GUL v. TURKEY - 14619/12 (Judgment : Article 10 - Freedom of expression-{general} : Second Section Committee) [2018] ECHR 809 (09 October 2018)

JUDGMENT STRASBOURG 9 October 2018 This judgment is final but it may be subject to editorial revision. In the case of Gül v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Paul Lemmens, President, Valeriu Griţco, Stéphanie Mourou-Vikström, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 18 September 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 14619/12 ) 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 Yılmaz Gül ("the applicant"), on 15 February 2012. 2. The applicant was represented by Ms S. Aracı Bek and Mr T. Bek lawyers practising in Adana. The Turkish Government ("the Government") were represented by their Agent. 3. On 16 January 2017 the complaints concerning the alleged breach of the applicant's rights to freedom of expression and freedom of assembly were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1979 and lives in Adana. 5. At the time of the events giving rise to the application, the applicant was a member of the Socialist Democracy Party ( Sosyalist Demokrasi Partisi ). . On 21 March 2007 the applicant attended the Newroz (Kurdish New Year) celebrations in Adana, where he made a speech on behalf of his political party. According to a report prepared on the same day by the police, in his speech the applicant stated that the military forces should comply with the ceasefire declared by the PKK and that a general amnesty should be declared. He contended that people were being detained for referring to Abdullah Öcalan, the leader of the PKK, as " Sayın (Esteemed) Öcalan" whereas the Prime Minister also referred to him as " Sayın Öcalan". The applicant further stated that Abdullah Öcalan should not be kept in isolation in prison and that independent doctors should visit him. He lastly made the following statement: "Do not fire but talk for resolving the Kurdish issue". . The police report of 21 March 2007 further stated that subsequent to the applicant's speech, songs with Kurdish lyrics were played and some demonstrators waved PKK flags. . On 6 April 2007 the Adana public prosecutor asked two experts to prepare a report on the police video recordings of the celebrations of 21 March 2007. According to the report dated 16 April 2007 prepared by two persons, the demonstrators chanted certain slogans and waved flags and posters of Abdullah Öcalan from time to time during the celebrations. 9. On 18 April 2007 the Adana public prosecutor filed a bill of indictment with the Adana Assize Court charging the applicant with membership of the PKK [1] under Articles 220 § 7 and 314 § 2 of the Criminal Code on account of his participation in the demonstration of 21 March 2007 and of the content of his speech. He relied on the police report of 21 March 2007, the police video recordings of the Newroz celebrations and the expert report dated 16 April 2007. 10. On an unspecified date the Adana public prosecutor amended the charges against the applicant and asked the Adana Assize Court to convict him of disseminating propaganda in favour of the PKK under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). . On 24 March 2008 the Adana Assize Court convicted the applicant under the aforementioned provision and sentenced him to ten months' imprisonment. The court considered, on the basis of the police report of 21 March 2007 and the expert report of 16 April 2007, that the applicant's statements had constituted propaganda in favour of the PKK and that the crowd had chanted slogans in favour of the PKK after having listened the applicant's speech. 12. On 19 July 2011 the Court of Cassation upheld the judgment of 24 March 2008. 13. On 11 January 2012 the applicant started serving his prison sentence. On 29 May 2012 the Adana Assize Court granted the applicant early conditional release starting from 3 June 2012. II. RELEVANT DOMESTIC LAW 14. The relevant domestic law applicable at the material time can be found in the case of Belge v. Turkey (no. 50171/09 , § 19, 6 December 2016). 15. In particular, at the time of the events giving rise to the present application, section 7(2) of Law no. 3713 read as follows: "Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to [serve] a term of imprisonment of one to five years ..." THE LAW I. THE GOVERNMENT'S PRELIMINARY OBJECTION 16. The Government submitted that the deadline for the applicant to submit his observations in reply to their observations and his claims for just satisfaction had been 11 September 2017, and that there was no document in the case file showing that the applicant had complied with that deadline. They asked the Court not to include the applicant's observations and just satisfaction claims as they had been submitted late. 17. The Court notes that the applicant submitted his observations in reply to the Government's observations and his claims for just satisfaction on 11 September 2017. Nonetheless, the Court has already dismissed similar objections by the respondent Government (see Öner Aktaş v. Turkey , no. 59860/10 , § 29, 29 October 2013; Atılgan and Others v. Turkey , no. 14495/11 and 10 others, § 12, 27 January 2015; and Şakir Kaçmaz v. Turkey , no. 8077/08 , § 62, 10 November 2015). In the present case, the Court finds no reason to depart from that conclusion. The Government's argument on this point should therefore be rejected. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 18. The applicant complained under Articles 10 and 11 of the Convention that his conviction and sentence under section 7(2) of Law no. 3713 on account of the speech he had made at the Newroz celebrations had constituted an unjustified interference with his right to freedom of expression and freedom of assembly. The Court considers that this complaint should be examined from the standpoint of Article 10 of the Convention alone. Article 10 reads as follows: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." 