CASE OF ADIR AND OTHERS v. TURKEY (European Court of Human Rights) Application no. 40631/11

SECOND SECTION
CASE OF ADIR AND OTHERS v. TURKEY
(Application no. 40631/11)
JUDGMENT
STRASBOURG
12 January 2021

This judgment is final but it may be subject to editorial revision.

In the case of Adır and Others v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Aleš Pejchal, President,
Egidijus Kūris,
Carlo Ranzoni, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 40631/11) 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 four Turkish nationals, Mr FeratAdır, Mr ErsinÇelik, Mr YakupKurtaran and Mr HüseyinÖzveren (“the applicants”), on 3 March 2011;

the decision to give notice of the application to the Turkish Government (“the Government”);

the parties’ observations;

Having deliberated in private on 1 December 2020,

Delivers the following judgment, which was adopted on that date:

THE FACTS

1. The details of the applicants are set out in the Appendix. The applicants were represented by Ms O. AydınGöktaş, a lawyer practising in Ankara.

2. The Government were represented by their Agent.

3. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. On 17 and 18 June 2005, seventeen members of the Maoist Communist Party (hereinafter “the MKP”), an illegal organisation, were killed in a rural area within the administrative jurisdiction of the town of Ovacık, near the city of Tunceli, by members of the security forces.

6. On 21 June 2005 a gathering was held in Samsun in protest at the alleged unlawful killings of 17 and 18 June 2005. Students from Ondokuz Mayıs University in Samsun, including the applicants, gathered in front of the building of the Black Sea Fundamental Rights and Freedoms Association (Karadeniz TemelHaklarveÖzgürlüklerDerneği), where a press statement was read out.

7. On 21 February 2007 the Ankara public prosecutor instituted criminal proceedings against twenty-three people, including the applicants, charging them under section 7(2) of the Prevention of Terrorism Act 1991 (Law no. 3713 – hereinafter “the 1991 Act”) with disseminating propaganda in favour of the MKP by chanting illegal slogans.

According to the indictment, during the gathering of 21 June 2005 slogans such as “Long live revolutionary solidarity” (“Yaşasındevrimcidayanışma”), “We have paid a price. We will make them pay a price” (“Bedel ödedik, bedel ödeteceğiz”), “Murderer State” (“Katildevlet”), “Revolutionary martyrs are immortal” (“Devrimşehitleriölümsüzdür”) and “Martyrs are immortal” (“Şehitnamırın”) were chanted and the applicants participated in the gathering.

8. In its assessment report (tensipzaptı) dated 5 March 2007, the trial court issued a letter of request to the Samsun Assize Court, requesting it to obtain statements from Mr Ferat Adır, Mr ErsinÇelik and Mr HüseyinÖzveren. It also issued a letter of request to the Bozova Criminal Court of First Instance, requesting that court to obtain statements from Mr YakupKurtaran.

9. On 31 March 2009 the Ankara Assize Court found the applicants guilty as charged and sentenced each of them to ten months’ imprisonment pursuant to section 7(2) of the 1991 Act. As regards the gathering of 21 June 2005, the assize court found it established that various slogans had been chanted, namely: “Martyrs are immortal” (chanted by Mr Ferat Adır, Mr ErsinÇelik, MrYakupKurtaran and Mr HüseyinÖzveren); “The murderer State will pay the price” (chanted by Mr ErsinÇelik and Mr HüseyinÖzveren); and “We have paid a price. We will make them pay a price” (chanted by Mr ErsinÇelik).

10. In its judgment, the Ankara Assize Court referred to Article 10 of the Convention and to the Court’s judgment in Sürek v. Turkey(no. 1) ([GC], no. 26682/95, ECHR 1999‑IV), as well as to the report of the European Commission of Human Rights in Karataş v. Turkey (no. 23168/94, Commission’s report of 11 December 1997, unreported). The court held that by chanting the above-mentioned slogans, the applicants had not exercised their democratic rights but rather had glorified terror by adopting the style of discourse of terror organisations and had not distanced themselves from violence. In the court’s view, by chanting those slogans the applicants had not intended to find a solution to a problem but instead had praised and glorified the source of the problem, that is to say, the terrorist organisations concerned. Hence, the applicants had incited terror. The Ankara Assize Court concluded that chanting the slogans in question could not be regarded as falling within the scope of the right to freedom of expression.

