CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 octobre 2013

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s28F5597F { margin-top:18pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s76CF415B { page-break-before:always; clear:both } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s72F8249F { font-family:Arial; display:none } .s90140356 { width:104.48%; border-collapse:collapse } .s26CDE78A { height:13.5pt } .s44FC7CAF { width:12.2%; border-style:solid; border-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s85646119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:12pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sEC8E8B87 { width:44.76%; border-style:solid; border-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sF56628C2 { width:12.6%; border-style:solid; border-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s5F902B29 { width:30.34%; border-style:solid; border-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .sA91C8AC { border-bottom-style:solid; border-bottom-width:0.75pt; vertical-align:top } .s598389F9 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:12pt } .sC3AB69A { border-style:solid; border-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s9538EC41 { height:0pt } .s645B9A4C { width:48.25pt } .s63A3C71 { width:177.1pt } .sB2147C09 { width:49.85pt } .sF6A84443 { width:120.05pt } .s8B39D7B5 { width:0.4pt }         SECOND SECTION Application no. 52428/08 Osman BAYDEMİR and others against Turkey lodged on 28 October 2008 STATEMENT OF FACTS A.     The circumstances of the case The applicants, whose names, dates of birth and places of residence appear in the appendix hereto, are Turkish nationals. At the time of the events giving rise to the present application, they were the mayors of various towns and cities in Turkey and members of the DTP (Party for a Democratic Society). One of the applicants, Mr Mehmet Selim Demir, died on 22 February 2009. His wife and four children informed the Court that they wished to pursue the proceedings. The applicants are represented before the court by Ms R. Yalçındağ Baydemir and Mr Cihan Aydın, lawyers practising in Diyarbakır. The facts of the case, as submitted by the applicants, may be summarised as follows. In 2005 the Government of Turkey requested the Government of Denmark to revoke the broadcasting licence of ROJ TV, a Kurdish satellite television channel registered in and broadcast from Denmark, on account of its alleged connections with the PKK, an illegal organisation. On 21 December 2005 the applicants signed a letter addressed to the Prime Minister of Denmark, Mr Anders Fogh Rasmussen. They stated, inter alia , that they had drafted the letter in order to inform Mr Rasmussen about their concerns regarding the discussion revolving around ROJ TV. In the letter, the applicants further stated that ROJ TV could not broadcast in Turkey due to a number of legal and administrative obstacles and that they wished that one day it would be able to broadcast in Turkey and be one of the private TV channels broadcast in Kurdish supported by the Government. They noted that ROJ TV had millions of viewers in Turkey and abroad. They maintained that while adherence to the policies of ROJ TV and the content of the programmes was a question of discussion, the existence of ROJ TV was of utmost importance with regard to the protection and promotion of freedom of expression in Turkey. The applicants concluded that were ROJ TV to be banned in Denmark, an important mechanism in the struggle for democracy, human rights and the fundamental freedoms of the democratic civilisation would be lost. On an unspecified date the Diyarbakır public prosecutor started an investigation into the applicants. In December 2005 and January 2006 a number of newspaper articles containing the text of the applicants’ letter and information regarding the investigation were published. On 13 June 2006 the Diyarbakır public prosecutor filed a bill of indictment with the Diyarbakır Assize Court against the applicants and three other mayors, charging them with membership of a terrorist organisation on account of aiding and abetting an illegal organisation knowingly and intentionally under Articles 220 (7) and 314 of the Criminal Code and section 5 of the Prevention of Terrorism Act. On 15 April 2008 the Diyarbakır Assize Court rendered its judgment in the case. It first found, having regard to the content of the letter, that the applicants had not committed the offence proscribed in Articles   220   (7) and 314 of the Criminal Code as alleged by the public prosecutor. The assize court however convicted the applicants under Article 215 of the Criminal Code of praising a crime and a criminal. Citing the content of a number of news programmes, the Diyarbakır Assize Court noted