PROCEDURE

The case originated in two applications (nos. 31706/10 and 33088/10) 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 İhsan Güler and Mr Sinan Uğur (“the applicants”), on 5 May 2010 and 13 May 2010 respectively.

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

Before the Court, the applicants alleged, in particular, that their conviction for propaganda in favour of a terrorist organisation, which had been based, in their view, on their participation in a commemorative religious ceremony, had entailed a violation of Article 9 of the Convention.

On 21 November 2011 notice of the applications was given to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

Mr İhsan Güler and Mr Sinan Uğur were born in 1964 and 1947 respectively and live in Ankara and İzmir respectively.

At the relevant time they were active members and regional leaders of the Party for a Democratic Society (Demokratik Toplum Partisi (DTP)), which was subsequently dissolved by the Constitutional Court. The applicant Mr Güler, former mayor of the district of Başkale (Van), was at the relevant time the chairman of an association called KÜRT-DER (Kürt Demokrasi Kültür ve Dayanışma Derneği – association for Kurdish culture, democracy and solidarity).

On 21 August 2006 the applicants took part in a religious ceremony (mevlût)0 on the premises of the DTP in Altındağ (Ankara), in which they paid tribute to three members of the PKK who had been killed by the security forces.

The participants read out passages from the Koran and said prayers, and showed a film about the lives of the deceased. The DTP’s regional representative gave a short speech, which can be summarised as follows: “Our fears and worries continue. People are still being killed. In such a context, we would like this mevlût to be a moment of peace and fraternity.”

On 3 October 2006 the Muş public prosecutor’s office received an anonymous letter of denunciation, together with a CD containing a recording of the ceremony in question. The writer, who said that he had been a participant himself but had subsequently regretted it, explained that the ceremony had been held in memory of “the martyrs of the PKK”.

Following an investigation by the public prosecutor’s office, the applicant Mr Güler was arrested and taken into police custody on 28 December 2006. He was released the next day.

Both applicants were committed to stand trial before the Ankara Assize Court. In their defence they stated that they had taken part in the ceremony for the observance of their religious duties.

In a judgment of 24 September 2008 the Ankara Assize Court, relying on section 7(2) of Law no. 3713 on the prevention of terrorism, sentenced the two applicants to ten months’ imprisonment.

In its judgment, the Assize Court observed, firstly, that the persons in whose memory the ceremony had been held were members of a terrorist organisation and that they had been killed by the security forces during an operation against that organisation. It also took the view that the choice of venue for the ceremony – the premises of a political party –, and the fact that the PKK flag had been spread over the tables and photos of members of the organisation had been displayed, contributed to raising serious doubts as to the actual reasons for the gathering that had been given by the applicants in their defence.

Further to an appeal on points of law by the applicants, their conviction was upheld by a final judgment of the Court of Cassation on 8 March 2010. The applicants were imprisoned for the duration of their sentence. ...