REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

PLENARY

JUDGMENT

MEHMET ALİ AYDIN

(Application no. 2013/9343)

PLENARY

JUDGMENT

I.          SUBJECT-MATTER OF THE APPLICATION

1.         The application pertains to the allegations that the freedom of expression and the right to personal liberty and security of the applicant, who is a politician, were violated since he was detained and tried due to expressions he used in a press briefing.

II.       APPLICATION PROCESS

2.         The application was lodged on 18/12/2013 with the 5^th Assize Court of Diyarbakır. As a result of the preliminary examination of the petition and annexes thereof as conducted in terms of administrative aspects, it was found that there was no deficiency that would prevent referral thereof to the Commission.

3.         It was decided by the Third Commission of the First Section on 14/10/2014 that the examination of admissibility be conducted by the Section and the file be sent to the Section.

4.         On 10/11/2014, it was decided by the Head of the Section that the examination of admissibility and merits be jointly carried out.

5.         The facts which are the subject matter of the application and a copy of the application were sent to the Ministry of Justice on 10/11/2014 for its opinion. The opinion letter by the Ministry of Justice of 9/1/2015 was notified to the applicant on 16/1/2015, the applicant submitted his counter-opinion to the Constitutional Court on 19/1/2015 within due period.

6.         In the session of the Section held on 21/5/2015, as it was deemed necessary that the application be concluded by the Grand Chamber due to its nature, it was decided that it be referred to the Grand Chamber in order to be discussed as per Article 28 (3) of the Internal Regulation of the Constitutional Court.

III.   THE FACTS

A.       The Circumstances of the Case

7.         As expressed in the application form and the annexes thereof, the circumstances of the case are summarized as follows:

8.         On 15 February 1999, the leader of the PKK/KONGRA-GEL terrorist organization Abdullah Öcalan was apprehended in Kenya and brought to Turkey. 

9.         The Executive Council of the Peoples' Confederation of Kurdistan, abbreviated as KCK, called for Abdullah Öcalan to be brought to Turkey, which it qualifies as the ''Conspiracy of  February15”, to be protested in early 2010 and the call in question was broadcast on ROJ TV, which is controlled by the terrorist organization and broadcasts over satellite, as well as on some websites. The call read, ''We call on the Kurdish people to escalate their actions and pause life to hold an honorary fast on this national dark day''.

10.     Upon this call, the Diyarbakır Provincial Office of the Peace and Democracy Party (BDP) announced on 15/2/2010 that it would hold a press briefing in front of the 5 April Equal Free Citizen Association. On the day of the incident, approximately 5000 people allegedly gathered and speeches were made addressing the crowd from atop the election bus equipped with sound amplifying devices belonging to BDP. The applicant, who is the provincial head of the BDP in Diyarbakır, made a press briefing addressing the crowd that gathered.  The press briefing of the applicant is as follows:

''... We watch with concern the ostensible initiatives towards the solution of the Kurdish problem that lack constitutional guarantees and does not recognize collective rights. We are no stranger to declarations of government spokespeople stating ''Öcalan cannot be taken as an interlocutor!...'' that aims to deceive the Kurds and the democratic public opinion.  Where  are those who have made similar declarations now?  Today; Mr. Öcalan is an active political agent in the Kurdish problem and possesses the power of solution despite AKP's mule-like stubbornness, meaningless approaches, that is, their unwillingness to see it as it is.  No matter how many times you claim that he is no interlocutor, that he cannot be one; whether you like what he says or not, this is the reality of Turkey.  ..... Since international and regional powers that wish to shape the Middle East in line with their filthy desires consider the struggle of the Kurds for freedom and democracy as an impediment, they plotted a conspiracy against Mr.Abdullah Öcalan on 9 October 1998.  This conspiracy against the Kurdish people in essence and the freedom requests of the peoples of the Middle East in general had the intention of creating strife among different communities and strengthening their grip on power.  It is a classical scenario of the incumbent dominant system that has been long implemented whereby they create chaos, tailor a role for themselves based on the emerging situation and deepen the deadlock in the name of a solution acting as the savior. In order for the incumbent system in the Middle East to continue, different communities had to play the game of slaughtering each other!  Thus, they wanted to achieve their objective by handing over Mr.Öcalan to Turkey.  .... However, this process was prevented thanks to the peaceful solution recommendations developed by Mr.Öcalan. Despite all of the negative imprisonment conditions, the conspiracies that are spewed, his quest and efforts for peace have been continuing with a higher vitality than ever.  As we complete 11 years of this process, we are now embarking upon the 12^th year.  The Imralı Prison system, which we define as a pressure apparatus, is an unlawful Guantanamo prison and needs to be immediately shut down, Mr.Abdullah ÖCALAN must immediately be released. .... There is no need to remind the declarations of Mr.Öcalan pertaining to the prison conditions reading ''It is as if I am thrown in a death hole!...'', ''I am like a patient hooked up to a ventilation machine!...'' made via his lawyers. Every responsible person needs to see that this latest situation poses a significant threat towards societal peace and creates great tensions. .... Imralı is no ordinary prison. And Mr. Öcalan is no ordinary captive. The health conditions, life and security of Öcalan has such key importance as to have a deep impact on the developments in Turkey.  Acknowledging this reality and abiding by it, this constitutes the most crucial point in the sensitive period that we are currently going through.  Mr. Öcalan recommended for a second time the arrival of peace groups in order to decongest the bottleneck in the political process.  The fact that the people, who received the dead bodies of their relatives at the Habur border gate, were able to embrace their children for the first time with the arrival of peace groups, thus embracing peace, showed that these hundreds of thousands of people consider Imrali to be the interlocutor for the solution.  On the other hand, the government did not consider the arrival of peace groups as a solution, rather they initiated a surrender process from scratch that has nothing to do with the Kurdish initiative once it was revealed that their main intention was a disbanding.  The government wants to sideline the Kurds in their Kurdish initiative process.  It should make one think and is unacceptable that the conditions of Mr. Öcalan, who is accepted by three and a half million Kurds as their will, are aggravated, that DTP has been shut down, that political bans are imposed and that operations are opted for so that all venues of democratic politics are closed for the Kurds. ...Why aren't the letters brought by the peace groups for the solution not delivered to their addressees? This is not explained to the public opinion, the prime minister needs to explain this.  The objective is not an initiative but rather a disbanding.  AKP wants to obtain results until the elections with the Kurds of its own creation.  The AKP government is not sincere.  The cover of their republican policy based on denial and destruction just like previous governments has been blown.  This initiative represents traditional state policies.  It is clear that this initiative will not solve the problem.  It becomes more and more important with each passing day that Mr. Öcalan's road map be announced and is submitted to his interlocutors.  We believe that this will make significant contributions to Turkey's democracy and its peoples for the sake of a solution.  The state must end its incessant military operations, the operations against those who have been elected must stop.  The free will of the Kurdish people must be taken as the basis against the democratization backdrop of Turkey and negotiations must begin; it is vital that a democratic civilian constitution be drafted. We can arrive at a solution if we discuss the problem with courage.  We have full faith that Turkey will bring its own peace for an equal, free and peaceful life.  Mr. Öcalan strove incessantly for the establishment of peace in a 6 m² space for 11 years.   A process whereby Mr. Öcalan is not taken into consideration and disregarded, dialogue channels are blocked will not serve the solution of the Kurdish problem, on the contrary, it will deepen the deadlock.   One cannot expect a solution to take place as the Imralı system, which is even more outdated than America's Guantanamo that is based on isolation and destruction, is out there for all to see and as this system is being rendered even harsher.

