SECOND SECTION

CASE OF ÖNER AND TÜRK v. TURKEY

(Application no. 51962/12)

JUDGMENT

STRASBOURG

31 March 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Öner and Türk v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	András Sajó, President,
	Işıl Karakaş,
	Nebojša Vučinić,
	Paul Lemmens,
	Egidijus Kūris,
	Robert Spano,
	Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 10 March 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 51962/12) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Senanik Öner and Mr Ferhan Türk (“the applicants”), on 27 June 2012.
2.  The applicants were represented by Mr E. Talay, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.
3.  The applicants alleged that there had been an interference with their right to freedom of expression under Article 10 of the Convention.
4.  On 29 May 2013 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicants, Senanik Öner and Ferhan Türk, were born in 1952 and 1951 respectively and live in Diyarbakır.
6.  On 21 March 2007 the applicants attended the Newroz celebrations in Kızıltepe, a district of Mardin, and made certain speeches concerning the problems of Kurdish people. The relevant extracts from the applicants’ statements can be summarised as follows:
“For the attention of the press and public:
I celebrate your day of Newroz. I commemorate the civilians who were killed by the members of security forces in Cizre, Nusaybin and Şırnak.
The PKK declared a ceasefire to stop the bloodshed and to contribute to the peace establishment process. Subsequently, the PKK also withdrew its armed forces out of the borders of Turkey to maintain peace. We expect affirmative steps from the state.
(...) The Kurdish leader, “Sayın” Abdullah Öcalan has been poisoned and this is a very serious problem. Turkey should order an investigation into the Öcalan ‘poisoning’.
(...) The state did not take any steps for democratisation or to solve the Kurdish problem. We believe in peace and the state should take appropriate steps for solving the Kurdish problem.’’
7.  Subsequently, criminal proceedings were brought against the applicants by the Kızıltepe Public Prosecutor, charging them with disseminating terrorist propaganda on behalf of an illegal organisation, the PKK (Kurdish Workers’ Party, an illegal organisation), under Section 7 § 2 of the Prevention of Terrorism Act (Law no. 3713).
8.  On 15 April 2008 the Diyarbakır Assize Court found the applicants guilty as charged and sentenced them to one year and eight months’ imprisonment.
9.  On 28 December 2011 the Court of Cassation upheld the first-instance court’s judgment.
10.  The applicants learned of this decision on 6 March 2012.
11.  On 12 October 2012, following an amendment to the law, the Diyarbakır Assize Court revised its judgment pursuant to Provisional Article 1 § 1 of the Law no. 6352 and suspended the execution of the applicants’ sentences.
II.  RELEVANT DOMESTIC LAW
12.  Under former Section 7 § 2 of the Prevention of Terrorism Act (Law no. 3713), any person who disseminated propaganda in favour of a terrorist organisation was liable to a term of imprisonment of between one and five years (Faruk Temel v. Turkey, no. 16853/05, § 27, 1 February 2011).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
13.  The applicants complained that the institution of criminal proceedings against them for making a speech constituted an unjustified interference with their right to freedom of expression under Article 10 of the Convention, which reads as follows:
“1.  Everyone 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. (...)
2.  The 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.”
A.  Admissibility
14.  The Government argued that the present application should be dismissed under Article 35 § 1 of the Convention because the domestic court had revised its judgment pursuant to Provisional Article 1/1 of Law no. 6352 and suspended the execution of the applicants’ sentences on 12 October 2012. In this regard, the Government further alleged that the applicants should have applied to the Constitutional Court, as the judgment became final after 23 September 2012.
15.  The applicants contested this argument.
16.  Having examined the main aspects of the new remedy before the Turkish Constitutional Court, the Court found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and held that it was a remedy to be used (Uzun v. Turkey (dec.), no. 10755/13, §§ 68-71, 30 April 2013).
17.  In the present case, the Court observes that the Court of Cassation upheld the first-instance court’s judgment on 28 December 2011 and the applicants learned of this decision on 6 March 2012. Later on, the applicants’ sentences were partially executed. However, following the amendment of the relevant Law, the first instance court suspended the execution of the applicants’ sentences pursuant to the revised Law. The Court further observes that the suspension of the execution of the sentences was not a substantive review of the case but was solely a review of the length of the sentences following the modification of the anti-terrorism law. The decision of the national court became final before 23 September 2012 and could not have been appealed against using the new remedy before the Turkish Constitutional Court. Noting that the applications were lodged with the Court on 27 June 2012, the Court considers that the proceedings ended with the decision of the Court of Cassation of 6 March 2012.
18.  It follows that the application cannot be rejected for non‑exhaustion of domestic remedies and the Government’s objection must therefore be dismissed. It further notes that the application is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
