SECOND SECTION
\nCASE OF YILDIRIM v. TURKEY
\n(Application no. 74054\/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 of Y\u0131ld\u0131r\u0131m 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. 74054\/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 Sinan Y\u0131ld\u0131r\u0131m (\u201cthe applicant\u201d), on 18 November 2011.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr E.E.\u015eim\u015fek, a lawyer practising in Tunceli. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On 18 January 2017 the complaint concerning the alleged breach of the applicant\u2019s 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 9 February 2018 the Government were informed that the Court\u00a0intended to assign the application to a Committee. In a letter dated 9\u00a0March 2018 the Government objected to the proposed 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 5.\u00a0\u00a0The applicant was born in 1983 and lives in Tunceli.<\/p>\n 6.\u00a0\u00a0On 5 April 2007 the applicant attended a concert performed by a band called \u201cGrupYorum\u201d in the Hozat district of Tunceli.<\/p>\n 7.\u00a0\u00a0On 17 October 2007 the Malatya public prosecutor filed an indictment with the Malatya Assize Court, charging the applicant with disseminating propaganda in favour of the DHKP\/C (Revolutionary People\u2019s Liberation Party\/Front), an illegal armed organisation, under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). The public prosecutor noted that the applicant had chanted the following slogans during the concert: \u201cMahir, H\u00fcseyin, Ula\u015f; Fight until emancipation\u201d[1](\u201cMahir, H\u00fcseyin, Ula\u015f; Kurtulu\u015fakadarsava\u015f\u201d); \u201cMartyrs of the revolution are immortal\u201d(\u201cDevrim\u015fehitleri\u00f6l\u00fcms\u00fczd\u00fcr\u201d); \u201cRevolutionary prisoners are our honour\u201d (\u201cDevrimcitutsaklaronurumuzdur\u201d);and \u201cVictory on mountains, emancipation at the front; long live victory, long live resistance\u201d (\u201cDa\u011flardazafer, cephedekurtulu\u015f; ya\u015fas\u0131nzafer, ya\u015fas\u0131ndireni\u015f\u201d).<\/p>\n 8.\u00a0\u00a0During the investigation and the proceedings against him, the applicant stated that he had attended the concert in question and chanted the slogans \u201cMusic shall not stop, dance shall continue\u201d (\u201cT\u00fcrk\u00fclersusmaz , halaylars\u00fcrer\u201d) and \u201cWe will not be defeated by oppression\u201d (\u201cBask\u0131larbiziy\u0131ld\u0131ramaz\u201d). He also noted that he had been on the concert\u2019s organising committee.<\/p>\n 9.\u00a0\u00a0On 6 March 2008 the Malatya Assize Court convicted the applicant as charged and sentenced him to ten months\u2019 imprisonment. In its judgment, on the basis of a police report on a police video recording of the concert of 5\u00a0April 2007, the indictment, the applicant\u2019s defence submissions, and the public prosecutor\u2019s observations on the merits of the case, the court considered it established that the applicant had chanted the slogans noted in the indictment. The court considered that the concert,for which legal and administrative authorisation had been obtained, had become a propaganda activity in favour of the DHKP\/C, and that the applicant had chanted slogans used by that organisation. The Malatya Assize Court concluded that the applicant had committed the offence of disseminating propaganda in favour of a terrorist organisation.<\/p>\n 10.\u00a0\u00a0The applicant appealed.<\/p>\n 11.\u00a0\u00a0On 4 July 2011 the Court of Cassation upheld the first-instance court\u2019s judgment.<\/p>\n 12.\u00a0\u00a0Between 6 October 2011 and 1 August 2012 the applicant duly served his prison sentence.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 13.\u00a0\u00a0The relevant domestic law applicable at the material time can be found in Belge v. Turkey (no. 50171\/09, \u00a7 19, 6 December 2016).<\/p>\n 14.\u00a0\u00a0In particular, at the time of the events giving rise to the present application, section 7 (2) of Law no. 3713 read as follows:<\/p>\n \u201cAny person who disseminates propaganda in favour of a terrorist organisation shall be liable to [serve] a term of imprisonment of one to five years …\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION<\/p>\n 15.