 ...As we demand from the public that Mr. Öcalan be released, we call upon all democratic people living in Turkey to be sensitive about this issue.''

11.      In the aftermath of the above press briefing, the applicant was detained on 23/2/2010 with the suspicion that he committed a crime and engaged in propaganda on behalf of the illegal organization.

12.     With the indictment of the Office of the Chief Public Prosecutor of Diyarbakır of 26/2/2010, a criminal case was filed regarding the applicant for the crimes of ''engaging in propaganda of an illegal organization'' and ''committing a crime on behalf of an organization despite not being a member''.

13.     It was decided by the 5^th Assize Court of Diyarbakır on 27/5/2010 that the applicant be sentenced to 6 years and 3 months of imprisonment for the crime of ''committing a crime on behalf of an organization despite not being a member'' and to 2 years and 1 month of imprisonment for the crime of ''engaging in propaganda of an illegal organization''.  The applicant was released on the same date, after 94 days of detention.  The relevant section of the reasoning of the Court of First Instance pertaining to its conviction of the applicant for the crime of engaging in the propaganda of the terrorist organization is as follows:

''... The PKK (Partiya Karkaren Kürdistan - Kurdistan Workers' Party) is an armed organization that falls within the scope of Article 314 of the TCC  no. 5237 and has the objective of establishing a separate Kurdish state by means of separating certain parts of the land under the control of the Republic of Turkey via armed conflict and that has conducted numerous acts such as murder, assault , threatening, kidnapping, bombing and mass killings and still pursues its armed actions within the country.  Abdullah Öcalan is a convicted individual who led the PKK armed terrorist organization for several years, was then tried and sentenced.

... It has been decided that the accused Mehmet Ali Aydın be sentenced as per Article 7/2 of the Law no. 3713, which was amended with Article 6 of the Law no. 5532, as it has been proven that he committed the crime of engaging in the propaganda of the terrorist organization by means of providing moral support to the terrorist organization by delivering a speech at the press briefing, which is the subject of the crime. By participating in the unauthorized demonstration that turned into the propaganda of the terrorist organization following the press briefing that was held on the date of the incident, the accused considered Abdullah Öcalan as his leader by stating in the speech he delivered that the leader of the PKK illegal armed terrorist organization needed to be considered as an interlocutor, that he was an active political agent in the Kurdish problem and that he had the power for a solution, that he was the reality of Turkey, that the peaceful solution recommendations that he had developed were thwarted, that the İmralı Prison, where he imprisoned as a convict, needed to be shut down as it is an unlawful Guantanamo Prison and that he needed to be immediately released, that he was a captive, that he was ''accepted by three and a half million Kurds as their will'', that he indicated that he needed to be considered as an interlocutor with a view to a solution by referring to the messages and instructions of the leader of the organization. He made it clear that he was a supporter of the terrorist organization by delivering a speech in favor of the leader of the terrorist organization amounting to propaganda in line with the activities aimed at conveying to the public the idea that Abdullah Öcalan represented the Kurdish people, that he was the political will of the Kurdish people, that he was the Kurdish People's leader, that the leader of the terrorist organization Abdullah Öcalan had been acknowledged as the ''Leadership'' of Kurdistan Democratic Confederalism following the meeting of the terrorist organization held in Northern Iraq between the dates of 20 February to 7 March 2005 with the participation of (179) delegates, that expressions such as (Leadership, Chief, Kurdish People's leader, etc.) were used to refer to the leader of the PKK/KONGRA-GEL terrorist organization Abdullah Öcalan in order to portray him as the so-called leader and chief of the Kurdish people living in our country. It was claimed that the only interlocutor was the leadership, that these kinds of expressions were also used in press briefings and meetings organized by masses supporting the organization and that they continuously spread this among the people in line with the activities, that this activity of the accused could not be accepted to fall within the scope of the freedom of expression and dissemination of thought and the right to organize meetings and demonstration marches (Articles 26-34 of the Constitution) that are guaranteed by the Constitution and the European Convention on Human Rights, that he engaged in the propaganda of the PKK-KONGRA/GEL terrorist organization, which is an armed organization in the sense of Article 314 of the TCC no. 5237, that he delivered a speech in favor of the jailed leader of the organization Abdullah Öcalan in such a manner as to praise the leader of the armed organization.''

14.     Upon appeal, the 9^th Criminal Chamber of the Court of Cassation overturned the judgment of the local court with its decree of 5/4/2013.  The Court of Cassation relied on the ground that it was compulsory to reassess the legal situation of the applicant in the face of legal amendments introduced after the judgment.  

15.     The 5^th Assize Court of Diyarbakır, which continued the trial, ruled with its judgment of 10/9/2013 with regard to the applicant that the prosecution be postponed with a view on the the crime of organizational propaganda as per the Provisional Article 1 of the Law No. 6352 of 27/7/2012  on the Amendment of Certain Laws With the Aim of Rendering Judicial Services More Effective and Postponement of Cases and Sentences Pertaining to Crimes Committed Via the Media; that there are no grounds to issue a sentence with a view to the crime of committing a crime on behalf of the organization as per Article 8 of the Law No. 6459 of 11/4/2013 and on the Amendment of Certain Laws In Terms of Human Rights and the Freedom of Expression.  The relevant part of the reasoning of the Court of First Instance is as follows:

''... In the criminal case that has been filed for the crime of Engaging in Propaganda of the Terrorist Organization that is attributed to the accused, it was deemed necessary to decide that the prosecution be postponed as per Provisional Article 1 (b) of the Law numbered 6352 as it has been understood that the action of the accused was undertaken via the method of expression of thought and opinion within the scope of Provisional Article 1 (b) of the Law numbered 6352.