19.  The applicants contended that in their speech they had declared that the reality of the Kurdish situation must be recognised and that peaceful methods must be pursued in resolving the Kurdish problem. They further asserted that they had not associated themselves with the use of violence in any context and had not called upon people to resort to any illegal action.
20.  The Government submitted that the national court’s decision had been based on the former Article 7 § 2 of Act No. 3713.
21.  The Court considers that the conviction complained of in the present case constituted an interference with the applicant’s right to freedom of expression protected by Article 10 § 1. The Court further notes that it is not disputed that the applicant’s conviction had its legal basis in the former section 7 § 2 of Act No. 3713 (see paragraph 12 above). While questions could arise with respect to the foreseeability of that provision in its application, the Court does not consider it necessary to deal with this issue, having regard to its conclusion below, regarding the necessity of the interference (see Faruk Temel v. Turkey, no. 16853/05, § 49, 1 February 2011; and Association Ekin v. France, no. 39288/98, § 46, ECHR 2001‑VIII).
22.  As to the issue of whether the impugned measure had a legitimate aim, the Government submitted that the interference pursued the legitimate aim of the protection of public security, national security and territorial integrity. The applicants did not comment on this issue. The Court accepts that the measures in issue could be said to have pursued at least one of the legitimate aims under paragraph 2 of Article 10, namely “national security”.
23.  Turning to the issue of whether the interference was “necessary in a democratic society”, the Court observes that it has already examined a similar complaint – and found a violation of Article 10 of the Convention – in the case of Faruk Temel, cited above, where it noted in particular that the applicants’ conviction pursuant to the former section 7 § 2 of the Prevention of Terrorism Act, as a result of their speeches, went beyond any notion of “necessary” restraint in a democratic society.
24.  The Court further observes that the speech in question consisted of a critical assessment of Turkey’s policies concerning the Kurdish problem. The applicants expressed discontent with respect to certain policies of the government, the practices of the security forces, and the detention conditions of Abdullah Öcalan, whereas the domestic courts considered that the impugned speech contained terrorist propaganda. The Court considers that, taken as a whole, the applicant’s speech does not encourage violence, armed resistance or an uprising (see, Gerger v. Turkey [GC], no. 24919/94, § 50, 8 July 1999, and contrast Halis Doğan v. Turkey, no. 75946/01, §§ 35‑38, 7 February 2006). Moreover, the speeches in question delivered by the applicants were not capable of inciting violence by instilling a deep‑seated and irrational hatred against identifiable persons (Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999‑IV) and therefore did not constitute hate speech.
25.  Furthermore, it is true that the applicants were found guilty of disseminating terrorist propaganda on behalf of an illegal organisation. The Court, however, notes that it was not indicated in the reasoning of the domestic courts’ judgments whether they had examined the proportionality of the interference and the balancing of rights taking into account freedom of expression. In the light of the foregoing, the Court considers that the reasons given by the Diyarbakır Assize Court for convicting and sentencing the applicants cannot be considered relevant and sufficient to justify the interference with their right to freedom of expression. The Court concludes that the applicants’ conviction was disproportionate to the aims pursued within the meaning of the second paragraph of Article 10 of the Convention and therefore not “necessary in a democratic society”.
26.  The Court has examined the present case in the light of Faruk Temel (cited above, §§ 43-64) and finds no particular circumstances in the instant case which would require it to depart from its conclusion in that case.
27.  There has accordingly been a violation of Article 10 of the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
28.  Article 41 of the Convention provides:
“If 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.”
A.  Damage
29.  The applicants each claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.
30.  The Government contested these claims.
31.  The Court considers that the applicants suffered non‑pecuniary damage which cannot be compensated solely by the finding of a violation of Article 10. Ruling on an equitable basis, the Court awards each of the applicants EUR 2,500 in respect of non-pecuniary damage.
B.  Costs and expenses
32.  The applicants each claimed EUR 3,820 for the costs and expenses incurred before the Court, of which EUR 150 represented the costs of correspondence and EUR 3,673 lawyer’s fees. The applicants did not submit any documents to support their claims.
33.  The Government contested these claims.
34.  In the absence of any supporting documentation, the Court cannot make any award in respect of legal fees. It therefore rejects this claim.
C.  Default interest
35.  The 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.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 10 of the Convention;

3.  Holds
(a)  that the respondent State is to pay each of the applicants, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,500 (two thousand five hundred euros) in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable on the date of settlement,
(b)  that 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;

4.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 31 March 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stanley Naismith	András Sajó
	Registrar	President