Communicated on 3 October 2016

SECOND SECTION

Applications nos 22429/07 and 25195/07 Åžerafettin PARMAK against Turkey and Mehmet BAKIR against Turkey lodged on 18 May 2007 and 4 June 2007 respectively

STATEMENT OF FACTS

1 . Mr. Şerafettin Parmak (“the first applicant”) and Mr. Mehmet Bakır (“the second applicant”) are Turkish nationals who were born in 1955 and 1963 respectively. The first applicant is represented before the Court by Ç. Bingölbalı, a lawyer practising in İ zmir. The second applicant is represented before the Court by E. Yıldız, a lawyer practising in İzmir.

A. The circumstances of the cases

2 . The facts of the cases, as submitted by the applicants, may be summarised as follows.

3 . At the material time, the second applicant, a German resident, was in Turkey for a vacation. On 9 July 2002, he was taken into police custody in connection with an investigation into the alleged activities of BolÅŸevik Parti-Kuzey Kürdistan/Türkiye (Bolshevik Party-North Kurdistan/Turkey; hereinafter “the BPKK/T”), while travelling to Ä°zmir with another co ‑ accused, M.D.

4 . On 9 and 10 July 2002, a certain M.Ö., M.K., E.Y. and Ö.G., were taken into police custody in connection with the same investigation, and they identified the applicants as co-members of the said organisation in their statements to the police.

5 . On 12 July 2002, the first applicant was taken into custody by police officers from the anti-terrorist branch of the Denizli Police Headquarters and a search was carried out in his apartment where a number of documents, including flyers wrapped in a plastic bag, and a laptop computer belonging to the first applicant were seized.

6 . The same day the anti-terrorist police chief drew up a report summarising the investigation into the alleged activities of the applicants and other members of the BPKK/T. He noted that there had been flyers containing the organisation ’ s propaganda scattered throughout various places in İzmir and that the aim of the said organisation was to undermine the constitutional order and replace it with a communist regime. As regards the alleged involvement of the applicants in the activities of the organisation, he stated that the testimonies of the co-suspects, examination of the documents with propagandistic content found at the first applicant ’ s and M.K ’ s apartment and the applicants ’ silence during the interrogation which was typical of those involved in illegal organisations had revealed their involvement with the organisation.

7 . The applicants ’ detention on remand in a prison was ordered by a court order on 1 August 2002.

8 . On 6 September 2002 the public prosecutor at the İzmir State Security Court filed an indictment with that court accusing the applicants of membership of an illegal organisation, an offence under Article 168 § 2 of the former Criminal Code. The public prosecutor alleged that on various dates between 31 January and 05 July 2002, the organisation in question had distributed flyers in İzmir with the emblem of hammer and sickle, featuring slogans in Turkish and Kurdish such as “No to Racism and Chauvinism, Yes to Solidarity of People,” “Organise against Capitalism, Unionise,” ‘ Only Socialism Can Stop Exploitation, ’ and a declaration to commemorate the 1993 Sivas Massacre.

9 . During the course of the proceedings the applicants denied being involved in the organisation known as the BPKK/T . The first applicant submitted that the documents and the flyers found in his apartment wrapped in a bag did not belong to him and that he had not engaged in any type of propaganda on behalf of the organisation as alleged by the prosecution. The second applicant submitted that there was no evidence which suggested his involvement with the said organisation or that he had done anything contrary to law. The applicants also denied that they had exercised their right to remain silent during the police interrogation, and maintained that they had in fact cooperated with the authorities from the beginning of the investigation.

10 . In the third hearing on 21 March 2003 the İzmir State Security Court ordered the applicants ’ release from detention and imposed a preventive measure prohibiting the second applicant from leaving Turkey.

11 . On 15 July 2003 section 1 of Law no. 3713 was amended so that terrorism would hitherto be confined to acts that were ‘ criminal ’ and were committed ‘ by using violence and coercion ’ .

12 . On 24 July 2003 the İzmir State Security Court found the applicants guilty of being a founding member of the organisation in question and sentenced them to four years and two months ’ imprisonment under the first sentence of Section 7 § 1 of Law no. 3713. It also upheld the travel ban in respect of the second applicant.

