{"id":5166,"date":"2019-05-19T06:28:21","date_gmt":"2019-05-19T06:28:21","guid":{"rendered":"https:\/\/laweuro.com\/?p=5166"},"modified":"2019-11-05T05:49:25","modified_gmt":"2019-11-05T05:49:25","slug":"case-of-aydemir-and-karavil-v-turkey-european-court-of-human-rights","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=5166","title":{"rendered":"CASE OF AYDEM\u0130R AND KARAV\u0130L v. TURKEY (European Court of Human Rights)"},"content":{"rendered":"

SECOND SECTION
\nCASE OF AYDEM\u0130R AND KARAV\u0130L v. TURKEY
\n(Application no. 16624\/12)<\/p>\n

JUDGMENT
\nSTRASBOURG
\n9 October 2018<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Aydemir and Karavil v. Turkey,<\/strong><\/p>\n

The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n

Paul Lemmens, President,
\nValeriu Gri\u0163co,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n

Having deliberated in private on 18 September 2018,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1.\u00a0\u00a0The case originated in an application (no. 16624\/12) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by two Turkish nationals, Mr ZiyaAydemir and Mr\u00a0Kenan Karavil (\u201cthe applicants\u201d), on 13 February 2012.<\/p>\n

2.\u00a0\u00a0The applicants were represented by Ms S. Arac\u0131 Bek a lawyer practising in Adana. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n

3.\u00a0\u00a0On 6 September 2013 the complaint concerning the alleged breach of the applicants\u2019 right to freedom of expression was communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n

4.\u00a0\u00a0On 26 February 2014 the Government submitted their observations on the admissibility and merits of the applications. By a letter dated 12 March 2014, the applicants were requested to submit by 22 April 2014 any written observations which they might wish to make in reply to those of the Government, together with any claims for just satisfaction under Article\u00a041 of the Convention. On 22 August 2014 the applicants sent a letter to the Court enclosing their observations in reply to the Government\u2019s observations, together with their claims for just satisfaction. By a letter dated 9 October 2014 the parties were informed that the President of the Section had decided, pursuant to Rule 38 \u00a7 1 of the Rules of Court, to admit the applicants\u2019 observations and claims for just satisfaction, submitted outside the time-limit, to the case file.<\/p>\n

THE FACTS<\/strong><\/p>\n

I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n

5.\u00a0\u00a0The applicants were born in 1957 and 1981 and live in Diyarbak\u0131r and Adana respectively.<\/p>\n

6.\u00a0\u00a0On 17 August 2006 the Adana public prosecutor filed a bill of indictment with Adana Magistrate\u2019s Court charging the applicants and five other persons with praising an offence and an offender under Article 215 of the Criminal Code. The public prosecutor alleged that the applicants had signed a petition in September 2005 which had been drafted in order to be sent to several institutions. The petition read as follows:<\/p>\n

\u201cAs a person from Kurdistan, I consider and accept Mr\/Esteemed Abdullah \u00d6calan of Kurdistan as a political actor.\u201d[1]<\/p>\n

7.\u00a0\u00a0On 19 January 2007 the Adana Magistrate\u2019s Court decided that it lacked jurisdiction in the case due to the possibility of application of section\u00a07(2) of the Prevention of Terrorism Act (Law\u00a0no.\u00a03713) proscribing disseminating propaganda in favour of a terrorist organisation. The court then sent the file to Adana Assize Court.<\/p>\n

8.\u00a0\u00a0On 24 March 2008 the Adana Assize Court convicted the applicants of disseminating propaganda in favour of a terrorist organisation under section\u00a07(2) of Law No. 3713 and sentenced them each to two years\u2019 imprisonment. In its judgment, the first-instance court found it established that the above-mentioned petition had been prepared for the purpose of disseminating propaganda in favour of the PKK and its leader and that by signing that petition the applicants had committed the offence proscribed in section 7(2) of Law no. 3713.<\/p>\n

9.\u00a0\u00a0On 13 July 2011 the Court of Cassation upheld the judgment of 24\u00a0March 2008. On 24 August 2011 the Court of Cassation\u2019s judgment was deposited with the first instance court\u2019s registry.<\/p>\n

10.\u00a0\u00a0On an unspecified date the second applicant started serving his prison sentence.<\/p>\n

11.\u00a0\u00a0On 19 October 2012 the Adana Assize Court decided to suspend the execution of the applicants\u2019 prison sentence in accordance with Law\u00a0no.\u00a06352 which had entered into force on 5 July 2012 and which had amended certain provisions of Law no. 3713. The suspension was for a period of three years, on condition that they did not commit an offence through the press, media or other methods of expressing ideas and opinions.<\/p>\n

