SECOND SECTION

Application no. 57640/11 Ercan TÃœT against Turkey lodged on 27 June 2011

STATEMENT OF FACTS

The applicant, Mr Ercan Tüt , is a Turkish national, who was born in 1988 and lives in Diyarbakır. He is represented before the Court by Mr M.Z. Dündar , a lawyer practising in Diyarbakır.

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

A. The circumstances of the case

On 20 October 2008 the applicant was arrested in Diyarbakır during a demonstration held on the same day in order to protest against the alleged ill-treatment of Abdullah Öcalan in prison on suspicion of chanting illegal slogans and throwing stones at the police.

On 24 October 2008 the applicant was brought before a public prosecutor. He submitted that he had not participated in the demonstration, chanted illegal slogans or thrown stones at the police.

The applicant was subsequently released.

On 4 November 2008 the Diyarbakır public prosecutor took statements from Y.Ş., M.Y. and O.K., police officers who arrested the applicant. According to the document containing their statements, the police officers maintained that they had seen the applicant chanting illegal slogans and throwing stones towards the police.

On 6 November 2008 the Diyarbakır public prosecutor lodged an indictment with the Diyarbakır Assize Court against five persons, including the applicant. The public prosecutor alleged that the applicant had chanted slogans such as ‘ President Apo ’ , ‘ PKK is the people. People are here ’ , ‘ HPG to the front for retaliation ’ , ‘ once again insurrection, our president is Öcalan ’ and thrown stones at the police. He charged the applicant 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) and disseminating propaganda in favour of the PKK, an illegal organisation under section 7(2) of the Prevention of Terrorism Act (Law no. 3713).

On 27 January 2009 the Diyarbakır Assize Court held the first hearing on the merits of the case and heard the accused and the police officers who had effected the arrests. The applicant reiterated that he had not chanted illegal slogans or thrown stones at the police on 20 October 2008 and contended that he had been in the vicinity of the demonstration as he had wished to see the demonstration. Y.Ş., M.Y. and O.K. maintained that they had not seen the applicant throwing stones towards the police as noted in their statements to the public prosecutor. Y.Ş. and O.K. further submitted that they had not seen the applicant chanting slogans.

On 6 October 2009 the Diyarbakır Assize Court convicted the applicant as charged and sentenced him to a total of eight years and four months ’ imprisonment. In its judgment, the first-instance court found it established that the demonstration of 20 October 2008 had been organised upon the call of the PKK and that the applicant had participated in this demonstration and chanted slogans.

On 8 December 2010 the Court of Cassation upheld the judgment of the Diyarbakır Assize Court in so far as it concerned the applicant ’ s conviction for membership of an illegal organisation and disseminating propaganda in favour of a terrorist organisation. The Court of Cassation quashed the judgment in so far as it concerned the applicant ’ s conviction under Law no. 2911.

According to a document drafted by the registry of the first-instance court the applicant ’ s lawyer was notified of the decision of the Court of Cassation on 2 March 2011.

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.”

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.”

According to Article 8 of Law no. 6459, which entered into force on 30 April 2013, a person who is convicted for having chanted slogans at a demonstration under section 7(2) of the Prevention of Terrorism Act, will not be subject to a separate conviction for membership of an illegal organisation under Articles 220(6) and 314 of the Criminal Code.

COMPLAINTS

The applicant complains that his conviction on account of participation in a demonstration and chanting slogans under Articles 220(6) and 314 of the Criminal Code and section 7(2) of the Prevention of Terrorism Act constituted a violation of Articles 6, 7, 9, 10, 13 and 14 of the Convention.

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, or 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 and under Articles 220(6) and 314 of the Criminal Code?

In this connection, having regard to the gravity of the applicant ’ s conviction and sentence, was the interference in the present case necessary in a democratic society? What is the relevance of Article 8 of Law no. 6459 in this context?