Last Updated on June 15, 2019 by LawEuro
SECOND SECTION
CASE OF İMRET v. TURKEY (No. 2)
(Application no. 57316/10)
JUDGMENT
STRASBOURG
10 July 2018
FINAL
03/12/2018
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of İmret v. Turkey (no. 2),
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Robert Spano, President,
Ledi Bianku,
Işıl Karakaş,
Nebojša Vučinić,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 19 June 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 57316/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, MrAbdulcelilİmret (“the applicant”), on 7 September 2010.
2. The applicant was represented by Mr E. Şenses and Mr T. İmret, lawyers practising in Batman. The Turkish Government (“the Government”) were represented by their Agent.
3. On 10 January 2012 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1958 and lives in Batman. At the time of the events giving rise to the present application, he was the head of the Batman branch of the People’s Democratic Party (DEHAP) and subsequently the Party for a Democratic Society (DTP).
5. On unspecified dates in 2005 and 2006 the Batman public prosecutor’s office initiated at least four criminal investigations against the applicant. On 18 October 2005, 6 December 2005, 1 February 2006 and 23 March 2006 the applicant made statements before the Batman public prosecutor in relation to his attendance at a number of public meetings.
6. In particular, when he was questioned on 18 October 2005 the applicant was asked about his participation in an event commemorating a number of deceased members of the PKK (Kurdish Workers’ Party, an illegal armed organisation) held on 22 August 2005. The applicant responded that he had become aware of that event when demonstrators had started to march to the cemetery where the deceased were buried. As he was the head of the Batman branch of DEHAP, he had attended the march in order to keep the demonstrators under control and to prevent any possible disturbances in the town.
7. When questioned on 6 December 2005, the applicant stated that on 17 August 2005 he had been the head of the DEHAP branch in Batman and that he had not praised the leader of the PKK in his speech. The applicant added that although Abdullah Öcalan, the leader of the PKK, was in prison, he was regarded as a political actor by the local population. The applicant’s intention had been to express that social fact and he was against any kind of violence. When the public prosecutor reminded him of the violent acts of the PKK, the applicant once again stated that he was against violence regardless of whom it emanated from.
8. On 1 February 2006 the Batman public prosecutor asked the applicant why he had referred to the PKK leader as “Esteemed/Mr (Sayın) Öcalan” during one of his speeches. The applicant responded that he had used the word “Sayın” as a matter of courtesy. He stated that he had not intended to disseminate propaganda in favour of the PKK or to praise a criminal.
9. Lastly, on 23 March 2006 the applicant was questioned by the Batman public prosecutor in the context of a criminal investigation opened against him on suspicion of membership of the PKK. He stated that he had participated in several demonstrations and readings of press statements in his capacity as the head of the Batman branch of DEHAP and the DTP, and that he had not committed any offence during those events. He denied the veracity of the allegation that those public meetings had been organised in accordance with the instructions of the PKK. When he was asked about a sentence condemning both the death of Turkish soldiers and PKK members which he had uttered during a speech, the applicant stated that he would utter that sentence again without hesitation. He also stated that the petition campaign entitled “I accept Abdullah Öcalan as a political actor” had not been started upon the instructions of the PKK. He accepted that he had demanded an end to the solitary confinement of Abdullah Öcalan and addressed the latter as “Esteemed/Mr (Sayın) Öcalan”. However, he denied the allegation that he had had the intention of disseminating propaganda in favour the PKK. The applicant contended that he had attended the demonstrations and meetings in question in order to control the crowds and to prevent any possible disturbances. Lastly, he claimed that his aim was to contribute to peace and democracy.
10. On 23 March 2006 the applicant was brought before the Batman Magistrates’ Court and questioned in respect of his involvement in a demonstration held on 16 February 2006 in Batman. He submitted that he had attended the demonstration with a view to preventing violence, since he was the head of the DTP at the material time. The court ordered the applicant’s remand in custody.
11. On 24 March 2006 the Batman public prosecutor decided to transfer the investigation to the Diyarbakır public prosecutor’s office, holding that the offence which the applicant had committed, namely membership of a terrorist organisation and carrying out membership activities, was not within his office’s jurisdiction.
12. On 26 April 2006 the Diyarbakır public prosecutor filed an indictment with the Diyarbakır Assize Court, charging the applicant and a certain M.G., under Article 220 § 8 of the Criminal Code, with disseminating propaganda in favour of the PKK on ten occasions. In the indictment the public prosecutor listed a total of ten marches and demonstrations which the applicant had attended. He noted that during those marches and demonstrations, demonstrators had chanted slogans and carried banners praising the PKK and its leader, Abdullah Öcalan, and that the applicant had made speeches in Kurdish at nine of those ten assemblies.
13. On 30 May 2006 the Diyarbakır Assize Court held the first hearing on the merits of the case. During the hearing, the applicant contended that he was the head of the Batman branch of the DTP. Although he had participated in the public meetings indicated in the indictment, he had not chanted any slogans or carried banners containing illegal expressions. He further submitted that he had not directed demonstrators to commit any illegal acts. The applicant stressed that in general he attended such public meetings at the request of the security forces, since the latter asked him to be present in order to prevent any possible clashes between themselves and the demonstrators.
14. During the second hearing held on 18 July 2006 the public prosecutor submitted his observations on the merits of the case. The public prosecutor contended that the applicant had attended various illegal public meetings between 19 February 2005 and 16 February 2006 and that he had made speeches in which he had praised the PKK and its leader. The public prosecutor alleged that those events had been organised either in line with the policies of the PKK or under its instructions with a view to supporting that organisation. Taking into account the intensity, variety and continuity of the applicant’s activities, the public prosecutor considered that the applicant’s acts constituted knowingly and willingly aiding the PKK. He then asked the Assize Court to convict the applicant under Articles 220 § 7 and 314 § 2 of the Criminal Code of membership of the PKK.
