SECOND SECTION
\nCASE OF KINIK v. TURKEY
\n(Application no. 39047\/11)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n25 September 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case ofK\u0131n\u0131k v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n Paul Lemmens, President, Having deliberated in private on 4 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. 39047\/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 (\u201cthe Convention\u201d) by a Turkish national, Mr AhmetK\u0131n\u0131k (\u201cthe applicant\u201d), on 22 April 2011.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mrs M. Dan\u0131\u015fBe\u015fta\u015f and Mr\u00a0M.\u00a0Be\u015fta\u015f, lawyers practising in Diyarbak\u0131r. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0The applicant complained under Articles 1, 10 and 11 of the Convention that the criminal proceedings brought against him under section\u00a07\u00a0(2) of the Prevention of Terrorism Act (Law No. 3713) had constituted a breach of his rights to freedom of expression and freedom of assembly.<\/p>\n 4.\u00a0\u00a0On 18 January 2017 the applicant\u2019s complaints under Articles\u00a01, 10\u00a0and 11 of the Convention were communicated to the Government, and the remainder of the application was declared inadmissiblepursuant to Rule\u00a054\u00a0\u00a7\u00a03 of the Rules of Court.<\/p>\n 5.\u00a0\u00a0The Government objected to the examination of the application by a Committee. Having considered the Government\u2019s objection, the Court rejects it.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 6.\u00a0\u00a0The applicant was born in 1957 and lives in Diyarbak\u0131r.<\/p>\n 7.\u00a0\u00a0At the time of the events giving rise to the application, the applicant was the head of the district branch of the Democratic People\u2019s Party (DemokratikHalklarPartisi \u2013 DEHAP) in the Ergani district of Diyarbak\u0131r.<\/p>\n 8.\u00a0\u00a0On 15 February 2005, on the anniversary of the arrest and transfer of Abdullah \u00d6calan, the leader of the PKK[1], to Turkey, the Ergani district branch of DEHAP organised a gathering in front of the district branch office in order to read out a press statement. The applicant read the statement in question.<\/p>\n 9.\u00a0\u00a0On 31 May 2005 the Ergani public prosecutor filed a bill of indictment with the Ergani Criminal Court against twenty-six persons, including the applicant, charging them with breach of the Marches and Demonstrations Act (Law no. 2911) on account of their participation in the above-mentioned event. They were accused of participating in the gathering and carrying banners with slogans such as \u201cThe solution is in \u0130mral\u0131[2]\u201d (\u201c\u00c7\u00f6z\u00fcm\u0130mral\u0131\u2019da\u201d), \u201cSolitary confinement is a crime against humanity\u201d (\u201cTecritinsanl\u0131ksu\u00e7udur\u201d), \u201cNot EU, not US, \u00d6calan has the solution\u201d (\u201cNe AB ne ABD, \u00c7\u00f6z\u00fcm\u00d6calan\u2019da\u201d) , \u201cThe youth is \u00d6calan\u2019sfedai\u201d[3] (\u201cGen\u00e7likApo\u2019nunFedaisidir\u201d), and \u201cFreedom to \u00d6calan\u201d (\u201c\u00d6calan\u2019a\u00f6zg\u00fcrl\u00fck\u201d), as well as posters of Abdullah \u00d6calan. They were also accused of chanting slogans such as \u201cTo the sun, to freedom\u201d (G\u00fcne\u015feg\u00fcne\u015fe, \u00f6zg\u00fcrle\u015fmeye\u201d), \u201cLong live the brotherhood of peoples\u201d (\u201cYa\u015fas\u0131nhalklar\u0131nkarde\u015fli\u011fi\u201d), \u201cMay those hands which aim to damage peace be broken\u201d (\u201cBar\u0131\u015fauzananellerk\u0131r\u0131ls\u0131n\u201d), \u201cA tooth for a tooth, blood for blood, we are with you\u201d (\u201cDi\u015fedi\u015f kana kan, seninleyiz\u201d) and \u201cAKP, be careful, do not abuse our patience\u201d (\u201cAKP \u015fa\u015f\u0131rma, sabr\u0131m\u0131z\u0131ta\u015f\u0131rma\u201d).<\/p>\n 10.\u00a0\u00a0On 5 October 2006 the Ergani Criminal Court decided that it lacked jurisdiction to examine the case. It held that the impugned acts constituted the offence proscribed by section 7\u00a0(2) of Law no. 3713 and that the accused should therefore be tried by the Diyarbak\u0131r Assize Court.<\/p>\n 11.\u00a0\u00a0On an unspecified date the Diyarbak\u0131r Assize Court remitted the case file to the Ergani Criminal Court.<\/p>\n 12.\u00a0\u00a0On 19 March 2007 the Ergani Criminal Court once again decided that the Diyarbak\u0131r Assize Court had jurisdiction over the case.