19. The Government contested the applicant's argument. They submitted that the interference with the applicant's right to freedom of expression had had a legal basis and had pursued the legitimate aims of protecting national security, public safety and territorial integrity, as well preventing crime. The Government further submitted that the applicant had intended to encourage the public to engage in violence and resistance against the Turkish authorities and to manipulate the crowd. Besides, following his speech, the crowd had chanted slogans in favour of the PKK. The Government further submitted that the first-instance court had applied the principles embodied in Article 10, basing itself on an acceptable assessment of the relevant facts. They lastly noted that the applicant had been sentenced to prison only for ten months and he had served part of that sentence. In sum, the Government considered that the applicant's conviction had been necessary in a democratic society and proportionate to the legitimate aims pursued. 20. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 21. As regards the merits of the applicant's complaint, the Court considers that his criminal conviction amounted to an "interference" with the exercise of his freedom of expression and that the interference was based on section 7(2) of Law no. 3713. While questions could arise with respect to the foreseeability of that provision in its application, the Court does not consider it necessary to deal with this issue, in the light of its findings regarding the necessity of the interference (see paragraph 27 below) (see Öner and Türk v. Turkey , no. 51962/12 , § 21, 31 March 2015). The Court is also prepared to accept that, in the present case, the national authorities may be considered to have pursued the legitimate aims of protecting national security and preventing disorder and crime (see Faruk Temel v. Turkey , no. 16853/05 , § 52, 1 February 2011, and Belge v. Turkey , no. 50171/09 , § 30, 6 December 2016). 22. As regards the necessity of the interference in a democratic society, the Court notes that it has already examined similar grievances in a number of cases and found violations of Article 10 of the Convention (see, for example, Savgın v. Turkey , no. 13304/03 , §§ 39-48, 2 February 2010; Gül and Others v. Turkey , no. 4870/02 , §§ 32-45, 8 June 2010; Kılıç and Eren v. Turkey , no. 43807/07 , §§ 20-31, 29 November 2011; Faruk Temel , cited above, §§ 58-64; Öner and Türk cited above, §§ 19-27; Belge , cited above, §§ 24-38; Yigin v. Turkey [Committee], no. 36643/09 , §§ 22-24, 30 January 2018; and Zengin and Çakır v. Turkey [Committee], no. 57069/09 , §§ 18-20, 13 February 2018). The Court has examined the present case and considers that the Government have not put forward any argument which would require it to reach a different conclusion in the present case. 23. In particular, the Court notes that the applicant was convicted under section 7(2) of Law no. 3713 on account of the content of his speech and because the crowd had chanted slogans following his speech (see paragraph 11 above). The Court observes that the Adana Assize Court did not provide an assessment regarding the content of the applicant's speech in the light of the principles embodied in Article 10. In particular, the Assize Court failed to conduct an assessment as to whether the applicant's speech could be construed as encouraging violence, armed resistance or an uprising, or being capable of inciting violence. These are essential elements to be taken into account. In the Court's view, nothing in that speech can be construed as encouraging violence, armed resistance or an uprising. 24. The Court further notes that, according to the first-instance court, the applicant's speech had provoked the crowd to chant slogans and had as a result committed the offence of disseminating propaganda in favour of a terrorist organisation. In this connection, the Court observes that neither the police report dated 21 March 2007, nor the expert report of 16 April 2007 contains any element demonstrating that people who attended the celebrations chanted slogans immediately after listening the applicant's speech (see paragraphs 7 and 8 above). In any event, there is no evidence in the case file showing that the applicant was the source of the slogans chanted by the demonstrators (see Bülent Kaya v Turkey , no. 52056/08 , § 42, 22 October 2013). Nor was it established that he encouraged or instructed the demonstrators to chant slogans. 25. In sum, the Court considers that the national courts did not provide "relevant and sufficient" reasons for the applicant's criminal conviction under section 7(2) of Law no. 3713. 26. Lastly, the Court notes the severity of the penalty imposed on the applicant, that is to say ten months of imprisonment, which the applicant served in part (see Karataş v. Turkey [GC], no. 23168/94 , § 53, ECHR 1999-IV). . The Court concludes that the interference in question was not "necessary in a democratic society". Accordingly, there has been a violation of Article 10 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 28. Article 41 of the Convention provides: "If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party." 29. The applicant claimed 10,000 euros (EUR) and EUR 5,000 in respect of pecuniary and non-pecuniary damage respectively. He also claimed EUR 3,332 for costs and expenses incurred before the Court. In support of his claim for costs and expenses, the applicant submitted the scale of fees of the Adana Bar Association. 30. The Government contested those claims. 31. Having regard to the applicant's failure to submit to the Court any document in support of his claims in respect of pecuniary damage and costs and expenses, the Court rejects those claims. On the other hand, ruling on an equitable basis, the Court awards the applicant the sum claimed by him in full, that is to say EUR 5,000, in respect of non-pecuniary damage. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Declares the application admissible; 2. Holds that there has been a violation of Article 10 of the Convention; 3. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 4. Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 9 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Paul Lemmens Deputy Registrar President [1] . An illegal armed organisation. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII