SECOND SECTION
\nCASE OF BAYAR v. TURKEY
\n(Application no. 24548\/10)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n19 June 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Bayar 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 29 May 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. 24548\/10) 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 Hasan Bayar (\u201cthe applicant\u201d), on 6 April 2010.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr \u0130. Akme\u015fe, a lawyer practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0The applicant complained under Article 10 of the Convention that his conviction under section 7(2) of Law no. 3713 had constituted a breach of his right to freedom of expression. He further complained that the length of the proceedings was incompatible with the \u201creasonable time\u201d requirement laid down in Article\u00a06\u00a0\u00a7\u00a01 of the Convention. The applicant lastly complained under Article 13 of the Convention that there was no effective remedy under domestic law whereby he could have contested the length of the proceedings brought against him.<\/p>\n 4.\u00a0\u00a0On 12 January 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 1982 and lives in Bern, Switzerland. At the time of the events giving rise to the present application, he was the editor\u2011in-chief of \u00dclkede\u00d6zg\u00fcrG\u00fcndem, a daily newspaper published in Turkey.<\/p>\n 6.\u00a0\u00a0On 6 July 2004 an article written by Mr B.G. entitled \u201cAnalysing the Kurdish dynamic correctly\u201d was published in \u00dclkede\u00d6zg\u00fcrG\u00fcndem.In his article, Mr B.G. stated his views on the role of Abdullah \u00d6calan, the leader of the PKK (an illegal armed organisation),anumber of organisations associated with the PKK in regional and international politics and political developments in Turkey. Next to the article a photograph of Abdullah \u00d6calan shaking hands with a group of armed men was published.<\/p>\n 7.\u00a0\u00a0On 8 July 2004 the public prosecutor at the Istanbul Assize Court filed a bill of indictment, charging the applicant with disseminating propaganda in favour of the KONGRA-GEL[1] under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) on account of the article published on 6 July 2004. In the indictment, the public prosecutor quoted the following passage from the article:<\/p>\n \u201c… Abdullah \u00d6calan, who has contributed to the essential dynamic of the Kurdish movement and the HPG[2], the PJA[3]and the KONGRA-GEL, organisations which have acted as military, political and ideological leaders and which have represented his leadership,… [must be well understood]\u201d.<\/p>\n The public prosecutor stated that a photograph of Abdullah \u00d6calan in which he was standing in a rural area holding a weapon had been published in the newspaper, next to the article. The public prosecutor considered as a result that the applicant had disseminated propaganda in favour of a terrorist organisationinciting others to violence or other methods of terrorism. Subsequently, criminal proceedings were launched against the applicant before the Istanbul Assize Court.<\/p>\n 8.\u00a0\u00a0During the proceedings the applicant maintained that the article in question had been a news article and had not contained propaganda inciting to violence.<\/p>\n 9.\u00a0\u00a0On 24 May 2005 the Istanbul Assize Court convicted the applicant of disseminating propaganda in favour of the PKK\/KONGRA-GEL under section\u00a07(2) of Law no. 3713 and sentenced him to six months\u2019 imprisonment and a fine.In its judgment, the Istanbul Assize Court held that the content of the article and the publication of Abdullah \u00d6calan\u2019s photograph amounted to dissemination of propaganda in favour of the PKK\/KONGRA-GEL.<\/p>\n 10.\u00a0\u00a0The applicant appealed. In his appeal petition, referring to a number of the Court\u2019s judgments, the applicant claimed that he had not had the intention of disseminating propaganda in favour of a terrorist organisation and that his criminal conviction had been in breach of Articles 6 and 10 of the Convention as he had been exercising his right to impart information. He also noted that the first-instance court had failed to examine the article in its entirety.<\/p>\n 11.\u00a0\u00a0On 16 May 2006 the principal public prosecutor at the Court of Cassation returned the casefile to the first-instance court and requested that the latter revise its judgment in the light of the recent legislative amendments.<\/p>\n 12.\u00a0\u00a0On 28 September 2006 the Istanbul Assize Court once again convicted the applicant under section\u00a07(2) of Law no. 3713, with the same reasoning that it had adopted on 24 May 2005. The court sentenced the applicant to a fine of 1,802 Turkish liras (TRY).<\/p>\n 13.\u00a0\u00a0The applicant appealed.<\/p>\n 14.\u00a0\u00a0On 18 November 2009 the Court of Cassation upheld the judgment of 28 September 2006.<\/p>\n 15.\u00a0\u00a0According to a document dated 15 January 2010, signed by the President of the Istanbul Assize Court and the Istanbul public prosecutor, the applicant was required to pay the fine of TRY 1,802.