\u00a0\u00a0The applicant complained under Article 10 of the Convention that the criminal proceedings brought against him under section 7\u00a0(2) of Law\u00a0no.\u00a03713, and his subsequent conviction, had constituted a violation of his right to freedom of expression. Referring in particular to the Court\u2019s judgments in Savg\u0131n v. Turkey (no. 13304\/03, 2 February 2010) and G\u00fcl and Others v. Turkey (no. 4870\/02, 8 June 2010), the applicant claimed that his conviction had not been necessary in a democratic society.<\/p>\n Article 10 of the Convention 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 the applicant\u2019s arguments. They submitted at the outset that the applicant had failed to exhaust the domestic remedies, as he had failed to raise his Convention grievances before the domestic authorities. As regards the merits of the applicant\u2019s complaint, the Government submitted that the interference with the applicant\u2019s right to freedom of expression had had a legal basis and had pursued the legitimate aims of protecting national security, public safety and territorial integrity, as well preventing disorder and crime. The Government further submitted that the slogans chanted had incited violence and that the concert had turned into a meeting of a terrorist organisation. The Government also noted that the applicant had been on the concert\u2019s organising committee, and not simply a member of the audience.According to the Government, the applicant had had a responsibility to prevent disorder and to protect public safety:a responsibility which he had failed to discharge, as he had manipulated the crowd by chanting slogans. Noting that the applicant\u2019s conviction had been based on his participation in a propaganda event in favour of the DHKP\/C \u2011a terrorist organisation that had committed heinous acts \u2013and on his chanting slogans in favour of that organisation, the Government concluded by stating that the applicant\u2019s conviction had responded to a pressing social need and had therefore been necessary in a democratic society.<\/p>\n 17.\u00a0\u00a0As regards the Government\u2019s objection concerning the rule of exhaustion of domestic remedies, the Court notes at the outset that the applicant was charged with disseminating propaganda in favour of a terrorist organisation. The public prosecutor brought that charge against him, alleging that he had chanted a number of slogans (see paragraph\u00a07 above). The applicant denied the allegation that he had chanted the slogans noted in the indictment, while acknowledging that he had attended the concert and chanted slogans (see paragraph 8 above). Hence, by acknowledging some of the facts concerningthe exercise of his freedom of expression, the applicant must be considered to have raised his complaint under Article 10 of the Convention in substancebefore the national courts (see Ulusoy v. Turkey, no. 52709\/99, \u00a7 38, 31 July 2007; Y\u0131lmaz andK\u0131l\u0131\u00e7, no. 68514\/10, \u00a7 43, 17 July 2008; andAgitDemir v. Turkey, no. 36475\/10, \u00a7\u00a7\u00a066-67, 27 February 2018[2]; see also \u00d6zg\u00fcrRadyo-SesRadyoTelevizyonYay\u0131nYap\u0131mVeTan\u0131t\u0131m A.\u015e.v. Turkey (no. 1), nos.64178\/00 and 4\u00a0others, \u00a7\u00a068, 30 March 2006, and Perihan and Mezopotamya Bas\u0131n Yay\u0131n A.\u015e.v.\u00a0Turkey, no. 21377\/03, \u00a7\u00a7 48-49, 21\u00a0January 2014). The Court accordingly rejects the Government\u2019s objection. The Court further notes that this complaint is not manifestly ill\u2011founded within the meaning of Article\u00a035 \u00a7\u00a03\u00a0(a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 18.\u00a0\u00a0As regards the merits of the applicant\u2019s complaint, the Court considers that the applicant\u2019s criminal conviction amounted to an \u201cinterference\u201d with the exercise of his freedom of expression, and that the interference was based on section 7 (2) of Law no. 3713. In the light of its findings regarding the necessity of the interference (see paragraph\u00a024below), 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\u00a0February 2011).<\/p>\n 19.