Even though a criminal case was filed with regard to the applicant with the request that he be sentenced for the crime of committing a crime on behalf of the organization without being a member and that the attributed crime was proven via the expert report, the Incident Minutes, Apprehension Minutes contained within the file as well as the whole content of the file, it was deemed to be necessary that there were no grounds to sentence the accused for the crime of committing a crime on behalf of the organization due to the provision of Article 8 of the Law no. 6459 to the effect that a separate sentence cannot be imposed on those who have committed the crime of propaganda for the crime defined under Article 220 (6) of the TCC no. 5237.   

16.      The objection that the applicant filed with the request of being released was dismissed with the judgment of the 6^th Assize Court of Diyarbakır of 14/11/2013.  The final judgment was notified to the applicant on 20/11/2013.

17.     The applicant lodged an individual application with the Constitutional Court on 18/12/2013.

B.       Relevant Law

18.     Article 7 (2) of the Law on the Fight Against Terrorism No. 3713 of 12/4/1991 is as follows:

“Those that assist members of organizations as established with the above paragraph or those that engage in propaganda in such a way as to encourage resorting to violence or other methods of terrorism shall be separately sentenced to one to five years of imprisonment and five hundred million to one billion liras in judicial fine even though their actions constitute another crime.”

19.     Provisional Article 1 (1), (2) of the Law numbered 6352 is as follows:

“ (1) Following a crime that is committed prior to the date of 31/12/2011 via the media or various methods of declaring thoughts and opinions, which fundamentally requires a judicial fine or a prison sentence the upper limit of which is not more than five years, it shall be decided;

a) In the investigation phase, that the filing of a criminal case be postponed without requiring the conditions under Article 171 of the Code of Criminal Procedure No. 5271 of 4/12/2004, 

b) In the prosecution phase, that the prosecution be postponed,

c) That the execution of the finalized judgment of conviction be postponed.

(2) In the event that an individual regarding whom a decision of postponing the filing of a criminal case or the prosecution has been delivered does not commit a new crime that falls within the scope of paragraph one within three years starting from the date on which the postponement decision is delivered, a judgment of no grounds for prosecution or dismissal shall be delivered. In the event that a new crime that falls within the scope of paragraph one is committed within this period, the postponed investigation or prosecution shall be continued if a judgment of conviction is delivered due to this crime with a finalized judgment.”

IV.    EXAMINATION AND GROUNDS

20.     The individual application of the applicant of 18/12/2013 numbered 2013/9343 was examined during the session held by the court on the date of 4/6/2015 and the following were ordered and adjudged:

A.       The Applicant’s Allegations

21.     The applicant alleged that,

                                i.      the fact that he was detained without resorting to alternative protection measures, despite the fact that the conditions of detention had not been present in the press briefing, which did not contain any violence and simply consisted of the exercise of the right to express opinions and organize a peaceful demonstration, violated the right to personal liberty and security contained under Article 19 of the Constitution,

                              ii.      that his rights defined under Articles 25, 26 and 34 of the Constitution were violated by indicating that there was an interference with his freedom of expression and right to organize a peaceful demonstration even though a decision of postponement of the prosecution was delivered in his regard due to the fact that he had held a press briefing which he did not praise violence;

                     he requested the determination of the violation as well as a retrial and TRY 20,000.00 for pecuniary damages and TRY 20,000.00 for non-pecuniary damages.

B. The Constitutional Court’s Assessment

1.       Admissibility

a.      Personal Liberty and Security

22.     Provisional Article 1 (8) of the Law no. 6216 is as follows:

“The court shall examine the individual applications to be lodged against the last actions and judgments that were finalized after 23/9/2012.”

23.     In accordance with this provision, the Constitutional Court examines individual applications to be lodged against the last actions and judgments that were finalized after 23/9/2012. Therefore, the authority of the court in terms of ratione temporis shall only be limited to the individual applications that are lodged against the last actions and judgments that were finalized after this date. In view of this regulation pertaining to the public order, it is not possible to extend the coverage of the authority in a way that will also cover the last actions and judgments that were finalized before the aforementioned date (G.S. No: 2012/832, 12/2/2013). 

24.     In order for the application to be accepted, it is also necessary that the last actions or judgments that form the basis for the claim of violation be finalized before 23/9/2012. In the event that it is determined that the last actions or judgments were finalized prior to the mentioned date, it needs to be decided that the application is inadmissible with regard to the relevant complaints. It is possible to make this determination as regards to the jurisdiction of the court at every phase of the assessment of the individual application (Korcan Polatsü, App. No: 2012/726, 2/7/2013, § 32).

25.     In the present case, the applicant was detained on 23/2/2010 due to the charged crimes and was released on 27/5/2010, the date on which the conviction ruling was delivered in the case in which he was tried.  

26.     For the explained reasons, it should be decided that the part of the application to the effect that “personal liberty and security” were violated is inadmissible due to “lack of jurisdiction ratione temporis ”.

b.      Freedom of Expression

27.     The applicant alleged the fact that a decision of postponement of prosecution was delivered with regard to him as a result of him having held a press briefing which did not praise violence constituted an interference with his freedom of expression and right to organize a peaceful demonstration.  The Ministry did not submit an opinion with regard to admissibility.

28.     The Constitutional Court is not bound by the legal qualification of the facts made by the applicant, it appraises the legal definition of the facts and cases itself.  In the case at hand, the applicant was tried as a result of the expressions he used in a press briefing and a decision of postponement of prosecution was rendered.  Even though the applicant complained that his right to meetings and demonstration marches was violated, when the content of the complaints of the applicant is taken into consideration, it has been found to be appropriate under the circumstances of the present case that the complaints of the applicant under this heading be examined in terms of the freedom of expression.

29.     The applicant alleged that he was exposed to the threat of prosecution due to the fact that a decision of postponement of prosecution was delivered with regard to him.

