PROCEDURE

The case originated in an application (no. 29680/05) 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 a Turkish national, Mr Abdurrahman Dilipak (“the applicant”), on 22 July 2005.

The applicant was represented by Mr S. Döğücü, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

On 8 April 2009 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1949 and lives in Istanbul. He is a professional writer and journalist, and states that he is a human rights activist.

He published an article on the front page of issue 84 of the weekly magazine Türkiye’de Cuma (“Friday in Turkey”), which came out on 29 August 2003. His article, which was entitled “If the pashas [the generals] refuse to obey”, contained criticisms of high-ranking officers who were about to retire. He hinted that some generals in the armed forces were wont to sound false alarms concerning an alleged advance of fundamentalism and anti-secularism, which they then used as a pretext for interfering in the country’s general politics, and that they appeared to have links with certain business circles, the media, senior civil servants and even the Mafia, endeavouring to create a political atmosphere that tallied with their worldview. He suggested that the high-ranking officers in question should set up a political party on retirement and present their political projects to the people, instead of “deciding on the future of the nation on their own, in the name of the nation”. He added that in his view the army generals who he claimed were interfering in the country’s general politics were far removed from social realities and that in their approach to social affairs they lacked any empathy with and sensitivity towards the various social strata.

By an indictment of 9 January 2004, the Military Prosecutor’s Office with the Third Army Corps in Istanbul applied to the Military Court within that Corps for the applicant’s prosecution under Article 95 §§ 4 and 5 of the Military Criminal Code, which, in the Prosecutor’s view, penalised acts vis-à-vis high-ranking military officers geared to damaging hierarchical relations within the army and undermining confidence in commanding officers.

The applicant submitted an objection as to the jurisdiction of the Military Court to try him, on the grounds of his civilian status and relying on the Convention and his right to freedom of expression.

By a decision of 12 July 2004 the Military Court declined jurisdiction in favour of the Bakırköy Assize Court on the grounds that the offence at issue was not military in nature and the applicant should be tried by the non-military courts for denigration of the State armed forces, which offence was punishable under Article 159 of the former Criminal Code. The Military Court noted that by claiming that the armed forces were led by commanding officers who appeared to have links with certain business circles and even the Mafia, and to be far removed from social realities, the applicant had tarnished the image of the whole armed forces. It emphasised that the commanding officers who had been criticised were plenipotentiary representatives of the armed forces empowered to act on behalf of the latter.

On 9 August 2004 the commanding officer of the Third Army Corps lodged an appeal on points of law against the aforementioned decision to decline jurisdiction. He submitted that the impugned article constituted an act which had to be assessed under Article 95 § 4 of the Military Criminal Code. He argued that the military criminal provision in question constituted a lex specialis vis-à-vis Article 159 of the Criminal Code.

The Military Prosecutor also lodged an appeal on points of law on the same grounds, submitting that the Military Courts should have jurisdiction to adjudicate the case, and that the applicant had not targeted all the armed forces but had undeniably tarnished the image of two Generals, which was liable to undermine the confidence of the rank-and-file in these officers and thus damage hierarchical relations within the armed forces.

The applicant was not apprised of the appeals on points of law lodged by the commanding officer and the Military Prosecutor, both of which were added to the case file.

On 3 May 2005 the Military Court of Cassation, which assessed the appeals on points of law, quashed the decision declining jurisdiction and referred the case back to the Military Court. In its reasoning the Court of Cassation mentioned the need to reclassify the facts and to assess them under Article 95 § 4 of the Military Criminal Code. It specified that the provisions of Article 95 § 4 of the Military Criminal Code and (the former) Article 159 of the Criminal Code shared the same substantive and moral elements, but differed in providing protection for individuals (Article 95 § 4) and the Institution itself (Article 159), respectively. The Military Court of Cassation held that even though the applicant’s article had comprised elements of both the aforementioned criminal offences, the general tenor of the impugned article had apparently concentrated on the behaviour of two specific Generals rather than the overall armed forces. Therefore, the accusation that the officers were disobedient, that is to say that they lacked discipline, was liable to undermine the lower ranks’ confidence in them and thus damage hierarchical relations within the armed forces.

By a judgment of 1 March 2006 the Military Court of First Instance, having reconsidered the case, once again decline jurisdiction in favour of the non-military courts. It stated that new legislation on the press attributed to the non-military criminal courts jurisdiction to hear and determine offences committed via the press and specified that such offences no longer came under special legislation.

On 24 March 2006 the commanding officer of the Third Army Corps lodged a fresh appeal on points of law against the Military Court’s decision declining jurisdiction. He pointed out that the 3 May 2005 judgment of the Military Court of Cassation had been delivered after the amendment to the legislation in question and that the provisions of the Military Criminal Code (Law No. 353) enabling civilians to be tried by military courts had not been amended.

While the case was still pending before the Military Court of Cassation, Law No. 5530 of 29 June 2006 made a series of amendments to the Military Criminal Code, inter alia abolishing military court jurisdiction for trying civilians for offences such as those with which the applicant was charged. The Prosecutor with the Military Court of Cassation therefore referred the applicant’s file to the Military Court of First Instance, accompanied by an opinion to the effect that the military courts had no jurisdiction in such matters.

By a judgment of 14 November 2006 the military court once again decline jurisdiction and referred the case to the Bağcılar 2nd Criminal Court.

Meanwhile, following the merger of the Bağcılar and Bakırköy judicial districts, the case was referred to the Bakırköy 24th Criminal Court. By a judgment of 11 March 2008, the latter court declined jurisdiction and referred the case to the Bakırköy 2nd Criminal Court, which held jurisdiction for offences committed via the press. By a judgment of 26 May 2008, the Bakırköy 2nd Criminal Court referred the case to the Bakırköy 16th Criminal Court on the grounds that that court was the former Bağcılar 2nd Criminal Court. By a judgment of 12 March 2009 the Bakırköy 16th Criminal Court referred a jurisdictional dispute to the Bakırköy Assize Court. Finally, the Bakırköy Assize Court decided in favour of the Bakırköy 2nd Criminal Court in the jurisdictional dispute, and referred the case to that court.

By a judgment of 9 June 2010 the Bakırköy 2nd criminal court declared the proceedings statute-barred under Article 95 § 4 of the Military Criminal Code. ...