SECOND SECTION

Application no. 18377 /1 1 Murat A VCI against Turkey lodged on 2 1 February 201 1

STATEMENT OF FACTS

The applicant, Mr Murat Avcı , is a Turkish national, who was born in 1979 and lives in Siirt . He is represented before the Court by Mr M. Beştaş and Ms M.D. Beştaş , lawyers practising in Diyarbakır.

A. The circumstances of the case

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

At the time of the events giving rise to the present application, the applicant was the chief of the Siirt branch of DTP (Party for a Democratic Society). On 19 March 2006 the applicant attended a Newroz celebration. The celebration was organised with the permission of the Siirt governor ’ s office. The applicant made the following speech during the meeting:

“The mentality trying to ban ROJ TV from broadcasting is the same militaristic mentality that intends to ban the national clothes of the Kurdish people. My fellow people, we, as members of the community and a political movement, have always declared that the ongoing wars in this country must end and it must end through contacting the interlocutors. Today, the State authorities claim that they do not know who the interlocutors are and ask who they are? They may try to create new interlocutors. I hereby ask you, who is the interlocutor of the Kurdish problem? I hope and I wish that the State authorities and the world will see your statements that “ Öcalan is my political will”. They have to see it. It is an obvious reality that Abdullah Öcalan is a political authority in this country. Everybody, in particular the Turkish State authorities, must see this fact and position themselves accordingly. I believe that they have to criticise themselves vis-à-vis “ Sayın ” Öcalan and that everybody has to accept the political role of “ Sayın ” Öcalan in the solution of the Kurdish problem through peaceful means, behave accordingly and produce realistic solutions. We believe that the freedom line of “ Sayın ” Öcalan is the true line for solution. Therefore, I salute and respect the campaign that you have launched, “ Öcalan is my political will”.

On 15 May 2006, the Siirt public prosecutor opened a criminal investigation in respect of the applicant on account of the content of this speech.

On 7 April 2006 the applicant made statements before the Siirt public prosecutor. He stated that his speech had aimed at contributing to the peace within the country and to the further development of democracy. He further alleged that his speech had been a declaration of his personal views and that he had shared them in order to solve the problem through democratic and peaceful means. He therefore claimed that he had used his freedom of expression.

On 3 May 2006 the Siirt public prosecutor transferred the investigation file to the Diyarbakır public prosecutor as the case concerned offences proscribed by Article 250 of the Criminal Code, thus falling outside the scope of its jurisdiction.

On 15 May 2006 the Diyarbakır public prosecutor instituted criminal proceedings against the applicant before the Diyarbakır Assize Court under Articles 314 § 2 and 215 § 1 of the Criminal Code. The applicant was charged with membership of an illegal armed organisation and with praising an offence or an offender, on account of his speech of 19 March 2006.

On 2 December 2006, the applicant made a press statement about stopping the armed struggle, to restore peace and the role of Öcalan in this process. The content of this statement was mainly as follows:

“The DTP (Democratic Society Party) pursued an effective policy in an effort to put an end to the armed conflict which stems from the deadlock in the Kurdish problem continuing for twenty two years and to open a way towards social dialogue and permanent peace. On many occasions, the DTP called on the PKK to stop the armed struggle and the Government to start a new solution process to be run within a framework of a democratic program. As a result of these efforts, the PKK declared a ceasefire complying with the request of “ Sayın ” Öcalan . Regard being had to the reasonable statements made about the solution process and the role of the PKK and Öcalan , it might be construed that society considers this process as a new opportunity to be seized. Despite the creation of the proper conditions to ensure the continuation of the efforts towards peace of “ Sayın ” Öcalan , who proved with his statements and ideas that he favors putting an end to the war and ensuring permanent peace, the severe isolation conditions, which create tension within the Kurdish society, have still been maintained, and visits from his family and lawyers were frequently banned.”

Upon these statements, on 17 January 2007 Diyarbakır public prosecutor instituted other criminal proceedings due to the content of this press statement.

On 21 February 2008 the 6th Chamber of the Diyarbakır Assize Court merged these two cases and convicted the applicant as charged and sentenced him to six years and three months of imprisonment on account of committing a crime on behalf of a terrorist organisation and five months imprisonment for praising an offence or the offender. The Assize Court considered that the applicant provoked the attendants of the meeting with his speech and led them to shout illegal slogans under the poster of Öcalan and he had praised an offender, namely Abdullah Öcalan , who was the leader of the PKK. According to the court, the applicant had committed the offence in question by way of putting the word “ Sayın ” before the name of Abdullah Öcalan , praising him with the use of concepts such as “peace” and “ceasefire” and defining Abdullah Öcalan ’ s conditions of detention as “isolation”. The Assize Court dismissed the applicant ’ s defense that he had used the term “ Sayın ” just as a form of address rather than a sign of respect.

On 11 October 2010 the Court of Cassation upheld only the conviction for praising Abdullah Öcalan and quashed the remaining part of the judgment.

B. Relevant domestic law

At the material time Article 215 of the Criminal Code provided:

Praising an offence or an offender

ARTICLE 215 (1) Any person who openly praises an offence or a person committing an offence shall be punished with imprisonment of up to two years.

COMPLAINT

The applicant complains under Article 10 of the Convention that his conviction constituted a violation of his right to freedom of expression.

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QUESTION TO THE PARTIES

Has there been an interference of the applicant ’ s right to freedom of expression, in particular his right to impart ideas, within the meaning of Article 10 of the Convention?

If so, was the interference prescribed by law and necessary in a democratic society? In particular, is Article 215 of the Criminal Code sufficiently clear and foreseeable?

The Government are invited to submit information on the definition, content and constitutive elements of the offence provided in this article.

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