30.     With the judgment of the 5^th Assize Court of Diyarbakır of 27/5/2010, it was decided that the applicant be sentenced to 2 years and 1 month in prison for the crime of “engaging in propaganda of an illegal organization”. Upon appeal, the 9^th Criminal Chamber of the Court of Cassation overturned the judgment of the local court with its decree of 5/4/2013 on the ground that the legal situation of the applicant had to be reassessed due to amendments in laws.  The 5^th Assize Court of Diyarbakır, which continued the trial, decided with its judgment of 10/9/2013 with regard to the applicant that the prosecution regarding the crime of engaging in propaganda of an organization be postponed.

31.     Whether or not the decision of postponement of prosecution that was delivered as per Provisional Article 1 of the Law no. 6352 constitutes an interference in the applicant's freedom of expression according to Article 26 of the Constitution is inseparably linked to the merits of the case. Therefore, even though there is no finalized judgment of conviction regarding the applicant, this problem needs to be discussed by associating it with the merits within the framework of Article 26 of the Constitution (for a similar evaluation, see Fatih Taş [GA], App. No: 2013/1461, 12/11/2014, § 32).

32.     The applicant's complaint regarding the point that his freedom of expression was violated due to the decision of postponement of prosecution that was delivered regarding himself as a result of his expressions during a press briefing is not manifestly ill-founded.  Besides, as there is no other reason for inadmissibility, it should be decided that the part of the application as regards this complaint is admissible.

2.         Merits

33.     The applicant claimed that he was tried as a result of a press briefing that he held, that a conviction judgment was formed regarding him and a decision of postponement of prosecution was delivered in the end, that he was under the threat of a new prosecution as he is a politician, that therefore, his freedom of expression was violated.

34.     In the opinion of the Ministry, similar judgments of the Constitutional Court and the European Court of Human Rights (ECtHR) were reminded and it was indicated that the allegations of the applicant needed to be evaluated in line with these judgments.    In the opinion of the Ministry, it was stated that the freedom of expression formed one of the pillars of a democratic society in the context of Article 10 of the European Convention on Human Rights (ECHR); that the freedom of expression applies not only for information and thoughts which are considered to be in favor, harmless or trivial, but also for information and thoughts which are aggressive, shocking or disturbing for the state or a part of the society. Within this framework, it was stated that whether there had been an interference regarding the freedom of expression of the applicant should be considered on the basis of whether or not the interference that had taken place was envisaged by the law, whether or not the objective on which the interference relied was legitimate and whether or not the interference was necessary in a democratic societal order.

35.     The applicant repeated his statements in the application petition against the opinion of the Ministry on the merits of the application.

36.     Article 13 of the Constitution with the side heading of ''Restriction of fundamental rights and freedoms'' is as follows:

“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence.  These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”

37.     Article 25 of the Constitution with the side heading of ''Freedom of thought and opinion'' is as follows:

“Everyone has the freedom of thought and opinion.

No one shall be compelled to reveal his/her thoughts and opinions for any reason or purpose; nor shall anyone be blamed or accused because of his/her thoughts and opinions.”

38.     Article 26 of the Constitution with the side heading of '' Freedom of expression and dissemination of thought'' is as follows:

“- Everyone has the right to express and disseminate his/her thoughts and opinions by speech, in writing or in pictures or through other media, individually or collectively. This freedom includes the liberty of receiving or imparting information or ideas without interference by official authorities.  This provision shall not preclude subjecting transmission by radio, television, cinema, or similar means to a system of licensing.

 The exercise of these freedoms may be restricted for the purposes of national security, public order, public safety, safeguarding the basic characteristics of the Republic and the indivisible integrity of the State with its territory and nation, preventing crime, punishing offenders, withholding information duly classified as a state secret, protecting the reputation or rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary.

Regulatory provisions concerning the use of means to disseminate information and thoughts shall not be deemed as the restriction of freedom of expression and dissemination of thoughts as long as the transmission of information and thoughts is not prevented.

 The formalities, conditions and procedures to be applied in exercising the freedom of expression and dissemination of thought shall be prescribed by law”

39.     The means that can be resorted to in the exercise of the freedom of expression and dissemination of thought are listed in Article 26 of the Constitution as ''orally, in writing, in pictures or through other means'' and with the expression ''other means'', it is demonstrated that all kinds of means of expression are under constitutional protection (Emin Aydın, App. No: 2013/2602, 23/1/2014, §43).

40.     There is no doubt that the freedom to deliver speeches or hold press briefings in peaceful demonstrations, as was the case in the incident at hand, is an inseparable part of the freedom of expression. 

41.     The freedom of expression, which is a right that can be restricted, is subject to the restriction regime of the fundamental rights and freedoms contained within the Constitution. Restriction reasons are included under Article 26 (2), which relates to the freedom of expression.  However, it is also clear that there must be a limit to the restrictions aimed at this freedom. The criteria under Article 13 of the Constitution must be taken into consideration as regards the restriction of fundamental rights and freedoms. For this reason, the review concerning the restrictions imposed on the freedom of expression should be conducted within the framework of the criteria stipulated in Article 13 of the Constitution and by taking into consideration the other detailed articles pertaining to the freedom of expression within the scope of Article 26 of the Constitution.

42.     The freedom of expression refers to a person's ability to have free access to the news and information, other people's opinions, not to be condemned due to the opinions and convictions they have acquired and to freely express, explain, defend, transmit to others and disseminate these either alone or with others (Emin Aydın, §40).

43.     The freedom of expression directly impacts a significant part of other rights and freedoms enshrined in the Constitution. The expression of thoughts, including those who oppose the majority, via all sorts of means, garnering supporters to the thoughts which have been explained, fulfilling the thoughts and efforts aimed at convincing others to fulfill the thoughts are among the requirements of the pluralistic democratic order.  Therefore, the freedom to express and disseminate opinions has vital importance for the functioning of a democracy (Abdullah Öcalan [GA], App. No: 2013/409, 25/6/2014, § 74).

44.     In the light of the principles explained above, first whether an interference exists or not and then whether the interference relies on valid reasons will be evaluated when assessing whether or not the freedom of expression was violated in the incident which is the subject of the application.

a.      Concerning the Existence of the Interference

45.     The applicant claimed that a judgment of conviction was previously formed with regard to himself due to the fact that he had held the press briefing that is the subject of the application and that even though a decision of postponement of prosecution was delivered in the end, his freedom of expression was violated as the prosecution that had been initiated directly impacted him.  The applicant also alleged that the risk of being exposed to prosecution again and receiving a sentence persisted within the probation period that is applied with regard to himself as a result of the fact that a conviction judgment had been passed in the previous decision, that the present situation created pressure on his freedom of expression.