15. On 26 September 2006 the Diyarbakır Assize Court held the fourth and the last hearing in the case and convicted the applicant and his co‑accused of membership of an illegal organisation under Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 7 and 314 § 3 of the same Code, finding it established that the applicant had knowingly and willingly aided the PKK. The applicant was sentenced to six years and three months’ imprisonment. The judgment of the Assize Court, insofar as relevant, reads as follows:
“In the indictment dated 26 April 2006 it was alleged that Abdulcelilİmret had committed the following acts:
1. Attendance at the reading out of a press statement and an illegal march held on 19 February 2005 in the Mem-u Zin Park in Batman during which the demonstrators chanted slogans in favour of the PKK and Abdullah Öcalan;
2. Attendance at the event commemorating a deceased PKK member held in the Batman cemetery on 31 March 2005, making a speech in Kurdish and making participants say prayers in Kurdish;
3. Attendance at the reading out of a press statement at the Batman branch of DEHAP on 16 August 2005 regarding the petition campaign entitled “I accept Abdullah Öcalan as a political actor”;
4. Attendance at the illegal demonstration held on 22 August 2005 to commemorate seven members of the PKK killed by the security forces in an armed clash which had occurred in Batman;
5. Attendance at the demonstration organised by DEHAP and held on 9 November 2005, during which the demonstrators chanted illegal slogans, and making a speech in Kurdish addressed to the press and the demonstrators;
6. Attendance at the demonstration held on 16 November 2005 during which the demonstrators chanted slogans in favour of the PKK and Abdullah Öcalan and carried banners, and making a speech in Kurdish addressed to the press and the demonstrators;
7. Attendance at the demonstration held on 30 November 2005 protesting against the attempts to close down ROJ TV, the alleged solitary confinement of Abdullah Öcalan and the statement by Deniz Baykal, the leader of the CHP (People’s Republican Party) regarding the events that had occurred in Yüksekova during which the demonstrators chanted slogans in favour of Abdullah Öcalan, and making a speech in Kurdish addressed to the press and the demonstrators;
8. Attendance at the reading out of a press statement and at a march held on 21 December 2005 protesting against the solitary confinement of Abdullah Öcalan, during which the demonstrators chanted illegal slogans and carried banners, and making a speech in Kurdish addressed to the press and the demonstrators;
9. Attendance at the march and the reading out of a press statement held on 8 February 2006 in Batman, during which illegal slogans were chanted, and making a speech in Kurdish;
10. Attendance at the illegal demonstration and the reading out of a press statement held on 16 February 2006 close to the DTP Batman branch, during which illegal slogans were chanted and banners were carried, and making a speech in Kurdish;
…
In his defence submissions Abdulcelilİmret stated that he had participated in the demonstrations and the reading out of press statements mentioned in the indictment but that he had neither chanted slogans nor carried banners. He stated that he had not directed demonstrators to chant slogans or to carry banners.
Abdulcelilİmret submitted that he had attended those meetings at the request of the security forces and that the latter had asked him to warn the crowds not to resist them and to work with them with a view to preventing possible disturbances.
…
The file contains police reports, photographs and video recordings of the events which the accused attended and the speeches he made.
On the basis of the evidence in the file, it has been understood that during all the demonstrations and marches held in Batman which Abdulcelilİmret attended, slogans in favour Abdullah Öcalan were chanted and the demonstrators carried banners. It has also been understood that the speeches made by the accused praised Abdullah Öcalan.
It is established that the accused attended the public meetings in question and organised them.
Although the accused submitted that their aim had been to prevent clashes between the demonstrators and the security forces and [that they] had not had the intention of disseminating propaganda in favour of the PKK when they had participated in the demonstrations and marches in question, taking into account the content of the case file and their acts during those meetings, their defence submissions have been found to be baseless.
As a result of the trial and in the light of the evidence,
It has been established that Abdulcelilİmret worked as the head of the Batman branch of DEHAP and that subsequent to the closure of DEHAP he was the head of the Batman branch of the DTP.
He attended ten marches and demonstrations held between 19 February 2005 and 16 February 2006, organised by the above-mentioned political parties. Illegal slogans were chanted and illegal banners were carried during those meetings. In some of those meetings, Abdulcelilİmret read press statements containing expressions praising Abdullah Öcalan. All of the marches and demonstrations in question were illegal within the meaning of section 23/b of the Marches and Demonstrations Act (Law no. 2911).
…
It has been established that all of those marches and demonstrations were organised in line with the ‘Democratic Political Struggle’ strategy adopted by the PKK recently; that the media broadcasts in line with the PKK’s strategies had announced those marches and demonstrations prior to them, and that the same media organs had used those demonstrations as propaganda materials after they had been held.
Abdulcelilİmret and M.G. organised several illegal demonstrations in line with the PKK’s instructions and during those demonstrations they addressed the demonstrators who chanted slogans and carried banners containing expressions in favour of the PKK and Abdullah Öcalan. In their speeches the accused praised the PKK’s leader. Taking into account the continuity and nature of their acts, it is considered that those acts went beyond the offence of dissemination of propaganda in favour of a [terrorist] organisation and amounted to the offence proscribed by Article 220 § 7 of the Criminal Code, that is to say, ‘knowingly and willingly aiding an illegal organisation without being in the hierarchical structure’. Therefore, it has been decided to convict the accused under Article 314 § 2 of the Criminal Code.
…”
16. On 13 April 2010 the Court of Cassation upheld the first-instance judgment.
17. By Law no. 6352, which entered into force on 5 July 2012, paragraph 7 of Article 220 of the Criminal Code was amended. The applicant applied to the Diyarbakır Assize Court requesting it to examine whether the amended version of that provision could be considered to be in his favour and, if so, whether the execution of his sentence could be suspended. He added that he was currently serving his prison sentence.
18. On 16 August 2012 the Diyarbakır Assize Court decided to reduce the applicant’s sentence to five years, two months and fifteen days’ imprisonment. The court rejected the applicant’s request to have the execution of his sentence suspended.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal Code (Law no. 5237)
19. On 1 April 2005 Law no. 5237 entered into force. At the material time, Article 220 of the Criminal Code read as follows:
Establishing an organisation for the purpose of criminal activity
“(1) Anyone who establishes or directs an organisation for the purpose of criminal activity shall be liable to imprisonment of between two and six years, provided that the structure of the organisation, the number of members and the quantity of equipment and supplies are sufficient to commit the intended crimes.
(2) Anyone who becomes a member of an organisation established for the purpose of criminal activity shall be liable to a term of imprisonment of between one and three years.
(3) If the organisation is armed, the sentences stated above shall be increased by between one quarter and one half.
(4) Any crime committed within the framework of the organisation’s activities shall be punished separately.
(5) The heads of such an organisation shall also be sentenced as perpetrators of all crimes committed within the framework of the organisation’s activities.
(6) Anyone who commits a crime on behalf of an (illegal) organisation, even if he is not a member of that organisation, shall also be punished for being a member of the organisation.
(7) Anyone who aids an (illegal) organisation knowingly and willingly, even if he does not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation.
(8) Anyone who spreads propaganda for the organisation or its objectives shall be punished by a term of imprisonment of between one and three years. If the said crime is committed through the press or other media the sentence shall be increased by one half.”
Paragraphs 6 and 7 of Article 220 were amended by Law no. 6352, which entered into force on 2 July 2012, as follows:
“(6) Anyone who commits a crime on behalf of an (illegal) organisation, even if he is not a member of that organisation, shall also be punished for being a member of the organisation. The penalty to be imposed for membership may be reduced by up to half.
