article 318 of the Code of Criminal Procedure had not been met. 14. On 4 April 2002 the Court of Cassation upheld the judgment of the State Security Court without holding a hearing. It noted that Nevin Berktaş and her representative had not attended the hearing and had not informed the court of the reason for their absence. The opinion of the Chief Public Prosecutor submitted to the Court of Cassation was not communicated to the applicants. 15. On 26 April 2002 the decision of the Court of Cassation was returned to the registry of the Istanbul State Security Court. 16. On 10 January 2004 the applicants requested a re-examination of their case by the 14th Chamber of the Istanbul Assize Court in view of the future entry into force of the new criminal code on 13 January 2005 (Law no. 5237). They further asked the court to suspend the execution of their sentences. 17. In a judgment dated 29 June 2007 the Istanbul Assize Court first determined which law was the most favourable in respect of the applicants. It held that the former criminal law was more favourable to the first applicant because she had been convicted of an offence under Article 169 of the now defunct Criminal Code and her sentence had been converted to a fine, whereas if the new amendments had applied she would have been sentenced to at least one year of imprisonment, which could not be converted into a fine. 18. As regards the second applicant, Nevin Berktaş, the court held that the provisions of the new criminal code were more favourable to her. Thus, it convicted her of the offence under section 7(2) of Law no. 3713. The court, after reducing the penalty to be imposed by 1/6 under Article 62 of the new Criminal Code, sentenced the second applicant to ten months' imprisonment and to a fine of TRY 416. The applicants appealed. 19. On an unspecified date, the Court of Cassation quashed the above judgment in respect of the first applicant, Elif Çamyar, on the ground that a pre-payment notice (ön ödeme ihtaratı) had not been served on her. It noted that the offence committed by the applicant fell within the scope of section 7(2) of Law no. 3713, as amended by Law no. 5532, and that the said provision provided for a fine and required pre-payment. 20. In a judgment dated 18 December 2009 the Istanbul Assize Court convicted the first applicant, Elif Çamyar, of the offence under Article 169 of the former Criminal Code and sentenced her to three years and nine months' imprisonment. The Assize Court reiterated that the former criminal code was more favourable to the first applicant since it provided for a lighter sentence that could be converted to a fine. Thus, in the light of the new amendments, the court converted the first applicant's prison sentence to a fine in the amount of TRY 4,095 (approximately EUR 2,000). The court noted that the first applicant and her representative had failed to attend the hearing and had also failed to make the pre-payment. 21. On 26 January 2010 the first applicant appealed against that judgment. The proceedings are still pending before the Court of Cassation. 22. At the time of the applicants' conviction, Article 169 of the Criminal Code provided as follows: “Any person who, knowing that an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to no less than three and no more than five years' imprisonment ...” On 30 July 2003 this Article was amended and the part “... or facilitates its operations in any manner whatsoever ...” was deleted. 23. Under section 7(2) of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of one to five years. 24. Further information on the relevant domestic law and practice in force at the material time can be found in the following judgments and decision: İbrahim Aksoy v. Turkey, nos. 28635/95, 30171/96 and 34535/97, §§ 41-42, 10 October 2000; Özel v. Turkey no. 42739/98, §§ 20-21, 7 November 2002; Gençel v. Turkey, no. 53431/99, §§ 11-12, 23 October 2003; and Halis v. Turkey (dec.), no. 30007/96, 23 May 2002. 25. By Law no. 5190 of 16 June 2004, published in the official journal on 30 June 2004, the State Security Courts were abolished.