Communicated on 7 September 2016

SECOND SECTION

Application no. 38767/09 Nur Mehmet GÃœLER and Ragip ZARAKOLU against Turkey lodged on 3 July 2009

STATEMENT OF FACTS

The applicants, Mr Nur Mehmet Güler and Mr Rag ı p Zarakolu , are Turkish nationals who were born in 1971 and 1948, respectively, and live in Van and Istanbul. They are represented before the Court by Mr Ö. Kılıç , a lawyer practising in Istanbul.

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

The second applicant Mr Zarakolu is the director and owner of Belge Uluslararas ı Yay ı nc ı l ı k , a publishing house in Istanbul.

In September 2008 Belge Uluslararas ı Yay ı nc ı l ı k published a novel written by the first applicant, Mr Güler, entitled Ö l ü mden Zor Kararlar (“Decisions Harder than Death”). The main plot of the novel revolves around a university student who joins the PKK, an illegal armed organisation , and who secretly falls in love with one of the leading members of that organisation . The book portrays the training undergone by members of the PKK and their relationships with each other, and encounters and armed clashes between the PKK and the Turkish security forces.

On 17 April 2009 the Istanbul Assize Court ordered the confiscation of all copies of the book, pursuant to section 25 of the Press Act (Law no. 5187). The court noted that the plot of the impugned novel had depicted the commission of the offence proscribed under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and the offence of incitement to commit an offence.

The second applicant submitted a written objection to the confiscation; on 29 April 2009 that was dismissed. Subsequently the order was executed.

Neither the applicants nor their representative participated in the ex parte procedures before the Istanbul Assize Court.

On 29 April and 8 May 2009 the applicants made statements to the Istanbul public prosecutor within the context of the investigation initiated against them for the publication of the book in issue. They both submitted that the book was a fictional novel inspired by real events and that it did not contain any propaganda in favour of the PKK. The first applicant noted that he had been in prison between 1992 and 2001 and that he had used the stories told by his fellow inmates and some interviews conducted with members of the PKK in the book. He claimed that the book had an anti-war tone and that it was a literary work.

On 22 May 2009 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court, charging the applicants with disseminating propaganda in favour of a terrorist organisation under section 7(2) of Law no. 3713. The public prosecutor alleged that certain stretches of dialogue between the protagonists – members of the PKK – found on pages 39, 40, 41, 76, 77, 91, 92, 100 and 104, as well as the passage at the back of the book, were in support of the PKK, which was a terrorist organisation . He considered in particular that a number of dialogues depicted members of the PKK in a positive light, provided information on organisational strategy and glorified the acts of the PKK. The public prosecutor considered that although written as a novel, the remainder of the book also constituted terrorist propaganda as the author had not had any intention of creating a literary work.

On 10 June 2010 the Istanbul Assize Court acquitted the second applicant of the charge against him, noting that the novel had been written by the first applicant. The court convicted the first applicant under section 7(2) of Law no. 3713 and sentenced him to one year and three months ’ imprisonment. It noted that the parts of the book mentioned in the bill of indictment contained expressions which could be considered as constituting propaganda in favour of a terrorist organisation , and that the events in the novel occurred in the south-east region of Turkey and that therefore the author had had the intention of disseminating propaganda in favour of the PKK.

The first applicant appealed.

On 12 July 2012 the Court of Cassation remitted the case file to the first ‑ instance court, holding that the case should be reviewed in the light of provisional section 1(1) of Law no. 6352, which had entered into force on 5 July 2012 and which stipulated that the institution of cases concerning crimes committed through the press and media and the sentences given therein were to be suspended.

On 12 September 2012 the Istanbul Assize Court decided to suspend the criminal proceedings against the first applicant brought under section 7(2) of Law no. 3713, pursuant to provisional section 1(1 )( b) of Law no. 6352, for a period of three years, on condition that he did not commit an offence through the press, media or other outlets involving the expression of ideas and opinions.

On 18 January 2013 the confiscation order dated 24 May 2010 was renewed.

On 8 Mart 2013 the applicants ’ objections to the decision of 18 January 2013 were dismissed.

COMPLAINTS

The applicants complain under Article 10 of the Convention that the confiscation of all copies of Ö l ü mden Zor Kararlar infringed their right to freedom of expression.

The applicants complain under Article 6 §§ 1 and 3 of the Convention that they were not able to participate in the proceedings before the Istanbul Assize Court and that the court decided to confiscate all copies of the impugned book without allowing them to make submissions in their defence . They further contend under Article 13 of the Convention that they did not have a domestic remedy by which to challenge the lawfulness of the national court decisions, as their objections to the confiscation order were dismissed without a hearing.

Lastly, the applicants complain under Article 1 of Protocol No. 1 that the confiscation order constituted an unjustified interference with their right to property .

QUESTIONs TO THE PARTIES

1. Is Article 6 § 1 of the Convention under its civil or criminal head applicable to the proceedings in which the confiscation of all copies of the book entitled Ö l ü mden Zor Kararlar was ordered? If so, were the applicants able to defend themselves effectively, as required by Article 6 §§ 1 and 3 of the Convention?

2. Has there been a violation of the applicants ’ right to freedom of expression within the meaning of Article 10 of the Convention in the present case?

3. Has there been a violation of the applicants ’ right to peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1?