CASE OF ARSLAN AND OTHERS v. TURKEY
Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
Paul Lemmens;Stéphanie Mourou-Vikström
6. The applicants were born in 1983, 1973, 1983, 1986, 1984 and 1984. Mr Yaşar Çalışkan lives in Ankara. The other applicants live in Samsun. According to the applicants’ submissions, which were not contested by the Government, at the time of the lodging of the application, they were serving the prison sentences arising out of their criminal convictions which gave rise to the present application. 7. On 17 and 18 June 2005 seventeen members of the Maoist Communist Party (hereinafter “the MKP”), an illegal organisation, were killed in a rural area within the administrative jurisdiction of the town of Ovacık, near the city of Tunceli, by members of the security forces. 8. On 21 June 2005 a gathering was held in protest at the alleged unlawful killings of 17 and 18 June 2005 in Samsun. University students from the Samsun Ondokuz Mayıs Üniversitesi, including the applicants, gathered in front of the building of the Black Sea Fundamental Rights and Freedoms Association (Karadeniz Temel Haklar ve Özgürlükler Derneği) where a press statement was read out. 9. On 8 July 2005 one of the applicants, Mr Ahmet Doğan, attended another reading out of a press statement in Samsun. The press statement concerned the killings of 17 and 18 June 2005, the arrest of a number of persons subsequent to the reading out of the press statement on 21 June 2005 and the alleged unlawful killing of a detainee by the police. 10. On 21 February 2007 the Ankara public prosecutor initiated criminal proceedings against twenty-three people, including the applicants, charging them with disseminating propaganda in favour of the MKP, under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). According to the indictment, during the gathering of 21 June 2005, slogans such as “Long live revolutionary solidarity” (“Yaşasın devrimci dayanışma”), “We have paid a price. We will make them pay a price.” (“Bedel ödedik, bedel ödeteceğiz.”), “Murderer State” (“Katil devlet”), “Revolutionary martyrs are immortal” (“Devrim şehitleri ölümsüzdür.”), “Martyrs are immortal” (“Şehit namırın”), were chanted and the applicants participated in the gathering. The public prosecutor further noted that Mr Ahmet Doğan had participated in the gathering of 8 June 2005, during which the following slogans had been chanted: “No emancipation alone, either all of us or none of us.” (“Kurtuluş yok tek başına, ya hep beraber ya hiçbirimiz.)”, “Arrests, provocations and coercion cannot discourage us.” (“Tutuklamalar, provakasyonlar, baskılar bizi yıldıramaz.”), “We will resist and succeed” (“Direne direne kazanacağız.”), “We have paid a price; we will make them pay a price.” “Bedel ödedik, bedel ödeteceğiz”). 11. On 31 March 2009 the Ankara Assize Court found the applicants guilty as charged and sentenced each of them to ten months’ imprisonment pursuant to section 7(2) of Law no. 3713, except for Mr Ahmet Doğan, who was sentenced to twenty months’ imprisonment. As regards the gathering of 21 June 2005, the assize court found it established that the slogan “Martyrs are immortal” had been chanted by Mr Kürşad Arslan, Ms Dilek Kömpe, Mr Olcay Bayraktar and Mr Ahmet Doğan and that the slogans “The murderer state will pay the price”, “Revolutionary martyrs are immortal” and “Long live revolutionary solidarity” had been chanted by Mr Yaşar Çalışkan, Mr Kürşad Arslan and Ms Dilek Kömpe. The court also found it established that all the applicants except for Mr Olcay Bayraktar had chanted the slogan “We have paid a price; we will make them pay a price” and that Mr Ahmet Doğan had carried a banner bearing the slogan “Ovacık Martyrs are immortal”. As regards the gathering of 8 July 2005, the court noted that Mr Ahmet Doğan had chanted the slogans “Arrests, provocations and coercion cannot discourage us.”, “We will resist and succeed” and “We have paid a price; we will make them pay a price.” during that public gathering. 12. In its judgment, the Ankara Assize Court referred to Article 10 of the Convention as well as to the Court’s judgment in the case of Sürek v. Turkey (no. 1) ([GC], no. 26682/95, ECHR 1999IV) and the report of the European Commission of Human Rights in the case of Karataş v. Turkey (no. 23168/94, Commission’s report of 11 December 1997). The court held that by chanting the above-mentioned slogans the applicants had not exercised their democratic rights but had glorified terror by adopting the style of discourse of terror organisations and that they had not distanced themselves from violence. In the court’s view, by chanting those slogans the applicants had not intended to find a solution to a problem but had praised and glorified the source of the problem, that is to say, the terrorist organisations concerned. Hence, the applicants had incited terror. The Ankara Assize Court concluded that chanting the slogans in question could not be considered as falling within the scope of the right to freedom of expression. 13. On 8 July 2010 the Court of Cassation upheld the judgment of 31 March 2009 in so far as it concerned the applicants’ conviction. 14. On unspecified dates the applicants served their prison sentences.