SECOND SECTION

Application no . 52428/08 Osman BAYDEMÄ°R 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

1Osman BAYDEMÄ°R

1961Diyarbakır

2Abdulkadir AÄžAOÄžLU

1972Mardin

3Abdullah AKENGÄ°N

1971Diyarbakır

4Seyfettin ALKUM

1949Mardin

5HurÅŸit ALTEKÄ°N

1975Hakkari

6Süleyman ANIK

1944Mardin

7Fırat ANLI

1971Diyarbakır

8Mehmet Nasır ARAS

1965MuÅŸ

9Ä°smail ARSLAN

1950Şanlıurfa

10Nuran ATLI

1977Mardin

11Seyfettin AYDIN

1954Siirt

12Şükran AYDIN

1957Diyarbakır

13Abdülkerim ADAM

1971Mardin

14Åžeyhmus BAYHAN

1975Diyarbakır

15Nadir BİNGÖL

1950Diyarbakır

16Aydın BUDAK

1968Diyarbakır

17Demir ÇELİK

1959MuÅŸ

18Murat CEYLAN

1972Diyarbakır

19Emrullah CÄ°N

1963Åžanliurfa

20Mehmet Selim DEMİR ( Cahide DEMİR,Özcan DEMİR, Evin DEMİR, Mehmet Can DEMİR,Mehmet Şah DEMİR)

1967The applicant died on 22 February 2009. His heirs live in Batman.

21Abdullah DEMÄ°RBAÅž

1966Diyarbakır

22Faik DURSUN

1953Şırnak

23Ayhan ERKMEN

1973Mardin

24Songül EROL ABDİL

1972Tunceli

25Ahmet ERTAK

1965Şırnak

26Leyla GÃœVEN

1964ViranÅŸehir

27Mehmet Tahir KAHRAMANER

1947MuÅŸ

28Hüseyin KALKAN

1962Batman

29Ramazan KAPAR

1970Mardin

30Zülküf KARATEKİN

1965Diyarbakır

31Mehmet KAYA

1964Diyarbakır

32Fikret KAYA

1970Diyarbakır

33Osman KESER

1960Adana

34Mukaddes KUBÄ°LAY

1955Ağrı

35Muhsun KUNUR

1956Şırnak

36Burhan KURHAN

1971Batman

37Hüseyin ÖĞRETMEN

1950Şanlıurfa

38Zeyniye ÖNER

1958Mardin

39Orhan ÖZER

1965MuÅŸ

40Yurdusev ÖZSÖKMENLER

1952Diyarbakır

41Resul SADAK

1959Şırnak

42Ethem ÅžAHÄ°N

1970Şanlıurfa

43Gülcihan ŞİMŞEK

1971Van

44Mulla ŞİMŞEK

1964Konya

45Cihan SÄ°NCAR

1957Mardin

46Mehmet TANHAN

1954Mardin

47Kutbettin TAÅžKIRAN

1954Diyarbakır

48Metin TEKCE

1972Hakkari

49HurÅŸit TEKÄ°N

1975Hakkari

50Esat ÃœNER

1966Batman

51Ali YILDIZ

1962MuÅŸ

52Mehmet Salih YILDIZ

1949Hakkari

53Muzaffer YÖNDEMLİ

1961Aydın