11. On 8 July 2010 the Court of Cassation upheld the judgment of 31 March 2009 in so far as it concerned the convictions of Mr Ferat Adır, Mr ErsinÇelik and Mr YakupKurtaran, whereas it quashed the conviction of Mr HüseyinÖzveren, observing that he had given evidence before the trial court without the indictment having been read to him.

12. On 5 July 2012 Law no. 6352, amending various laws with a view to suspending proceedings and sentences given in cases concerning crimes committed through the press and media and similar expressions of opinions, entered into force.

13. On 23 November 2012 the Ankara Assize Court decided to suspend the proceedings against Mr HüseyinÖzveren pursuant to the provisional section 1 of Law no. 6352. On 30 November 2012 that judgment became final in the absence of an appeal.

RELEVANT LEGAL FRAMEWORK

14. The relevant domestic law applicable at the material time can be found in 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 the 1991 Act read as follows:

“Any person who assists members of the above-mentioned organisations [terrorist organisations] or who disseminates propaganda inciting others to violence or other methods of terrorism shall be liable to [serve] a term of imprisonment of one to five years and [receive] a judicial fine of five million liras to one billion liras …”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

16. The applicants complained under Article 10 of the Convention that the criminal proceedings brought against them under section 7(2) of the 1991 Act, and their subsequent conviction, had constituted a violation of their rights to freedom of expression as provided in Article 10 of the Convention, which 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.”

17. The Government contested that argument.

A. Admissibility

1. The parties’ submissions

(a) The Government

18. The Government argued at the outset that all the applicants, with the exception of Mr HüseyinÖzveren, had failed to observe the six-month time-limit as they had lodged their application with the Court on 14 March 2011, that is, more than six months after the Court of Cassation’s judgment dated 8 July 2010. In their view, the six-month time-limit had started running from 1September 2010, the date on which the Court of Cassation’s judgment upholding the convictions of the first three applicants had been sent to the Ankara public prosecutor for execution. In support of their argument, the Government submitted a copy of the relevant page of the Ankara public prosecutor’s book. Hence, although the applicants ought to have known the final decision as of 1 September 2010, they had lodged their application with the Court only on 14 March 2011.

19. In respect of Mr HüseyinÖzveren, the Government argued that he had failed to exhaust the domestic remedies available to him, maintaining that he had not lodged an individual application with the Constitutional Court against the Ankara Assize Court’s decision dated 23 November 2012.

(b) The applicants

20. The applicants submitted that the Government’s contention that they ought to have known the Court of Cassation’s judgment as of 1 September 2010 had been purely hypothetical. They argued that “the rule” was either to serve the decision on the parties or to announce the decision in their presence. As neither had taken place in the instant case, they argued that they had become aware of the Court of Cassation’s judgment only upon the arrest of Mr ErsinÇelik in December 2010. In support of that argument, the applicant’s lawyer provided the Court with a copy of an email from Mr ErsinÇelik, in which he stated that he had been arrested in December 2010. Accordingly, they invited the Court to dismiss the Government’s first preliminary objection.

21. Secondly, the applicants’ lawyer argued that the proceedings against Mr HüseyinÖzveren had been deferred pursuant to Law no. 6352, which had entered into force in July 2012. That being the case, and given that the Constitutional Court’s temporal jurisdiction had started as of 23 September 2012, Mr HüseyinÖzveren had not been required to make use of any other remedy at the time of lodging the present application.

