SECOND SECTION

CASE OF FATİH TAŞ v. TURKEY (No. 2)

(Application no. 6813/09)

JUDGMENT

STRASBOURG

10 October 2017

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 Fatih Taş v. Turkey (no. 2),
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Robert Spano, President,
	Julia Laffranque,
	Ledi Bianku,
	Işıl Karakaş,
	Paul Lemmens,
	Valeriu Griţco,
	Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 5 September 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 6813/09) 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 a Turkish national, Mr Fatih Taş (“the applicant”), on 17 December 2008.
2.  The applicant was represented by Mr İ. Akmeşe and Ms Y. Polat, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 9 January 2012 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1979 and lives in Istanbul. He was the owner and the editor-in-chief of a publishing house, Aram Basım ve Yayıncılık, which published a periodical, Vesta.
5.  In 2004 an article written by Mr M.Ş. entitled “On the Kurdish Intellectual” was published in Vesta.
6.  On 29 December 2004 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, charging the applicant with disseminating propaganda in favour of a terrorist organisation under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). According to the indictment, certain passages of the article depicted the PKK as part of the Kurdish intellectual movement and hence constituted propaganda of the organisation, known for employing violence and terror.
7.  On 23 September 2008 the Istanbul Assize Court convicted the applicant of disseminating propaganda in favour of the PKK under section 7(2) of Law no. 3713 as he had published the article in question in Vesta.
8.  In its judgment, the Istanbul Assize Court cited the following passages from the article:
“In Kurdish history, there have been moments, in certain periods, during which Kurdish literature and culture developed and shone. In those moments, sparks of thought appeared. However, objectively and without renouncing the past, the conditions of the birth of Kurdish intellectualism are based on the 1970s. In earlier periods, there had only been individual and temporary developments not creating traditions. The political nature of the 20th century, the existence and rise of national liberation movements, the emergence of modern currents in Kurdish politics and, most importantly, the creation of a mass movement, served as the basis for the birth of the Kurdish intellectual. This process was manifested in the figure of the PKK. All political movements before the PKK were rebellious, devoid of political depth, tactical unity, stable path and permanence. The ideological and intellectual superficiality of these revolts and their fierce repression led to the loss of existing knowledge and to falling behind. From this point of view, through political and thoughtful analysis, while being free from the system and alienation, and bearing within it its own cultural identity based on the impoverished Kurdish rustics, [the PKK] allowed the beginning of a permanent and stable political enlightenment process.
...
Another characteristic of the PKK movement at the beginning was that it realised that [the previous] abstract and theoretical movements had not led to a solution but deepened the problem.
...
The fact that the PKK movement was based on the impoverished Kurdish rustics who were intact and preserved their national identity paved the way for a start favourable for a confident, militant and revolutionary tradition. Yet, the progress of the movement was accompanied by the downfall of the level of quality.”
9.  The court considered that the aforementioned passages and the article in its entirety constituted propaganda in favour of the PKK. It hence sentenced the applicant to ten months’ imprisonment and ordered him to pay a fine of 375 Turkish liras (TRY). Taking into account his good behaviour during the trial and his character, the court suspended the pronouncement of his conviction on condition that he did not commit another intentional offence for a period of five years, under Article 231 of the Code of Criminal Procedure (hükmün açıklanmasının geri bırakılması).
10.  On 22 October 2008 the court dismissed an objection lodged by the applicant against the above-mentioned decision.
Article II.	II.  RELEVANT DOMESTIC LAW
11.  The relevant domestic law applicable at the material time can be found in Belge v. Turkey (no. 50171/09, § 19, 6 December 2016).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
12.  The applicant complained under Article 10 of the Convention that his criminal conviction pursuant to section 7(2) of Law no. 3713 had constituted a violation of his right to freedom of expression.
13.  The Government contested his argument. They claimed at the outset that he did not have victim status, within the meaning of Article 34 of the Convention, given that the pronouncement of his conviction had been suspended. The Government further submitted that the interference with the applicant’s freedom of expression had been prescribed by law, had pursued the legitimate aim of protecting the State as a whole and had been necessary in a democratic society. They noted that the article in question glorified the PKK and promoted hatred, hostility and the use of arms, militancy and revenge. They lastly contended that the circumstances of the case were similar to the case of Sürek v. Turkey ((no. 1) [GC], no. 26682/95, ECHR 1999‑IV) in which the Court found no violation of Article 10 of the Convention.