13 . The applicants appealed against this decision on the grounds, inter alia , that the first-instance court had not offered evidence to prove that they had been involved in acts that could be qualified as a terrorist offence, which could lead to the conclusion that the BPKK/T was a terrorist organisation. Moreover, there was nothing in the case-file that suggested the said organisation ’ s involvement in acts of violence. It was inconceivable in today ’ s democratic society to call an organisation a terrorist organisation, solely on the basis of its name. The impugned flyers did not have any incriminating statements in them and, in any case, they were nothing more than a legitimate exercise of their freedom of thought and expression. The applicants also referred to the new amendments that were made to Law no. 3713 and submitted that there was a clear tendency on the part of the law-maker to exclude non-violent exercise of political discourse from prosecution on charges of terrorism.

14 . On 8 April 2004 the Court of Cassation quashed the judgment, holding that the first instance court should have taken into account the recent amendments made to Law no. 3713 in order to determine whether the organisation in question could be qualified as a terrorist organisation within the meaning of the amended sections 1 and 7 of Law no. 3713.

15 . By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicants was therefore transferred to the Ä°zmir Assize Court.

16 . In the meantime, the public prosecutor in charge of the investigation submitted his observations on the merits of the case and requested the acquittal of the applicants and the co-accused on the ground that the organisation in question did not correspond to the definition of a terrorist organisation under sections 1 and 7 of Law no. 3713.

17 . On 12 October 2004 the İzmir Assize Court convicted the applicants, this time under the second sentence of section 7 § 1 of Law no. 3713.

18 . In 10 November 2005 the Chief Public Prosecutor at the Court of Cassation sent the case file back to the first-instance court and requested the latter to reconsider the case in the light of more favourable provisions applicable to the applicants ’ case as provided for by the amendments made to the Criminal Code of Procedure.

19 . On 16 March 2006 the İzmir Assize Court convicted the applicants of being members of a terrorist organisation and sentenced them to two years and six months ’ imprisonment under the second sentence of section 7 § 1 of Law no. 3713. Having considered the structure, methods, purpose and activities of the organization in question, the court concluded that the latter was a terrorist organisation contrary to the submissions of the accused and the public prosecutor in charge of the investigation. The court found that the amendments made to section 7 § 1 of Law no. 3713, namely the introduction of the term ‘ using violence and coercion ’ into the definition of terrorist organisation, did not exclude situations where an unarmed organisation adopts violence and coercion as its aim, and even when its acts amount to “psychological coercion” ( manevi cebir ). A contrary interpretation of the said provision would render its application to unarmed terrorist organisations impossible. The court noted that even though the members of the organisation had not resorted to physical violence, they had used “psychological coercion” - such as issuing threats as it appeared from the confiscated documents - in order to achieve their aims. The court stressed that the organisation ’ s manifesto ( tüzük ) contained statements which were of sufficient gravity to create psychological coercion on people. The relevant parts of the judgment read:

“It was understood that after the year 1980 the illegal organisation, TKP/ML, started to experience clashes of opinion among its members, as a result of which a new organisation identifiying itself as the Bolsheviks came into existence by making its first congress in 1981 in Germany. After convening in five other congresses, namely in 1982, 1986, 1990, 1994, in their final and last congress of 1996, they named themselves as the Bolshevik Party - North Kurdistan/Turkey and declared their aim to bring about an armed revolution in Turkey for the leadership of the labour class, and for this reason, they have engaged in the acts of distributing leaflets and declarations.

The accused have participated in the realisation of the organisation ’ s aims by holding meetings in the organisation ’ s house and preparing documents to be distributed in İzmir. Moreover they have distributed and sold the publications, Çağrı and Güney – which can be considered as the organisation legal publications – in order to support the organisation financially.

The accused have denied the accusations, in particular, the existence of the organisation and in any event have stated that their acts could not have been considered as crimes...since there were no armed acts committed on behalf of the organisation....The public prosecutor submitted that the organisation in question no longer corresponded to the definition provided for by law in light of the recent amendments made to Law no. 3713 and requested the accused ’ s acquittal.

Therefore what is at stake in the present case is whether the acts of the accused correspond to the amended definition of membership of a terrorist organisation...In the consideration of whether an organisation qualifies as a terrorist organisation, its structure, working methods, purpose and its acts must be taken into account. The amended section 1 of Law 3713 requires force and violence as an element of terror. It suffices for an organisation to adopt force and violence as its purpose to bring it within the scope of the Prevention of Terrorism Act. Coercion may just as well present itself as psychological coercion. Terror is any criminal act committed for the purpose of achieving the final goals enlisted in section 1 of Law no. 3713. The ‘ purpose ’ as worded in this section subsumes the purpose of using of violence and force and therefore envisages its application to unarmed organisations. Any conclusion that is contrary to this reasoning will render the application of the Prevention of Terrorism Act to unarmed organisations impossible, which will pave the way for them to work freely towards their goal of overthrowing democracy and the Turkish Republic. In democracies people may be given all freedoms except for the freedom to destroy democracy. Since the law-maker cannot be presumed to have given license to organisations whose purpose is to ruin and divide the State, it necessarily follows that unarmed organisations fall within the scope of the law in question.

