SECOND SECTION
\nCASE OF D\u00dcZEL v. TURKEY
\n(Application no. 64375\/12)<\/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 D\u00fczel 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 4September 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. 64375\/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 a Turkish national, Ms H\u00fcsniyeD\u00fczel (\u201cthe applicant\u201d), on 10 August 2012.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr M. Be\u015fta\u015f a lawyer practising in Diyarbak\u0131r. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0The applicant complained under Articles 9 and 10 of the Convention that her conviction had constituted a breach of her rights to freedom of thought and to freedom of expression.<\/p>\n 4.\u00a0\u00a0On 20 December 2012 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1960 and lives in Diyarbak\u0131r.<\/p>\n 6.\u00a0\u00a0On 30 September 2007 a reading out of a press statement and a march were held in Diyarbak\u0131r in order to protest about the conditions of detention and alleged poisoning of Abdullah \u00d6calan, the leader of the PKK (Kurdistan Workers\u2019 Party), an illegal armed organisation. The protesters gathered in front of the building of the Diyarbak\u0131r branch of the Democratic Society Party (DemokratikToplumPartisi) (DTP) where a press statement was read out. They then marched. The applicant, as a member of the DTP, participated in the gathering and the ensuing march. According to a police report dated 9October 2007, the applicant was seen while carrying a banner which read \u201c\u0130nsanl\u0131kzehirleniyor\u201d (\u201cThe humanity is being poisoned\u201d) and applauding together with other demonstrators in the police video footage.<\/p>\n 7.\u00a0\u00a0On 9 October 2007 the applicant was taken into police custody. On the same day she was detained on remand.<\/p>\n 8.\u00a0\u00a0On 17 October 2007 the Diyarbak\u0131r public prosecutor charged the applicant with disseminating propaganda in favour of a terrorist organisation under section\u00a07(2) of the Prevention of Terrorism Act (Law\u00a0no.\u00a03713) on account of the content of the banner she had carried during the demonstration of 30 September 2007.<\/p>\n 9.\u00a0\u00a0On 4 December 2007 the applicant was released pending trial.<\/p>\n 10.\u00a0\u00a0On 18 March 2008 the Diyarbak\u0131r Assize Court convicted the applicant as charged. The court found it established, on the basis of an expert report on the police video footage, that the applicant had been together with other persons who had chanted the slogan \u201cBe SerokJiyanNabe\u201d (\u201cThere is no life without the leader\u201d) and that she had carried a banner which read \u201cThe humanity is being poisoned\u201d. The applicant was sentenced to ten months\u2019 imprisonment.<\/p>\n 11.\u00a0\u00a0On 9 January 2012 the Court of Cassation upheld the judgment of 18\u00a0March 2008.<\/p>\n 12.\u00a0\u00a0On an unspecified date the applicant started serving her prison sentence.On 17 July 2012, upon the applicant\u2019s request, the Diyarbak\u0131r Assize Court ordered her release from prison, in accordance with Law no.\u00a06352 which had entered into force on 5July 2012 and which had amended certain provisions of Law no. 3713.<\/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, section7(2) of Law no.\u00a03713 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 Articles 9 and 10 of the Convention that her conviction had been in violation of her rights to freedom of thought and to freedom of expression.<\/p>\n 16.\u00a0\u00a0The Court considers at the outset that this part of the application should be examined from the standpoint of Article 10 of the Convention alone.<\/p>\n 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 17.\u00a0\u00a0The Government contested the applicant\u2019s argument. They asked the Court to declare the application inadmissible claiming that violent acts had been committed during the demonstration. As regards the merits of the applicant\u2019s complaint under Article 10, the Government submitted that the banners carried during the demonstration had contained violent expressions and that the interference with the applicant\u2019s freedom of expression had pursued a legitimate aim and corresponded to a pressing social need.<\/p>\n 18.\u00a0\u00a0As regards the Government\u2019s submission that Article 10 is not applicable, the Court observes that the applicant was not convicted for having committed violent acts (see paragraph 10 above). The Court thus considers that the Government\u2019s submission is not supported by the facts of the case. 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 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 applicant\u2019s criminal conviction amounted to an \u201cinterference\u201d with the exercise of her freedom of expression and 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 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 Faruk\u00a0Temel 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, 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\u00a719-27, 31\u00a0March 2015; G\u00fclc\u00fc v. Turkey, no. 17526, \u00a7 \u00a7\u00a7 110-117, 19January 2016; Belge, cited above, \u00a7\u00a7\u00a024-38; 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 21.\u00a0\u00a0In particular, the Court notes that the applicant was convicted under section\u00a07(2) of Law no. 3713 on the ground that she had carried a banner which read \u201cThe humanity is being poisoned\u201d and sat together with a group of persons who had chanted the slogan \u201cThere is no life without the leader\u201d. The Court observes that there is nothing in the case\u2011file showing that the applicant had chanted the slogan in question (see paragraphs 6 and 10 above). As to the content of the banner that the applicant carried during the demonstration, the Court observes that the first-instance court did not examine whether the expression written on the banner and the applicant\u2019s acts during the demonstration 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. In sum, the Court considers that the reasons adduced by the national courts to justify the applicant\u2019s 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 applicant, that is to say ten months of imprisonment, which she served in part (see Karata\u015f v. Turkey [GC], no. 23168\/94, \u00a7 53, ECHR\u00a01999\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 II.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION<\/p>\n 24.\u00a0\u00a0The applicant complained under Article 6 and 13 of the Convention that the Assize Court had not obtained her submissions in reply to the Diyarbak\u0131r public prosecutor\u2019s bill of indictment before the opening of the trial.<\/p>\n 25.\u00a0\u00a0The Court considers that this complaint should be examined from the standpoint of Article 6 alone. The Court further recalls that a similar complaint was previously examined and declared inadmissible for being manifestly ill\u2011founded (see \u00d6kten v. Turkey (dec.), no. 22347\/07, \u00a7\u00a751-53, 3\u00a0November 2011). The Court finds no reason to decide otherwise in the present case.It follows that this part of the application is manifestly ill\u2011founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and\u00a04 of the Convention.<\/p>\n III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 26.\u00a0\u00a0The applicant claimed 40,000 Turkish liras (TRY – approximately 14,545 euros (EUR)) in respect of non-pecuniary damage. She also claimed pecuniary damages but left the amount to the Court\u2019s discretion. The applicant lastly claimed TRY12,000 (approximately EUR4,724) for lawyers\u2019 fees incurred both before the domestic courts and the Court as well as for her expenses incurred before the Court. In support of her claims, the applicant submitted a document showing that her legal representatives had carried out thirteen hours and thirty minutes\u2019 legal work on the application to the Court.<\/p>\n 27.\u00a0\u00a0The Government contested those claims.<\/p>\n 28.\u00a0\u00a0The Court does not discern any causal link between the violation found and any pecuniary damage; it therefore rejects this claim. On the other hand, ruling on an equitable basis, the Court awards the applicant EUR\u00a05,000 in respect of non-pecuniary damage.<\/p>\n 29.\u00a0\u00a0As to the costs and expenses,regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,300 for costs and expenses in the proceedings before the Court.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declares the complaint concerning the alleged breach of the applicant\u2019s right to freedom of expression admissible and the remainder of the application inadmissible;<\/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 5,000 (five thousand 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 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
\nValeriuGri\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