14.  The Court considers that the Government’s objection regarding the lack of the applicant’s “victim status” is closely linked to the merits of his 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‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
15.  As 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’ convictions had been suspended that there was nonetheless an interference with their rights guaranteed under the aforementioned Articles (see Şükran Aydın and Others v. Turkey, nos. 49197/06 and 4 others, § 44, 22 January 2013; Gülcü v. Turkey, no. 17526/10, §§ 98-102, 19 January 2016). The Court finds no reason to depart from its considerations in the above-mentioned cases, particularly in view of the fact that, as a publisher, the applicant faced, for five years, the threat of a penalty. In the Court’s opinion, that condition entailed real and effective restraint and had a deterrent effect on his very profession (see Erdoğdu v. Turkey, no. 25723/94, § 72, ECHR 2000‑VI, and Koç and Tambaş v. Turkey, no. 50934/99, § 39, 21 March 2006). The Court hence finds that the criminal proceedings brought against the applicant and the judgment of 23 September 2008 amounted to an “interference” with the exercise of his freedom of expression and that he has “victim status” under Article 10. The Court accordingly rejects the Government’s objection.
16.  The Court further considers 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 19 below) the Court considers that it is not required to conduct an examination of the “lawfulness” 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 Temel v. Turkey, no. 16853/05, § 52, 1 February 2011).
17.  As 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, for example, Sürek c. Turquie (no. 4) [GC], no. 24762/94, §§ 54-61, 8 July 1999; Erdoğdu v. Turkey, no. 25723/94, §§ 60-73, ECHR 2000‑VI; Demirel and Ateş v. Turkey (no. 3), no. 11976/03, §§ 19‑30, 9 December 2008). 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.
18.  In this connection, the Court notes that the applicant published an article written by Mr M.Ş. in Vesta. The article in question contained the author’s opinions on Kurdish intellectuals in Turkey. Within that context, in a number of passages the author assessed the establishment and development of the PKK and the Kurdish intellectuals’ relationship with that organisation. The Court has examined the passages cited in the Istanbul Assize Court’s judgment and also the article in its entirety. It observes that the author had particularly critical views on Kurdish intellectuals and sympathy towards the intellectual background of the PKK and its leader. However, in the Court’s view, the article as a whole cannot be construed as encouraging violence, armed resistance or an uprising or 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 any of the above. In sum, the Court considers that the interference with the applicant’s right to freedom of expression was not justified by “relevant and sufficient” reasons for the purposes of Article 10 of the Convention.
19.  The foregoing considerations are sufficient to enable the Court to conclude that the interference in question was not “necessary in a democratic society”.
Accordingly, there has been a violation of Article 10 of the Convention.
Article IV.	II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
20.  The applicant complained under Articles 6 and 13 of the Convention that the criminal proceedings brought against him had not been concluded within a reasonable time and that there had been no domestic remedies available under Turkish law for the excessive length of the criminal proceedings and the breach of his right to freedom of expression.
21.  Having regard to the facts of the case and its finding of a violation of Article 10 of the Convention, the Court considers that there is no need to give a separate ruling on the admissibility or the merits of the applicant’s complaints under Articles 6 and 13 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and the cases cited therein).
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
22.  The applicant claimed 35,000 euros (EUR) in respect of non‑pecuniary damage. He also claimed 5,048 Turkish liras (TRY) (approximately EUR 2,285) for costs and expenses incurred. In support of his claims, he submitted a legal services agreement with his representative and an invoice showing that he had paid TRY 4,248 (approximately EUR 1,930) to him for his representation before the Court.
23.  The Government contested those claims.
24.  Ruling on an equitable basis, the Court awards the applicant EUR 2,500 in respect of non-pecuniary damage. As to costs and expenses, regard being had to the documents in its possession, the Court rejects the claim in respect of the domestic proceedings and considers it reasonable to award the sum of EUR 1,930 for the proceedings before the Court.
25.  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.  Joins to the merits the Government’s objection regarding the applicant’s lack of victim status under Article 10 of the Convention and dismisses it;

2.  Declares the complaint under Article 10 of the Convention admissible;

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

4.  Holds that there is no need to examine the admissibility or the merits of the complaints under Articles 6 and 13 of the Convention;

5.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 1,930 (one thousand nine hundred and thirty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 10 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Hasan Bakırcı	Robert Spano
	Deputy Registrar	President