Everyone has a right to freely declare their thoughts and opinions in the public sphere. However when people establish an organisation to impose their ideas on others with the aim of changing the constitution and bringing about the cessation of the State through violence and coercion, it can be considered that the constituent element of the crime, namely psychological coercion, is presumed. In the light of this general overview, it can be considered that the acts of the accused are those of disseminating propaganda for an already existing organisation by means of distributing leaflets and thereby encouraging membership. In pages 19, 20 and 21 of the organisation ’ s manifesto...Turkish Republic was insulted. It states that Turkey occupies lands that belong to Kurdistan and Armenia and that the Kurdish people lead a justified resistance movement in the North Kurdistan against the unjust and dirty war led by the fascist Turkish Republic. The dead terrorist Ibrahim Kaypakkaya is mentioned ... In the following pages, Marxist and Leninist practices are praised and the quasi-feudal capitalist system is mentioned. The last chapter contains the party ’ s discipline procedures...In a declaration which carries the emblem of Bolshevik Party – North Kurdistan, it was stated that the history of Ottoman Empire reeks of massacres and crimes...1.5 million Armenians were massacred...and that the fascist Turkish army is merely a continuation of the Ottoman Empire...that the real enemy is the fascist Turkish Republic...unite under the red flag of the Bolshevik party in order to overthrow the fascist Turkish Republic with a democratic people ’ s revolution and wave the red flag of bolshevism in cities, castles, farms and mountains so that we can finally throw the fascist Turkish State into the gutters of history...

There are many more statements like the ones quoted above. There are many documents which incite people to revolt against the regime and the State and wage war on the government by taking to the mountains. However it is not possible to quote all of them in the judgment. They have been identified individually in the present judgment under the heading written evidence. In the light of this examination, it appears that the aim of the Bolshevik Party is to change the regime and bring about secession of part of national territory for Northern Kurdistan. It is considered that the organisation started working for these aims but has not yet engaged in armed attacks. [However,] the mere existence of such discourse in the organisation ’ s manifesto and declaration is sufficient to create psychological duress on people.”

20 . Having regard to the arrest and seizure report, and the report based on the identification parade concerning all the accused, the documentary evidence found in the possession of the first applicant as well as the possession of periodicals Çağrı and Güney , which were identified by the court as the legal publications of the organisation and the illegal periodical Açılım , the court found it established that the applicants were members of the illegal terrorist organisation.

21 . The applicants appealed against this judgment and raised the same grounds of appeal as they did in their previous appeal (see paragraph 13 above).

22 . In the meanwhile, relying on the fact that his entire life had been spent in Germany prior to his arrest and that he had no income, residence or medical insurance in Turkey to sustain himself, the second applicant made repeated requests for the measure preventing him from leaving Turkey to be lifted. The domestic courts rejected these requests on 21 May 2003, 24 July 2003, 21 July 2004, 1 September 2004, 12 October 2004, and on 16 March 2006 by having regard to the stage of the proceedings.

23 . On 29 June 2006 section 7 § 1 of Law no. 3713 was amended by revising definition of terrorist acts and offences and subjecting their punishment to Article 314 of the new Criminal Code.

24 . On 5 October 2006 the Chief Public Prosecutor submitted his observations and asked the Court of Cassation to quash the first-instance court judgment on the grounds that the legal status of the applicants and other accused should be reconsidered in view of the amendments made to section 7 § 1 of Law no. 3713 on 29 June 2006.

25 . On 25 December 2006 the Court of Cassation, on appeal, considered that there was no change favourable to the applicants in respect of the constituent elements of the offence defined under section 7 of Law no. 3713. It remarked that the penalty corresponding to these offences had now become heavier than the previous version of the provision. Therefore it upheld the İzmir Assize Court ’ s judgment of 16 March 2006.

B. Relevant domestic law

1. The relevant provisions of the Criminal Code (Law no. 765) at the material time provided:

Article 168

“It shall be an offence punishable by at least fifteen years ’ imprisonment to form an armed gang or organisation or to assume control or special responsibility within such a gang or organisation with the intention of committing any of the offences referred to in Articles 125...

It shall be an offence punishable by five to fifteen years ’ imprisonment to belong to such an organisation.”

