CEDH · CASELAW;COMMUNICATEDCASES;ENG — 28 mars 2013

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sA36B60A1 { font-family:Arial; font-style:italic } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sD6E2332A { margin-top:12pt; margin-bottom:0pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } SECOND SECTION Application no. 8732/11 Selahattin DEMİRTAŞ against Turkey lodged on 23 December 2010 STATEMENT OF FACTS   The applicant, Mr Selahattin Demirtaş, is a Turkish national who was born in 1973 and lives in Diyarbakır. He is represented before the Court by Ms M. Danış Beştaş and Mr M. Bestaş, lawyers practising in Diyarbakır. The facts of the case, as submitted by the applicant, may be summarised as follows. At the time of the events giving rise to the present application, the applicant was the head of the Diyarbakır branch of the Human Rights Association. On 5 July 2005 the applicant took part in a television programme entitled “Rojname” on ROJ TV, a pro-Kurdish television channel broadcast abroad. During the interview he gave on ROJ   TV, the applicant stated the following: “... Today we have made a common declaration on behalf of nine democracy platforms that exist in the region. The aim of our declaration is to draw attention to the situation of Öcalan and to the indifference and silence regarding him. We also wished to stress that Öcalan can play a role in ending the clashes that have recently increased in the region. It appears from the Government’s reaction and Turkish and Kurdish intellectuals’ declarations that the public in Turkey are attempting to ignore Öcalan’s situation. However, unless the reality of Öcalan and his assessments of the Kurdish issue are accepted, any attempt to create a solution to this problem and to establish a permanent peace will be insufficient because while everybody wants peace, the person who is held alone in İmralı and who is accepted as the leader by the Kurdish people is ignored. ... They act as if this person has no effect on Kurds and that his views are not taken into consideration by Kurds. We wish to put an end to this situation. We have three demands regarding this issue. First, Öcalan should be able to meet his lawyers. More than ten of his lawyers have been banned from practising as lawyers. We demand that this ban be lifted. Secondly, we demand that Öcalan be able to enjoy his legal rights and that his isolation be terminated. Our third demand is that the Government assess the role that Öcalan could play in a peace process. We know that Mr Öcalan does not have the appropriate conditions in his cell in İmralı prison for taking part in a comprehensive project for a peaceful solution and for resolution of the Kurdish problem. This inability is also confirmed by Öcalan himself. I do not need to be taken as an interlocutor. Yet, Öcalan has designed projects for the democratisation of Turkey, the democratisation of the Republic and the peaceful resolution of the Kurdish issue. These projects have been adapted and put into practice by his organisation KONGRA-GEL and the Kurdish people. The views of a person who is so influential and who is regarded as the leader are very important for the peaceful and permanent resolution of the Kurdish problem. If his isolation is terminated, he may open the path for ending the present situation, which appears to be a serious war, and perhaps also for bringing about a ceasefire. His release may have a triggering effect. Therefore, Öcalan’s role regarding this issue should be assessed and to this end, the İmralı system, which is the isolation of Öcalan as well as the oppression of the Kurdish people, should end. I believe that if these things happen, the clashes will reduce to a minimum. I think that if the Government and the army are responsive, there will be no more coffins wrapped in flags or green, yellow and red fabric to be sent to the homes of young people.” On 20 December 2005 the Diyarbakır public prosecutor filed an indictment with the Diyarbakır Assize Court charging the applicant with disseminating propaganda in favour of an illegal organisation under Article   220 § 8 of the Criminal Code. On 14 November 2006 the 5 th Chamber of the Diyarbakır Assize Court convicted the applicant as charged for disseminating propaganda in favour of the PKK, an illegal organisation, and sentenced him to one year and three   months’ imprisonment. On 4 February 2008 the Court of Cassation quashed the judgment, holding that as the PKK was a terrorist organisation, the applicant should have been convicted of disseminating propaganda in favour of a terrorist organisation, pursuant to section 7(2) of the Prevention of Terrorism Act (Law   no.   3713). On 28 September 2010 the 5 th Chamber of the Diyarbakır Assize Court convicted the applicant of disseminating propaganda in favour of the PKK under section   7(2) of the Prevention of Terrorism Act. In its judgment, the first-instance court held that by making the aforementioned statements, the applicant had demonstrated his support for members of the terrorist organisation, praised the leader of the terrorist organisation and revealed himself as a supporter of the PKK. The Assize Court sentenced the applicant to ten months’ imprisonment. Having regard to the fact that the applicant did not have a criminal record and taking into account his personality and the duration of the prison sentence, the first-instance court considered that the applicant would not commit any further offence. It therefore decided to suspend the pronouncement of the judgment ( hükmün açıklanmasının geri bırakılması ) for a period of five years, pursuant to Article 231 of the Code of Criminal Procedure. On 1 October 2010 the applicant appealed against the judgment of 28   September 2010. On 7 December 2010 the 6 th Chamber of the Diyarbakır Assize Court dismissed the applicant’s appeal. COMPLAINTS The applicant complains, under Articles 1, 9, 10 and 13 of the Convention, that his conviction under section 7(2) of the Prevention of Terrorism Act constituted a violation of his freedom of thought and his freedom of expression. The applicant maintains, under Articles 6 and 14 of the Convention, that the criminal proceedings against him continued after 2007, namely after he became a parliamentarian, which meant that he was not treated in the same way as an individual accused under the ordinary criminal law and that, therefore, the trial court had not been independent and impartial.   QUESTION TO THE PARTIES   Has there been a violation of the applicant’s right to freedom of expression, contrary to Article 10 of the Convention, on account of his conviction under section   7(2) of the Prevention of Terrorism Act (Law   no.   3713)?