2. The Court’s assessment

22. As regards the first limb of the Government’s preliminary objection, the Court reiterates that although the wording of Article 35 of the Code of Criminal Procedure provides that judgments and court decisions are to be served on the parties to a case, it is not the practice of the Criminal Divisions of the Court of Cassation to serve their decisions on defendants (see İpek v. Turkey (dec.), no.39706/98, 7 November 2000, and Alpar v. Turkey (dec.), no.5684/02, 27 May 2008). The Court further notes that in cases where the domestic law does not provide for service, it considers it appropriate to take the date the decision was finalised as the starting-point, that being the date when the parties were definitely able to be informed of its content (see Karatepe v. Turkey (dec.), no.43924/98, 3 April 2003).

23. In the present case, the application was lodged on 3 March 2011 and not on 14 March 2011 as the Government submitted. In any event, the Court of Cassation’s judgment was deposited with the registry of the trial court on 1 September 2010. According to the above-mentioned principle, the time limit would thus have started on that date and expired on 1 March 2011. Furthermore, while the applicants claimed that their lawyer had only learned of the judgment in December 2010, meaning that she did not enquire at the trial court about the delivery of the judgment for more than three months, between the beginning of September and December 2010, without putting forward any justification for this inactivity over quite a long period (see Ölmez v. Turkey (dec.), no.39464/98, 1 February 2005).

However, the Court reiterates also its case-law to the effect that the parties to proceedings cannot be required to enquire day after day whether a judgment that has not been served on them has been delivered (see Papageorgiou v. Greece, 22 October 1997, §32, Reports of Judgments and Decisions 1997‑VI, Ölmez, cited above). Consequently, the applicants’ lawyer could not have been expected to enquire about the judgment immediately after its delivery on 1 September 2010 or in the days that followed. In this respect she could not be reproached with negligence, and the running of the six-month time-limit, therefore, in any event did not start before 3 September 2010 and did not expire before midnight on 3 March 2011. Because the application was indeed lodged on 3 March 2011, the Government’s preliminary objection based on non-compliance with the six-month time-limit in respect of MrFeratAdır, MrErsinÇelik and Mr YakupKurtaran must be dismissed.

24. As regards the second limb of the Government’s preliminary objection concerning Mr HüseyinÖzveren, the Court notes that the criminal proceedings against him had been concluded with final effect on 30 November 2012 as no appeal had been lodged against the Ankara Assize Court’s decision dated 23 November 2012 to defer the proceedings against him pursuant to Law no.6352. Hence, the judgment against that applicant did not become final until on 30 November 2012, thereby falling within the Constitutional Court’s temporal jurisdiction.

25. Accordingly, the application in so far as it concerns Mr HüseyinÖzveren must be declared inadmissible under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

26. The Court notes that the complaints lodged by Mr FeratAdır, Mr ErsinÇelik and Mr YakupKurtaran under Article 10 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

27. The applicants reiterated their claims.

28. The Government argued that the purpose of the protest had been to support a terrorist organisation through slogans, which was not a component of a democratic society. They were of the view that the slogans had been capable of inciting violence among the members or followers of the terrorist organisation and instilling hatred against the State authorities. Moreover, the trial court had not only referred to the provisions of domestic law in its judgment but also to international legal provisions, especially the Court’s well-established case-law on the right to freedom of expression.

29. The Court reiterates that it has already examined the same slogans in the same set of criminal proceedings against certain other individuals who had also been tried and convicted together with the applicants in the present case (see Arslan and Others v. Turkey [Committee], no.3752/11, §§ 21‑31, 10 July 2018) and found a violation of Article 10 of the Convention.

30. 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.

31. Accordingly, there has been a violation of Article 10 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

32. Relying on Article 6 of the Convention, the applicants complained that they had been deprived of their right to be present and give evidence before the trial court, as the latter had decided to have evidence from them taken on commission. In the same vein, they further argued that that practice had deprived them of the opportunity to submit their defence submissions in response to the public prosecutor’s opinion on the merits of the case. They also criticised the line of reasoning adopted by the trial court and argued that the court had not been independent and impartial.