<\/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, section7(2) of Law no.3713 read as follows:<\/p>\n \u201cAny person who assists members of [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\u00a0ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION<\/p>\n 18.\u00a0\u00a0The applicant complained that his conviction under section 7(2) of Law no. 3713had amounted to a breach of Article 10 of the Convention, which 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 his argument. They submitted that the interference with the applicant\u2019s freedom of expression had been prescribed by law, and had pursued the legitimate aims of maintaining national security and territorial integrity and prevention of disorder. The Government further contended that the interference had been necessary in a democratic society. They noted that in the article in question Abdullah \u00d6calan was referred to as \u201cthe ideological and political leader of the Kurdish movement\u201d and the HPG, the PJA and the KONGRA-GEL were described as \u201cfacilitators of the military, political and ideological development formed under the leadership of Abdullah \u00d6calan\u201d. According to the Government, the publication of a photograph of Abdullah \u00d6calan holding a weapon demonstrated that the purpose of the publication of the article was to advocate and propagate terrorism. The Government lastly noted that the PKK was considered to be a terrorist organisation by a number of states and international organisations, such as the United Nations, NATO and the United States of America, and thus represented a serious threat not only to the internal security of Turkey but also to the international public order.<\/p>\n 20.\u00a0\u00a0The Court 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 21.\u00a0\u00a0As to the merits of the applicant\u2019s complaint under Article 10, the Court 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 paragraph24 below) 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 22.\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 54-61, 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 December 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 require it to reach a different conclusion.<\/p>\n 23.\u00a0\u00a0In this connection, the Court notes that the applicant published an article written by Mr B.G. in \u00dclkede\u00d6zg\u00fcrG\u00fcndem. The article in question contained the author\u2019s opinions on developments as regards the Kurdish issue in Turkey and in the international arena up until 2004. In particular, the author stated his views on the role of Abdullah \u00d6calan and anumber of organisations associated with the PKK in regional and international politics and political developments in Turkey. The Court has examined the passage cited in the indictment, the article in its entirety, and the photograph published in the newspaper. It considers that neither the article nor the photograph can be construed as encouraging violence, armed resistance or an uprising,or as being capable of incitement 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 any of the above. In sum, the Court considers that the interference with the applicant\u2019s 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 24.\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.\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 25.\u00a0\u00a0The applicant complained that the length of the proceedings was incompatible with the \u201creasonable time\u201d requirement laid down in Article\u00a06\u00a0\u00a7\u00a01 of the Convention, which, in so far as relevant, provides:<\/p>\n \u201cIn the determination of … any criminal charge against him, everyone is entitled to a …hearing within a reasonable time by [a] … tribunal …\u201d<\/p>\n 26.\u00a0\u00a0The Government contested that claim. They submitted that the length of the proceedings could not be considered unreasonable.<\/p>\n 27.\u00a0\u00a0The Court observes at the outset that a new domestic remedy has been established in Turkey since the application of the pilot judgment procedure in the case of \u00dcmm\u00fchan Kaplan v. Turkey (no.\u00a024240\/07, 20\u00a0March 2012). The Court observes that it declared a new application inadmissible in its decision in the case of Turgut and Others v. Turkey (no.\u00a04860\/09, 26 March 2013) on the grounds that the applicants had failed to exhaust the domestic remedies, specifically the new remedy established under Law no. 6384. In so doing, the Court considered in particular that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.<\/p>\n 28.\u00a0\u00a0The Court further points out that, in its judgment in the case of \u00dcmm\u00fchan Kaplan (cited above, \u00a7 77), it stressed that it could nevertheless pursue the examination of such applications under the normal procedure in cases which had already been communicated to the Government prior to the entry into force of the new remedy. It further notes that, in the present case, the Government did not raise an objection in respect of the new domestic remedy. In view of the above, the Court decides to pursue the examination of the present complaint (see RifatDemir v. Turkey, no. 24267\/07, \u00a7\u00a7\u00a034\u201136, 4\u00a0June 2013).<\/p>\n 29.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded 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 30.