II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n

12.\u00a0\u00a0Between 7 August 2003 and 18 July 2006, section\u00a07(2) of Law\u00a0no.\u00a03713 read as follows:<\/p>\n

\u201cAny person who assists members of the aforementioned organisations [terrorist organisations] or who disseminates propaganda inciting others to 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 …\u201d<\/p>\n

The first sentence of section 7(2) of Law no. 3713 was amended by Law\u00a0no.\u00a05532, which entered into force on 18 July 2006, as follows:<\/p>\n

\u201cAny person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of one to five years …\u201d<\/p>\n

The first sentence of section 7(2) of Law no. 3713, amended on 30\u00a0April 2013 by Law no. 6459, currently reads as follows:<\/p>\n

\u201cAny 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 …\u201d<\/p>\n

THE LAW<\/strong><\/p>\n

I.\u00a0\u00a0THE GOVERNMENT\u2019S OBJECTION<\/p>\n

13.\u00a0\u00a0The Government claimed that the applicants\u2019 observations in reply to their observations and their claims for just satisfaction should not have been included in the case file since they had been submitted outside the time-limit.<\/p>\n

14.\u00a0\u00a0The Court notes that on 9 October 2014 the parties were informed that the President of the Section had decided, pursuant to Rule 38 \u00a7 1 of the Rules of Court, to admit those observations and claims for just satisfaction to the case file (see paragraph 4 above). The Court also notes that it has already rejected similar objections by the respondent Government (see At\u0131lgan and Others v.\u00a0Turkey, no.\u00a014495\/11 and 10 others, \u00a7 12, 27\u00a0January 2015; \u015eakirKa\u00e7maz v. Turkey, no. 8077\/08, \u00a7\u00a062, 10\u00a0November 2015; Yigin v.\u00a0Turkey [Committee], no. 36643\/09, \u00a7 16, 30 January 2018; and Aymelek v.\u00a0Turkey [Committee], no. 15069\/05<\/a>, \u00a7 26, 30 January 2018). The Government\u2019s arguments on this point are therefore rejected.<\/p>\n

II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION<\/p>\n

15.\u00a0\u00a0The applicants complained that their conviction on account of their participation in a petition campaign had constituted a breach of articles\u00a010 and 11 of the Convention.<\/p>\n

The Court considers that this part of the application should be examined from the standpoint of Article 10 of the Convention alone. Article 10 reads as follows:<\/p>\n

\u201c1.\u00a0\u00a0Everyone 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.<\/p>\n

2.\u00a0\u00a0The 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.\u201d<\/p>\n

16.\u00a0\u00a0The Government contested that argument. They argued that the applicants had failed to exhaust the domestic remedies available to them, within the meaning of Article 35 \u00a7\u00a01 of the Convention. They submitted that subsequent to the Adana Assize Court\u2019s decision of 19 October 2012, the applicants should have applied to the Constitutional Court and raised their Convention grievances before that court, as that decision had been rendered after 23\u00a0September 2012, that is to say after the individual application system had been put in place.<\/p>\n

17.\u00a0\u00a0As regards the merits of the applicants\u2019 complaint under Article\u00a010, the Government submitted that the interference with the applicants\u2019 right to freedom of expression had had a legal basis and had pursued the legitimate aims of protecting national security and territorial integrity and public safety, as well as preventing disorder and crime. Leaving it to the Court\u2019s discretion to decide on the necessity of the interference with the applicants\u2019 right to freedom of expression, the Government noted that the applicant had disseminated propaganda in favour of the PKK, which was considered to be a terrorist organisation by a number of States and organisations.<\/p>\n

18.\u00a0\u00a0The Court notes at the outset that it has already examined and dismissed an identical objection regarding the rule of exhaustion of domestic remedies by the respondent Government (see \u00d6ner and T\u00fcrkv.\u00a0Turkey, no. 51962\/12, \u00a7\u00a7 14-18, 31 March 2015). The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence. The Court accordingly rejects the Government\u2019s objection. The Court further notes that this application is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

19.\u00a0\u00a0As to the merits of the case, the Court considers that the applicants\u2019 criminal convictions amounted to an \u201cinterference\u201d with the exercise of their freedom of expression, and that the interference was based on section\u00a07(2) of Law\u00a0no.\u00a03713. In the light of its findings regarding the necessity of the interference (see paragraph 23below), the Court considers that it is not required to conduct an examination of the \u201clawfulness\u201d of the interference. The Court is also prepared to accept that, in the present case, the national authorities may be considered to have pursued the legitimate aims of protecting national security and preventing disorder and crime (see FarukTemel v. Turkey, no. 16853\/05, \u00a7 52, 1 February 2011).<\/p>\n