(7) Anyone who aids an (illegal) organisation knowingly and willingly, even if he does not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation. The penalty to be imposed for membership may be reduced by up to two thirds, depending on the nature of the assistance.”
20. Article 314 of the Criminal Code reads as follows:
Armed organisations
“(1) Anyone who forms an armed organisation to commit the crimes listed in the fourth and fifth sections of this chapter, or commands such an organisation, shall be liable to a term of imprisonment of between ten and fifteen years.
(2) Anyone who becomes a member of an (armed) organisation mentioned in the first paragraph of this Article shall be liable to a term of imprisonment of between five and ten years.
(3) Other provisions relating to the crime of establishing an organisation for the purpose of criminal activity are also applicable to this crime.”
B. Prevention of Terrorism Act (Law no. 3713)
21. Between 7 August 2003 and 18 July 2006, section 7(2) of Law no. 3713 read as follows:
“Any person who assists members of the aforementioned organisations [terrorist organisations] or who disseminates propaganda inciting violence or other methods of terrorism shall be liable to a term of imprisonment of one to five years and a judicial fine of five million liras to one billion liras …”
The first sentence of section 7(2) of Law no. 3713 was amended by Law no. 5532, which entered into force on 18 July 2006, as follows:
“Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of one to five years …”
The first sentence of section 7(2) of Law no. 3713, as amended on 30 April 2013 by Law no. 6459, currently reads as follows:
“Any person who disseminates propaganda in favour of a terrorist organisation by justifying, praising or encouraging the use of methods constituting coercion, violence or threats shall be liable to a term of imprisonment of one to five years …”
III. RELEVANT INTERNATIONAL MATERIAL
A. European Commission for Democracy through Law (the Venice Commission)
22. At its 106th plenary session, held on 11 and 12 March 2016, the Venice Commission adopted an Opinion on Articles 216, 299, 301 and 314 of the Penal Code of Turkey (CDL-AD(2016)002)). The relevant parts of the Opinion read as follows:
“1. Membership of an armed organisation (art. 314)
98. The Penal Code does not contain a definition of an armed organisation or an armed group. In its judgment E. 2006/10-253 K. 2007/80 of 3 April 2007, the General Criminal Board of the Court of Cassation listed the main criteria that a criminal organisation – for the purposes of Article 220 of the Penal Code – should display. The group has to have at least three members; there should be a tight or loose hierarchical connection between the members of the group and an “abstract link” between the members is not sufficient; the members should have a common intention to commit crimes (even though no crime has yet been committed); the group has to present continuity in time; and the structure of the group, the number of its members, tools and equipment at the disposal of the group should be sufficient/appropriate for the commission of the envisaged crimes.
…
100. There is a rich case-law of the Court of Cassation in which the high court developed the criterion of ‘membership’ in an armed organisation. The Court of Cassation examined different acts of the suspect concerned, taking account of their ‘continuity, diversity and intensity’ in order to see whether those acts prove that the suspect has any ‘organic relationship’ with the organisation or whether his or her acts may be considered as committed knowingly and wilfully within the ‘hierarchical structure’ of the organisation …
101. If this ‘organic relationship’ with the organisation cannot be proven on the basis of acts attributed to the defendant, which do not present any ‘continuity, diversity or intensity’, the paragraphs on ‘aiding and abetting an armed organisation’ or ‘committing crime on behalf of an armed organisation’ under Article 220 may be applied (see below).
…
102. According to non-governmental sources, in the application of Article 314, the domestic courts, in many cases, decide on the membership of a person in an armed organisation on the basis of very weak evidence, which would raise questions as to the ‘foreseeability’ of the application of Article 314 … Amnesty International, in its 2013 Report on Turkey, considered that conduct, which is not in itself criminal, as for instance an activity related to the exercise of the rights to freedom of assembly, association and expression, is considered as evidence of membership of the defendants in an armed organisation. The reason for this approach, according to the Report, is that the prosecution services perceive those activities as having the same overall objective as a terrorist group and as a result, ‘individuals have been prosecuted for membership of terrorist organisation on charges relating solely to their engagement in peaceful and, in themselves, lawful pro-Kurdish activities’. The examples of concrete cases provided by Amnesty International in which the evidence was considered to link the defendants to a terrorist organisation included, attendance at six different demonstrations allegedly organised by a terrorist organisation and a speech made at one of those demonstrations, or, in another case, the participation of the defendant in the ‘Political Academy’organised by the Peace and Democracy Party (BDP – a recognised Pro-Kurdish political party) and his diverse activities in the framework of this Academy.
…
104. … in the case of Yılmaz and Kılıç v. Turkey (68514/01), the ECtHR considered (although in the context of Article 169 of the former Penal Code – concerning aiding and abetting a terrorist organisation) that where the only evidence which led to the criminal conviction of the applicants under Article 169 was forms of expression (statements by the applicants, content of the slogans they shouted during a public demonstration etc.), it should be concluded that there was an interference with the applicants’ right to freedom of expression (para. 58 of the judgment). Subsequently, the Court examined whether this interference was justified as being necessary in a democratic society. The Court applied the same principle in the case of Gül and others v. Turkey (4870/02) and held that the criminal conviction of the applicants on the basis of Article 169 of the former Penal Code constituted an interference with their right to freedom of expression, since the only evidence used against them was the content of the slogans they shouted during a public demonstration.
105. … the Commission reiterates that conviction on the basis of weak evidence in the application of Article 314 may create problems in the field of Article 7 ECHR since this provision embodies, inter alia, the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. In the cases where the only evidence which led the domestic courts to convict the defendant for being a member of an armed organisation, are forms of expression, as for instance in the above-mentioned Yılmaz and Kılıçcase, reliance on weak evidence may also give rise to problems concerning the ‘foreseeability’ of the interference into the right to freedom of expression of the defendant … For the Venice Commission … any allegation of membership to an armed organisation must be established with convincing evidence and beyond any reasonable doubt.
106. … the Venice Commission recommends, first, that the established criteria in the case law of the Court of Cassation that acts attributed to a defendant should show ‘in their continuity, diversity and intensity’, his/her ‘organic relationship’ to an organisation or they should prove that he/she acted knowingly and willingly within the ‘hierarchical structure’ of the organisation, should be applied strictly. The loose application of these criteria may give rise to issues concerning in particular the principle of legality within the meaning of Article 7 ECHR.
107. Second, the expression of an opinion in its different forms should not be the only evidence before the domestic courts to decide on the membership of the defendant in an armed organisation. Where the only evidence consists of forms of expression, the conviction for being a member of an armed organisation, would constitute an interference with the right of the defendants to freedom of expression, and that the necessity of this interference on the basis of the criteria as set forth in the case-law of the ECtHR, in particular the criteria of ‘incitement to violence’, should be examined in the concrete circumstances of each case.
