SECOND SECTION
\nCASE OF D\u00dcNDAR AND AYDINKAYA v. TURKEY
\n(Application no. 37091\/11)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n10 July 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of D\u00fcndar and Ayd\u0131nkaya 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 19 June 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. 37091\/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 two Turkish nationals, Mr \u0130rfan D\u00fcndar and Mr\u00a0F\u0131rat\u00a0Ayd\u0131nkaya (\u201cthe applicants\u201d), on 17 March 2011.<\/p>\n 2.\u00a0\u00a0The applicantswere represented by Mr \u00d6. K\u0131l\u0131\u00e7, a lawyer practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On 16 September 2016 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 5 December 2017 the Government were informed that the Court intended to assign the application to a Committee. In a letter dated 3\u00a0January 2018 the Government objected to the proposed examination of the application by a Committee. After 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 applicants, Mr \u0130rfan D\u00fcndar and Mr F\u0131ratAyd\u0131nkaya, were born in 1972 and 1979 respectively and live in Istanbul.At the material time, the applicants were the legal representatives of Abdullah \u00d6calan, the leader of the PKK, an illegal armed organisation.<\/p>\n 6.\u00a0\u00a0On 29 and 30 April 2004 the newspaper \u00dclkede\u00d6zg\u00fcrG\u00fcndem published two interviews with the applicants. The interviews contained the applicants\u2019 statements following meetings with their client, Abdullah\u00a0\u00d6calan, in prison. The first interview was included in two articles in the issue of 29 April 2004 entitled \u201cLawyers convey Abdullah\u00a0\u00d6calan\u2019s opinions concerning developments within the KONGRA-GEL[1]\u201d and \u201cThe pain of change\u201d. The second interview published on 30 April 2004 was entitled \u201cAbdullah \u00d6calan is an opportunity for Turkey\u201d and \u201cAbdullah \u00d6calan\u2019s opinions are important for an enduring peace\u201d.<\/p>\n 7.\u00a0\u00a0In their interviews published on 29 April 2004 in the two articles cited above, the applicants commented on the following issues: the difficulties they encountered in getting to \u0130mral\u0131 island, where Abdullah \u00d6calan was detained, their need to have a meeting with their client prior to the hearing to be held before the European Court of Human Rights on 9 June 2004, their client\u2019s state of health , the alleged fake news published in some newspapers regarding the applicants\u2019 meetings with their client, their client\u2019s opinions regarding the current state of politics in Turkey, in particular his view that democrats in Turkey should form a coalition with a view to establishing social peace and enabling Turkey\u2019s access in European Union, Abdullah\u00a0\u00d6calan\u2019s views on the conflicts occurring within the KONGRA\u2011GEL, and in particular, his views that democratisation of the \u201cKurdish organisations\u201d would allow the State of Turkey to be more democratic, his opinions on the pro-Kurdish legal political parties, and his view that individuals should liberate themselves before trying to liberate others.<\/p>\n 8.\u00a0\u00a0In the interview published the following day, 30 April 2004, the applicants made statements on the following issues: Abdullah\u00a0\u00d6calan\u2019s criticism of the failure of the pro-Kurdish political groups during the municipal elections held on 28 March 2004, the view of Abdullah\u00a0\u00d6calan and his lawyers that \u201cthe Kurdish movement\u201d had failed to take into account Abdullah\u00a0\u00d6calan\u2019s opinions and projects, the criminal and disciplinary investigations and the criminal proceedings instituted againstthe applicants for disseminating their client\u2019s views, Abdullah \u00d6calan\u2019s criticism of \u201cKurdish organisations\u201d, problems between Abdullah \u00d6calan and the leaders of the \u201cKurdish movement\u201d, the applicants\u2019 role both as legal and political representatives of Abdullah \u00d6calan and their meetings with individuals close to the State of Turkey as well as representatives of foreign States on behalf of their client, and the applicants\u2019 view that Abdullah\u00a0\u00d6calan\u2019s opinions offered an opportunity for resolving the Kurdish issue in a democratic\/political manner and that his opinions had transformed the State of Turkey.<\/p>\n 9.\u00a0\u00a0On 30 April 2004 the public prosecutor at the now defunct Istanbul State Security Court filed a bill of indictment under section 7(2) of the Prevention of Terrorism Act (Law no. 3713), charging the applicants with disseminating propaganda in favour of the PKK\/KONGRA-GEL on account of the interview published on 29 April 2004. In the indictment, the applicants were accused ofacting on \u00d6calan\u2019s instructions and conveying messages from him about the PKK\u2019s strategy. Subsequently, criminal proceedings were launched against the applicants before the Istanbul Assize Court.