Last Updated on October 2, 2020 by LawEuro
SECOND SECTION
CASE OF BOZAN v. TURKEY
(Applications nos. 56816/10 and 4175/11)
STOP
STRASBOURG
September 29, 2020
This judgment is final. It can undergo retouching.
In the case of Bozan v. Turkey,
The European Court of Human Rights (second section), sitting as a committee composed of:
Valeriu Griţco, President,
Arnfinn Bårdsen,
Peeter Roosma, judges,
and Hasan Bakırcı, Deputy Section Registrar,
After deliberating in the council chamber on September 8, 2020,
Delivers the following judgment, adopted on that date:
PROCEDURE
1. At the origin of the case are two applications (nos. 56816/10 and 4175/11) against the Republic of Turkey, of which a national of that State, Mr Ali Bozan (“the applicant”), a seized the Court on October 20, 2011 and November 22, 2010 respectively under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).
2. The applicant was represented by Me S. Cengiz and Me A. Koç, lawyers in İzmir. The Turkish Government (“the Government”) were represented by their Agent.
3. On 25 August 2017, the complaints made by the applicant under Articles 6 §§ 1 and 3 (d), 10 and 11 of the Convention as well as Article 3 of Protocol No. 1 were communicated to the Government and the remainder of the application was declared inadmissible in accordance with Rule 54 § 3 of the Rules of Court.
4. The Government oppose the examination of the complaint by a committee. After considering the Government’s objection, the Court rejects it.
IN FACT
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1978 and lives in Mersin.
6. Suspected of having committed offenses during two demonstrations organized on 31 March and 21 April 2006 in Mersin, the applicant was arrested on 3 May 2006 and remanded in custody the following day.
7. On 26 May 2006, the public prosecutor of Adana indicted him with the head of propaganda for a terrorist organization on account of his speeches and acts committed during the aforementioned demonstrations.
8. On 11 July 2006 the applicant was released.
9. On 6 December 2007, after having reclassified the facts, the Adana Assize Court (“the Assize Court”) found the applicant guilty of committing offenses on behalf of an illegal organization without being a member of it. and sentenced him to six years and three months’ imprisonment in application of Article 314 § 2 of the Criminal Code and by reference to Articles 314 § 3 and 220 § 6 of the same code. It noted in this regard that, during the demonstration of March 31, 2006, which was allegedly organized at the call of the PKK (Kurdistan Workers’ Party, an illegal armed organization) to commemorate the death of fourteen members of this organization killed by police force, the applicant had walked in front of the demonstrators chanting slogans, waving placards in favor of the PKK and its leader, and committing acts of violence. She added that the demonstrators had observed a minute’s silence for the dead and that the applicant, despite calls from the police, had prevented the group from dispersing. It indicated that the applicant had made the following speech:
“(…) friends, I invite you to observe a minute of silence in memory of our people who were killed last week (…) our people have appointed an interlocutor to resolve the Kurdish question with the participation of million people (…) the people designated the esteemed Öcalan as their interlocutor (…) They massacred fourteen guerrillas of the HPG Popular Defense Forces, a branch of the PKK using chemical weapons during an operation in Muş (…) Because of the intolerance of some, our people were not even allowed to claim the bodies of their dead for funerals, and they intervened at the funeral that was organized. During the intervention, they murdered our people, the exact number of whom we do not know; among them were children of six and nine. You have to ask yourself: Is a six-year-old a terrorist? Is a nine year old a terrorist? In my opinion, the real terrorists are those who killed six and nine year old children by riddling them with bullets (…) We are now counting on the solidarity of the cities of Amed, Siirt, Batman, Hakkari, Van and Mersin. The people of Mersin have shown solidarity with Amed today. ”
Furthermore, the Assize Court found the applicant guilty of defending the crime and of criminals because of his speech on 21 April 2006.
10. On 2 June 2010, the Court of Cassation, seized of a cassation appeal lodged by the applicant, upheld the judgment of the Assize Court with regard to the conviction of the person concerned for the offense of commission. of offenses in the name of an illegal organization without being a member and invalidated it with regard to the offense of defending the crime and criminals.
11. On 1 November 2010 the applicant began serving the prison sentence imposed on him as part of his criminal conviction for the offense of committing offenses on behalf of an illegal organization without being a member of it.
12. On June 23, 2011, considering that the content of the speech delivered by the applicant on April 21, 2006 constituted the offense of propaganda in favor of a terrorist organization, the Assize Court sentenced the applicant to ten months. ‘imprisonment in application of Article 7 § 2 of Law no.3713, before suspending the delivery of this judgment.