2. Application of Article 314 in conjunction with Article 220
108. Paragraph (3) of Article 314 provides that ‘All other provisions related to the crime of establishing an organization to commit a crime will be applied in conjunction with this provision.’ Article 220 of the Criminal Code is of particular importance, since in many recent judgments of the Court of Cassation, Article 314 was applied in conjunction with paragraphs (6) and (7) of Article 220, on the basis of the reference made in Article 314(3) to ‘other provisions’ related to forming a criminal organisation. According to paragraphs (6) and (7) of Article 220, any person who commits an offence on behalf of an organisation (para. 6) or aids and abets an organisation knowingly and willingly (para. 7), shall also be sentenced for the offence of being a member of that organisation (art. 314), although he/she is not a member of that organisation.
109. In a judgment of 4 March 2008the General Criminal Board of the Court of Cassation held that acts such as participating in a public demonstration following a general call from pro-PKK media outlets, making a victory sign and shouting slogans to support and in favour of the leader of a terrorist organisation, and clashing with the security forces, are considered crimes committed on behalf of the terrorist organisation. In this case, although the membership in an armed organisation was not established, the defendant was convicted as a member of a criminal organisation, according to paragraph 6 of Article 220 applied in conjunction with Article 314. By this judgment, the Court of Cassation annulled the decision of the Diyarbakır Assize Court, which had considered that, in order for a court to conclude that a crime was committed on behalf of an organisation, “the latter must have called for action not to an undefined collective, but rather to an individual person who is capable of directly committing that act”.
110. In a judgment of 24 March 2011, the 9thChamber of the Court of Cassation also held that participation in an illegal public demonstration following a general call of the armed organisation on its Internet site, covering one’s face during a demonstration in order to hide his/her identity, and shouting slogans in support of the armed organisation were considered as committing crimes on behalf of an armed organisation and the defendant, although his membership was not proven, was convicted also as a member of an armed organisation (Article 220(6) in conjunction with Article 314).
111. Article 220(7), concerning aiding and abetting an organisation knowingly and willingly, was also applied to cases involving freedom of expression. In the NedimŞenercase, the applicant was prosecuted under Article 314(3) in conjunction with Article 220(7) (aiding and abetting an armed organisation) for having contributed, at the request of the suspected members of a criminal organisation, to the preparation of books criticising the actions of the government. In a judgment of 4 June 2012 of the Court of Cassation, the fact that the defendants, in the framework of a campaign instigated by the terrorist organisation on its internet sites, have prepared a declaration which states ‘If it is a crime to refer to Öcalan as Mr. Öcalan, I hereby commit this crime [by referring to Öcalan as Mr. Öcalan] and I denounce myself [to the authorities]’ and have collected signatures for this declaration, was considered as ‘knowingly and willingly aiding the criminal organisation’.
112. Consequently, although the ‘organic relationship’ of the defendant with an armed organisation cannot be proven on the basis of the established criterion developed by the Court of Cassation in its case-law related to Article 314 (paras. 100 and 101), the defendants who are considered to have committed crimes on behalf of an armed organisation (para. 6 of Article 220) or have aided and abetted an armed organisation knowingly and willingly (para. 7 of Article 220) are also sentenced for the offence of being a member of that organisation under Article 314.
…
114. … a new paragraph has been added to Article 7 of the Anti-Terror Law no. 3713 by an amendment of 11 April 2013. According to this new paragraph, those who committed the crime indicated in the second paragraph of Article 7 (propaganda in support of a terrorist organisation); the crime indicated in the second paragraph of Article 6 (printing and disseminating declarations made by terrorist organisations which legitimise or praise the violent or threatening methods of terrorist organisations or encourage the use of such methods); the crime indicated in the first paragraph of Article 28 of the Public Demonstrations Law no. 2911 (participating to an unlawful demonstration), shall not be sentenced separately under Article 220(6) of the Penal Code. The authorities indicated that with this amendment, the scope of the freedom of expression was broadened in the application of anti-terror legislation.
115. The Venice Commission welcomes the amendment introduced to Article 7 of the Anti-Terror Law, which excluded the above-mentioned crimes from the scope of application of Article 220(6). With this amendment, the suspects accused of having committed such crimes shall not be punished separately as members of an armed organisation under Article 314.
116. Nevertheless, the Venice Commission considers that the scope of this amendment is rather limited and does not provide for sufficient protection to the exercise of freedom of expression and assembly in particular. First, the amendment to Article 7 of the Anti-Terror Law excluded the above-mentioned crimes only from the scope of application of Article 220(6). However, some forms of expression, as indicated in the judgments of the Court of Cassation cited in paragraph 111, may also fall under the scope of Article 220(7) (aiding and abetting an organisation). This may lead to abusive application in practice, since a form of expression considered as being in support of an organisation, may be sanctioned under Article 220(7), instead of Article 220(6), in order to sentence the defendants as if they were members of an armed organisation under Article 314, although their organic relationship with an armed organisation is not established.
…
120. In conclusion, the Venice Commission recommends that the sentence ‘although he is not a member of that organisation, shall also be sentenced for the offence of being a member of that organisation.’ in paragraphs 6 and 7 of Article 220 be repealed. In this case, those who commit the crimes indicated in paragraphs 6 and 7 of Article 220 would not be sanctioned as members of an armed organisation under Article 314, but by other, separate sanctions.
121. Should this sentence in paragraph 6 and 7 be maintained, the Turkish authorities should consider limiting the application of Article 220 in conjunction with Article 314, to cases which do not involve the exercise of the rights to freedom of expression and assembly.”
B. Commissioner for Human Rights of the Council of Europe
1. Report of 10 January 2012 (CommDH(2012)2)
23. In a report published on 10 January 2012 following a visit to Turkey between 10 and 14 October 2011, Mr Thomas Hammarberg, the former Commissioner for Human Rights of the Council of Europe, stated the following:
“68. The Commissioner is fully aware of the severe threat posed to Turkish society by terrorism and terrorist organisations, as well as of the obligation of the Turkish state to combat it with effective measures, including effective investigations and fair proceedings. He wishes to underline, however, that a major lesson learned in the fight against terrorism in Europe has been the importance of public confidence in the justice system.This means that any allegation of terrorist activity must be established with convincing evidence and beyond any reasonable doubt. Experience has shown time and time again that any deviation from established human rights principles in the fight against terrorism, including in the functioning of the judiciary, ultimately serves the interests of terrorist organisations.
69. In this connection, it is crucial to bear in mind that violence or the threat to use violence is an essential component of an act of terrorism,and that restrictions of human rights in the fight against terrorism ‘must be defined as precisely as possible and be necessary and proportionate to the aim pursued’.
