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URL: http://www.bailii.org/eu/cases/ECHR/2018/526.html
Cite as: CE:ECHR:2018:0619JUD007010711, [2018] ECHR 526, ECLI:CE:ECHR:2018:0619JUD007010711

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SECOND SECTION

CASE OF SARITAŞ AND GEYİK v. TURKEY

(Application no. 70107/11)

JUDGMENT

STRASBOURG

19 June 2018

This judgment is final but it may be subject to editorial revision.

In the case of Sarıtaş and Geyik v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 29 May 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 70107/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by two Turkish nationals, Mr Emrah Sarıtaş and Mr Mesut Geyik ("the applicants"), on 10 October 2011.

2. The applicants were represented by Mr B. Yıldırım, a lawyer practising in Tunceli. The Turkish Government ("the Government") were represented by their Agent.

3. The applicants complained of a violation of their rights to a fair trial and freedom of expression under Articles 6 and 10 of the Convention, respectively.

4. On 13 November 2014 the application was communicated to the Government.

5. On 3 June 2015 the President of the Section decided, in accordance with Rule 34 § 3 of the Rules of Court, to grant the applicant leave to use the Turkish language in the written proceedings before the Court.

6. On 5 December 2017 the Government were informed that the Court intended to assign the application to a Committee. In a letter dated 3 January 2018 the Government objected to the examination of the applications by a Committee. After having considered the Government's objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. The applicants were born in 1987 and 1985, respectively, and live in the Hozat district of Tunceli.

8. On 5 April 2007 the applicants attended a concert performed by a band called "Grup Yorum" in Hozat. During the concert they chanted certain slogans, such as "Revolutionary prisoners are immortal" ("Devrimci tutsaklar ölümsüzdür"), "Revolutionary prisoners are our honour" ("Devrimci tutsaklar onurumuzdur").

9. On 17 October 2007 the Malatya public prosecutor filed an indictment with the Malatya Assize Court charging the applicants with disseminating propaganda in favour of the "DHKP/C" (Revolutionary People's Liberation Party/Front), an illegal armed organisation, under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). The public prosecutor noted that the first applicant had chanted the slogan "Revolutionary prisoners are our honour" ("Devrimci tutsaklar onurumuzdur") during the concert. As regards the second applicant, the public prosecutor alleged that he had chanted the following slogans during the same concert: "Mahir, Hüseyin, Ulaş; Fight until emancipation"[1] ("Mahir, Hüseyin, Ulaş; Kurtuluşa kadar savaş"); "Martyrs of the revolution are immortal" ("Devrim şehitleri ölümsüzdür"); "Revolutionary prisoners are our honour", "Victory on mountains, emancipation at the front; long live victory, long live resistance" ("Dağlarda zafer, cephede kurtuluş; yaşasın zafer, yaşasın direniş").

10. During the criminal proceedings against them, the applicants stated that they had attended the concert of 5 April 2007 and had sung along with the musicians but had not chanted the slogans noted in the indictment.

11. On 6 March 2008 the Malatya Assize Court convicted the applicants as charged and sentenced them to ten months' imprisonment each. In its judgment, the assize court considered it established, on the basis of a police video recording of the concert of 5 April 2007, a report on the video recording, the indictment, the applicants' defence submissions and the public prosecutor's observations on the merits of the case, that the applicants had chanted the slogans noted in the indictment. The court considered that the concert in question had become a propaganda activity in favour of the DHKP/C and that the applicants had chanted slogans that were used by that organisation. The Malatya Assize Court concluded that the applicants had committed the offence of dissemination of propaganda in favour of a terrorist organisation.

12. The applicants appealed.

13. On 4 July 2011 the Court of Cassation upheld the first-instance court's judgment.

14. On 13 and 14 September 2011 the applicants were informed that they had to start serving their prison sentences within ten days. According to the applicants' submissions, which were not contested by the Government, upon receipt of the summons to serve the prison sentences, both applicants duly served them.

