Communicated on 12 December 2013

SECOND SECTION

Application no. 43731/05 Mehmet Åževket EYGÄ° against Turkey lodged on 26 November 2005

STATEMENT OF FACTS

The applicant, Mr Mehmet Şevket Eygi , is a Turkish national, who was born in 1933 and lives in Istanbul . He is represented before the Court by Mr T. Akıllıoğlu , a lawyer practising in Ankara .

A. The circumstances of the case

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

2. The applicant is a columnist for the daily national newspaper , Milli Gazete . On 15 November 2000 the newspaper published an article entitled “Terror of Religious Enmity” ( Din D üş manlığı Terör ü ) written by the applicant.

3. On 5 December 2000 the public prosecutor at the Istanbul State Security Court summoned the applicant to make a statement with respect to the article.

4. On 12 December 2000 the applicant made his submissions before the public prosecutor. He maintained that he had indeed written the article, which, taken as a whole, aimed at social integration and peace as opposed to inciting hostility on the basis of religious differences.

5. On 21 December 2000 the public prosecutor filed an indictment with the Istanbul State Security Court , accusing the applicant, together with the editor-in-chief of the newspaper, of clear incitement to hatred on the basis of religious distinction pursuant to Article 312 § 2 of the then valid Criminal Code (Law no. 765). The prosecutor argued that in his article dated 15 November 2000 the applicant had reflected society as two fragments, believers and non-believers. In this connection, the prosecutor highlighted the following phrases of the article:

“Those opposing the people ’ s right and freedom to live in line with their beliefs aim to dynamite the foundations of Turkey and to cause its destruction by way of putting a distance between the masses and the state.”

“The headscarf is the symbol of Islam. Attacking the headscarf is actually attacking Islam. They will cite Atat ü rk (for their attack). That is a lie. Atat ürk made submissions in favour of the headscarf.”

“The biggest disgrace in Turkey is the enmity against Islam and the Muslims as well as the oppression of the religious folk.”

“The free and civilised world must be informed of the coercion t o impiety in Turkey.”

“Those who exploit religion do not care about the tyranny o ver the Muslims; money is their religion. They worship their own uncontrolled earthly desires.”

“As reflected by the current situation, the atheists want to expand the headscarf ban to the streets. They do not want to see anyone in headscarves except for the peasants, those in the ghettos and the elderly. This is brutality. This is uncivilised behaviour . This is the real conservatism.”

“The real reason behind the tragedy of the Muslims is the exploitation of religion. Some vile and degenerate men, who worship no other but their earthly desires, have defiled the Islamic movement and cheated the Muslims.”

6. On 31 October 2001 the applicant submitted his defence statements before the Istanbul State Security Court, arguing that he had been prosecuted for expressing his sincere opinions in an article, which had pointed out the restrictions on religious freedom in Turkey. He also maintained that in his indictment the public prosecutor had not indicated why his statements had constituted incitement to hatred but merely cited certain parts of the article.

7. During the course of the proceedings, on various dates the applicant submitted written statements to the court. Drawing the court ’ s attention to the amendment of the text of Article 312 § 2 of the Criminal Code (Law no. 765), he argued that the new provision was more favourable in his case in that it foresaw conviction only for cases of incitement of hatred which endangered public order, which was not relevant for his case as the public prosecutor had not accused him of endangering public safety under the second phrase of Article 312 § 2 before its amendment. The applicant added that in any case his article had not incited hatred in people from different religions or denominations but merely criticised an approach restricting religious freedom. Referring to the Court ’ s case-law, he finally noted that the article had to be assessed in light of the right to freedom of expression.

8. On 31 October 2001 the applicant submitted an expert opinion which concluded that the applicant ’ s statements did not constitute the alleged offence in light of the amendment of Article 312 § 2 .

9 . On 9 October 2002 the Istanbul State Security Court found the applicant guilty as charged and sentenced him to one year and eight months ’ imprisonment. Referring to Article 14 of the Constitution governing the abuse of fundamental rights and freedoms, the court held as follows:

“The offence described in Article 312 is an endangerment offence ... Accordingly, it suffices that the article at issue ... incites social events endangering public order.