46.     According to the applicant, the fear of being prosecuted under the present circumstances is real and prevents his political activities, moreover, this situation causes stress and anxiety for him and severely restricts his work.

47.     The existence of an interference in the applicant's freedom of expression that is alleged by him depends on the determination of whether a measure that would victimize him due to the violation of his right guaranteed under Article 26 of the Constitution was resorted to or not (see Altuğ Taner Akçam v. Turkey, App. No: 27520/07, 25/10/2011, § 65). Within this framework, the case law of the ECtHR to the effect that an individual needs have been directly impacted by the measure in question in order to be able to claim that s/he is the victim of a violation (see Klass and  Others  v. Germany, App. No: 5029/71, 6/9/1978, § 33) will provide guidance for the resolution of the matter (for a similar evaluation see Fatih Taş, § 72).

48.     It needs to be taken into consideration that the applicant was kept in detention for 94 days due to the press briefing he had held despite the absence of a finalized judgment of conviction, that he was directly impacted by the prosecution that lasted approximately 3 years and 9 months starting from 2010 and his allegation that the risk of being exposed to investigations and prosecutions in the future persisted for him as he is a politician.  Within this context, the case process that is the subject of the present application needs to be taken into consideration and it needs to be determined whether or not the persisting threat of prosecution vis-a-vis the applicant amounts to an interference.

49.     In the case at hand, the applicant was tried by the 5^th Assize Court of Diyarbakır on 27/5/2010 for the crime of “engaging in propaganda of an illegal organization” and was sentenced to 2 years and 1 month in prison.  The 9^th Criminal Chamber of the Court of Cassation overturned the judgment of the local court with its decree of 5/4/2013; the 5^th Assize Court of Diyarbakır, which continued the trial, decided with its judgment of 10/9/2013 with regard to the applicant that the prosecution regarding the crime of engaging in propaganda of an organization be postponed and this judgment was finalized on 14/11/2013 following the dismissal by the objection instance of the objection that was filed.  

50.     Provisional Article 1 (1) of the Law no.6352 regulates, in the investigation phase, that the filing of a criminal case be postponed without requiring the conditions under Article 171 of the Code of Criminal Procedure No. 5271 of 4/12/2004 and , that the prosecution be postponed within the prosecution phase, that the execution of the judgment of conviction be postponed in finalized judgments of conviction following a crime that is committed prior to 31/12/2011 via the media or various methods of declaring thoughts and opinions, which fundamentally requires a judicial fine or a prison sentence the upper limit of which is not more than five years.  In the incident that is the subject of the application, the prosecution that was being pursued regarding the applicant was postponed and it was decided that for three years probation provisions be applied to the applicant.

51.     According to Provisional Article 1 (2) of the Law no. 6352, in the event that the individual regarding whom a decision of postponement of prosecution  has been delivered does not commit a new crime via the media or various methods of declaring thoughts and opinions within three years starting from the date on which the decision of postponement is delivered, a judgment of no grounds for prosecution or dismissal will be delivered, in the event that a similar new crime is committed within this period, the postponed investigation or prosecution will be continued if a judgment of conviction is delivered due to this crime with a finalized judgment.

52.     Not only does the applicant run the risk of being exposed to an investigation and prosecution in the future as a result of his declarations of opinion or political activities due to him being a politician who served as the Diyarbakır provincial head of the BDP at the time of the incident and still pursues his political activities, but there is also the possibility that the postponed prosecution that is the subject of the present application is rekindled. In addition, in the event that the prosecution is started again, the threat of receiving a new sentence continues for the applicant bearing in mind the fact that the applicant was previously convicted by the Court of First Instance as a result of his speech in question.

53.     The present application relates to the freedom of expression and the knowledge that the applicant is kept under probation creates certain difficulties for the applicant.  These difficulties need to be taken into consideration in the determination of the status of victimhood (see Altuğ Taner Akçam v. Turkey, § 67). The preoccupation of being subject to a sanction has an interrupting effect on individuals and even though the possibility of being acquitted of the charged crimes in the end exists for the individual, the individual runs the risk of refraining from declaring his/her opinions or carrying out press activities in the future as a result of this influence (for similar evaluations, see Lombardo and Others v. Malta, App. No: 7333/06, 24/4/2007, § 61. Also see Fatih Taş, § 78).

54.     As a result, even though the applicant was not convicted due to the press briefing he had held, it can be accepted that the probability of the postponed investigation being restarted in the future causes stress and anxiety of being sentenced.  In light of the reality that the applicant was previously tried and convicted and moreover that the judgment of conviction was not overturned by the Court of Cassation on its merits, it has been concluded that the applicant's risk of being subjected to a new prosecution later on and being sentenced is real.  Under these circumstances, it needs to be accepted that an interference was made to the freedom of expression of the applicant within the framework of Article 26 of the Constitution.     

b.      Whether the Interference Constitutes a Violation

55.     The above mentioned interferences will constitute a violation of Article 26 of the Constitution unless they rest on one or more of the valid reasons stipulated under Article 26 (2) of the Constitution and fulfill the conditions stipulated in Article 13 of the Constitution. As a result, whether or not the restriction is in line with the conditions of bearing no prejudice to the essence, being indicated under the relevant article of the Constitution, being envisaged by laws, not being contrary to the letter and spirit of the Constitution, the requirements of the democratic social order and of the secular Republic and the principle of proportionality prescribed in Article 13 of the Constitution needs to be determined.

                          i.Lawfulness of the Intervention

56.      No claim has been made as to the point that there was contrariety with the condition of making the interference with ''the law'' contained within Article 13 and Article 26 (5) of the Constitution.  As a result of the evaluations that were made, it has been concluded that it fulfills the criterion of “lawfulness” as contained within Article 7 of the Law numbered 3713 and Provisional Article 1 of the Law numbered 6352.