<\/p>\n 13.\u00a0\u00a0On 10 August 2007 the Sixth Chamber of the Diyarbak\u0131r Assize Court began the trial in the case.<\/p>\n 14.\u00a0\u00a0On 15 April 2010 the Diyarbak\u0131r public prosecutor submitted to the first-instance court his observations on the merits of the case. According to those submissions, the public prosecutor considered that the applicant should be convicted under section 7(2) of Law no. 3713, as the press statement read out by him had referred to Abdullah \u00d6calan as the \u201chonourable Kurdish people\u2019s leader\u201d.<\/p>\n 15.\u00a0\u00a0On the same day the Diyarbak\u0131r Assize Court convicted the applicant of disseminating propaganda in favour of a terrorist organisation under section\u00a07\u00a0(2) of Law no. 3713. The court based its judgment, among others, on a police report regarding the reading out of the press statement dated 15\u00a0February 2005 and a police report dated 23February 2005 on the examination of a police video recording of the event of 15 February\u00a02005. The court judgment read as follows:<\/p>\n \u201c… it has been decided that AhmetK\u0131n\u0131k and R.A. committed the offence proscribed by section 7(2) of Law no. 3713, as they participated in the reading out of a press statement organised by the DEHAP in Erganion 15 February 2005 on the anniversary of the arrest of Abdullah \u00d6calan, and chanted slogans such as \u2018The solution is in \u0130mral\u0131\u2019, \u2018Solitary confinement is a crime against humanity\u2019, \u2018Not EU, not US, \u00d6calan has the solution\u2019, and \u2018The youth is \u00d6calan\u2019sfedai\u2019. They marched and chanted these slogans without obtaining prior permission.\u201d<\/p>\n 16.\u00a0\u00a0The Sixth Chamber of the Diyarbak\u0131r Assize Court sentenced the applicant to ten months\u2019 imprisonment but decided to suspend the pronouncement of the judgment (h\u00fckm\u00fcna\u00e7\u0131klanmas\u0131n\u0131ngerib\u0131rak\u0131lmas\u0131) for a period of five years, under Article 231 of the Code of Criminal Procedure.<\/p>\n 17.\u00a0\u00a0On 5 July 2010 the applicant objected to the decision of the Assize Court to suspend the pronouncement of the judgment.<\/p>\n 18.\u00a0\u00a0On 22 November 2010 the Fourth Chamber of the Diyarbak\u0131r Assize Court dismissed the applicant\u2019s objection.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 19.\u00a0\u00a0The relevant domestic law applicable at the material time can be found in Belge v. Turkey(no. 50171\/09, \u00a7 19, 6 December\u00a02016).<\/p>\n 20.\u00a0\u00a0In particular, between 7 August 2003 and 18 July 2006, section\u00a07\u00a0(2) of Law no.\u00a03713 read as follows:<\/p>\n \u201cAny 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 …\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0THE GOVERNMENT\u2019S PRELIMINARY OBJECTION<\/p>\n 21.\u00a0\u00a0The Government submitted that the deadline for the applicant to submit his observations in reply to their observations and his claims for just satisfaction had been 10 October 2017, and that there was no document in the case file showing that the applicant had complied with that deadline. They asked the Court not to include the applicant\u2019s observations and just satisfaction claims if they had been submitted late.<\/p>\n 22.\u00a0\u00a0The Court notes that the applicant submitted his observations in reply to the Government\u2019s observations and his claims for just satisfaction on 10\u00a0October 2017. Nonetheless, the Court has already dismissed similar objections by the respondent Government (see \u00d6nerAkta\u015fv.\u00a0Turkey, no.\u00a059860\/10, \u00a7 29, 29 October 2013; At\u0131lgan and Others v.\u00a0Turkey, nos.\u00a014495\/11, 14531\/11, 26274\/11, 78923\/11, 8408\/12, 11848\/12, 12078\/12, 12103\/12, 14745\/12, 21910\/12 and 41087\/12, \u00a7 12, 27\u00a0January 2015; and \u015eakirKa\u00e7maz v. Turkey, no.\u00a08077\/08, \u00a7 62, 10 November\u00a02015). In the present case, the Court finds no reason to depart from that conclusion. The Government\u2019s argument on this point should therefore be rejected.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION<\/p>\n 23.\u00a0\u00a0The applicant complained under Articles 1, 10 and 11 of the Convention that the criminal proceedings brought against him on account of the expression of his opinions, which had not constituted incitement to violence under section 7(2) of Law no. 3713, had been in breach of his rights to freedom of expression and freedom of assembly.