13. On July 22, 2011, the Assize Court dismissed the applicant’s opposition to the decision to stay the delivery of the judgment of June 23, 2011.
14. On 10 July 2012, at the request of the applicant and the public prosecutor, the Assize Court decided to suspend the execution of the sentence imposed on the applicant on account of his conviction for commission of offenses in the name of an illegal organization without being a member, considering that certain legislative changes that had occurred in the meantime could work in favor of the person concerned.
15. On September 10, 2013, after reopening the case in the context of a review procedure, the Assize Court quashed the applicant’s prison sentence for committing offenses on behalf of an illegal organization without to be a member on the grounds that, by virtue of Article 7 § 5 of Law no.3713 as amended by Article 8 § 2 of Law no.6459 which entered into force on April 30, 2013 (see paragraph 21 below) , there was no reason to impose a penalty on the applicant for this offense.
16. The applicant lodged an opposition against this decision, which the Assize Court dismissed on 20 February 2015.
II. RELEVANT DOMESTIC LAW
A. The penal code
17. Entitled “Constitution of an organization with a view to committing offenses”, Article 220 § 6 of the Criminal Code (Law No. 5237 of September 26, 2004, entered into force on June 1, 2005) reads as follows:
“Anyone who commits an offense on behalf of an illegal organization without being a member is also convicted of belonging to an illegal organization (…)”
18. Article 314 of the Criminal Code, entitled “Armed Organization”, reads as follows:
“1. Anyone who establishes or directs an armed organization with a view to committing the offenses referred to in the fourth and fifth sections of this chapter shall be sentenced to ten to fifteen years of imprisonment.
2. Anyone who joins an organization referred to in the first paragraph of this article shall be sentenced to five to ten years’ imprisonment.
3. The other provisions relating to the offense of forming an organization to commit an offense apply as such to the offense referred to in this article. ”
B. Law No. 3713
19. Article 7 § 2 of Law No. 3713 on the fight against terrorism, which entered into force on 12 April 1991, stated:
“Anyone who provides assistance to the organizations referred to [in the above paragraph] and makes propaganda on their behalf will be sentenced to a term of between one and five years’ imprisonment as well as a fine. from 50 to 100 million pounds (…) ”
20. After being amended by Law No. 5532, which entered into force on July 18, 2006, Article 7 § 2 of Law No. 3713 provided the following:
“Anyone who promotes a terrorist organization will be sentenced to a term of one to five years imprisonment …”
21. Since the amendment made by Law No. 6459, which entered into force on April 30, 2013, Article 7 of Law No. 3713 reads as follows in its relevant parts in the present case:
“2. Anyone who makes propaganda in favor of a terrorist organization by legitimizing the methods of coercion, violence or threat of this type of organization, by making their apology or by inciting their use will be sentenced to a penalty of one to five years imprisonment (…)
(…)
5. Persons who commit the offense referred to in the second paragraph (…) on behalf of a terrorist organization without being a member of it may not be additionally sentenced for the offense provided for in Article 220 § 6 of Law No. 5237. ”
PLACE
I. ON THE JOINING OF THE APPLICATIONS
22. As the applications are similar in fact and in law, the Court decides to join them, as allowed by Article 42 § 1 of its Rules of Procedure.
II. ON THE GOVERNMENT’S PRELIMINARY OBJECTIONS
23. The Government raised three preliminary objections. It first states that the decision adopted on September 10, 2013 by the Assize Court following its review of the applicant’s criminal conviction in the light of the amendments made by Law no.6459 became final on February 20, 2015, i.e. after the entry into force, on September 23, 2012, of the individual appeal before the Constitutional Court, but that the person concerned did not file a similar appeal before this high court which, according to him, was competent to hear individual appeals against review decisions of the type given in this case. He therefore considers that the complaints should be declared inadmissible for failure to exhaust domestic remedies.
24. The Government then maintained that, in view of the decision to stay the delivery of the judgment concerning the applicant’s conviction for propaganda in favor of a terrorist organization and the subsequent annulment of the sentence imposed on the applicant for committing ‘offenses in the name of an illegal organization without being a member, the applicant no longer has the status of victim in relation to the complaints raised in his applications.
25. The Government finally stated that the applicant’s criminal conviction for committing offenses on behalf of an illegal organization without being a member of it became final with the judgment of the Court of Cassation of 2 June 2010 which, indicates- he was notified to the interested party on August 10, 2010. It considers that application no 4175/11 presenting the complaints relating to this conviction was filed on October 20, 2011, that is to say more than six months after the notification of the final internal decision, and that it must therefore be declared inadmissible for failure to comply with the six-month deadline.