70. The Commissioner considers that the provisions contained in the Turkish anti-terror legislation and Article 220 TCC allow for a very wide margin of appreciation, in particular in cases where membership in a terrorist organisation has not been proven and when an act or statement may be deemed to coincide with the aims or instructions of a terrorist organisation. The Commissioner encourages the Turkish authorities to reflect on and address these concerns through legislative measures and/or case-law.”
2. Memorandum of 15 February 2017 ((CommDH(2017)5))
24. In a memorandum on freedom of expression and media freedom in Turkey, published on 15 February 2017 following a visit to Turkey between 6 and 14 April 2016 (CommDH(2017)5), Mr Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe, stressed the need for a complete overhaul of the Turkish Criminal Code, including Article 220 §§ 6 and 7 and Article 314. He considered that the overhaul should take full account of the Court’s case-law and the Venice Commission opinion cited above.
C. Non-governmental Organisations’ Reports
1. Report of Human Rights Watch of 1 November 2010
25. On 1 November 2010 Human Rights Watch published a report entitled “Protesting as a Terrorist Offence / The Arbitrary Use of Terrorism Laws to Prosecute and Incarcerate Demonstrators in Turkey”. The seventy‑five-page report mainly concerned trials and convictions of demonstrators in Turkey under Laws nos. 5237, 2911 and 3713. The report, in so far as relevant, reads as follows:
“In Turkey, many hundreds of people currently face prosecution, or are serving substantial sentences for terrorism convictions. Their ‘crime’ was to engage in peaceful protest, or to throw stones or burn a tire at a protest. Legal amendments since 2005, along with case law since 2008, have allowed courts in Turkey to convict demonstrators under the harshest terrorism laws, by invoking two articles of the Turkish Penal Code in combination with the Anti-Terror Law.
The 2005 Penal Code introduced Article 220, entitled, ‘Forming Organized Groups with the Intention of Committing Crime’ … This article has been most commonly used to punish criminal gangs, as a separate article, discussed below, criminalizes membership in armed political organizations. However, courts have also applied Article 220 to those deemed to be associated with armed political organizations.
This article also introduced a provision allowing individuals to be treated as if they are members of an armed organization even if they are not.
…
Article 220/7 states:
A person who aids and abets the organization knowingly and willingly, although he or she does not belong to the hierarchical structure of the organization, shall be punished as though a member of the organization.
While Article 220/7 has not recently been applied to pro-Kurdish demonstrators, it has in some cases been applied to leftist demonstrators who have been punished as ‘members’ of armed organizations for ‘knowingly and willingly aiding’ them without providing any material assistance. This undefined and vague charge currently in use against leftist demonstrators deserves a separate study.
…
Turkish Penal Code Articles 220/6 and 220/7 (‘committing a crime on behalf of an organization’ and ‘knowingly and willingly aiding and abetting an organization’) are striking examples of legal provisions that are so vaguely worded and lacking in clarity about what is prohibited as to offer an individual no indication of how to regulate or limit conduct.
…
X. Recommendations
To the Turkish Government:
Urgently amend Turkish Penal Code Article 220 (‘forming criminal organizations’), and repeal 220/6 (‘committing a crime on behalf of an organization’) and 220/7 (‘aiding and abetting an organization knowingly and willingly’), which are vague, lack legal clarity and specificity, and are therefore subject to arbitrary application.
…
Set up a review board to examine all cases concluded under these articles for compliance with international human rights law obligations, with a view to quashing sentences under Turkish Penal Code Articles 314/2 and 314/3 in connection with Articles 220/6 and 220/7.”
2. Report of Amnesty International of 27 March 2013
26. On 27 March 2013 Amnesty International published a report entitled “Turkey: Decriminalize Dissent / Time to deliver on the Right to Freedom of Expression”. The relevant passages of the report read as follows:
ARTICLE 220/7: ASSISTING A TERRORIST ORGANIZATION
“Article 220/7 of the Turkish Penal Code criminalises assisting a terrorist organisation. Unlike Article 220/6, it is a self-standing offence that does not require the commission of a further criminal act. Like Article 220/6, however, it allows for the sentencing of those convicted under it as though they were members of the organisation they are found to have assisted. In full the article reads:
‘A person who knowingly and willingly assists the organization but is not within the hierarchical structure of the organization is punished as a member of the organization. The punishment given for membership can be reduced by one third, depending on the nature of the assistance given.’
As with Article 220/6, this Article is often used to prosecute conduct protected by the rights to freedom of expression, association and assembly. Indeed, the choice of prosecutors to prosecute under 220/6 or 220/7 often appears arbitrary, with similar behaviour sometimes prosecuted under one, sometimes under the other – and sometimes under Article 314 (criminalizing membership of a terrorist organization) directly. As with prosecutions under 220/6, when prosecutors seek to convict a person under Article 220/7 they often do not provide evidence demonstrating a link to a terrorist organization, nor do they attempt to prove that the accused was engaged in any criminal offence, or in aiding and abetting, other than supposedly assisting the proscribed organization.
It is incumbent on the Turkish authorities to ensure that Article 220/7 is not used to bring prosecutions that violate the rights to freedom of expression, association and assembly or other human rights. To this end, the government should issue and publish guidelines for prosecutors that set out clear criteria for when assisting an armed group can be criminalized, including the requirement that such assistance must either in and of itself be a recognizable criminal offence, or be directly linked to the planning or commission of one. Short of evidence of such acts, no inference should be drawn from someone undertaking a lawful act, such as for example participating in a peaceful demonstration. This is so, even if such acts benefit, through lawful means, goals shared by a terrorist organization. The motive of the individual who is carrying out the lawful acts is irrelevant: anyone carrying out a lawful act which does not aid and abet the planning or commission of a crime should not be criminalized on the sole basis of their political convictions.
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Amnesty International urges the Turkish government to:
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Adopt guidelines for prosecutors on the application of Article 220/7 of the Penal Code that set out clear criteria for when assisting an armed group can be criminalized, including the requirement that such assistance must either in and of itself be a recognizable criminal offence, or be directly linked to the planning or commission of one.
…”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
27. The applicant complained under Articles 10 and 11 of the Convention about his conviction for participating in ten public gatherings and making speeches during those gatherings.
28. The Court notes that in the circumstances of the present case Article 10 is to be regarded as a lexgeneralis in relation to Article 11, which is a lexspecialis (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202;Galstyan v. Armenia, no. 26986/03, § 95, 15 November 2007;Kasparov and Others v. Russia, no. 21613/07, § 82, 3 October 2013; and LütfiyeZengin and Others v. Turkey, no. 36443/06, § 35, 14 April 2015). Accordingly, the Court will examine these complaints from the standpoint of Article 11 of the Convention (see Gülcü v. Turkey, no. 17526/10, § 75, 19 January 2016).