<\/p>\n The Court considers at the outset that the application should be examined from the standpoint of Article 10, which reads:<\/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 24.\u00a0\u00a0The Government contested the applicant\u2019s argument. They claimed at the outset that the applicant did not have victim status, within the meaning of Article34 of the Convention, given that the pronouncement of his conviction had been suspended. They further claimed that there had been no interference with the applicant\u2019s right to freedom of expression, given that the proceedings against him had ended with the suspension of the pronouncement of the judgment. The Government submitted that should the Court conclude that there had been an interference, that interference had been prescribed by law and had pursued the legitimate aims of maintaining national security, territorial integrity and public safety, as well as preventing disorder and crime. The Government claimed that the interference with the applicant\u2019s freedom of expression had been necessary in a democratic society.According to the Government, as a politician, the applicant had showed his support for a terrorist organisation\u2019s activities by chanting the slogans noted in the first-instance judgment. Taking into account the necessity to fight against terrorism, the Government contended that the criminal proceedings against the applicant had corresponded to a pressing social need and had been proportionate.<\/p>\n 25.\u00a0\u00a0The Court considers that the Government\u2019s objection regarding the lack of the applicant\u2019s \u201cvictim status\u201d is closely linked to the merits of the complaints. It therefore joins this issue to the merits. The Court also notes that this part of the application is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7\u00a03 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 26.\u00a0\u00a0As to the merits, the Court notes at the outset that it has already found \u2013 in cases concerning Articles 10 and 11 of the Convention where the pronouncement of the applicants\u2019 convictions had been suspended\u2011an interference nonetheless with the applicants\u2019 rights guaranteed under the above-mentioned Articles (see \u015e\u00fckranAyd\u0131n and Others v.\u00a0Turkey, nos.\u00a049197\/06 and 4 others, \u00a7 44, 22 January 2013; G\u00fclc\u00fc v.\u00a0Turkey, no.\u00a017526\/10, \u00a7\u00a7 98 – 102, 19 January 2016; and FatihTa\u015f v.\u00a0Turkey (no.\u00a02), no.\u00a06813\/09, \u00a7 15, 10 October 2017). The Court finds no reason to depart from its findings in the above-mentioned cases, particularly in view of the fact that the applicant, a local politician, faced the threat of a penalty for five years. In the Court\u2019s opinion, that condition entailed a real and effective restraint and had a deterrent effect on the exercise of the applicant\u2019s right to freedom of expression. The Court thus finds that the criminal proceedings brought against the applicant and the judgment of 15\u00a0April 2010 amounted to an \u201cinterference\u201d with the exercise of his freedom of expression, and that he does therefore have \u201cvictim status\u201d under Article 10. The Court accordingly rejects the Government\u2019s objection.<\/p>\n 27.\u00a0\u00a0The Court furthermore considers that the interference was based on section 7(2) of Law\u00a0no.\u00a03713. In the light of its findings regarding the necessity of the interference (see paragraph 30below), the Court considers that it is not required to conduct an examination of the \u201clawfulness\u201d of the interference. It 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 28.\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, Savg\u0131n v. Turkey, no. 13304\/03, \u00a7\u00a7 39-48, 2 February 2010; G\u00fcl and Others v. Turkey, no. 4870\/02, \u00a7\u00a7 32- 45, 8 June 2010; Mente\u015f v.\u00a0Turkey (no. 2), no. 33347\/04, \u00a7\u00a7 39-54, 25 January 2011; K\u0131l\u0131\u00e7 and Eren v.\u00a0Turkey, no. 43807\/07, \u00a7\u00a7 20-31, 29 November 2011; FarukTemel,cited above, \u00a7\u00a7 58-64; \u00d6ner and T\u00fcrkv. Turkey, no. 51962\/12, \u00a7\u00a7\u00a019-27, 31\u00a0March 2015; G\u00fclc\u00fc v. Turkey, no.\u00a017526\/10,\u00a7\u00a7 110-117, 19\u00a0January 2016; Belge, cited above, \u00a7\u00a7 24-38; Yigin v. Turkey [Committee], no.