26. As regards the exception relating to his status as a victim, the applicant states that, even if the sentence imposed for commission of offenses on behalf of an illegal organization without being a member of it was subsequently annulled, he had already served almost two years. He adds that his initial criminal conviction remained on his criminal record and that he suffered the consequences. It does not comment on the other exceptions.
27. As regards the exception relating to the applicant’s status as victim, the Court firstly recalls that it has already considered that the decision to suspend the delivery of the judgment was incapable of preventing or repairing the harmful consequences of the criminal proceedings and of the conviction directly suffered by the applicant as a result of the infringement of his freedom of expression (see, mutatis mutandis, Aslı Güneş v. Turkey (dec.), no 53916/00, 13 May 2004, Yaşar Kaplan v. . Turkey, no.56566 / 00, §§ 32 33, 24 January 2006, and Ergündoğan v. Turkey, no 48979/10, § 17, 17 April 2018). It then notes that after having re-examined the case in the light of the amendments made by Law no.6459, the Assize Court decided that there was no reason to impose a penalty on the applicant for commission of offenses on behalf of an illegal organization without being a member of it, and it quashed the sentence previously imposed for this offense without, however, formally quashing the related conviction (see paragraph 15 above). It also notes that the applicant had already served part of the prison sentence imposed under this conviction: approximately two months, from 3 May to 11 July 2006 (see paragraphs 6 and 8 above) and approximately twenty months, from 1 November 2010 to July 10, 2012, date on which the Assize Court decided to suspend the execution of the sentence (see paragraphs 11 and 14 above). In view of the foregoing, the Court considers that, notwithstanding the suspension of the delivery of the judgment concerning the applicant’s criminal conviction for the offense of propaganda in favor of a terrorist organization and the subsequent annulment of the sentence imposed for commission of offenses on behalf of an illegal organization without being a member, the applicant may claim to be a victim within the meaning of Article 34 of the Convention by reason of the impugned criminal proceedings (Zülküf Murat Kahraman v. Turkey, no 65808/10 , §§ 38 39, July 16, 2019). Therefore, it rejects the objection raised by the Government in this regard.
28. As regards the exception of non-exhaustion of domestic remedies, the Court notes that, like the review procedure provided for by Law no.6352, the review of the applicant’s criminal conviction carried out pursuant to Article 7 § 5 of Law no.3713 as amended by Article 8 § 2 of Law no.6459 does not consist of a review of the substance of the criminal proceedings, but only of a review of the sentence imposed at the end of these proceedings (see, mutatis mutandis, Öner and Türk v. Turkey, no. 51962/12, § 17, 31 March 2015). In the context of the review procedure, in fact, the Assize Court did not re-examine on the merits the elements constituting the offense with which the applicant had been charged, it only said that, in application of Article 7 § 5 of Law no. 3713 there was no reason to impose a penalty on the applicant for committing offenses on behalf of an illegal organization (see paragraph 15 above). The applicant’s criminal conviction for this last offense having become final following the judgment rendered by the Court of Cassation on June 2, 2010, i.e. before the entry into force, on September 23, 2012, of the individual appeal before the Constitutional Court. (Uzun v. Turkey (dec.), No.10755/13, §§ 25 27, 30 April 2013), the applicant could not seize this high court for such an appeal and present his complaints to it concerning the criminal proceedings which had been brought against him (ibidem). Therefore, the objection of non-exhaustion of domestic remedies raised by the Government must also be rejected (Zülküf Murat Kahraman, cited above, § 37).
29. As to the objection of failure to comply with the six-month time-limit, the Court notes that Application No. 4175/11 was lodged with it on November 22, 2010 and not, as the Government asserted, on October 20. 2011. It therefore notes that this application was indeed lodged within six months of the final domestic decision concerning the applicant’s criminal conviction for commission of offenses on behalf of an illegal organization, namely the judgment of the Court of Cassation. of 2 June 2010. It follows that this exception must also be rejected.
III. ON THE ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
30. Relying on Articles 10 and 11 of the Convention, the applicant alleged that the criminal proceedings against him infringed his rights to freedom of expression and to demonstrate.
31. Master of the legal characterization of the facts of the case, the Court considers that the applicant’s complaint should be examined under Article 10 of the Convention.
A. Admissibility
32. Finding that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it does not, moreover, encounter any other ground of inadmissibility, the Court declares it admissible.
