SECOND SECTION

Application no. 56866/10 Resul SAVUR against Turkey lodged on 5 August 2010

STATEMENT OF FACTS

The applicant, Mr Resul Savur, is a Tu rkish national, who was born in 1990 and was detained in Diyarbakır prison at the time of the application to the Court . He is represented before the Court by Mr M. Şahin and Ms S. Ş ahin, lawy ers practising in Diyarbakır .

A. The circumstances of the case

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

On 14 July 2008 the applicant participated in a demonstration in Diyarbakır organised by various non-governmental organisations , d uring which he did not commit any illegal act .

On 17 July 2008 the applicant was taken into police custody on the basis of a video recording taken from police cameras .

On 19 July 2008 in his statements before the Diyarbakır public prosecutor and a judge at the Diyarbakır Assize Court, the applicant maintained that he had participated in the demonstration; covered his face during the demonstration; thrown a few stones at the police and taken down a Turkish flag from the flagpole in a schoolyard without realising what he was doing .

On the same day the applicant was placed in detention on remand.

On 20 July 2008 the Diyarbakır public prosecutor lodged a bill of indictment against the applicant and another person with the Diyarbakır Assize Court. In the indictment, the applicant was charged with membership of an illegal organisation under Articles 220(6) and 314 of the Criminal Code, violating the Meetings and Demonstration Marches Act (Law no. 2911), disseminating propaganda in favour of the PKK, an illegal organisation under section 7(2) of the Preve ntion of Terrorism Act (Law no. 3713) and humiliating the symbols of State sovereignty under Article 300(1) of the Criminal Code . The public prosecutor alleged that the applicant had participated in the demonstration on 28 March 2006 upon the instructions of the PKK, thrown stones at the police and entered a schoolyard and taken down the Turkish flag found therein.

On 25 September 2008 the applicant made statements before the trial court and denied the veracity of his previous statements. He submitted that on 19 July 2008 he had been compe lled to give those statements by the police.

On 16 April 2009 the Diyarbakır Assize Court convicted the applicant as charged. The court found that the applicant had participated in the demonstration following the instructions of the PKK; that he had resisted the police by throwing stones at the police; that he had chanted slogans in support of the PKK and that he had climbed a flagpole and taken down the Turkish flag in a schoolyard. The court based its decision, in particular, on the report of fingerprint examination of the flagpole and an expert report regarding the police force ’ s video recording . The Diyarbakır Assize Court sentenced the applicant to a total of eight years, three months and twenty days ’ imprisonment.

On 8 February 2010 the Court of Cassation upheld the judgment of 16 April 2009.

B. Relevant domestic law

Article 220(6) of the Criminal Code read, at the time of the events, as follows:

“...Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation.”

Article 314(2) of the Criminal Code reads as follows:

“Anyone who becomes a member of an (illegal) organisation mentioned in the first paragraph of this Article shall be sentenced to a term of imprisonment of five to ten years.”

Article 300 ( 1 ) of the Criminal Code reads as follows:

“ Anyone who publicly tears, burns or otherwise denigrates the Turkish flag shall be sentenced to a term of imprisonment of one to three years. This provision shall apply to all signs bearing the white crescent and star on a red ground described in the Constitution as a symbol of the sovereignty of the State of the Republic of Turkey.

Section 7(2) of the Prevention of Terrorism Act read, at the relevant time, as follows:

“Anyone who disseminates propaganda in favour of a terrorist organisation shall be sentenced to a term of imprisonment of one to five years.”

COMPLAINTS

The applicant complains under Articles 9 and 10 of the Convention that his conviction was in breach of his rights to freedom of thought and expression.

The applicant further submits under Article 6 of the Convention that there was an absence of proportionality between the acts constituting the basis for the applicant ’ s conviction and the amount of sentence imposed on him.

QUESTIONS TO THE PARTIES

Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention, and his right to freedom of assembly, contrary to Article 11 of the Convention, on account of his conviction under section 7(2) of the Prevention of Terrorism Act , under Articles 220(6), 314 and 300(1) of the Criminal Code and under the Meetings and Demonstration Marches Act (Law No. 2911) ?

The Government are invited to submit a copy of the file of the case brought against the applicant before the Diyarbakır Assize Court, including the expert report regarding the police force ’ s video recording of the demonstration held on 14 July 2008 and the video recording itself.