                        ii.      Legitimate Purpose

57.     In order for an interference made to the freedom of expression to be legitimate, it needs to be aimed at the objectives of protecting national security, public order, public security, the basic characteristics of the Republic and the indivisible integrity of the State with its territory and nation, preventing offending, punishing offenders, not revealing information duly classified as a State secret, protecting the reputation or rights and private and family lives of others or protecting professional secrets set forth in the law or duly performing the duty of hearing cases stipulated under Article 26 (2) of the Constitution.

58.     The applicant's trial as a result of the press briefing that is the subject of the application is based on the allegations that it contained praise for the PKK illegal armed terrorist organization and Abdullah Öcalan, its founder and leader, that it portrayed and glorified terrorist activities as freedom struggle and thus assisted the organization by means of conducting its propaganda.   

59.     When the indictment that was prepared with regard to the applicant and the judgments of the courts of instance are evaluated as a whole, it has been concluded that the trial of the applicant qualifies as the extension of the objectives and activities determined by the State within the framework of the fight against the activities of the PKK terrorist organization. 

60.     Not only is the PKK accepted as an armed terrorist organization by the Turkish judicial power, but it is also included under the name of ''PKK/KONGRA-GEL'' in the list of ''the principal terrorist organizations which currently pursue their activities in Turkey'' published by the Turkish National Police. The PKK has been accepted by the European Union as a terrorist organization since the Council Common Position of the Council of Europe of 27 December 2001 on the Application of Specific Measures to Combat Armed Terrorism. Moreover, the PKK is also included in the list of terrorist organizations of the United States of America (USA) and accepted as a terrorist organization by numerous countries of the region such as Syria, Iraq and Iran and international organizations such as the United Nations and NATO. In addition, the PKK is also included in the list of drug traffickers of the USA (Abdullah Öcalan, § 87).

61.     It has been concluded that the applicant's trial as a result of the press briefing that is the subject of the application is part of the efforts aimed at protecting national security, public order and public security, preventing crime and punishing criminals within the framework of the fight against the activities of the PKK terrorist organization, that therefore, it carries a legitimate aim within the scope of Article 26 (2) of the Constitution that relates to the freedom of expression.

                      iii.      Necessity and Proportionality in the Democratic Societal Order

62.     The applicant alleged that he did not incite to coercion and violence or other terror methods in the press briefing he held, that the interference with his freedom of expression, in which he was tried as a result of some political assessments pertaining to current events, was in violation of the requirements of a democratic society. 

63.     It was stated in the Ministry's opinion that in the event that an interference aimed at the freedom of expression existed, whether ''relevant and sufficient grounds'' which would justify the measures taken were brought forward and whether ''there existed a reasonable balance between the objective and means of limitation'' needed to be evaluated with a view to the requirements of a democratic society.

64.     The freedom of expression may be subject to certain limitations.  An evaluation needs to be conducted concerning the matter of whether or not the restrictions listed in Article 26 (2) of the Constitution regarding the freedom of expression are in harmony with the requirements of a democratic societal order and the principle of proportionality guaranteed under Article 13 of the Constitution.

65.     The concept of "requirements of a democratic societal order" stipulated in the Constitution of 1982 needs to be interpreted with a modern and libertarian understanding. The criterion of ''requirements of a democratic societal order'' clearly reflects the parallelism between Article 13 of the Constitution and Articles 9, 10 and 11 of the Convention, which contain the ''requirements of a democratic society''. Therefore, the criterion of democratic society should be interpreted on the basis of pluralism, tolerance and open mindedness (Abdullah Öcalan, § 93).

66.     Democracies are regimes in which the fundamental rights and freedoms are ensured and guaranteed in the broadest manner. In a democratic state of law, restrictions that render fundamental rights and freedoms completely impracticable by bearing prejudice to their essence cannot be allowed. Indeed, it is acknowledged under Article 13 of the Constitution that fundamental rights and freedoms can only be restricted for the reasons envisaged in the Constitution and by law without bearing prejudice to their essence.  The essence to which no prejudice can be born from a constitutional standpoint varies regarding each fundamental right and freedom.  Nevertheless, in order to acknowledge that a limitation introduced by law does not bear prejudice to the essence of the right, it should not render the exercise of fundamental rights significantly harder, prevent them from fulfilling their objective and have a feature that would remove their effect.  

67.     With regard to limitations that are introduced without bearing prejudice to the essence of fundamental rights and freedoms, it has been indicated that these limitations cannot be in violation of the requirements of the democratic societal order and the principle of proportionality.  In other words, as limitations that bear prejudice to essence would be primarily in violation of the principles of “requirements of a democratic societal order” and “proportionality”, the Constitution maker has not deemed it necessary that a separate examination be conducted with a view to the principles of “requirements of a democratic societal order” and “proportionality” with regard to limitations that bear prejudice to the essence of fundamental rights and freedoms. 

68.     The concept of “requirements of a democratic societal order” that is envisaged to be observed with regard to interferences that does not violate the prohibition of bearing prejudice to essence require that the restrictions on the freedom of expression should primarily be in the form of a compulsory or exceptional measure and that they should be considered to be the last remedy to be resorted to or the last measure to be taken. Being one of the “requirements of a democratic societal order” refers to a limitation being geared towards the fulfillment of a pressing social need in a democratic society.  According to this, if the restrictive measure is not in the form of meeting a pressing social need or is not the last remedy to be resorted to, it cannot be considered as a measure which is in conformity with the requirements of the democratic order of the society (For judgments of the ECtHR in this matter, see Handyside v. United Kingdom, App. No: 5493/72, 7/12/1976, § 48).   

69.     It is undoubted that the freedom of expression, which constitutes one of the main pillars of a democratic society, applies not only for thoughts which are accepted to be in favor or considered to be harmless or not worthy of attention, but also for thoughts which are critical of a part of the State or the society, which are striking for them or which disturb them. Because these are the requirements of pluralism, tolerance and open mindedness, which apply in a democratic societal order (see Handyside v. United Kingdom, § 49).

70.     Another guarantee which will intervene in all kinds of limitations to be introduced to rights and freedoms is the ''principle of proportionality'' expressed under Article 13 of the Constitution. This principle is a guarantee which needs to be taken into consideration with priority in applications regarding the limitation of fundamental rights and freedoms. Although the requirements of a democratic societal order and the principles of proportionality are regulated as two separate criteria under Article 13 of the Constitution, there is a close relation between these two criteria. It needs to be examined whether or not any limitation towards fundamental rights and freedoms bears the quality of being necessary for the democratic societal order, in other words, whether or not it has the quality of being a proportionate limitation that allows for the least possible interference in fundamental rights while fulfilling the intended public benefit aim (CC, E.2007/4, K.2007/81, Date of Decision: 18/10/2007).