B. On the merits
1. Arguments of the parties
33. Referring to the Işıkırık v. Turkey (no.41226 / 09, §§ 56 70, 14 November 2017), the applicant maintained that the penal provision under which he was convicted was not foreseeable. He argues that he was convicted of criminal charges for exercising his right to freedom of expression by making two speeches which he said contained no incitement to violence and aimed to calm protesters during the two protests. He therefore considers that the interference with the exercise of his right to freedom of expression was not justified by relevant and sufficient reasons.
34. The Government considered that there had been no interference in the present case with the exercise by the applicant of his right to freedom of expression. In the event that the existence of such an interference is admitted by the Court, he maintains that this interference was provided for by Articles 220 § 6 and 314 §§ 2 and 3 of the Criminal Code and by Article 7 § 2 of the Criminal Code. Law no.3713, which, according to him, met the requirements of clarity, accessibility and predictability, and that it pursued the legitimate aims of the protection of national security, the preservation of public safety, the defense of order and crime prevention. It also considers that, having regard to the applicant’s involvement in the demonstrations of 31 March and 21 April 2006, which were allegedly organized at the behest of the PKK and during which the demonstrators allegedly committed acts of violence, and having regard to speeches made by the person concerned during these demonstrations, the content of which would have been such as to incite violence, the interference complained of was necessary in a democratic society and proportionate to the legitimate aims pursued.
2. Assessment of the Court
a) Existence of interference
35. The Court notes that the applicant was convicted of commission of offenses in the name of an illegal organization without being a member of it and of propaganda in favor of a terrorist organization on account of the acts he had committed and of the speeches made by him. ‘he had spoken during demonstrations (see paragraphs 9 13 above). It observes, on the one hand, that before the annulment (see paragraph 15 above) of the prison sentence imposed on him for his criminal conviction for committing offenses on behalf of an illegal organization without being a member (see paragraphs 6, 8, 12 and 14 above), the applicant had served part of it (approximately twenty-two months) and, on the other hand, that the delivery of the judgment concerning his conviction of the head of propaganda in favor of a terrorist organization (see paragraphs 12 13 above).
36. In view of the sentences of more than seven years’ imprisonment in total pronounced against the applicant, sentences of which he served part, and of the dissuasive effect that the criminal proceedings against him, which had a considerable length of time, and the suspension of the execution of the sentence, to which the applicant was subjected for three years, may have caused, the Court considers that there was interference with the exercise by the applicant of his right to freedom of expression (Erdoğdu v. Turkey, no 25723/94, § 72, ECHR 2000 VI, Dilipak v. Turkey, no 29680/05, § 51, 15 September 2015, Ergündoğan, cited above, § 26, and Selahattin Demirtaş v. Turkey (no.3), no.8732 / 11, § 26, 9 July 2019; see also, conversely, Otegi Mondragon v. Spain, no.2034/07, § 60, ECHR 2011).
b) Justification of the interference
37. Such interference violates Article 10, unless it is “prescribed by law”, inspired by one or more of the legitimate aims mentioned in paragraph 2 and “necessary in a democratic society” to achieve them.
38. As to whether the interference in issue was justified, the Court considers it appropriate to examine separately and successively the question of the justification for the applicant’s criminal conviction for having committed offenses on behalf of an illegal organization. without being a member on the one hand and his criminal conviction of the head of propaganda in favor of a terrorist organization on the other.
i. On the applicant’s criminal conviction for committing offenses on behalf of an illegal organization without being a member of it
39. The Court noted that it was not controversial between the parties that the criminal conviction of the applicant for committing offenses on behalf of an illegal organization without being a member was provided for by law, more specifically by the Articles 220 § 6 and 314 §§ 2 and 3 of the Criminal Code.
40. In this regard, it recalls having already had the opportunity to find in a similar case concerning a conviction imposed on applicants in application of the aforementioned criminal provisions that Article 220 § 6 of the Criminal Code lacked foreseeability on the ground that it did not provide the applicants with a reliable guarantee against arbitrary prosecution, in particular because of the broad scope of the expressions used therein, and that its practical application did not appear to remedy this deficiency (Işıkırık, cited above, §§ 56 70) . In this case, she sees no reason to depart from the approach thus taken.
41. Accordingly, the Court considers that the interference in question was not “in accordance with the law”, within the meaning of paragraph 2 of Article 10 of the Convention. Having regard to that conclusion, it considers that it is not necessary to verify whether the other conditions required by this paragraph – namely the existence of a legitimate aim and the necessity of the interference in a democratic society – were respected in this case.
