CASE OF BELGE v. TURKEY
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković
5. The applicant was born in 1982 and lives in Şırnak. 6. On 3 September 2005 a demonstration was held in the Gemlik district of the city of Bursa by the Association for the Solidarity of Prisoners’ and Convicts’ Relatives (Tutuklu ve Hükümlü Yakınları Yardımlaşma ve Dayanışma Derneği – “Tuhay-Der”) in order to protest about the conditions of detention in prisons, and in particular those of Abdullah Öcalan, the leader of the PKK (the Workers’ Party of Kurdistan), an illegal armed organisation. 7. On 5 September 2005 a group who had attended the demonstration in Gemlik returned to Cizre, a district of Şırnak, and a gathering was held in front of the building of the Cizre branch of the People’s Democratic Party (Demokratik Halk Partisi – “DEHAP”). The applicant, as president of the Şırnak branch of the DEHAP, made a speech during that gathering. 8. On 6 October 2005 the Cizre public prosecutor filed a bill of indictment with the Cizre Criminal Court against the applicant and four others. The applicant was charged with disseminating propaganda in favour of a criminal organisation and its goals, proscribed by Article 220 § 8 of the Criminal Code, on account of his speech on 5 September 2005. The public prosecutor submitted that the following passages in the speech constituted propaganda in favour of an illegal organisation: “... We want peace in this country. Those who wish for war prevent us from having peace. As you know, Mr Abdullah Öcalan, the leader of the Kurdish people, called for a ceasefire six years ago. The Government have failed to take a proper view of that six-year unilateral ceasefire and therefore the war has re-started. We have once again started to receive the bodies of guerrillas and soldiers. We want an end to the crying of the mothers of guerrillas and soldiers. We want peace. Mr Abdullah Öcalan has not been able to meet his lawyers or members of his family for the last three months. We believe that that sanction is harmful to the peace process.” 9. On 7 October 2005 the Cizre Criminal Court accepted the bill of indictment. 10. On 24 July 2006 upon the request of the Cizre Criminal Court, the Şırnak Criminal Court obtained the applicant’s defence statements. The applicant contended that he had not praised an illegal organisation in his speech and that he had not intended to disseminate propaganda. He noted that he had only thanked those who had made an effort to bring about peace. The applicant finally stated that the slogans chanted by the crowd during his speech had promoted peace. 11. The Cizre Criminal Court held nine hearings on the merits of the case and obtained a report by an expert on the video-recordings of the gathering of 5 September 2005, which stated that the applicant had made a speech to a crowd. Subsequently, on 22 December 2006, the Cizre Criminal Court issued a decision that it lacked jurisdiction as it considered that the acts of the accused should be examined under the Prevention of Terrorism Act (Law no. 3713). The case was transferred to the Diyarbakır Assize Court. 12. On 7 April 2007 the Diyarbakır Assize Court ordered an expert to examine the video-recordings of the gathering of 5 September 2005. 13. On 8 May 2007 the applicant made a statement to the Diyarbakır Assize Court. He contended that he had not disseminated propaganda during his speech but had only thanked those who had worked for peace and had also condemned Abdullah Öcalan’s solitary confinement. The applicant denied the allegation that he had referred to Abdullah Öcalan as the leader of the Kurdish people. He further noted that there had been no violent incidents during or after his speech. Following his speech the demonstrators had dispersed quietly and the slogans that had been chanted while he spoke had been peaceful. 14. According to the report, dated 21 May 2007, on the examination of the police video-recordings of the gathering of 5 September 2005 submitted by the expert to the first-instance court, the applicant had made the following speech: “... Friends, I would like to say a few words about how grateful we are to you. First of all, as you already know, we left Şırnak to go to the peace meeting, Gemlik meeting which was organised by Tuhay-Der. As a result of the arbitrary security measures taken by the security forces and the fact that we were forced to wait two and a half hours at each checkpoint for identity checks, we were not able to travel as fast as we wanted. For us, those who conducted themselves in such a manner are the people who do not want peace in this country (his speech is interrupted by applause and ululations). Subsequently, we were taken into police custody because of our democratic reaction to the search order. We were kept in police custody for one night and then taken before a court. The court released us. However, it took a decision to place me under judicial control. I have to go to give my signature every Monday and I am banned from travelling abroad (His speech is interrupted by boos and the slogan ‘Barışa uzanan eller kırılsın’ (‘May those hands which aim to damage peace be broken’). We condemn with contempt the mentality which obstructed the meeting in Gemlik; we condemn