71.     According to the judgments of the Constitutional Court, proportionality reflects the relationship between the objectives and means of limiting fundamental rights and freedoms. The inspection for proportionality is the inspection of the means selected based on the sought objective in order to reach this objective. For this reason, interference in the field of the freedom of expression, whether or not the interference selected in order to achieve the sought objective is suitable, necessary and proportionate needs to be evaluated (Abdullah Öcalan, § 97; Sebahat Tuncel, App. No: 2012/1051, 20/2/2014, § 84).     

72.     As a result of their indicated qualities, the concepts of “essence of fundamental rights and freedoms”, “requirements of a democratic societal order” and “the principle of proportionality”, which are contained within Article 13 of the Constitution and closely linked, are integral parts of the same concept and constitute the fundamental criteria that need to be observed within the regime of freedoms of a “democratic state of law”.

73.     Therefore/In this regard, it will be necessary to see whether or not a judicial or administrative interference with the freedom of expression meets the pressure of a social need. The main axis for the evaluations to be carried out with regard to the facts that are the subject of the application will be whether or not the courts of instance, which caused the interference, could convincingly put forward that the grounds they relied on in their judgments are in line with the principles of the ''requirements of a democratic social order'' and ''proportionality'' with a view to restricting the freedom of expression (Abdullah Öcalan, § 97).

74.     It needs to be taken into consideration in the evaluations to be made that the applicant was the provincial head of the BDP in Diyarbakır and that the matters he referred to in the press briefing pertain to societal issues that concern a portion of the society.  Within the scope of Article 26 of the Constitution, it should be pointed out that the authorities exercising public power have a very narrow margin of discretion in the limitation of political discourses regarding public interest or discussions concerning societal problems (for an opinion in the same vein, see Başkaya and Okçuoğlu v. Turkey, § 62).    

75.     On the other hand, even though no content related limitation is brought to the freedom of expression, public authorities have a wider discretionary authority in areas such as racism, hate speech, war propaganda, encouraging and inciting to violence, calls to riot or justifying terrorist acts, which are the borderlands of these freedoms.  For this reason, first it needs to be assessed whether or not the propaganda of the actions of the PKK terrorist organization was made in the press briefing in question as indicated in the indictment and the grounds of the judgments of the courts of instance (Fatih Taş, § 98).

76.      In individual applications regarding the freedom of expression, examining expressions by tearing them apart from their contexts may lead to erroneous results in the application of the principles contained within Articles 13 and 26 of the Constitution and in carrying out an acceptable evaluation of the obtained findings. Within this framework, the fact that, for instance, the expression of a thought constitutes a threat for ''national security'' when torn apart from its context, does not in and of itself justify an interference targeting this expression. For this reason, the entirety of the statements regarding the PKK terrorist organization and Abdullah Öcalan as well as the context in which these were expressed, the identity of the speaker, the timing of and the purpose for which the statements that are the subject of the application were used, the identities of the people it addressed, its potential effects and the remainder of the statements from the press briefing, which are indicated in the judgments of the courts of instance, need to be considered as a whole in the application at hand.  Other than this, attention needs to paid to the content and the context in which the opinions that were brought forward in the press briefing in question, it needs to be evaluated whether or not the interference was “in compliance with the desired objectives” and whether or not the reasonings that were brought forward by the national authorities were “relevant and sufficient” (for similar assessments, Abdullah Öcalan, § 100; Fatih Taş,  § 99). 

77.      Indeed, the ECtHR has always stressed in its established case law that in order to determine whether expressions or texts regarding expressions of thought encourage violence when considered in their entirety, it would be appropriate to take into consideration the terms used and the contexts in which these were written. (Özgür Gündem v. Turkey, App. No: 23144/93, 16/3/2000 § 63; Sürek v. Turkey, App. No: 24762/94, 8/7/1999 § 12, 58 ).   

78.     The applicant criticizes the government policies in the solution of the “Kurdish problem” in the press briefing in question.  According to the applicant, Abdullah Öcalan was not desired as an interlocutor in the solution of the Kurdish problem; however, Öcalan became an important actor of the process at this stage despite the negative attitudes of government officials.  According to the applicant, Öcalan was handed over to Turkey by international powers and this is a game that is being played on the peoples of the Middle East.  As international powers were planning chaos in the Middle East, Öcalan prevented these chaos plans with the solution proposals that he elaborated.  Öcalan achieved all this while under negative prison circumstances.  According to the applicant, Öcalan is no ordinary convict and it is not possible to pursue the “sensitive” process that is currently being experienced in a sound manner without improving the conditions of his detention.  The applicant indicated that the government did not evaluate the recommendations of Öcalan, that the real objective of the government was not a solution, that it was rather the disbanding of the Kurds, that there was a desire to perpetuate state policies relying on denial and destruction, that the recommendation of Öcalan needed to be taken into consideration, that the military operations needed to be ceased.  According to the applicant, the problem can be solved by ensuring democratization and the problem needs to be discussed with courage in order for that to happen.  Finally, the applicant called in his press briefing for the improvement of the prison circumstances of Öcalan and asked all democrat sections of the society to be sensitive towards the matter of ensuring Öcalan's freedom. 

79.     As a result of the trial that was conducted, the Court of First Instance decided in its judgment of 27/5/2010 that the applicant be sentenced to 2 years and 1 month in prison for the crime of “engaging in propaganda of the terrorist organization”; however, following the decision of reversal of the Court of Cassation, it decided with its judgment of 10/9/2013 that the prosecution be postponed and that the applicant be placed under probation for three years as per Provisional Article 1 of the Law numbered 6352.  In other words, the interference made to the applicant's freedom of expression consists merely of the filing of a criminal case regarding himself for the crime of “engaging in propaganda of the terrorist organization” due to the statements he made in the press briefing he held, his trial and the postponement of the prosecution with the provision of a 3-year probation period.

80.     In its decision pertaining to the postponement of the prosecution, the Court of First Instance did not deliver a judgment of acquittal regarding the applicant and postponed the prosecution despite the request of the applicant that the elements of the crime did not materialize and that a judgment of acquittal needed to be delivered, it only mentioned the relevant provisions of the Law no. 6352 in its reasoning and did not include any other grounds.   Therefore, the reason for which a judgment of acquittal was not delivered regarding the applicant and that a decision of the postponement of the prosecution was delivered can be understood by examining the reasonings contained within the judgment of the Court of First Instance of 27/5/2010.  