\u00a0\u00a0The Court observes that the period to be taken into consideration began on 8 July 2004 with the Istanbul public prosecutor\u2019s indictment and ended on 18 November 2009, when the Court of Cassation upheld the judgment of 28 September 2006. It thus lasted for over five years and four months over two levels of jurisdiction. The Court notes that the case was not particularly complex. Furthermore, there were no delays which could beattributedto the applicant. As to the conduct of the authorities, the Court observes that, following the second judgment given by the first-instance court on 28\u00a0September 2006, the Court of Cassation\u2019s examination of the appeal lasted more than three years.<\/p>\n 31.\u00a0\u00a0The Court has frequently found violations of Article 6 \u00a7 1 of the Convention in cases raising issues similar to the one in the present case.Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having taken into account its case-law on the subject, the Court considers that, in the instant case, the length of the proceedings was excessive and failed to meet the \u201creasonable time\u201d requirement (Daneshpayeh v.\u00a0Turkey, no.\u00a021086\/04, \u00a7\u00a028, 16\u00a0July 2009, and Yavuz and Yaylal\u0131v.\u00a0Turkey, no.\u00a012606\/11, \u00a7\u00a7 62-67, 17\u00a0December 2013).<\/p>\n 32.\u00a0\u00a0There has accordingly been a breach of Article 6 \u00a7 1 of the Convention.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION<\/p>\n 33.\u00a0\u00a0The applicant complained under Article 13 of the Convention that there was no effective remedy under domestic law whereby he could have contested the length of the proceedings brought against him. Article\u00a013 reads:<\/p>\n \u201cEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\u201d<\/p>\n 34.\u00a0\u00a0The Government did not make any submissions under this head.<\/p>\n 35.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded 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 36.\u00a0\u00a0As to the merits, the Court notes that it has examined similar issues in previous applications and has found violations of Article 13 of the Convention in respect of the lack of an effective remedy under Turkish law whereby the applicants could have contested the length of the proceedings at issue (see Daneshpayeh, cited above, \u00a7\u00a7 35-38; \u00dcmm\u00fchan Kaplan, cited above, \u00a7\u00a7 56-58; and G\u00fcrb\u00fczand \u00d6z\u00e7elik v. Turkey, no. 11\/05, \u00a7\u00a7\u00a029 and\u00a030, 2\u00a0February 2016). It finds no reason to depart from that conclusion in the present case.<\/p>\n 37.\u00a0\u00a0The Court accordingly concludes that there has been a violation of Article\u00a013 of the Convention.<\/p>\n IV.\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 38.\u00a0\u00a0The applicant claimed TRY 1,802 (approximately 816 euros (EUR))\u2012 namely the amount of the fine\u2012in respect of pecuniary damage, noting that he would be obliged to pay that amount since the fine was ordered by a court. He also claimed EUR 30,000 in respect of non-pecuniary damage. The applicant lastly claimed TRY 5,048 (approximately EUR 2,287) for his lawyer\u2019s fees and costs and expenses incurred before the Court. In support of his claims, the applicant submitted a receipt showing that he had paid TRY\u00a04,248 (approximately EUR 1,924) to his lawyer for his representation before the Court.<\/p>\n 39.\u00a0\u00a0The Government contested the applicant\u2019s claims. In particular, they submitted that there was no causal link between the alleged violations of the Convention and the pecuniary and non-pecuniary damage alleged and that the claim for costs and expenses was unsubstantiated.<\/p>\n 40.\u00a0\u00a0The Court notes that the fine imposed on the applicant by the judgment of 28 September 2006 was a direct consequence of the infringement of Article 10 of the Convention. The Court therefore awards the applicant EUR 816 in respect of pecuniary damage. Ruling on an equitable basis, the Court further awards the applicant EUR 3,250 in respect of non-pecuniary damage. Lastly, the Court awards the applicant EUR\u00a01,924 for costs and expenses incurred 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\u00a0Holdsthat there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n 4.\u00a0\u00a0Holdsthat there has been a violation of Article 13 of the Convention;<\/p>\n 5.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant 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 816 (eight hundred and sixteen euros), plus any tax that may be chargeable,in respect of pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 3,250 (three thousand two hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (iii)\u00a0\u00a0EUR 1,924 (one thousand nine hundred and twenty-four 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 6.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 19 June 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), an organisation associated with the PKK.
\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\u00a0H\u00eaz\u00eanParastina Gel(People\u2019s Defence Forces), the armed wing of the PKK.
\n[3].\u00a0\u00a0PartiyaJina Azad (Party of Free Women), an organisation associated with the PKK.<\/p>\n