with contempt the fact that Mr Abdullah Gül, the Minister of Foreign Affairs, called us ‘provocateurs’ as well as the mentality which prevented the peace meeting from taking place and which blocked and attacked the crowds. Two vehicles were burned. A person lost his life and hundreds were injured. We condemn with contempt the mentality which is against your and the Kurdish people’s sensibility, your wish for peace and the meeting on peace. We want peace in this country. We want harmony. Those who are against unity and solidarity in this country and those who do not want this country to reach modernity, that is to say, who obtain an unjustified gain out of this war, prevent us from having peace ... As you know, Mr Abdullah Öcalan, the leader of the Kurdish people (His speech is interrupted by the slogan ‘Biji Serok Apo’ (‘Long live President Öcalan’) called for a ceasefire six years ago. The Government have failed to take a proper view of that six-year unilateral ceasefire and therefore the war has re-started. We have once again started to receive the bodies of guerrillas and soldiers. We want an end to the crying of the mothers of guerrillas and soldiers in this country. We want peace in this country. We will continue our struggle for peace. The demonstration organised by Tuhay-Der will contribute to peace because a one-month ceasefire has been declared. Mr Abdullah Öcalan has not been able to meet his lawyers or members of his family for the last three and a half months. We believe that that sanction is harmful to the peace process. That is why we participated in the peace march that was organised by Tuhay-Der. We thank those who attended that demonstration for their wish for peace and for their determination, despite injustice and obstructions. We hope that our friends who were injured will recover soon. We condemn with contempt those who obstructed the peace march. We want peace and we will continue to struggle for peace. I thank you all. You can disperse now in silence ...” 15. According to the report, the demonstrators waved yellow, red and green pieces of cloth and carried photographs of Abdullah Öcalan. Some of the applicant’s co-accused were seen chanting slogans or carrying photographs of Abdullah Öcalan. In particular, one of them chanted the slogans “Biji Serok Apo” (“Long live President Öcalan”) and “Dişe diş kana kan, seninleyiz Öcalan” (“A tooth for a tooth, blood for blood, we are with you Öcalan”) for periods of thirty-seven and ten seconds respectively. Another accused was seen chanting the slogans “Dısa dısa serhildan serokeme Öcalan” (“Rise up again and again, our president is Öcalan”), “Baskılar bizi yıldıramaz” (“We will not be defeated by oppression”), “PKK halktır. Halk burada.” (“The PKK is the people. The people are here.”), “Şırnak ovası PKK’nin yuvası” (“Şırnak is the home of the PKK”) for periods of between six and fifteen seconds while waving a photograph of Abdullah Öcalan. Some other demonstrators also chanted the slogan “Savaşta barışta seninleyiz Öcalan” (“In war and in peace we are with you Öcalan”). 16. On 19 February 2008 the Diyarbakır Assize Court delivered its judgment. The court noted that those who disseminated propaganda in favour of the PKK were expressing their support and approval for the PKK, whose methods were those of terrorism and violence. The court accordingly considered that the dissemination of propaganda in favour of that organisation essentially amounted to incitement to violence and the use of terrorist methods. The first-instance court further noted that it was a well-known fact that during illegal demonstrations and meetings PKK members and supporters disseminated propaganda by way of waving photographs of the leader of the PKK and yellow, red and green pieces of cloth, symbolising the so-called flag of the PKK. The court thus concluded that on 5 September 2005 the accused had disseminated propaganda by acting in support of the PKK’s aims and by their acts in front of the building of the Cizre branch of the DEHAP. 17. As regards the applicant, the Diyarbakır Assize Court also noted that he had referred to Mr Öcalan as “the leader of the Kurdish people” and to members of the PKK who had been killed as “guerrillas”. The court also found it established that the applicant had directed the demonstrators who had chanted slogans in favour of the PKK, waved yellow, red and green pieces of cloth and carried photographs of Abdullah Öcalan. The Diyarbakır Assize Court further noted that section 7(2), as amended by Law no. 5532, which had entered into force on 18 July 2006, was more favourable to the applicant than the previous version of the same provision in force on the date the applicant had committed the acts that constituted the basis for his conviction (see paragraph 19 below). As a result, the first-instance court convicted the applicant of disseminating propaganda in favour of a terrorist organisation under section 7(2) of Law no. 3713, as amended by Law no. 5532, and sentenced him to ten months’ imprisonment. The court also ordered that Article 53 §§ 1, 2 and 3 of the Criminal Code should apply in respect of the applicant (see paragraph 20 below). 18. On 13 July 2010 the Court of Cassation upheld the Diyarbakır Assize Court’s judgment.