29. However, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present case, also be considered in the light of Article 10. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly enshrined in Article 11 (see Ezelin, cited above, § 37; Galstyan, cited above, § 96;and Kasparov and Others, cited above, § 83).
30. Article 11 of the Convention reads as follows:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
31. The Government contested the applicant’s allegations.
A. Admissibility
32. The Court notes that this part of 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.
B. Merits
1. The parties’ submissions
(a) The applicant
33. The applicant argued that his conviction under Articles 220 § 7 and 314 § 2 of the Criminal Code had constituted an interference with his right to freedom of assembly. He stated that the interference in question had not been prescribed by law, within the meaning of Articles 10 and 11 of the Convention. In that connection, the applicant argued that the domestic courts had interpreted Article 220 § 7 extensively. He considered that he could not have foreseen that his participation in the public gatherings and expressing his opinions during those events would lead to his prosecution and conviction for aiding an illegal organisation and membership of that organisation. The offence of “aiding an illegal organisation” should be understood as providing weapons, material or confidential information to an illegal organisation, not expressing one’s opinions and attendance at public demonstrations.
34. The applicant further argued that there had been no legitimate aim in punishing him. His conviction and lengthy prison sentence had been a part of the Government policies to put pressure on the DTP. As to the necessity of the interference, he had not advocated violence and had not incited other people to hatred or violence during the demonstrations in question. He had been the head of the local branch of a political party and had been punished on account of his political activities. He therefore claimed that his criminal conviction had not been necessary in a democratic society. Lastly, the applicant argued that the interference with his right to freedom of assembly had been grossly disproportionate given that he had been sentenced to a total of six years and three months’ imprisonment, which had then been reduced to five years, two months and fifteen days’ imprisonment.
(b) The Government
35. Referring to the Court’s judgments in the cases of Aydin v. Germany (no. 16637/07, 27 January 2011) and Zana v. Turkey (25 November 1997, Reports of Judgments and Decisions 1997‑VII) and to Recommendation 1377 of the Parliamentary Assembly of the Council of Europe of 25 June 1998, the Government submitted at the outset that the PKK was considered to be a terrorist organisationby a number of international organisations and that the applicant had been convicted of aiding that organisation.
36. The Government argued that since the applicant had been convicted of aiding an illegal organisation and not of participation in illegal demonstrations, there had been no interference with his right to freedom of assembly. In that connection, they pointed out that the security forces had not intervened in those illegal demonstrations.
37. The Government further argued that the interference with the applicant’s rights to freedom of expression and freedom of assembly, if any, was prescribed by law. The applicant’s conviction had been based on Article 220 § 7 of the Criminal Code and the wording of that provision met the accessibility and foreseeability requirements within the meaning of Articles 10 and 11 of the Convention. The interference in question had the legitimate aims of protecting national security and public order as well as preventing crime.
38. As to the necessity of the interference in a democratic society, the Government submitted that the applicant had been convicted on the grounds that he had participated in various demonstrations during which he had chanted slogans inciting violence, and had carried banners praising the PKK. The Government considered that the case was not comparable to that of FarukTemel v. Turkey (no. 16853/05, 1 February 2011) given that the applicant in the latter case had been convicted for reading out a press statement at one public meeting, whereas the applicant in the present case had participated in several demonstrations during which he had shown his support for the PKK and had acted as a member of that organisation. They concluded that the applicant’s conviction under Articles 220 § 7 and 314 § 2 of the Criminal Code corresponded to a pressing social need and was necessary in a democratic society.
2. The Court’s assessment
(a) Whether there was an interference
39. The Court reiterates that an interference with the exercise of freedom of peaceful assembly does not need to amount to an outright ban, whether legal or de facto, but can consist of various other measures taken by the authorities. The term “restrictions” in Article 11 § 2 must be interpreted as including both measures taken before or during an act of assembly and those, such as punitive measures, taken afterwards (see Ezelin, cited above, § 39). Thus, the Court has found in a number of cases that penalties imposed for taking part in a rally amounted to an interference with the right to freedom of assembly (see, for example, Ezelin, cited above, § 41; Osmani and Others v. “the former Yugoslav Republic of Macedonia” (dec.), no. 50841/99, ECHR 2001‑X; Mkrtchyan v. Armenia, no. 6562/03, § 37, 11 January 2007; Galstyan, cited above, § 101; Ashughyan v. Armenia, no. 33268/03, § 77, 17 July 2008; Sergey Kuznetsov v. Russia, no. 10877/04, § 36, 23 October 2008; Uzunget and Others v. Turkey, no. 21831/03, § 43, 13 October 2009; and Yılmaz Yıldız and Others v. Turkey, no. 4524/06, § 34, 14 October 2014).
40. In the instant case, the Court considers that there has been an interference with the exercise of the applicant’s right to freedom of assembly on account of his conviction for membership of an illegal organisation under Articles 220 § 7 and 314 § 2 of the Criminal Code, based on his participation in the public meetings listed in the indictment and the Diyarbakır Assize Court’s judgment of 26 September 2006 (see paragraphs 12 and 15 above).
(b) Whether the interference was justified
41. An interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more of the legitimate aims set out in paragraph 2 of that provision and was “necessary in a democratic society” for the achievement of those aims.
42. The Court reiterates its settled case-law, according to which the expressions “in accordance with the law” and “prescribed by law” not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question, requiring that it should be accessible to the persons concerned and foreseeable as to its effects (see De Tommaso v. Italy [GC], no. 43395/09, § 106, 23 February 2017 and the cases cited therein; MedžlisIslamskeZajedniceBrčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 68, 27 June 2017; and SatakunnanMarkkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 142, ECHR 2017 (extracts)). In addition, the legal norms should be compatible with the rule of law (see, for example, Association Ekin v. France, no. 39288/98, § 44, ECHR 2001‑VIII; Ahmet Yıldırım v. Turkey, no. 3111/10, § 57, ECHR 2012; andCumhuriyetVakfı and Others v. Turkey, no. 28255/07, § 50, 8 October 2013). The Court further reiterates that the “law” is the provision in force as the competent courts have interpreted it (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 88, ECHR 2005‑XI).
43. One of the requirements flowing from the expression “prescribed by law” is foreseeability. Thus, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable individuals to regulate their conduct; they must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Such consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30; De Tommaso, cited above, § 107; MedžlisIslamskeZajedniceBrčko and Others, cited above, § 70; and SatakunnanMarkkinapörssi Oy and Satamedia Oy, cited above, § 143).
