PROCEDURE

The case originated in an application (no. 11976/03) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Ms Hünkar Demirel and Mr Hıdır Ateş (“the applicants”), on 4 March 2003.

The applicants were represented by Mr Ö. Kılıç, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

On 18 January 2008 the President of the Second Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1979 and 1951 respectively and currently reside in Neu Isenburg and Berlin respectively.

The second applicant, Mr Ateş, and the first applicant, Ms Demirel, were, respectively, the owner and the editor of Yedinci Gündem, a weekly newspaper.

In its 31st edition, in January 2002, Yedinci Gündem published an article entitled ‘Öcalan1‘s reply to Akçam2‘. It concerned Abdullah Öcalan’s response to Taner Akçam’s accusations on issues concerning the establishment of the PKK and its development which was published in another newspaper. It also featured Öcalan’s thoughts on various issues such as education and cultural activities in Kurdish. Various parts of the article read as follows: “ Response to Taner Akçam ....Öcalan replied to one of the ex-leaders of DEV-YOL, Taner Akçam...It is not a coincidence that they are making him talk. It is important...Those that Taner Akçam claimed to have saved from the hands of the PKK, he had them murdered...he caused great damage...they had them murdered. This person’s identity and personality is dubious. He also caused great damage to the PKK...We were at ADYÖD together in 1975...In 1982 he provoked the anti-fascist front. You can ask Teslim Töre this, he knows this period. He said that, at that time, Apo wanted to kill him. No, I never had any intention of killing him. On the contrary, we have suspicions that it was that front who attempted to kill or assassinate us. He very openly dissolved DEV-YOL. He is swearing to his past...he has one foot in America, the other in Yerevan. It is not known to whom and what he adheres...He is dangerous... Identity notice Abdullah Öcalan also referred to the desires for a Kurdish education and the State’s response to these requests and said: It would be better to establish special learning houses in villages and streets to learn Kurdish on a scientific basis rather than the State giving permission for it. I am saying do literary and cultural work and activities...If Turkey prohibits it then it cannot make progress... “May it be a democratic year” If there are no developments in the democratic expansion then there will be deadlock. If State keeps the doors open for democratic expansion and, a democratic response develops then Turkey will grow big both inside and outside...If pressure, denial and destruction develops a new in that case the state of legitimate defence will be realised”.

On 28 January 2002 the prosecutor at the Istanbul State Security Court filed a bill of indictment with that court and charged the applicants with offences defined in Section 6 § 2 of the Anti-Terrorism Act (Law no. 3713), namely publishing declarations of an illegal organisation. In addition, he called for the application of Additional section 2 of the Press Act (Law no. 5680) and section 36 of the Criminal Code.

On 4 February 2002 criminal proceedings against the applicants commenced before the Istanbul State Security Court.

In their written submissions to the court the applicants denied that the publication of the article had been in contravention of the applicable legislation. They maintained, inter alia, that by publishing the article they had been doing their jobs and informing the public. There had been nothing in the article which could be interpreted as an insult to other individuals or as an incitement to commit offences and that there was no justification for a restriction on their right to freedom to impart information.

On 3 June 2002 the Istanbul State Security Court convicted the applicants as charged. It found that the article in question had described the establishment, development and activities of the PKK and had further referred to Öcalan’s statements about a Kurdish education campaign. As such, the article as a whole had constituted a statement on behalf of the illegal organisation and the applicants had committed an offence by publishing that statement in their newspaper. The second applicant was ordered to pay a “heavy fine” of 4,000,500,000 Turkish liras (TRL) (approximately 3,000 euros (EUR)) and the first applicant was ordered to pay a heavy fine of TRL 2,000,250,000 (approximately EUR 1,500). The first-instance court further ordered, in accordance with Additional section 2 § 1 of Law no. 5680, the temporary closure of the newspaper for a period of seven days.

The applicants appealed. On an unspecified date the principal public prosecutor at the Court of Cassation submitted his written opinion on the merits of the applicants’ appeal. The opinion was not notified to the applicants.

On 19 December 2002 the Court of Cassation upheld the judgment of the first-instance court.

On 20 January 2003 the president of the Istanbul State Security Court sent the final judgment to the prosecutor’s office at the Istanbul State Security Court and requested that the order for the newspaper’s closure be executed.