2. The relevant provisions of the New Criminal Code (Law no. 5237) at the material time provided:

Article 314

“ (1) Anyone who forms an armed organisation to commit the crimes listed in the fourth and fifth sections of this chapter, or commands such an organisation, shall be liable to a term of imprisonment of from ten and fifteen years.

(2) Anyone who becomes a member of an (armed) organisation mentioned in the first paragraph of this Article shall be liable to a term of imprisonment of from five and ten years.

(3) Other provisions relating to the crime of forming an organisation for the purpose of criminal activity are also applicable for this crime.”

3. Relevant provisions of the Prevention of Terrorism Act (Law No. 3713).

Section 1 (before amendment by Law no. 4928 of 15 July 2003)

“(1) Terrorism is any kind of act committed by one or more persons belonging to an organisation with the aim of changing the characteristics of the Republic as specified in the Constitution, its political, legal, social, secular and economic system, damaging the indivisible unity of the Turkish State and Republic, weakening or destroying or seizing the authority of the State, undermining fundamental rights and freedoms or damaging the internal and external security of the State, public order or general health by means of pressure, force, violence, terror, intimidation, oppression or threat.”

Section 1 (as amended by Law no. 4928 of 15 July 2003)

“Terrorism is any kind of criminal act committed by one or more persons belonging to an organisation with the aim of changing the characteristics of the Republic as specified in the Constitution, its political, legal, social, secular and economic system, damaging the indivisible unity of the Turkish State and Republic, weakening or destroying or seizing the authority of the State, undermining fundamental rights and freedoms or damaging the internal and external security of the State, public order or general health by using force and violence and methods of pressure, terror, intimidation, oppression or threat.

Section 3

“Offences defined in Articles...168...of the Turkish Criminal Code are terrorist offences.”

Section 7 § 1 (before amendment by Law no.5532 of 29 June 2006)

“Without prejudice to sections 3 and 4 of this Law and the articles 168...of the Criminal Code, those who establish, manage or become members of an organisation as defined under section 1 of this Law shall be punished by a term of imprisonment of from five to ten years.. .Those who aid and abet members of such organisations and spread propaganda on their behalf shall be punished by a term of imprisonment of from one to five years, even if the act in question constitutes a separate offence.”

Section 7 § 1 (as amended by Law no.5532 of 29 June 2006)

“Those who establish, manage or become members of a terrorist organisation in order to commit crime to carry out the purposes stated under Section 1, by using force and violence, and by means of exerting pressure, fear, intimidation or threats, shall be punished in accordance with the provisions of Article 314 of the Turkish Criminal Code. Those who organise the activities of the organisation shall also be punished as managers of the organisation.”

4. The relevant provision of the Passport Act (Law no. 5682) at the material time concerning the travel ban

Section 22

“... no passport or other travel document shall be issued to any person prohibited from leaving the national territory by virtue of a judicial decision ...”

COMPLAINTS

The applicants complain under Articles 7, 10 and 11 of the Convention that their conviction lacked basis in law as the domestic courts ’ extensive interpretation of the relevant provisions of Law no. 3713 ran contrary to the principle of nullum crimen sine lege and thus infringed their right to freedom of expression and association.

The second applicant complains under Article 8 that the travel ban imposed on him during the course of the proceedings was disproportionate and contravened his right to respect for his private and family life, as he was prevented from going back to Germany where his life, including his residence, family, professional activities as well as medical and social cover were based.

QUESTIONS

1. Did the acts for which the applicants were convicted constitute a criminal offence under national law at the time when they were committed, as envisaged by Article 7 of the Convention? In particular, was the İzmir Assize Court ’ s interpretation of the documentary evidence as constituting ‘ psychological coercion ’ foreseeable within the meaning of the relevant provision of the Law no. 3713? The Government are invited to submit relevant case-law of the domestic courts where they have resorted to the concept of “psychological coercion” within the context of sections 1 and 7 of Law no. 3713.

2. Has there been an interference with the applicants ’ freedom of expression, in particular their right to receive and impart information and ideas within the meaning of Article 10 § 1 of the Convention?

If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?

In particular, which documents were taken as the basis in the applicants ’ conviction and which of those were found to have been disseminated by the applicants in the public sphere?

In this connection, the Government are requested to submit a copy of the complete investigation file, as well as copies of the contents of the file in respect of the case brought against the applicants before the Ä°zmir Assize Court.

3. Finally, has there been an interference in case no. 25195/07 with that applicant ’ s right to respect for his private and family life within the meaning of Article 8 § 1 of the Convention in respect of the travel ban that remained in force during the course of the entire proceedings?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 ?