TAŞ v. TURKEY (European Court of Human Rights)

SECOND SECTION

DECISION

Application no.51508/08
Fatih TAŞ
against Turkey

The European Court of Human Rights (Second Section), sitting on 22 January 2019 as a Committee composed of:

Julia Laffranque, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to the above application lodged on 22 September 2008,

Having regard to the decision of 16 December 2014,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1.  The applicant, Mr Fatih Taş, is a Turkish national who was born in 1979 and lives in Istanbul. He was represented before the Court by Mr İ. Akmeşe and Ms Y. Polat, lawyers practising in Istanbul.

A.  The circumstances of the case

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

3.  The applicant was born in 1979 and lives in Istanbul. He was the owner and editor-in-chief of a publishing house, Aram Basım ve Yayıncılık.

4.  In 2003 he published a book entitled “Marching towards Tomorrow – Memoirs of Guerrillas III” (“Yarınlara Yol Almak – Gerilla Anıları III”).

5.  The book contained in particular the following passages (on pages 37‑38, 168 and 257 respectively):

“The raid of Avyan police station was successful. During this operation, many officers died, and the sergeant in command of the post was captured. Many of the soldiers fled to other villages. This operation particularly pleased the villagers who had been forcibly migrated.”

“ ’How did the operation end?’ One of the stretcher bearers replied: ‘Fifteen military vehicles were shot at, some toppled over into the Munzur river, many soldiers died. We took a lot of weapons and supplies.’ What I just heard lifted my spirits. I told myself that we had finally done it!…”

“She was in love with war. She took part in countless clashes and attacks. She always wanted to fight. This passion made her even more beautiful and strong. She was the first female to use heavy weapons in Botan. Our comrades’ calls for martyrdom resulted in further deep feelings of revenge (in her). Luckily she was able to go back to fighting without any permanent injuries.”

6.  On 12 March 2003 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, charging the applicant with disseminating propaganda in favour of a terrorist organisation under section 5 of the Prevention of Terrorism Act (Law no. 3713). According to the indictment, the entire book praised the lives of members of an illegal organisation, the PKK/KADEK (Workers’ Party of Kurdistan/Kurdistan Freedom and Democracy Congress), in rural areas.

7.  On 8 May 2007 the Istanbul Assize Court convicted the applicant of disseminating propaganda in support of the PKK under section 7(2) of Law no. 3713 as he had published the book in question. Examining the book in its entirety, the Assize Court considered that the book narrated the armed resistance of alleged members of the PKK/KADEK and portrayed them as heroic figures, which also served the purpose of strengthening the conviction that taking up arms was legitimate and righteous. The Assize Court concluded that the book praised the terrorist organisation, and contained elements which constituted incitement to violence. It accordingly sentenced the applicant to five months’ imprisonment and ordered him to pay a fine of 288 Turkish liras (at the relevant time, 158.67 euros).

8.  Upon an appeal by the applicant, on 8 November 2010 the Court of Cassation discontinued the proceedings as the prosecution had become time-barred.

B.  Relevant domestic law

9.  The relevant domestic law applicable at the material time can be found in Belge v. Turkey (no. 50171/09, § 19, 6 December 2016).

10.  In particular, at the time of the events giving rise to the present application, section 7(2) of Law no. 3713 read as follows:

“Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to [serve] a term of imprisonment of one to five years …”

COMPLAINT

11.  The applicant complained under Article 10 of the Convention that his criminal conviction under section 7(2) of Law no. 3713 had constituted a violation of his right to freedom of expression.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

12.  The applicant, relying on Article 10 of the Convention, alleged that his trial and conviction by Turkish courts for publishing a book had violated his right to freedom of expression.

13.  The Government submitted that the applicant did not have victim status within the meaning of Article 34 of the Convention given that he had not ultimately been convicted as the prosecution of the offence had become time-barred. The Government further submitted that the applicant had been prosecuted under section 7(2) of Law no. 3713, and thus the interference, if any, had been prescribed by law. In this connection, they stated that the domestic authorities had pursued the legitimate aim of protection of national security or public safety, ensuring public order and prevention of crime. They further noted that the book in question had been published in an attempt to earn sympathy for a terrorist organisation and to legitimise violence and armed resistance. Any interference had therefore responded to a pressing social need.

14.  The applicant argued that, the interference had neither pursued a legitimate aim, nor been necessary in a democratic society. In this connection, he asserted that the memoirs in the book were old stories and could be regarded as historical anecdotes or pieces of literary writing. The anecdotes in the book had not had such a weight as could incite individuals to violence.

15.  The Court considers that it is not necessary to examine the Government’s objection regarding victim status, because the application is in any event inadmissible for the following reasons.

16.  The Court notes that it is not disputed between the parties that there was interference and that it was prescribed by law. The Court is prepared to accept that, in the instant case, the national authorities may be considered to have pursued the legitimate aims of protecting national security and preventing disorder and crime (see Faruk Temel v. Turkey, no. 16853/05, § 52, 1 February 2011).

17.  As regards the necessity of the interference in a democratic society, the Court reiterates the basic principles laid down in its judgments concerning Article 10 (see, for example, Sürek v. Turkey(no. 1) [GC], no. 26682/95, §§ 58-59, ECHR 1999‑IV; Şener v. Turkey, no. 26680/95, §§ 39-43, 18 July 2000; and Bédat v. Switzerland [GC], no. 56925/08, § 48, 29 March 2016). The Court considers that the principles contained in the above‑mentioned judgments pertaining to the media also apply to the publication of books in general (see Association Ekin v. France, no. 39288/98, §§ 56-57, ECHR 2001‑VIII, and Çamyar and Berktaş v. Turkey, no. 41959/02, § 36, 15 February 2011). It will examine the present case in the light of the above principles.

18.  The Court observes that the book consists of eighteen chapters written by eighteen members of the PKK who had been involved in that organisation’s armed activities. In that connection, the Court observes that the applicant was charged because the judicial authorities considered that the entirety of the book constituted propaganda in support of that organisation and contained elements which constituted incitement to violence. The Court therefore must have particular regard to the content of the book and the context in which it was published. (see, among many others, Sürek (no. 1), cited above, § 62, and Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 63, ECHR 1999‑IV)

19.  Having regard to the content of the book, the Court observes that the manner in which the lives and experiences of PKK members were related attaches nobility and heroism to the violent acts recounted by the authors. Such glorification of violence was identified particularly in some passages on pages37-38, 168 and 257 (see paragraph 8 above). Hence, the Court finds that the domestic authorities’ assessment that the book contained elements which constituted incitement to violence and other forms of terrorism was reasonable. It considers that the entire book communicates the message that recourse to violence is morally righteous, satisfactory, and even pleasant (see, mutatis mutandis, Sürek (no. 1), cited above, § 62).

20.  Lastly, as regards the proportionality of the interference in question, the Court notes that the criminal proceedings against the applicant were terminated as time‑barred and that there was no final conviction. Further, the applicant was not detained on remand or made to serve any prison sentence in the context of the proceedings in question.

21.  Against this background, the Court finds that the criminal proceedings brought against the applicant as the owner and editor-in-chief of Aram Basım ve Yayıncılık for publishing the book could reasonably be regarded as answering a “pressing social need”, being proportionate to the legitimate aims pursued and thus being necessary in a democratic society.

22.  The complaint should therefore be dismissed for being manifestly ill-founded.

For these reasons, the Court, unanimously,

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 14 February 2019.

Hasan Bakırcı                                                   Julia Laffranque
Deputy Registrar                                                      President

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