44. The Court emphasises in this context that a rule is “foreseeable” when it affords a measure of protection against arbitrary interferences by the public authorities and against the extensive application of a restriction to any party’s detriment (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 143, ECHR 2012; Mesut Yurtsever and Others v. Turkey, nos. 14946/08 and 11 others, § 103, 20 January 2015; Işıkırık v. Turkey (no. 41226/09, § 58, 14 November 2017) and also, mutatis mutandis, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000‑XI; and De Tommaso, cited above, § 109). In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for legal discretion to be granted in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise (see Hasan and Chaush, cited above, § 84; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004‑I; S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008;SanomaUitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 82, 14 September 2010; and Güler and Uğur v. Turkey, nos. 31706/10 and 33088/10, § 48, 2 December 2014).
45. The Court observes that the applicant was convicted of membership of the PKK on the basis of Article 220 § 7 of the Criminal Code on the grounds that between 19 February 2005 and 16 February 2006 he had attended ten public meetings and had made speeches praising the leader of the PKK during some of those events.
46. The Court considers that there is no doubt that Article 220 § 7 of the Criminal Code was accessible.
47. As to the foreseeability requirement, the Court first notes that when the applicant attended the public meetings held on 19 February 2005 and 31 March 2005, the Criminal Code and hence Article 220 § 7 of that Code were not in force. The Court therefore considers that punishment of the applicant under that provision with reference to those two events raises a question of legality. Nevertheless, taking into account the circumstances of the case as a whole and in the light of its examination below, the Court does not find it necessary to draw a conclusion on this point.
48. The Court further notes that in its recent judgment in the above‑mentioned case of Işıkırık v. Turkey, it found a breach of Article 11 of the Convention on the grounds that that applicant’s criminal conviction under Articles 220 § 6 and 314 § 2 of the Criminal Code had not been prescribed by law. The Court held that Article 220 § 6 of the Criminal Code was not “foreseeable” in its application since it did not afford the applicant legal protection against arbitrary interference with his right under Article 11. In that case, MrIşıkırık had been prosecuted and punished because of his participation in two public meetings – a funeral and a demonstration – and his conduct therein. The domestic courts had considered that the applicant had acted on behalf of the PKK and thus should be punished as a member of that organisation pursuant to Article 220 § 6 of the Criminal Code.
49. In the Court’s view, paragraphs 6 and 7 of Article 220 of the Criminal Code do not appear to be fundamentally different in terms of their construction. The texts of both paragraphs 6 and 7 tie the status of membership of an illegal organisation to the mere facts of a person having acted “on behalf” of that organisation and “aided an illegal organisation knowingly and willingly” respectively, without the prosecution having to prove the material elements of actual membership. The wording of neither paragraph 6 nor paragraph 7 defines the meaning of the expressions “on behalf of” and “aiding knowingly and willingly”. The sole difference between those two paragraphs is that paragraph 6 requires an offence to be committed on behalf of an illegal organisation for a conviction for membership of that organisation, whereas for such a conviction with reference to paragraph 7, the person in question does not have to have committed an offence proscribed by the criminal codes. A person’s acts which are regarded by the domestic courts as providing aid to an illegal organisation may lead to his or her conviction for membership of that organisation, even where those acts do not constitute an offence under domestic law.
50. As regards the judicial authorities’ interpretation of Article 220 § 7 of the Criminal Code in the context of demonstrations, the Court first notes that the Government did not refer to any practice of the domestic courts at the time when the applicant was tried and convicted. Such domestic case‑law interpreting the notion of “aiding knowingly and willingly” referred to in Article 220 § 7 of the Criminal Code would have defined its meaning and scope in the context of demonstrations and would have indicated the “actions” which could result in terms of criminal liability under that provision.
51. Nonetheless, the Court observes that in certain cases, such as the above‑mentioned case of Işıkırık, the Plenary Court of Cassation and the Ninth Criminal Division of the Court of Cassation considered acts comparable to those of the applicant under Article 220 § 6 of the Criminal Code and upheld first-instance judgments convicting demonstrators of membership of illegal organisations (see paragraphs 109 and 110 of the Venice Commission’s Opinion on Articles 216, 299, 301 and 314 of the Penal Code of Turkey in paragraph 22 and paragraph 48 above).
52. The Court is well aware of the fact that the above-mentioned decision of the Ninth Criminal Division of the Court of Cassation was rendered after the applicant had attended the public meetings and been convicted. On the other hand, the domestic decisions referred to above demonstrate that cases comparable to the applicant’s case were assessed differently by the Ninth Criminal Division of the Court of Cassation and the Plenary Court of Cassation. Hence, the Court of Cassation appears to lack established case-law setting out the criteria regarding the nature of acts and activities which may engage individuals’ criminal liability under different criminal provisions, including Article 220 § 7 of the Criminal Code, in the context of demonstrations and similar public meetings. In particular, despite the content of the Plenary Court of Cassation’s decision of 4 March 2008, the Ninth Criminal Division of the Court of Cassation upheld the applicant’s conviction on 13 April 2010 (see paragraph 16 above).
53. Hence, in the Court’s view, not only is Article 220 § 7 of the Criminal Code formulated without a definition of the expressions contained therein, but also the domestic courts have seemingly not developed a consistent judicial interpretation of that provision in the context of demonstrations. Nevertheless, the Court reiterates that the requirement of foreseeability not only requires that a rule constituting the basis for criminal liability be formulated with sufficient precision, but also and importantly, that the rule affords a measure of protection against arbitrary interference by the public authorities and against the extensive application of a restriction to any party’s detriment (see paragraph 44 above). Bearing in mind that the provision is still in force, and taking account of the nature and overall scope of its examination of the facts of the applicant’s case, the Court will proceed with examining the foreseeability of Article 220 § 7 of the Criminal Code in the applicant’s case, in the light of its text and its interrelationship with Article 314 of the same Code. In so doing, it will take account of the interpretation by the domestic courts that convicted the applicant, in particular whether that interpretation afforded sufficient protection against arbitrary application of the provision.
54. In this connection, the Court observes that the applicant was convicted on 26 September 2006 of membership of the PKK on the basis of Article 220 § 7 of the Criminal Code on the grounds that between 19 February 2005 and 16 February 2006 he had attended ten public meetings and had made speeches during some of those events. The Diyarbakır Assize Court noted that all those events had been organised in line with the PKK’s strategies, that the applicant had organised some of them, and that he had made speeches praising the leader of the PKK during some of those public meetings. The Assize Court considered that taking into account the continuity and the nature of the applicant’s acts, they had gone beyond the limits of disseminating propaganda in favour of the PKK and had amounted to aiding that organisation knowingly and willingly. The Court of Cassation upheld that judgment.
