Communicated on 31 March 2016

SECOND SECTION

Application no. 6940/07 Fatma HANBAYAT and others against Turkey lodged on 12 January 2007

STATEMENT OF FACTS

The applicants are all Turkish Nationals and are represented by Mr M. A. Kırdök , a lawyer practising in Istanbul. A list of the applicants is set out in the appendix.

A. The circumstances of the case

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

1. The confiscation of the headstones of the applicants ’ relatives and the subsequent criminal proceedings

On 17 June 2005 the applicants ’ relatives, Mr Cafer Cangöz , Mr Aydın Hanbayat , Mr Ali Rıza Sabur , Mr Taylan Yıldız and Mr Ahmet Perktaş , were killed in a military operation against the members of an illegal organisation , namely the MKP/HKO (Maoist Communist Party/People ’ s Liberation Army), in the area of Ovacık district in Tunceli . The deceased were subsequently buried at the Si ğenk cemetery in Tunceli , a common burial area ( kimsesizler mezarligi ) owned by the municipality.

Following the burial, the applicants had headstones erected for the graves of their relatives which were inscribed with the word “ ölümsüzdür ” (immortal) along with other details, such as the names, dates of birth and the date of death of the deceased.

On 11 May 2006 the applicants purchased the plot of land containing the graves of their relatives from the municipality.

The case file shows that the applicants started building a family grave on the plot in question and erected a wall surrounding the burial site.

On 17 June 2006 a group of approximately 150 people, including the applicants, gathered in the street leading to the cemetery in order to commemorate the deceased.

According to official documents in the case file, law-enforcement officers were deployed in the area, acting on information that an illegal demonstration was about to take place. As the police officers repeatedly sought to disperse the group and prevent them from entering the cemetery, the situation escalated into a clash. S ixty -four people were arrested and three were eventually taken away into custody.

On 20 June and 29 June 2006 the police also intervened to prevent further attempts by the applicants to hold a commemoration event.

On 18 July 2006 the Tunceli public prosecutor informed the municipality about the applicants ’ attempts to build a memorial at the burial site of their relatives and requested information as to whether they had been issued with the necessary permits, in line with the Law on the Protection of Graveyards (Law no. 3998) and the Regulation on Municipal Graveyards. The public prosecutor pointed out that inscribing the word “immortal” on the headstones of the deceased could constitute the offence of “praise of an offence or an offender” under Article 215 § 1 of the Criminal Code. The public prosecutor further maintained that the construction of such a monument in breach of the law might make the municipality an accomplice in such an offence.

On 25 July 2006 the Tunceli public prosecutor applied to the Tunceli Magistrate ’ s Court for permission to seize the memorial and the headstones as the inscription of the word “immortal” constituted praise of the deceased ’ s acts.

On 26 July 2006 the municipality informed the Tunceli public prosecutor that the applicants had applied for a building permit for the construction of a family grave on 21 July 2007 and that their request had been granted on 24 July 2007. The municipality noted that it would examine whether the construction of the wall was in line with the regulations. Lastly, the municipality stressed that epitaphs that did not comply with the regulations would not be permitted.

On 27 July 2006 the Magistrate ’ s Court allowed the seizure of the headstones. The court held that the deceased were senior members of the MKP/HKO and that they had been killed in an armed clash with the security forces. The court thus concluded that the inscription of the word “immortal” on their headstones would constitute praise of an offence or an offender. However, it dismissed the application for the seizure of the family grave.

On the same day, the Tunceli public prosecutor ordered that anyone involved in the construction of the memorial site should be taken into custody for the act of praising an offence or an offender. That included the construction workers or any other employees of public or private entities seen working in the vicinity of the memorial site, plus any possible sponsors of the construction as well as all the immediate family of the deceased MKP/HKO members . One of the applicants, Ms İmiş Yıldız , who is the mother of one of the deceased, was accordingly taken into police custody along with two others.

On 28 July 2006 Ms Yıldız made a statement to the police. She maintained that the relatives of the deceased had not intended to build a memorial; they had simply sought to surround the graves of their loved ones with a wall. She further stated that the word “immortal” in her son ’ s epitaph had a purely sentimental meaning and was not meant to praise illegal acts.

