PROCEDURE

The case originated in an application (no. 43807/07) 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, Mr Mehmet Fatih Kılıç and Mr Kemal Eren (“the applicants”), on 1 October 2007.

The applicants were represented by Mr C. Demir, a lawyer practising in Van. The Turkish Government (“the Government”) were represented by their Agent.

On 11 December 2009 the President of the Second Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

Following the communication of the application, the Government, but not the applicants, filed further written observations (Rule 54 § 2). However, the applicants indicated their wish to pursue their application.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1986 and 1980 respectively and live in Ağrı.

On 21 March 2006 the applicants attended the Newroz celebrations in Patnos, a district of Ağrı. During the gathering, the crowd shouted slogans. Subsequently, the Patnos Security Directorate initiated an investigation on account of the fact that some of the participants had shouted slogans praising the imprisoned leader of the PKK (the Kurdistan Workers’ Party, an illegal organisation). Following an examination of a recording of the gathering, it was reported that the first applicant had shouted “Biji Serok Apo” (“Long live President Öcalan”), while the second applicant was seen as shouting slogans such as “Biji Serok Apo” and “Gençlik Aponun Fedaisidir” (“Youth are the guardsmen of Öcalan”).

On 28 March 2006 the applicants were taken into police custody. In police statements taken from them on the same date, they both denied shouting slogans in support of the PKK. They maintained that they had shouted slogans in support of peace. Again on the same date, the applicants were subsequently taken before the public prosecutor and the investigating judge in turn. In their statements to the prosecutor and the judge, they maintained that they had only shouted “Kurds and Turks are brothers” and denied the accusations. The investigating judge released the applicants when the interrogation was over.

On 29 March 2006 the Patnos Public Prosecutor initiated criminal proceedings against the applicants in the Patnos Criminal Court, charging them with disseminating the propaganda of an illegal organisation, based on the slogans shouted during the Newroz celebrations. The prosecution accordingly called for the applicants to be sentenced pursuant to Article 220 § 8 of the Criminal Code.

On 15 August 2006 the court received an expert report regarding the video footage of the event. According to this report, the second applicant was seen shouting slogans in Kurdish and Turkish such as “Dısa dısa serhildan serokeme Öcalan” (“Rise up again and again, our president is Öcalan”), “Biji Serok Apo” (“Long Live President Apo”) and “Gençlik Aponun Fedaisidir” (“Youth are the guardsmen of Öcalan”). The report stated that in the video footage there was no sign of the first applicant.

On an unspecified date, the Patnos Criminal Court declared that it lacked jurisdiction and transferred the case file to the Erzurum Assize Court, holding that offence with which the applicants were charged ought to be classified as praising a crime or a criminal and thus fell to be examined under Article 215 of the Criminal Code.

On 12 July 2007 the Erzurum Assize Court delivered its decision. While noting that the applicants had denied shouting the alleged slogans, based on the recording of the event, the court found the applicants guilty of praising both a crime and a criminal pursuant to Article 215 of the Criminal Code. It accordingly sentenced the applicants to twenty-five days’ imprisonment each. The court then commuted the prison sentence to a fine of 500 Turkish liras (TRY) (the equivalent to 270 euros). As domestic legislation did not provide for an appeal, this decision was final.

On 19 October 2007 the first applicant paid the fine.

Subsequently, on 26 February 2008 the Erzurum Public Prosecutor reopened the proceedings against the second applicant for reconsideration of his case in view of Section 562 of Law no. 5728, which was published in the Official Gazette on 7 February 2008.

On 27 February 2008 the Erzurum Assize Court found that in view of the new provision, the second applicant had become entitled to benefit from Section 231 of the Criminal Procedure Code (Law no. 5271), which provided the possibility of suspending his sentence. Consequently, it decided to suspend the enforcement of the judgment for a period of five years in respect of the second applicant.