55. The Court observes that the Diyarbakır Assize Court interpreted the notion of “membership” of an illegal organisation under Article 220 § 7 of the Criminal Code in extensive terms and the Court of Cassation upheld its judgment. The mere fact of being present at ten demonstrations during a period of one year, allegedly organised in line with the PKK’s strategies, and of acting in a manner and expressing opinions which the domestic courts deemed to be in favour of the leader of that organisation, were considered by those courts to be sufficient to conclude that the applicant, a local politician, had aided the PKK and could therefore be punished as an actual member. The Court notes in contrast that when Article 314 of the Criminal Code is applied alone, the domestic courts must have regard to the “diversity and intensity” of the acts of the accused along with their “continuity” (see paragraph 100 of the Venice Commission’s Opinion on Articles 216, 299, 301 and 314 of the Penal Code of Turkey in paragraph 22 above). However, when the same Article was applied in connection with Article 220 § 7 in the applicant’s case, he was convicted of membership of an armed organisation merely on account of the continuity of his acts, namely his attendance at ten public meetings, which, according to the first-instance court, had been held in line with the strategies of the PKK, and making speeches. Hence, the Court finds that when applied in connection with Article 220 § 7, the criteria for a conviction under Article 314 § 2 of the Criminal Code were extensively applied to the detriment of the applicant.
56. Similarly, when Article 314 is applied alone, the courts assess whether an accused person has committed offences within the “hierarchical structure” of an armed organisation. On the other hand, when the same Article was applied with reference to Article 220 § 7 in the applicant’s case, the question of whether he had acted within a hierarchy became irrelevant and he was convicted of membership of an armed organisation simply because he was considered to have aided the PKK. In sum, as the applicant’s case demonstrates, the array of acts that potentially constitute a basis for the application of a severe criminal sanction in the form of imprisonment, under Article 220 § 7 of the Criminal Code, is so vast that the wording of the provision, including its extensive interpretation by the domestic courts, does not afford a sufficient measure of protection against arbitrary interference by the public authorities (see Işıkırık, cited above, § 67).
57. Furthermore, and importantly, on account of his conviction, for acts which fell within the scope of Articles 10 and 11 of the Convention, no distinction was made between the applicant – a politician and a peaceful demonstrator – and an individual who had committed offences within the structure of the PKK. Such extensive interpretation of a legal norm cannot be justified when it has the effect of equating the mere exercise of fundamental freedoms with membership of an illegal organisation in the absence of any concrete evidence of such membership. The Court does not underestimate the difficulties to which the fight against terrorism has given rise (see Incal v. Turkey, 9 June 1998, § 58, Reports 1998‑IV; Döner and Others v. Turkey, no. 29994/02, § 102, 7 March 2017; and Işıkırık, cited above, § 68; see also paragraph 68 of the report of 10 January 2012 (CommDH(2012)2) of the Commissioner for Human Rights of the Council of Europe cited in paragraph 23 above). However, in its view, the very essence of the right to freedom of peaceful assembly and, thereby, the foundations of a democratic society, was undermined when the applicant was held criminally liable under Article 220 § 7 and Article 314 of the Criminal Code for the mere fact that he had attended public meetings and expressed his views therein (see, mutatis mutandis, Galstyan,cited above, § 117, and Işıkırık, cited above, § 68).
58. The Court further observes that the applicant was given a prison sentence of six years and three months under Articles 220 § 7 and 314 § 2 of the Criminal Code. The length of his prison sentence was subsequently reduced to five years, two months and fifteen days and the applicant served his sentence. The Court notes that when demonstrators, such as the applicant, face the charge of membership of an illegal armed organisation, they risk an additional sentence of between five and ten years in prison, a sanction which is strikingly severe and grossly disproportionate to their conduct. The Court finds therefore that Article 220 § 7 of the Criminal Code, as applied in the instant case, would inevitably have a particularly chilling effect on the exercise of the rights to freedom of expression and freedom of assembly. Moreover, the application of the provision at issue was not only likely to deter those who were found criminally liable from exercising their rights under Articles 10 and 11 of the Convention in the future, but also had a great deal of potential to deter other members of the public from attending demonstrations and, more generally, from participating in open political debate (see, mutatis mutandis, Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, § 99, 11 February 2016; SüleymanÇelebiand Others v. Turkey, nos. 37273/10 and 17 others, § 134, 24 May 2016; Kasparov and Others v. Russia (no. 2), no. 51988/07, § 32, 13 December 2016; and Işıkırık, cited above, § 69).
59. In the light of the aforementioned considerations, the Court concludes that Article 220 § 7 of the Criminal Code was not “foreseeable” in its application since it did not afford the applicant the legal protection against arbitrary interference with his right under Article 11 of the Convention (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 67, ECHR 2012, and Işıkırık, cited above, § 70). Hence, the interference resulting from the application of Article 220 § 7 was not prescribed by law. That being so, the Court is not required to determine whether the interference pursued a legitimate aim and, if so, whether it was necessary in a democratic society.
Accordingly, there has been a violation of Article 11 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
60. The applicant complained under Article 5 §§ 3 and 4 of the Convention that the length of his pre-trial detention had been excessive and that he had not had any domestic remedy whereby he could challenge the unlawfulness of his pre-trial detention. He also complained under Article 6 § 3 (c) of the Convention that his defence lawyer had not had adequate time to prepare his additional defence submissions. The applicant complained under Article 7 of the Convention that he had been convicted for carrying out lawful acts in his capacity as president of the local branch of a political party, and that criminal law had been extensively construed to his detriment by analogy.
61. Having regard to the facts of the case and its finding of a violation of Article 11 of the Convention, the Court considers that there is no need to give a separate ruling on the admissibility or the merits of the applicant’s complaints under Articles 5, 6 and 7 of the Convention (see Centre for Legal Resources on behalf ofValentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and the cases cited therein).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
62. 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.”
A. Damage
63. The applicant claimed 40,000 euros (EUR) in respect of non‑pecuniary damage.
64. The Government considered that the applicant’s claim was unsubstantiated and excessive.
65. Having regard to the violation found and to equitable considerations, the Court awards the applicant EUR 7,500 in respect of non-pecuniary damage.
B. Costs and expenses
66. The applicant also claimed EUR 2,663 for the costs and expenses incurred before the Court. In support of his claim, he submitted a timesheet, which showed that his representative had carried out twenty-three hours of legal work, and a receipt showing that on 1 June 2012 he had paid 3,600 Turkish liras (TRY) (approximately EUR 1,565) for his representation before the Court. He also submitted receipts for translation costs and postal expenses.
67. The Government considered that the applicant’s claim was unsubstantiated and excessive.
68. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,424, covering costs under all heads.
C. Default interest
69. 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 complaint under Article 11 admissible;
2. Holds that there has been a violation of Article 11 of the Convention;
3. Holds that there is no need to examine the admissibility or merits of the complaints under Articles 5, 6 and 7 of the Convention;
4. Holds,
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,424 (two thousand four hundred and twenty-four euros), plus any tax that may be chargeable to the applicant, 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 applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Robert Spano
Registrar President
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