SECOND SECTION

Application no . 57069/09 Faruk ZENGİN and Hakan Ç AKIR against Turkey lodged on 15 October 2009

STATEMENT OF FACTS

THE FACTS

The applicants, Mr Faruk Zengin and Mr Hakan Çakır , are Turkish nationals, who were born in 1987 and 1986 respectively. They are represented before the Court by Mr H. Karakuş and Mrs G. Altay, lawyers practising in İstanbul.

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

On 18 May 2007 the applicants participated in a gathering in commemoration of İbrahim Kaypakkaya , the leader of the TKP/ML (Turkish Communist Party-Marxist/Leninist), who had died in 1973, allegedly under torture in police custody. During the gathering, the second applicant read out a press declaration deploring ill-treatment in police custody and slogans were shouted by the group such as “Our leader is İbrahim; İbrahim, Deniz, Mahir ”, “Our struggle continues and shall continue”, “İbrahim Kaypakkaya is immortal”, “We will drown fascism in the blood it has shed”. The group also carried a banner, which said “İbrahim Kaypakkaya is immortal - Partizan ”.

On 7 January 2008 the Erzurum public prosecutor initiated criminal proceedings against fifteen persons, including the applicants, charging them with disseminating propaganda for an illegal organisation, namely the TKP/ML.

During the proceedings, the Erzurum Assize Court examined the video recording of the incident. It further received an expert report regarding the video recording, in which it was established that the applicants had shouted the above-mentioned slogans. In their defence statements, the applicants admitted to having shouted the slogans but denied that they had disseminated propaganda for an illegal organisation. They maintained that they had gathered together to protest against ill-treatment.

On 31 March 2009 the Erzurum Assize Court found the applicants guilty as charged under Section 7 of Prevention of Terrorism Act (Law no. 3713) and sentenced them each to ten months ’ imprisonment. The court further decided to suspend the pronouncement of the judgment pursuant to Article 231 of the Criminal Procedure Code (Law no. 5271).

The applicants filed an objection. In their petition, they stated that the first instance court had erred in the interpretation of the facts and law, and requested to be acquitted of the charges against them. They further maintained that their prosecution for having shouted slogans constituted a breach of Article 10 of the Convention.

On 20 July 2009 the Diyarbakır Assize Court, without examining the merits of the case, held that the application of Article 231 to the case was in line with the domestic law and rejected the applicants ’ objection without examining the merits of the case. This decision was served on the applicants on 5 August 2009.

COMPLAINT

The applicants complain under Article 10 of the Convention that their right to freedom of expression was breached. In this respect, they maintain that the criminal proceedings initiated against them for having shouted slogans cannot be considered as necessary in a democratic society.

QUESTION TO THE PARTIES

Did the prosecution of the applicants for shouting slogan s constitute an interference with their freedom of expressio n within the meaning of Article 10 § 1 of the Convention? If so, was that interference necessary in terms of Article 10 § 2 of the Convention?

The Parties are requested to submit a copy of the video recording of the incident and the expert report obtained during the domestic proceedings.