20.\u00a0\u00a0As regards the necessity of the interference in a democratic society, the Court notes that it has already examined similar grievances in a number of cases and found violations of Articles 10 and 11 of the Convention (see, for example, Bah\u00e7eci and Turan v. Turkey, no. 33340\/03, \u00a7 30, 16\u00a0June 2009; Savg\u0131n v. Turkey, no. 13304\/03, \u00a7 45, 2\u00a0February 2010; FarukTemel, cited above, \u00a7 62;\u00d6ner and T\u00fcrk, cited above, \u00a7 24; and Belge v. Turkey, no.\u00a050171\/09, \u00a7 38, 6 December 2016).\u00a0\u00a0The 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 this case.<\/p>\n

21.\u00a0\u00a0In particular, the Court notes that the applicants were prosecuted and convicted under section 7(2) of Law no. 3713 on the grounds that they had signed a petition in which they had declared that they recognised Abdullah \u00d6calan as a political actor. The Court observes that the first-instance court\u2019s judgment does not contain any information as to the reasons why the applicants were found guilty of disseminating propaganda in support of the PKK. Besides, the first-instance court did not examine whether the text of the petition could be construed as encouraging violence, armed resistance or an uprising, or being capable of inciting to violence, which are essential elements to be taken into account. Hence, the Court considers that the reasons adduced by the national courts to justify the applicants\u2019 criminal conviction under section 7(2) of Law no. 3713 were not \u201crelevant and sufficient\u201d for the purposes of Article 10 of the Convention.<\/p>\n

22.\u00a0\u00a0Last but not least, the Court notes the severity of the penalty imposed on the applicants, that is to say two years of imprisonment, which the second applicant served in part (see Karata\u015f v. Turkey [GC], no.\u00a023168\/94, \u00a7 53, ECHR 1999\u2011IV).<\/p>\n

23.\u00a0\u00a0The Court concludes that the interference in question was not \u201cnecessary in a democratic society\u201d. Accordingly, there has been a violation of Article 10 of the Convention.<\/p>\n

III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n

24.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n

\u201cIf 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.\u201d<\/p>\n

25.\u00a0\u00a0The applicants claimed 150,000 euros (EUR) each in respect of pecuniary damage. They also claimed EUR 150,000 each in respect of non\u2011pecuniary damage. Lastly, they claimed EUR 3,506 in respect of costs and expenses incurred before the Court.In support of their claim for costs and expenses, the applicants submitted the scale of fees of the Adana Bar Association.<\/p>\n

26.\u00a0\u00a0The Government contested those claims.<\/p>\n

27.\u00a0\u00a0Having regard to the applicants\u2019 failure to submit to the Court any document in support of their claims in respect of pecuniary damage and costs and expenses, the Court rejects those claims. On the other hand, ruling on an equitable basis, the Court awards the first applicant EUR 2,500 and the second applicant EUR\u00a05,000 in respect of non-pecuniary damage.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n

2.\u00a0\u00a0Holdsthat there has been a violation of Article 10 of the Convention;<\/p>\n

3.\u00a0\u00a0Holds<\/p>\n

(a)\u00a0\u00a0that the respondent State is to pay the applicants, within three monthsthe following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n

(i)\u00a0\u00a0EUR 2,500 (two thousand five hundred euros) plus any tax that may be chargeable, to the first applicant in respect of non-pecuniary damage;<\/p>\n

(ii)\u00a0\u00a0EUR 5,000 (five thousand euros), plus any tax that may be chargeable, to the second applicant in respect of non-pecuniary damage;<\/p>\n

(b)\u00a0\u00a0that 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;<\/p>\n

4.\u00a0\u00a0Dismissesthe remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 9 October 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Hasan Bak\u0131rc\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Paul Lemmens
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

_____________<\/p>\n

[1].\u00a0\u00a0In Turkish: \u201cBen birK\u00fcrdistanl\u0131olarakK\u00fcrdistanl\u0131Say\u0131n Abdullah \u00d6calan\u2019\u0131birsiyasiiradeolarakg\u00f6r\u00fcyorvekabulediyorum.\u201d<\/p>\n

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SECOND SECTION CASE OF AYDEM\u0130R AND KARAV\u0130L v. TURKEY (Application no. 16624\/12) JUDGMENT STRASBOURG 9 October 2018 This judgment is final but it may be subject to editorial revision. In the case of Aydemir and Karavil v. Turkey, The European…<\/p>\n

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