that ROJ TV had connections with the PKK and that it broadcast in line with the aims of the PKK. The assize court concluded that the applicants had praised ROJ TV as they had qualified the TV channel as an actor struggling for democracy, human rights and the fundamental freedoms of the democratic civilisation. The Diyarbakır Assize Court sentenced the applicants to two months and fifteen days’ imprisonment. The court then commuted the prison sentences to a fine of 1,875 Turkish liras (TRL) (approximately 900 euros (EUR)). The court held that its judgment was final as the amount of the fines did not exceed TRL 2,000. The applicants lodged a petition for appeal. On 20 April 2008 the Diyarbakır Assize Court examined the appeal submitted by the applicants and held that its judgment of 15 April 2008 had been final. In its judgment, the court noted that according to Article 305(2) of the former Code of Criminal Procedure, judgments sentencing the accused to a fine of an amount less than TRL 2,000 were not subject to an appeal. The court nevertheless noted that the applicants could lodge an appeal against its decision. The written copies of the judgment of 20 April 2008 were served on the applicants’ representatives on 8 May 2008. On 3 June 2008 an order for the payment of the fine was served on the first applicant, Mr Baydemir. He paid the fine in question on 26 June 2008. On an unspecified date the applicants lodged an appeal against the decision of 20 April 2008. On 15 July 2010 the Court of Cassation dismissed their appeal holding that the judgment of 15 April 2008 had been final. B.     Relevant domestic law and practice Article 215 of the Criminal Code (Law no. 5237) reads as follows: “Any person who approves of an offence committed, or praises a person on account of an offence he or she has committed, shall be liable to a term of   imprisonment of up to two years.” A description of the relevant domestic law and practice regarding Article 305(2) of the Code of Criminal Procedure as well as the Constitutional Court’s decision of 23 July 2009 finding this provision incompatible with the Constitution can be found in Bayar and Gürbüz v. Turkey (no. 37569/06, §§ 14-16, 27 November 2012). COMPLAINTS The applicants maintain under Article 10 of the Convention that their conviction under Article 215 of the Criminal Code constituted a breach of their right to freedom of expression. The applicants complain under Article 13 of the Convention that they did not have an effective domestic remedy against the judgment of 15 April 2008 as they could not lodge an appeal. QUESTIONS TO THE PARTIES   1.     Has there been a violation of the applicants’ right to freedom of expression within the meaning of Article 10 of the Convention?   2.     Did the inability of the applicants to lodge an appeal against the judgment of the Diyarbakır Assize Court constitute a disproportionate interference with their right of access to a court, in violation of Article 6 § 1 of the Convention?   APPENDIX   N o . Firstname LASTNAME Birth year Place of residence 1 Osman BAYDEMİR 1961 Diyarbakır 2 Abdulkadir AĞAOĞLU 1972 Mardin 3 Abdullah AKENGİN 1971 Diyarbakır 4 Seyfettin ALKUM 1949 Mardin 5 Hurşit ALTEKİN 1975 Hakkari 6 Süleyman ANIK 1944 Mardin 7 Fırat ANLI 1971 Diyarbakır 8 Mehmet Nasır ARAS 1965 Muş 9 İsmail ARSLAN 1950 Şanlıurfa 10 Nuran ATLI 1977 Mardin 11 Seyfettin AYDIN 1954 Siirt 12 Şükran AYDIN 1957 Diyarbakır 13 Abdülkerim ADAM 1971 Mardin 14 Şeyhmus BAYHAN 1975 Diyarbakır 15 Nadir BİNGÖL 1950 Diyarbakır 16 Aydın BUDAK 1968 Diyarbakır 17 Demir ÇELİK 1959 Muş 18 Murat CEYLAN 1972 Diyarbakır 19 Emrullah CİN 1963 Şanliurfa 20 Mehmet Selim DEMİR (Cahide DEMİR,Özcan DEMİR, Evin DEMİR, Mehmet Can DEMİR,Mehmet Şah DEMİR) 1967 The applicant died on 22 February 2009. His heirs live in Batman. 21 Abdullah DEMİRBAŞ 1966 Diyarbakır 22 Faik DURSUN 1953 Şırnak 23 Ayhan ERKMEN 1973 Mardin 24 Songül EROL ABDİL 1972 Tunceli 25 Ahmet ERTAK 1965 Şırnak 26 Leyla GÜVEN 1964 Viranşehir 27 Mehmet Tahir KAHRAMANER 1947 Muş 28 Hüseyin KALKAN 1962 Batman 29 Ramazan KAPAR 1970 Mardin 30 Zülküf KARATEKİN 1965 Diyarbakır 31 Mehmet KAYA 1964 Diyarbakır 32 Fikret KAYA 1970 Diyarbakır 33 Osman KESER 1960 Adana 34 Mukaddes KUBİLAY 1955 Ağrı 35 Muhsun KUNUR 1956 Şırnak 36 Burhan KURHAN 1971 Batman 37 Hüseyin ÖĞRETMEN 1950 Şanlıurfa 38 Zeyniye ÖNER 1958 Mardin 39 Orhan ÖZER 1965 Muş 40 Yurdusev ÖZSÖKMENLER 1952 Diyarbakır 41 Resul SADAK 1959 Şırnak 42 Ethem ŞAHİN 1970 Şanlıurfa 43 Gülcihan ŞİMŞEK 1971 Van 44 Mulla ŞİMŞEK 1964 Konya 45 Cihan SİNCAR 1957 Mardin 46 Mehmet TANHAN 1954 Mardin 47 Kutbettin TAŞKIRAN 1954 Diyarbakır 48 Metin TEKCE 1972 Hakkari 49 Hurşit TEKİN 1975 Hakkari 50 Esat ÜNER 1966 Batman 51 Ali YILDIZ 1962 Muş 52 Mehmet Salih YILDIZ 1949 Hakkari 53 Muzaffer YÖNDEMLİ 1961 Aydın