\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 Article 10 of the Convention (see, for example, Savg\u0131n v. Turkey, cited above, \u00a7\u00a7 39-48; G\u00fcl and Others, cited above, \u00a7\u00a7 32-45; K\u0131l\u0131\u00e7 and Eren v. Turkey, no.43807\/07, \u00a7\u00a7 20-31, 29\u00a0November 2011; FarukTemel,cited above, \u00a7\u00a758-64; and G\u00fclc\u00fc v.\u00a0Turkey, no. 17526\/10, \u00a7\u00a7 113 and 117, 19 January 2016). The Court has examined the present case and finds no reason to reach a different conclusion.<\/p>\n 20.\u00a0\u00a0In particular, the Court notes that the Malatya Assize Court found that the applicant had chanted the following slogans during the concert of 5\u00a0April 2007: \u201cMahir, H\u00fcseyin, Ula\u015f; Fight until emancipation; \u201cMartyrs of the revolution are immortal\u201d; \u201cRevolutionary prisoners are our honour\u201d; and \u201cVictory on mountains, emancipation at the front; long live victory, long live resistance\u201d. The court considered that by chanting the above-mentioned slogans, the applicant had disseminated propaganda in favour of the DHKP\/C, without providing any explanation as to why it considered that the chanting of the slogans referred to in the indictment had constituted encouragement of violence, armed resistance or an uprising, or had been capable of inciting violence. Besides, there is nothing in the case file showing that the applicant was involved in any violent acts or had the intention of inciting violence. However, the Malatya Assize Court does not appear to have given consideration to any of the above factors.<\/p>\n 21.\u00a0\u00a0As regards the Government\u2019s submission that the applicant had been involved in organising the concert in question, and that therefore he had failed to discharge his responsibility to prevent disorder and protect public safety, the Court reiterates that there is nothing in the case file showing that violent acts were committed during or after the concert. In any event, the Malatya Assize Court did not make any reference to the applicant\u2019s role in the organising committee. It only noted that the concert had been held with legal and administrative authorisation, but had turned into a meeting of a terrorist organisation due to the slogans chanted and the speeches made.<\/p>\n 22.\u00a0\u00a0In 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 23.\u00a0\u00a0Lastly,\u00a0the Court notes the severity of the penalty imposed on the applicant, that is to say ten months\u2019 imprisonment, which the applicant duly served (see Karata\u015f v. Turkey [GC], no. 23168\/94, \u00a7 53, ECHR 1999\u2011IV).<\/p>\n 24.\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 II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 25.\u00a0\u00a0The applicant claimed 100,000 Turkish Liras (TRY \u2013 approximately 24,340 euros (EUR)) in respect of non-pecuniary damage. He further claimed TRY\u00a013,963.35 (approximately EUR\u00a03,400) for costs and expenses incurred before the Court of Cassation and the Court. In support of his claims, the applicant submitted a time sheet showing that his representative had carried out fifteen hours\u2019 legal work in respect of his application to the Court.<\/p>\n 26.\u00a0\u00a0The Government contested those claims.<\/p>\n 27.\u00a0\u00a0Ruling on an equitable basis, the Court awards the applicant EUR\u00a05,000 in respect of non-pecuniary damage. Regard being had to the documents in its possession and to its case-law, it also considers it reasonable to award the sum of EUR\u00a01,500 for costs and expenses in the proceedings before the Court.<\/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 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\u00a05,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 1,500 (one thousand five 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 4.\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 _______________<\/p>\n [1].\u00a0\u00a0Mahir\u00c7ayan was one of the founders and H\u00fcseyinCevahir and Ula\u015fBardak\u00e7\u0131 were members of the THKP\/C (People\u2019s Liberation Party-Front of Turkey), an illegal armed organisation founded in 1970. They were killed by the security forces in 1971 and 1972.
\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[2].\u00a0\u00a0The judgment is not final yet.<\/p>\n