\u00a036643\/09, \u00a7\u00a7 22-24, 30 January 2018; and Zengin and \u00c7ak\u0131r v. Turkey [Committee], no. 57069\/09, \u00a7\u00a7 18-20, 13 February 2018). The Court has examined the present case and considers that the Government have not put forward any argument which would require it to reach a different conclusion in the present case.<\/p>\n 29.\u00a0\u00a0In particular, the Court notes that the applicant was prosecuted and convicted under section 7(2) of Law no. 3713 on the grounds that he had chanted slogans. In the Court\u2019s view,\u00a0one of the slogans mentioned in the first-instance judgment, \u201cthe youth is \u00d6calan\u2019sfedai\u201d might be construed as having a violent tone. However, the first-instance court\u2019s judgment does not contain any information as to the reasons why the applicant was found guilty of disseminating propaganda in support of the PKK. Nor does the judgment contain any assessment of the content of the particular slogans chanted by the applicant. The Assize Court found that by participating in the reading out of the press statement and chanting slogans, the applicant had disseminated propaganda in favour of the PKK, without making an assessment as to whether the applicant\u2019s acts could be construed as encouraging violence, armed resistance or an uprising, or being capable of inciting to violence. These are essential elements to be taken into account.Besides, there is nothing in the case file showing that the event in question was not a peaceful public gathering or that applicant was involved in any violent acts or had the intention of inciting violence. However, the Diyarbak\u0131r Assize Court does not appear to have given consideration to any of the above factors. In sum, the Court considers that the national courts did not provide \u201crelevant and sufficient\u201d reasons for the applicant\u2019s criminal conviction under section 7(2) of Law no. 3713.<\/p>\n 30.\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 31.\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 32.\u00a0\u00a0The applicant claimed 100,000 Turkish liras (TRY\u2011approximately 22,915\u00a0euros (EUR)) in respect of non-pecuniary damage. He also claimed pecuniary damages, without specifying any amount. The applicant lastly claimed TRY 12,000 (approximately EUR\u00a02,750) in respect of costs and expenses. In support of his claim for costs and expenses, the applicant submitted a time sheet showing that his representatives had carried out thirteen hours and thirty minutes of legal work during the proceedings before the Court, and a list of the tasks carried out by his representatives both during the proceedings before the domestic courts and the Court.<\/p>\n 33.\u00a0\u00a0The Government contested those claims.<\/p>\n 34.\u00a0\u00a0Having regard to the applicant\u2019s failure to substantiate his claims for pecuniary damages, the Court rejects those claims. On the other hand, ruling on an equitable basis, the Court awards the applicant EUR\u00a02,500 in respect of non-pecuniary damage.\u00a0Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR\u00a01,300covering costs under all heads.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Joinsto the merits the Government\u2019s objection regarding the applicant\u2019s lack of victim status under Article 10 of the Convention and dismisses it;<\/p>\n 2.\u00a0\u00a0Declares the complaint under Article 10 of the Convention admissible;<\/p>\n 3.\u00a0\u00a0Holdsthat there has been a violation of Article 10 of the Convention;<\/p>\n 4.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months,the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 1,300 (one thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/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 5.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 25 September 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 ______________
\nValeriu Gri\u0163co,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
\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
\n[1].\u00a0\u00a0An illegal armed organisation.
\n2.\u00a0\u00a0\u0130mral\u0131 is the island where Abdullah \u00d6calan is serving a prison sentence.
\n[3].\u00a0\u00a0The word \u201cfedai\u201d (from Arabic) has two meanings in Turkish: 1. A person who gives his or her life for another person or for a cause; 2. A person who protects another person or a place.<\/p>\n