<\/p>\n 10.\u00a0\u00a0On 7 May 2004 the Istanbul public prosecutor filed a second bill of indictment against the applicants,again charging them with disseminating propaganda in favour of the PKK under section 7(2) of Law no. 3713 on account oftheinterview published in the 30 April 2004 issue of the newspaper.<\/p>\n 11.\u00a0\u00a0On 24 August 2004 the Istanbul Assize Court decided to join the two\u00a0sets of criminal proceedings against the applicants owing to the factual and legal similarities between them.<\/p>\n 12.\u00a0\u00a0During the proceedings the applicants maintained that they had made the statements with a view to providing information to the press,since the case against Abdullah \u00d6calanhad attracted media interest, but that they had been misquoted to a certain extent in the newspaper. They stressed that they had not acted with the intention of disseminating propaganda in favour of any illegal organisation.<\/p>\n 13.\u00a0\u00a0On 18 February 2010 the Istanbul Assize Court convicted the applicants of disseminating propaganda in favour of the PKK\/KONGRA\u2011GEL under section\u00a07(2) of Law no. 3713. It sentenced them to ten months\u2019 imprisonment each, but decided to suspend pronouncement of theirconvictions on condition that they did not commit another intentional offence for a period of five years, in accordance with Article\u00a0231 of the Code of Criminal Procedure.<\/p>\n 14.\u00a0\u00a0In its judgment, the Istanbul court held that the applicants had overstepped the limits of the lawyer-client relationship and made statements in a manner that induced and promoted the adoption, dissemination and enrootment of Abdullah \u00d6calan\u2019s opinions in society. The first-instance court considered that in the light of the applicants\u2019 role, the readers they targeted, the aim of the publication, and the manner in which their applicants\u2019 interviews were perceived by the readership, the interviews could not be deemed to be protected by the right to freedom of expression or the privilege of the lawyer-client relationship. The court further considered that the right to freedom of expression carried with it duties and responsibilities and could be restricted for the purpose of protecting national security andterritorial integrity in a democratic society. The Istanbul Assize Court concluded that the reported interviews were aimed at disseminating propaganda in favour of the PKK\/KONGRA-GEL and found the applicants guilty.<\/p>\n 15.\u00a0\u00a0On 20 September 2010 the applicants\u2019 objection to the assize court\u2019s judgment was dismissed by the same court.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 16.\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 17.\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 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 between one and five years and [receive] a judicial fine of between five million liras and one\u00a0billion\u00a0liras …\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION<\/p>\n 18.\u00a0\u00a0The applicants complained under Article 10 of the Convention that the criminal proceedings brought against them under section 7(2) of Law\u00a0no.\u00a03713 had constituted a breach of their right to freedom of expression. Article\u00a010 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 19.\u00a0\u00a0The Government contested their argument. They claimed at the outset that the applicants did not have victim status, within the meaning of Article\u00a034 of the Convention, given that the pronouncement of their conviction had been suspended. They further submitted that the interference with the applicants\u2019 freedom of expression had been prescribed by law, and had pursued the legitimate aims of maintaining national security and public safety as well as the prevention of disorder and crime. The Government claimed that the interference with the applicants\u2019 freedom of expression had been necessary in a democratic society. According to the Government, by referring to Abdullah \u00d6calan as a \u201cleading figure\u201d and an interlocutor for the State of Turkey, the applicants had conveyed to the public the idea that their client was still active. Moreover, their statements contained expressions referring to the strategy of a terrorist organisation. Noting that the applicants had not been imprisoned or subjected to any other restrictions, the Government contended that the interference in question had therefore not been disproportionate to the legitimate aims pursued.<\/p>\n 20.