09 November 2007

SECOND SECTION

Application no. 536/03
by Melih BEKDEMİR
against Turkey
lodged on 8 October 2002

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Melih Bekdemir, is a Turkish national who was born in 1953 and lives in Istanbul. He is represented before the Court by Mr Levent Yurdakul, a lawyer practising in Istanbul.

A. The circumstances of the case

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

The applicant is an author. In November 2000 the second edition of his book was published. The book, which is entitled “Urgent Peace or...is that the State which takes revenge? Kurds' Walk for Peace” (Acil barış ya da...Öçalan devlet mi? Kürtlerin Barış Yürüyüşü)¹, is largely based on the defence arguments advanced by Abdullah Öcalan in the course of his trial in 1999.

On 1 March 2001 the prosecutor at the Istanbul State Security Court (hereinafter the “trial court”) filed an indictment with that court and charged the applicant with the offence of making PKK propaganda. The prosecutor submitted in his indictment that the applicant had referred to certain parts of Turkey as Kurdistan and had made PKK propaganda on the basis of the Turkish nations' ethnic, religious, linguistic, regional and sectarian differences. He asked the trial court to convict the applicant under Article 169 of the Criminal Code then in force, and sentence him in accordance with Articles 5 and 8 of the Prevention of Terrorism Act (Law No. 3713).

On 13 September 2001 the trial court handed down its judgment. The following sentences from the book were reproduced in the judgment.

“Kurds chose peace. Moreover, despite all the provocation and chauvinistic attacks, it cannot be said that Turks want a war. But, what does the Turkish State want? Since it is not willing to use the word 'war', it is not keen to spell out the word 'peace'...”

“Öcalan's efforts to re-write the history of the PKK in the light of Atatürk's nationalism is noteworthy”.

“Before we even began to comprehend the State, the society or its history, we found ourselves, through our dogmatic ideology and utopian approach, in a rebellion in the name of the PKK. Years-old problems were rekindled. A rebellion took place. If it was not for the fact that the violence had its roots in the society, it could not have developed to this extent.. Everyone knows the extent to which individual terrorism can develop...”.

“We now know who was really responsible for the Kurdish issue. Öcalan cannot stop himself from repeating the trite historical thesis according to which it was not Atatürk's fault but İsmet Pasha's fault”.

“Öcalan puts forward another one of his beliefs as proof of his sincerity about peace. The PKK programme should be adjusted (so as to meet the army's expectations) to the present-day conditions. [Öcalan] says that the current programme of the PKK still bears the hallmarks of the 1970s' narrow-minded and clumsy ideologies. According to him, this programme should be surmounted in the world of the 1990s and Turkey. He spells out his sincerity about peace and his approach to violence...”.

“Why did the PKK initially insist on separation? On the one hand, the years-old pressures, rejection and the banning of the language, on the other hand, the slogan-like responses and utopian attitudes towards the problems that prevailed at that time, Kurdish nationalism's separatism which was based on suspicion and fear, coupled with the preconception that the only way for national freedom movements was to establish separate states, are all responsible for the importance accorded by the PKK to separatism in its programme and propaganda. Emphasis was on international unity.”.

“Using a clearer jargon Öcalan then repeats his opinion as follows: With their PKK rebellion Kurds have proved the following: If you do not regard us (i.e. the Kurds) as free beings, separatism and rebellion will always be on the agenda. Either I will be joining you as a free being or I will die or run away. We will both suffer from this. This is the discourse of the rebellion. The PKK has reached the maturity [to achieve] a freedom-based unity”.

“Osman Öcalan's comments on the death penalty imposed on Abdullah Öcalan were as follows: We do not even want to think about the possibility that it [the death penalty] will be carried out. It will have very destructive consequences. Beyond the recommencement of the armed conflict, no one will be able to harness the Kurdish nation. The Kurdish nation is loyal to its leader unto death. We will not be able to stop anyone. We will not resort to using weapons unless we are pushed hard. We are going to do our best to do away with armed conflict. We are also going to do our best to stop the creation of organisations. But if the situation worsens into a complete deadlock...will the PKK start again? No, it will not. But there is potential in Kurdistan. The PKK will not emerge as an armed organisation again.”

The following sentences in the trial court's judgment are the reproduction in the book of some of the defence arguments advanced by Öcalan in the course of his trial:

“1- Military armed conflict will become institutionalised and continue. It is obvious that the PKK can continue to do this for years to come. Iran, Syria, Israel, Russia, Europe, Greece, the United States and England will use the PKK”.

2- The Kurds living in the region, in the middle- east and elsewhere in the world will be manipulated by the above-mentioned countries and their anti-Turkish views will thus be increased.

3- This deadlock and deepening of the conflict will have negative consequences for the economic situation.

4- Cultural and educational regress will become inevitable.”

On the basis of the above-quoted paragraphs, the trial court considered that the offence of making separatist propaganda through publication was not established. Nevertheless, it concluded that the applicant had committed the offence of aiding and abetting the PKK by making its propaganda for it. Having found the applicant guilty of that offence within the meaning of Article 169 of the Criminal Code, the trial court sentenced him to three years and nine months' imprisonment and debarred him from public service for a period of three years. Article 5 of the Prevention of Terrorism Act was also taken into account in the calculation of the sentence.

The applicant appealed against the conviction, arguing that the trial court had convicted him on the basis of certain passages of the book without having regard to its entirety. When read together, it would be obvious that the book in fact consisted of criticism of PKK and its leader. The applicant's lawyer further submitted the following in the appeal petition: “It is not even necessary to mention freedom of speech here. If this case goes to the European Court of Human Rights, Turkey will have to pay a substantial sum of compensation to my client. But that compensation would have no value when compared with having to serve an unjust and unnecessary [prison] sentence”.

After a hearing attended by the applicant's legal representative, the Court of Cassation upheld the applicant's conviction in its decision of 11 April 2002. The decision was pronounced on 17 April 2002.

B. Relevant domestic law applicable at the time

Article 169 of the Criminal Code provided:

“Any person who, knowing that an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years' imprisonment...”

Article 4 of the Prevention of Terrorism Act provided that the offence defined in Section 169 of the Criminal Code was classified in the category of “acts committed to further the purposes of terrorism”. According to Article 5, penalties laid down in the Criminal Code as punishment for the offences defined under Article 4 of the Act were increased by one half.

Article 8 of the Prevention of Terrorism Act provided

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years' imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a re-offender may not be commuted to a fine...”

COMPLAINTS

The applicant complains that his conviction and sentence violated his rights under Articles 9 and 10 of the Convention.

QUESTION TO THE PARTIES

Has there been a violation of the applicant's right to freedom of expression, contrary to Article 10 of the Convention?

¹ The word “Öçalan” in the title of the book is a pun on the surname of Abdulah Öcalan, the leader of PKK. The name Öcalan is a combination of two words “Öç”, i.e. “revenge”, and “alan” i.e. “taker”, i.e. “revenge taker”. According to the linguistic rules, when the two words are joined, the tail on the letter “ç” is omitted. Nevertheless, the name “Öcalan” was written in the title of the author’s book as “Öçalan” to emphasise the meaning of the word.

BEKDEMİR v. TURKEY – STATEMENT OF FACTS AND QUESTION