81.     In its reasoned judgment, the Court of First Instance referred to the importance of the freedom of expression in a democratic society; reminded that the freedom of expression can be restricted in order to ensure the public security and the territorial integrity of the country as per Article 26 (2) of the Constitution and Article 10 (2) of the Convention and under the circumstances contained within Article 13 of the Constitution.   According to the court, the freedom of expression is restricted with Article 7 of the Law numbered 3713, which regulates the crime of “engaging in propaganda of the terrorist organization”. The court indicated that behaviors that disseminate hate, incite to violence and encourage violence are punished with this rule that regulates the crime of engaging in propaganda of a terrorist organization.  The court punished the applicant by accepting that the applicant praised the PKK terrorist organization and Abdullah Öcalan, who is currently convicted in prison, in the press briefing he held during the demonstration in which he participated, that he supported the organization with his statements, that he provided moral support to the organization and that therefore he engaged in propaganda of the terrorist organization.    

82.     The Court of First Instance did not consider or demonstrate with which of his statements the applicant praised violence, incited and encouraged individuals to adopt terrorist methods, in other words, resort to violence, hate, revenge or armed resistance; it merely decided that the applicant supported the PKK terrorist organization and Abdullah Öcalan with his statements. Nevertheless, when the speech of the applicant is evaluated as a whole, it cannot be claimed that he praised violence and terrorist acts, that he incited and encouraged individuals and communities to adopt terrorist methods, resort to violence, that his statements contained calls to racism, hate, revenge or armed resistance.  

83.     The statements that were made the basis of the conviction of the applicant contain an expression of the uneasiness felt as a result of the incarceration of the founder and leader of the PKK terrorist organization in general and it notably contains the call to attributing more importance to the thoughts of Abdullah Öcalan during the “solution process” initiated in order to solve the “Kurdish problem”. The applicant defends the necessity of drafting a democratic civilian constitution at the end of the solution process and that problems need to be discussed and solved within the boundaries of democratic procedures.  The applicant opposes the adoption of methods based on violence instead of democratic procedures and demands that political bans be removed, armed clashes be ceased and Öcalan be released. 

84.     It needs to be pointed out that the instances that exercise public authority in the restriction of statements such as the expressions of the applicant, who is a politician, have a very narrow discretionary window.  Thoughts which are not pleasant for the public authorities or a part of the society cannot be restricted unless they encourage violence, justify terrorist acts and support the formation of the feeling of hatred.

85.     The applicant was subjected to prosecution for the crime of engaging in propaganda of the terrorist organization and sentenced to 2 years and 1 month in prison as a result of uttering the expressions that are the subject of the application by addressing a crowd during a demonstration and in a press briefing format.  Even though a decision of postponement of the prosecution was delivered later on, it has been concluded that the interference in the applicant's freedom of expression was not in line with the desired objectives and that therefore it was not necessary in a democratic societal order due to the fact that the risk of the applicant being subjected to a prosecution and sentenced again still persists.

86.     For this reason, it should be decided that the applicant's freedom of expression guaranteed in Article 26 of the Constitution was violated.

            3. Article 50 of the Law Numbered 6216

87.     The applicant filed a request for a pecuniary compensation of TRY 20,000.00 and a non-pecuniary compensation of TRY 20,000.00.

88.      Paragraph (2) of Article 50 of the Law numbered 6216 with the side heading of ''Judgments" is as follows:

"If the determined violation arises out of a court judgment, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed, In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favor of the applicant or the remedy of filing a case before the general courts may be shown. The court, which is responsible for holding the retrial, shall deliver a judgment over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation."

89.     Taking into consideration the fact that the applicant was kept under detention for 94 days as a result of the statements he used during the press briefing he held, that he was tried for approximately 3 years and 9 months and that the threat of prosecution still persists, it should be decided that a net amount of TRY 5,000.00 in non-pecuniary need to be paid ex gratia to the applicant in return for his non-pecuniary damage, which cannot be compensated only by the determination of the violation.

90.     Although the applicant made a request regarding pecuniary compensation, as it is understood that there is no link of causality between the violation that has been identified and the pecuniary damages that are claimed, it should be decided that the request of the applicant regarding pecuniary compensation be dismissed.

91.      It should be decided that the trial expenses of TRY 1,698.35 composed of the fee of TRY 198.35 and the counsel's fee of TRY 1,500.00 which were made by the applicant and determined in accordance with the documents in the file be paid to the applicant.

92.      Taking into consideration the fact that the applicant is still under the probation measure, that is, the threat of prosecution and punishment, due to the decision of postponement of the prosecution that was delivered with regard to him and that this matter violates his freedom of expression, it should be decided that in the criminal trial regarding the applicant a copy of the decision be sent to the 5^th Assize Court of Diyarbakır to hold a retrial in order to remove the violation and the consequences thereof as per Article 50 (2) of the Law numbered 6216.

V. JUDGMENT

In the light of the reasons explained, it was UNANIMOUSLY held on 4/6/2014;

A.     

1.        That the applicant's allegations to the effect that his personal liberty and security were violated are INADMISSIBLE due to "lack of jurisdiction ratione temporis",

2.        That his allegations to the effect that his freedom of expression was violated are ADMISSIBLE,  

3.        That his freedom of expression guaranteed by Article 26 of the Constitution was VIOLATED,

B.       That the applicant be paid a net amount of TRY 5,000.00 of pecuniary DAMAGES, that other requests of the applicant regarding compensation be REJECTED,

C.       That the trial expenses of TRY 1,698.35 in total composed of the fee of TRY 198.35 and the counsel's fee of TRY 1,500.00, which were made by the applicant be PAID TO THE APPLICANT,

D.       That the payment be made within four months as of the date of application by the applicant to the Ministry of Finance following the notification of the judgment; that in the event that a delay occurs as regards the payment, the legal interest be charged for the period that elapses from the date on which this period comes to an end to the date of payment.

E.       That a copy of the judgment be SENT to the 5^th Assize Court of Diyarbakır IN ORDER TO HOLD A RETRIAL so as to remove the violation and the consequences thereof as per Article 50 (1), (2) of the Law no. 6216,