\u00a0\u00a0The Court considers that the Government\u2019s objection regarding the lack of the applicants\u2019 \u201cvictim status\u201d is closely linked to the merits of the complaints under this head. It therefore joins this issue to the merits. The Court further notes that this part of the application is not manifestly ill\u2011founded within the meaning of Article 35 \u00a73 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 21.\u00a0\u00a0As to the merits, the Court notes at the outset that it has already held, in cases concerning Articles 10 and 11 of the Convention where the pronouncement of the applicants\u2019 convictions had been suspended, that there was nonetheless an interference with their rights guaranteed under the aforementioned Articles (see \u015e\u00fckran Ayd\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. Turkey (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 applicants 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 applicants\u2019 right to freedom of expression. The Court hence finds that the criminal proceedings brought against the applicants and the judgment of 18 February 2010 amounted to an \u201cinterference\u201d with the exercise of their freedom of expression and that they therefore do have \u201cvictim status\u201d under Article 10. The Court accordingly rejects the Government\u2019s objection.<\/p>\n 22.\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 25below), the Court considers that it is not required to conduct a further 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 23.\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 other cases and found violations of Article 10 of the Convention (see,\u00a0for\u00a0example, S\u00fcrek v. Turkey (no. 4) [GC], no. 24762\/94, \u00a7\u00a7\u00a054-61, 8\u00a0July 1999; Erdo\u011fdu v. Turkey, no. 25723\/94, \u00a7\u00a7 60-73, ECHR 2000\u2011VI; Demirel and Ate\u015f v. Turkey (no. 3), no. 11976\/03, \u00a7\u00a7 19\u201130, 9\u00a0December 2008; and FatihTa\u015f (No.2), cited above, \u00a7\u00a7 12-19). The Court has examined the present case and considers that the Government have not put forward any argument which would persuade it to reach a different conclusion.<\/p>\n 24.\u00a0\u00a0In this connection, the Court observes that the interviews published in the issues of \u00dclkede\u00d6zg\u00fcrG\u00fcndemof 29 and 30 April 2004 contained comments by the applicantsconcerning Abdullah \u00d6calan\u2019s views on various issues, in particular on the state of politics in Turkey and the applicants\u2019 experience as Abdullah \u00d6calan\u2019slawyers. The Court has examined the interviews intheir entirety and,in its view, their content as a whole cannot be construed as encouraging violence, armed resistance or an uprising,or as being capable of inciting to violence by instilling a deep-seated and irrational hatred against identifiable persons, which are essential elements to be taken into account. The Istanbul Assize Court, however, does not appear to have given consideration to the above.The assize court considered that the interviews constituted propaganda in favour of the PKK merely because the applicants conveyed the opinions of Abdullah \u00d6calan, without making an assessment of those interviews in the light of the principles embodied in Article 10.In sum, the Court considers that the interference with the applicants\u2019 right to freedom of expression was not justified by \u201crelevant and sufficient\u201d reasons for the purposes of Article 10 of the Convention.<\/p>\n 25.\u00a0\u00a0The foregoing considerations are sufficient to enable the Court to conclude that the interference in question was not \u201cnecessary in a democratic society\u201d.<\/p>\n 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 26.\u00a0\u00a0The applicants claimed 20,000 euros (EUR)) each in respect of non\u2011pecuniary damage. They also claimed EUR 10,000 each in respect of pecuniary damage. Lastly, they claimed EUR 2,500 for their lawyer\u2019s fees. However, they did not submit any documentation in support of their claim for legal fees.<\/p>\n 27.\u00a0\u00a0The Government contested those claims.<\/p>\n 28.\u00a0\u00a0Having regard to the applicants\u2019 failure to submit to the Court any documentation in support of their claims for pecuniary damage and costs and expenses, the Court rejects those claims. On the other hand, ruling on an equitable basis, the Court awards the applicants EUR\u00a02,500 each in respect of non-pecuniary damage.<\/p>\n 29.\u00a0\u00a0The 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.<\/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\u00a0Declaresthe 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 applicants, within three months, EUR 2,500 (two thousand five hundred euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 applicants\u2019 claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 10 July 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\u00a0KongraGel\u00ea Kurdistan (People\u2019s Congress of Kurdistan).<\/p>\n
\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