42. The Court therefore finds that there has been a violation of Article 10 of the Convention.
ii. The criminal conviction of the applicant for propaganda in favor of a terrorist organization
43. Having regard to the finding of a violation it reached above (paragraph 42), the Court considers it unnecessary to examine the question of the justification for the applicant’s criminal conviction for propaganda in favor of a terrorist organization (for a similar approach, Işıkırık, cited above, § 71).
IV. ON THE ALLEGED VIOLATIONS OF ARTICLES 6 §§ 1 AND 3 OF THE CONVENTION AND OF ARTICLE 3 OF PROTOCOL No. 1 COMBINED WITH ARTICLE 14 OF THE CONVENTION
44. Relying on Article 6 § 1 of the Convention, the applicant alleged that the elements constituting the offenses for which he was convicted were not foreseeable.
45. Under this same provision, he complains that the opinion of the Attorney General at the Court of Cassation was not communicated to him during the proceedings before that court.
46. Under Article 6 §§ 1 and 3 (d) of the Convention, he alleges that he was unable to hear prosecution witnesses and to have defense witnesses examined during the hearing. proceedings before the Assize Court.
47. Relying on Article 3 of Protocol No. 1 taken together with Article 14 of the Convention, he complains that he was deprived of his right to vote and to stand as a candidate following his criminal conviction.
48. Having regard to the finding of a violation of Article 10 of the Convention which it has reached (see paragraph 42 above), the Court considers that it is no longer necessary to rule separately on the admissibility or on the merits complaints made under Articles 6 §§ 1 and 3 of the Convention and Article 3 of Protocol No. 1 (for a similar approach, see Kamil Uzun v. Turkey, No. 37410/97, § 64, 10 May 2007).
V. ON THE APPLICATION OF ARTICLE 41 OF THE CONVENTION
49. The applicant claimed 58,014.96 euros (EUR) for pecuniary damage, explaining that this amount corresponds to the loss of income which he believes he suffered while in detention. He further claims EUR 50,000 in respect of non-pecuniary damage. He also claims 5,557.89 EUR for the costs of his representation before the domestic courts, 12,437.50 EUR for the costs of his representation before the Court, 31.54 EUR for postal costs, 15 EUR for fax costs. and EUR 75 for secretarial costs. In this regard, he presented the tariff schedule of the Bar of Mersin, a note indicating the details of the hours and amounts relating to each task that his lawyer would have performed as well as invoices for postal and fax costs.
50. The Government considers that the claim for pecuniary damage is not based on any concrete evidence and is excessive in nature. As for the claim for moral prejudice, he argues that there is no causal link between the sum claimed and the alleged violation. He considers that the said request is unsubstantiated and excessive and that it does not correspond to the amounts ordinarily awarded by the Court. As regards costs and expenses, he states that the applicant has not presented any contract concluded between him and his lawyer in this regard or any invoice. He further considers that the claim for legal costs incurred before the Court is unsubstantiated and excessively high. He adds that the complainant has not provided any convincing proof of payment for any other alleged costs.
51. The Court dismisses the claim for pecuniary damage, which is not substantiated. On the other hand, it considers that the applicant should be awarded EUR 5,000 for non-pecuniary damage. As to the claim for costs and expenses, taking into account the documents at its disposal and its case-law, it considers it reasonable to award the applicant the sum of EUR 1,500 under this head.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the complaints;
2. Declares the application admissible as to the complaint under Article 10 of the Convention;
3. Holds that there has been a violation of Article 10 of the Convention;
4. Holds that there is no need to rule separately or on the question of the justification for the applicant’s criminal conviction for propaganda in favor of a terrorist organization in application of Article 7 § 2 of Law no.3713 nor on the admissibility and the merits of the complaints made under Articles 6 §§ 1 and 3 of the Convention and Article 3 of Protocol No. 1 taken together with Article 14 of the Convention;
5. Said
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable on the date of settlement:
i. 5,000 EUR (five thousand euros), plus any amount that may be due as tax on this sum, for non-pecuniary damage,
ii. EUR 1,500 (one thousand five hundred euros), plus any amount that may be payable by the applicant as tax on this sum, for costs and expenses;
b) that from the expiration of the said period and until payment, these amounts shall be increased by simple interest at a rate equal to that of the marginal lending facility of the European Central Bank applicable during this period, increased by three percentage points;
6. Dismisses the remainder of the claim for just satisfaction.
Done in French, then communicated in writing on September 29, 2020, in application of Article 77 §§ 2 and 3 of the Regulation.
Hasan Bakırcı Valeriu Griţco
Deputy Registrar President
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