II. RELEVANT DOMESTIC LAW

15. The relevant domestic law applicable at the material time can be found in Belge v. Turkey (no. 50171/09, § 19, 6 December 2016).

16. In particular, at the time of the events giving rise to the present application, section 7(2) of Law no. 3713 read as follows:

"Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to [serve] a term of imprisonment of one to five years ..."

THE LAW

I. THE GOVERNMENT'S OBJECTION

17. The Government argued that the applicants' observations had not been submitted in one of the official languages of the Court as required by Rule 34 § 1 of the Rules of Court, and that there was nothing in the case file demonstrating that they had been granted leave to use the Turkish language in the proceedings before the Court. They suggested that the Court should not take into account the applicants' observations and claims for just satisfaction.

18. The Court notes that although the applicants had been informed in a letter dated 3 June 2015 that the President of the Section had decided, in accordance with Rule 34 § 3 of the Rules of Court, to grant them leave to use the Turkish language in the written proceedings before the Court (see paragraph 4 above), the Government had not been informed of that decision due to an oversight at the time. Nonetheless, the Court has already rejected similar objections by the respondent Government (see Atılgan and Others v. Turkey, nos. 14495/11, 14531/11, 26274/11, 78923/11, 8408/12, 11848/12, 12078/12, 12103/12, 14745/12, 21910/12 and 41087/12, § 12, 27 January 2015, and Şakir Kaçmaz v. Turkey, no. 8077/08, § 62, 10 November 2015) and in the present case finds no reason to depart from that conclusion. The Government's argument on this point should therefore be rejected.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

19. The applicants complained under Article 10 of the Convention that the criminal proceedings brought against them under section 7(2) of Law no. 3713, and their subsequent conviction, had constituted a violation of their right to freedom of expression. Referring, in particular, to the Court's judgments in Gül and Others v. Turkey (no. 4870/02, 8 June 2010) and Faruk Temel v. Turkey (no. 16853/05, 1 February 2011), the applicants claimed that their conviction was not necessary in a democratic society.

Article 10 of the Convention 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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."

20. The Government submitted that on 5 July 2012 a new law (Law no. 6352) had entered into force amending various laws with a view to rendering judicial services more effective and to suspending cases and sentences given in cases concerning crimes committed through the press and media. They claimed that the applicants should have applied to the trial court and requested the latter to suspend the execution of their conviction in the light of the provisions of Law no. 6352. In the Government's view, the applicants had failed to exhaust the domestic remedies as they had not availed themselves of the remedy provided for in Law no. 6352.

21. As regards the merits of the applicants' complaint under Article 10, the Government submitted that the interference with the applicants' right to freedom of expression had had a legal basis and had pursued the legitimate aims of the protection of national security and territorial integrity and public safety as well as the prevention of disorder and crime. The Government further submitted that the applicants had chanted the slogans in question in Hozat, a district of Tunceli where armed terrorist acts had been widely committed for many years. They also contended that the applicants had been convicted of disseminating propaganda in favour of the DHKP/C, an organisation which was considered to be a terrorist organisation by a number of international organisations and states such as the United States of America, the United Kingdom and the European Union. According to the Government, having regard to the setting where the impugned slogans were chanted and the place where the incident took place, the prison sentences imposed on the applicants had been necessary in a democratic society.

22. As regards the Government's submission that the applicants had failed to exhaust the domestic remedies, the Court notes that the remedy referred to by the Government does not provide a substantive review of the case (see Öner and Türk v. Turkey, no. 51962/12, § 17, 31 March 2015). Had the applicants applied to the trial court, the latter would have merely reviewed the question of whether the execution of the applicants' sentences should have been suspended following the amendments made by Law no. 6352. The applicants' conviction had become final as a result of the Court of Cassation's decision of 4 July 2011 and according to the applicants' submissions, which were not contested by the Government, the applicants had starting serving the prison sentences arising out of that conviction in September 2011. Hence, the Court finds that the applicants were not required to make use of the remedy referred to by the Government. It follows that this complaint cannot be rejected for non-�exhaustion of domestic remedies and the Government's objection must therefore be dismissed.