33. Having regard to the finding of a violation of Article 10 of the Convention (see paragraph 31 above), the Court considers that it is not necessary to examine either the admissibility or the merits of the above-mentioned complaints under Article 6 of the Convention (see, among other authorities, HaticeÇoban v. Turkey, no.36226/11, §47, 29 October 2019).

III. APPLICATION OF ARTICLE41 OF THE CONVENTION

34. Article41 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.”

A. Damage

35. Arguing that they had been studying at the time of the incident which gave rise to the present application, all three of the applicants submitted that they had lost their entitlement to be employed as a teacher by the Ministry of Education as a result of their convictions having become final, despite the fact that they had in the meantime completed their tertiary education. Consequently, they had had to work in the private sector with much lower salaries. Furthermore, Mr Adır and Mr Çelik had had to quit their jobs as a result of the execution of their sentences and claimed, in respect of pecuniary damage, their last monthly salaries, namely 780 Turkish liras (TRY) (approximately 813 euros (EUR)) and TRY 2,250 (approximately EUR 1,027) respectively. Mr Kurtaran had not been able to sit the public examination to become a teacher for fear that he would be arrested as a result of his conviction should he attempt to do so. Hence, he argued that he had been deprived of his right to hold a teaching post and asked to be awarded the average monthly salary of a teacher in respect of pecuniary damage, namely TRY2,000 (approximately EUR 913). In support of these claims, the applicants submitted documents showing their monthly salaries and the first applicant’s appointment to, and resignation from, a private tutoring school.

36. The Government contested those claims, arguing that there was no causal link between the violations found and the amounts claimed.

37. The Court notes that the applicants failed to furnish it with the necessary documents capable of demonstrating the dates they had started serving their sentence or the dates of their release. Thus, the Court considers that they failed to substantiate their claims in respect of pecuniary damage; it therefore rejects those claims.

38. As for non-pecuniary damage, the first two applicants claimed EUR 20,000 each and the third applicant claimed EUR 10,000.

39. The Court considers that the applicants must have sustained non‑pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy. Ruling on an equitable basis, the Court awards Mr Ferat Adır and Mr YakupKurtaran EUR 2,500 each and Mr ErsinÇelik EUR 5,000 in respect of non-pecuniary damage.

B. Costs and expenses

40. The applicants’ lawyer claimed EUR 1,500 in respect of each applicant, arguing that that amount had corresponded to the legal fee agreements she had concluded with each of them. The lawyer further requested TRY 540 (approximately EUR 244) in respect of translation costs. In support of those claims, the applicants’ lawyer submitted a copy of the bank receipt indicating that she had paid TRY 540 for translation costs.

41. The Government contested those claims, pointing to the applicants’ failure to support their claims with documentary evidence.

42. Regard being had to the documents in its possession, the Court awards the applicants jointly EUR 244 in respect of costs and expenses and rejects the remainder of the claims under this heading (see Hülya Ebru Demirel v. Turkey, no. 30733/08, §61, 19 June 2018).

C. Default interest

43. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the applications admissible in so far as it concerns the first three applicants (Mr Ferat Adır, MrErsinÇelik andMrYakupKurtaran) and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 10 of the Convention in respect of each of the first three applicants;

3. Holdsthat there is no need to examine the complaints under Article6 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement:

(i) EUR 2,500 (two thousand five hundred euros) each to Mr Ferat Adır and Mr YakupKurtaran and EUR 5,000 (five thousand euros) to Mr Ersin Çelik, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 244 (two hundred and forty-four euros) jointly to the first three applicants, plus any tax that may be chargeable to them, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 12January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

{signature_p_2}

Hasan Bakırcı                                 Aleš Pejchal
Deputy Registrar                                President

__________

Appendix

List of applicants:

Application no. 40631/11

No. Applicant’s Name Birthyear Nationality Place of residence
1 Ferat ADIR 1983 Turkish Mersin
2 Ersin ÇELİK 1984 Turkish Malatya
3 Yakup KURTARAN 1981 Turkish Şanlıurfa
4 Hüseyin ÖZVEREN 1981 Turkish Van

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