On the same day, the headstones were seized by police officers.

On 4 August 2006 the applicants ’ representatives objected to the Magistrate ’ s Court ’ s decision to order the seizure of the headstones. They argued that simply because the people who had been buried were members of an armed organisation who had been killed during an operation by the security forces could not automatically lead to the conclusion that the elements of the crime of praising an offence or an offender were present. The applicants further maintained that they had simply sought to honour the memory of their deceased relatives. Lastly, they argued that the inscription of the word “immortal” on the headstones should be considered as falling within the scope of liberty of expression.

On 22 August 2006 the Tunceli Criminal Court dismissed their objection.

On 15 April 2007 the Tunceli public prosecutor filed an indictment with the Tunceli Magistrate ’ s Court, charging the applicant, Ms İ miş Yıldız , and three others with praising an offence or offenders. The public prosecutor maintained that the offence had been committed by the construction of a memorial for members of an illegal organisation and by the inscription of the word “immortal” on their headstones, which had allegedly glorified the deceased as martyrs.

On 23 October 2008 the Tunceli public prosecutor filed an indictment with the Tunceli Criminal Court and accused one of the applicants, Mr Hıdır Sabur , and sixty other people who had attended the commemoration event of “breaching the Meetings and Demonstration Marches Act ( Law no. 2911) ”. According to the information in the case file, the proceedings are still pending before the Tunceli Criminal Court.

On 8 May 2012 the Tunceli Magistrate ’ s Court acquitted Ms İ miş Yıldız and other defendants of the charges of praising an offence or an offender, holding that the use of the word “ immortal” by the defendants fell within in the scope of freedom of expression, as protected by Article 10 of the Convention and thus had not constituted an offence. The court further decided that the confiscated headstones should be returned to the relatives of the deceased. That judgment became final, with no appeal being lodged, on 16 May 2012.

2. Investigation against the police officers

On 26 June 2006 the applicants filed a criminal complaint with the Tunceli public prosecutor, making an accusation of abuse of office against the police officers who had intervened in the commemoration and conducted the arrests. On 20 May 2008, pursuant to Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials), the Tunceli public prosecutor referred the file to the Tunceli governor ’ s office and requested authorisation to prosecute the accused officials.

On 24 June 2008 the Tunceli governor refused to authorise the public prosecutor to initiate criminal proceedings against the police officers in question due to the inconsistency of statements by the applicants and a lack of evidence against the accused.

On 14 November 2008 the applicants lodged an objection against the decision of the Tunceli governor ’ s office.

On 13 February 2009 the Malatya Regional Administrative Court dismissed the applicants ’ objection in a decision with final effect.

B. Relevant domestic law

Article 215 of the Criminal Code (Law no. 5237) reads as follows:

“Any person who approves of an offence that has been committed, or praises a person on account of an offence that he or she has committed, shall be liable to a term of imprisonment of up to two years.”

Article 127 § 1 of the Code on Criminal Procedure (Law no. 5271), which sets out the procedure to be followed for the seizure of goods or assets which are considered to be possible evidence , reads as follows :

“Law enforcement officials may carry out the seizure by order of a judge, or in cases where delay would be detrimental the seizure can be made by written order of the public prosecutor.”

COMPLAINTS

The applicants complain under Articles 8 and 10 of the Convention about the seizure of the headstones of their deceased relatives and about the police intervention in the memorial service which they attempted to hold. They also complain about the criminal proceedings brought against Ms İmiş Yıldız on account of the inscription of the word “immortal” on her son ’ s headstone. Lastly, they complain about the criminal proceedings launched against the applicant Mr Hıdır Sabur for breaching the Meetings and Demonstration Marches Act.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicants ’ rights under Articles 8 and/or 10 of the Convention on account of the seizure of the headstones of their deceased relatives; the intervention of the police in the memorial service they attempted to hold; the criminal proceedings brought against Ms İmiş Yıldız under Article 215 of the Criminal Code; and finally, the criminal proceedings instituted against Mr Hıdır Sabur for breaching the Meetings and Demonstration Marches Act?

2. If so, were those interferences justified under the second paragraphs of Articles 8 and 10 of the Convention?

Appendix