23. The Court further notes that this complaint 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.

24. As to the merits of the case, the Court considers that the applicants' criminal conviction amounted to an "interference" with the exercise of their freedom of expression and 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 26 below) the Court considers that it is not required to conduct an examination of the "lawfulness" thereof. 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, cited above, § 52).

25. 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 cases and found violations of Article 10 of the Convention (see, for example, Savgın v. Turkey, no. 13304/03, §§ 39-48, 2 February 2010; Gül and Others, cited above, §§ 32-45; Kılıç and Eren v. Turkey, no. 43807/07, §§ 20-31, 29 November 2011; Faruk Temel, cited above, §§ 58-64; and Gülcü v. Turkey, no. 17526/10, §§ 113 and 117, 19 January 2016). The Court has examined the present case and finds no reason to reach a different conclusion.

26. In particular, the Court notes that the Malatya Assize Court found that the first applicant had chanted the slogan "Revolutionary prisoners are our honour" and the second applicant had chanted the following slogans during the same concert: "Mahir, Hüseyin, Ulaş; Fight until emancipation"; "Martyrs of the revolution are immortal"; "Revolutionary prisoners are our honour"; "Victory on mountains, emancipation at the front; long live victory, long live resistance". The assize court considered that by chanting the above-mentioned slogans the applicants had disseminated propaganda in favour of the DHKP/C without providing any explanation as to why it considered that chanting of the slogans referred to in the indictment had constituted encouragement of violence, armed resistance or an uprising, or had been capable of inciting to violence. In the Court's view, given that the slogans in question are well-known and stereotyped leftist slogans and that they were chanted during a concert - a peaceful public gathering - they cannot be interpreted as a call for violence or an uprising (see Gül and Others, cited above, § 41). Besides, there is nothing in the case file showing that the applicants were involved in any violent acts or had the intention of inciting violence. The Malatya Assize Court, however, does not appear to have given consideration to any of the above factors. In sum, the Court considers that the national courts did not provide "relevant and sufficient" reasons for the applicants' criminal conviction under section 7(2) of Law no. 3713.

27. Lastly, the Court notes the severity of the penalty imposed on the applicants, that is to say ten months' imprisonment, which the applicants duly served (see Karataş v. Turkey [GC], no. 23168/94, § 53, ECHR 1999-�IV).

28. The Court concludes that the interference in question was not "necessary in a democratic society". Accordingly, there has been a violation of Article 10 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

29. The applicants also complained under Article 6 about the alleged non-�communication to them of the report on the police video recording of the concert of 5 April 2007 which served as the basis for their conviction.

30. Taking into account 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 applicants' complaint under Article 6 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).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

31. The applicants claimed 50,000 Turkish liras (TRY) (approximately 16,709 euros (EUR)) each in respect of non-pecuniary damage. They also claimed TRY 15,000 (approximately EUR 5,013) each in respect of pecuniary damage. Lastly, they claimed TRY 1,500 (approximately EUR 501) for their lawyer's fees. However, they did not submit any documentation in support of their claim for legal fees.

32. The Government contested those claims.

33. Having regard to the applicants' 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 5,000 each in respect of non-pecuniary damage.

34. 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 complaint under Article 10 of the Convention admissible;

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

3. Holds that there is no need to examine the admissibility or the merits of the complaint under Article 6 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicants, within three months, EUR 5,000 (five thousand 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;

(b) that 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;

5. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 19 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident

[1]. Mahir Çayan was one of the founders and Hüseyin Cevahir and Ulaş Bardakçı were members of the THKP/C (People's Liberation Party-Front of Turkey), an illegal armed organisation founded in 1970. They were killed by the security forces in 1971 and 1972.