The following would be noted upon a glance at our history:

The Turkish nation has adopted Islam of its own will, without any coercion. (It) has always been and will be proud of being Muslim. The Turkish nation is the nation which has contributed the most to the spread of Islam in the world and this will always be so. Among all Muslim states, the Turkish Republic is the one where the right to freedom of religion is exercised with the least constraint. That is so thanks to its fundamental principle of secularity ...

Inciting people to social uprising by exploiting their innocent religious beliefs and arguing that Islam is being attacked in our country by an atheist or convert administrative minority pose s a great danger to our society, which has experienced tragedies ... fuelled by fundamentalism ( Menemen ve Sivas Olayları ) ... Inciting people against each other and against legal entities has nothing to do with freedom of expression.

For the reasons stated above ... it is understood that in arguing that part of the Turkish nation consisted of atheists and converts, the applicant clearly incited hatred on the basis of a religious distinction in a manner endangering public order ... ”

10. The applicant appealed against the judgment, reiterating his previous statements and arguing that the execution of the sentence should have been deferred on account of his age.

11. On 15 July 2004 the Court of Cassation quashed the judgment of the State Security Court. The higher court found that in his article the applicant had not made a differentiation between believers and non-believers but merely criticised those who, according to his religious understanding, damaged Islam and the country. It further held that the applicant had not endangered public order as he had neither made hateful comments nor incited violence.

12. On 28 October 2004 the chief public prosecutor at the Court of Cassation objected to the decision of the higher court, arguing that the applicant had indeed committed incitement to hatred as he had deliberately used provocative language in expressing his criticism.

13. On 1 June 2005 a new Criminal Code (Law no. 5237) entered into force.

14. On 15 March 2005 the Grand Chamber of the Court of Cas sation for Criminal Law Matters ( Yargıtay Ceza Genel Kurulu ) delivered the final decision in the case. Having dwelled on the relationship between the right to freedom of expression and secularism, the Grand Chamber of the Court of Cassation concluded that the applicant had used provocative words expressing enmity towards a target section of society, namely, those who support and exercise the headscarf ban. Accordingly, in line with the chief public prosecutor ’ s objection, it upheld the judgment of the Istanbul State Security Court, setting aside the decision of the Court of Cassation which had quashed that judgment.

15. On 30 May 2005 the final decision was deposited with the registry of the Istanbul Assize Court, which had acquired jurisdiction over the case following the abolition of the State Security Courts in 2004.

16. On 27 June 2005 the Istanbul public prosecutor decided to defer the execution of the applicant ’ s sentence for a period of six months.

B. Relevant domestic law

17. Article 312 § 2 of the former Criminal Code (Law no. 765), at the time the public prosecutor filed an indictment against the applicant, provided as follows:

“Any person who incites others to hatred or hostility on the basis of a distinction between social class, race, religion, denomination or region shall, on conviction, be liable to between one and three years ’ imprisonment and to a fine of between nine thousand and thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by between one third and one half.”

18. Following an amendment on 6 February 2002 , the wording of Article 312 § 2 read as follows:

“Any person who incites others to hatred or hostility on the basis of a distinction between social class, race, religion, denomination or region in a manner which endangers public order, shall be liable to between one and three years ’ imprisonment.”

19. On 1 June 2005 a new Criminal Code (Law no. 5237) entered into force. Article 216 of the new Code provides as follows:

“1. Any person who publicly provokes hatred or hostility in one section of the public against another section with different characteristics based on social class, race, religion, denomination or regional differences, such as to create a clear and imminent danger to public safety, shall be sentenced to a term of imprisonment of one to three years.

2. Any person who publicly denigrates a section of the public on grounds of social class, race, religion, denomination , gender or regional differences shall be sentenced to a term of imprisonment of six months to one year.

...”

COMPLAINT

20. Relying on Article 10 of the Convention, the applicant complains that his right to freedom of expression was violated by his conviction for expressing his opinions in an article. In this connection, he argues that the Grand Chamber of the Court of Cassation failed to clarify how his statements constituted a clear and imminent danger to public safety.

Q UESTION 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 Article 312 § 2 of the former Criminal Code (Law no. 765) ?