PROCEDURE

The case originated in an application (no. 50934/99) 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 Tayfun Koç and Mr Musa Tambaş (“the applicants”), on 3 August 1999.

The applicants, who had been granted legal aid, were represented by Ms O. E. Ataman, a lawyer practising in İstanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

On 1 April 2003 the Court decided to communicate the application.

On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Fourth Section (Rule 52 § 1).

In a letter of 24 June 2005, the Court informed the parties that in accordance with Article 29 §§ 1 and 3 of the Convention it would decide on both the admissibility and merits of the application.

The applicant and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1974 and 1972 respectively and live in İstanbul. The first applicant is the owner of the monthly magazine “Revolution for Equality, Liberty and Peace” (Eşitlik, Özgürlük ve Barış için Devrim) and the second applicant is its editor-in-chief.

In the fifth and sixth issue of the magazine, three articles written by Mr C.K. were published. The articles were entitled “The Kurdish problem in Turkey and the peace process 2 and 3” and “The butcher of justice is once again at work”.

The first two articles “The Kurdish problem in Turkey and the peace process 2 and 3” read, inter alia, as follows: “The Kurdish problem has taken the shape of an open war for the past thirteen years. (...) It must be firstly stated that the war waged by the State is a dirty war and that the Kurdish national struggle is a righteous resistance with a democratic content. (...) Today’s Kurdish problem is considered as a delayed national movement by most of the left and liberals. (...) To consider the Kurdish problem as a delayed national movement could lead to dangerous tendencies for both the Kurdish problem and Turkish politics. (...)[Kurdish] people are crushed (...). An inevitable imperative for the salvation of crushed people is the integration of the social revolution with the right to self determination. (...) In Turkey, the problem of people who are crushed is a Kurdish problem. Those who consider the Kurdish problem as a delayed national movement, see the present movement as a natural continuation of the Kurdish uprisings that occurred in the end of the 19th century and the beginning of the 20th century. (...) However, the main dynamic of the present movement is the (...) oppressed Kurdish people. The Kurdish problem can only be solved by considering it as a product of new colonialism and not by considering it as part of a classical colonial system. (...) The ruin of the region on account of the new colonial capitalism and fascism influenced the Kurdish people to embrace, in mid 1980’s, the national war flag of the PKK. (...) The objective revolutionary feature of the PKK (...) is not an excuse to dispense it from criticism. (...) A “democratic peace” struggle is not only to ask for the end of the ongoing war in the region. Of course, a ceasefire is the first and the compulsory step to peace. (...) The request for peace of the oppressed people and proletarians is part of the struggle against imperialism and oligarchy (...)”

The third article “The butcher of justice is once again at work” read, inter alia, as follows: “Oltan Sungurlu, taking behind him a registry tainted by blood, became the Minister of Justice of the MGK Government. Prisoners, relatives of prisoners and human rights advocates know him from old times. Sungurlu, who has been the Minister of Justice for the fourth time, is directly responsible for the prison policies of the ANAP governments. He is against the abolition of death penalty. [He is] the architect of the Regulation of 1st August. He is the minister who transferred the prisoners who were on hunger strike against this Regulation. He is responsible in the first degree for the deaths of M.Y. and H.H.E. who died during a transfer of 12 hours following 35 days of hunger strike (...) Oltan Sungurlu does not deny that they are considering a transition to cell-type prisons. He thinks that he can convince the public and those who visit him because he has found a good pretext for the application of this policy. He is trying to legitimise cell-type prisons by [pointing to] the recent bloodshed in Bayrampaşa prison and the quarrels between prisoners. According to Sungurlu, the State cannot protect the life of a 20 year old who it has put into prison (...). The main policy of pressure, targeting particularly political prisoners, is the usurpation of their right to communication and to receive information. (...) Books, journals and magazines are arbitrarily censored by the prison administration. (...) On the other hand, even letters to prisoners are censored (...) the problem of overcrowding is continuing. 60-70 people are imprisoned in dormitories of a capacity of 30-35. (...) The medical assistance to ill prisoners and suspects are arbitrarily obstructed or delayed. (...)”

By two indictments, dated 24 June and 9 September 1997, the public prosecutor at the İstanbul State Security Court accused the applicants of disseminating propaganda against the “indivisible unity of the State” and of designating a person as a target in publishing these three articles. The charges were brought under Articles 6 and 8 of the Law no. 3713.

On 5 June 1998 the cases before the İstanbul State Security Court were joined.

Before the court, the applicants submitted that the content of the articles remained within the limits of freedom of expression.

On 24 August 1998 the İstanbul State Security Court convicted the applicants as charged. They were fined 150,000,000 Turkish Liras (TRL) (approximately 500 euros (EUR)) and TRL 75,900,000 (approximately EUR 252) respectively. The court further ordered the closure of the magazine for a month and the confiscation of the fifth and sixth issues of the newspaper.

In its decision, the State Security Court relied on the following passages of the articles “The Kurdish problem in Turkey and the peace process 2 and 3”: “[Kurdish] people are crushed (...). An inevitable imperative for the salvation of crushed people is the integration of the social revolution with the right to self determination. (...) In Turkey, the problem of people who are crushed is a Kurdish problem. The Kurdish problem has taken the shape of an open war for the past thirteen years. It must be firstly stated that the war waged by the State is a dirty war and that the Kurdish national struggle is a righteous resistance with a democratic content.”

The court held that with the first two articles, the applicants spread propaganda against the indivisibility of the State. As regards the third article, the court found that the article in question referred to the Minister of Justice as a “butcher of justice” and, as a result, designated him as a target for terrorist organisations.

On 22 June 1999 the Court of Cassation upheld the judgment of the State Security Court.

Following the entry into force on 28 August 1999 of Law No. 4454 concerning the suspension of pending cases and penalties in media-related offences, the İstanbul State Security Court decided to suspend the execution of the applicants’ sentences, for a period of three years, on 24 November 1999 and 14 January 2000 respectively.

By an additional judgment (ek karar) dated 6 June 2003, the İstanbul State Security Court, taking into account that the applicants had not committed any intentional offence during the three years since the date of deferment, nullified the applicants’ condemnation together with all its consequences pursuant to Article 2 of Law no. 4454.

At no time during the criminal proceedings were the applicants detained.