European Court of Human Rights

SECOND SECTION

CASE OF BAKIR AND OTHERS v. TURKEY

(Application no. 46713/10)

JUDGMENT

STRASBOURG

10 July 2018

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 Bakır and Others v. Turkey,

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

Robert Spano, President,
Ledi Bianku,
Işıl Karakaş,
Nebojša Vučinić,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 19 June 2019,

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

PROCEDURE

1. The case originated in an application (no. 46713/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by twelve Turkish nationals, Mr Deniz Bakır, Mr Alihan Alhan, Mr Levent Çakır, Ms Necla Çomak, Mr Uğur Güdük, Ms Latife Canan Kaplan, Mr Serdar Kır, Mr Metin Kürekçi, Mr Selçuk Mart, Mr Mehmet Ali Tosun, Ms Filiz Uluçelebi and Mr Mesut Açıkalın ("the applicants"), on 23 June 2010.

2. The applicants, whose names, dates of birth and places of residence are set out in the attached table, were represented by Ms R. Aytaç Sala, a lawyer practising in Istanbul. The Turkish Government ("the Government") were represented by their Agent.

3. On 5 June 2013 the applicants' complaints concerning the alleged violation of their right to freedom of expression and to freedom of assembly were communicated to the Government and the application was declared partly inadmissible.

4. On 3 January 2014 the President of the Section decided, in accordance with Rule 34 § 3 of the Rules of Court, to grant the applicants leave to use the Turkish language in the written proceedings before the Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. On 6 March 2006 the applicants were taken into police custody on suspicion of aiding and abetting the MLKP (Marxist-Leninist Communist Party), an illegal armed organisation.

6. On 7 March 2006 the applicants were brought before a judge at the Ankara Assize Court. They were mainly questioned about their participation in a number of demonstrations and about various CDs, documents, books and periodicals that had allegedly been found by the police in their homes. The applicants denied the veracity of the allegations that they had acted in support of an illegal organisation. In particular, although they all accepted that they had participated in legally organised demonstrations, they denied having chanted illegal slogans or slogans in favour of an illegal organisation. They also claimed that the material found in their homes had not been illegal. In particular, Necla Çomak claimed that the documents found in her home were related to a legal association, namely the Working Women's Association (Emekçi Kadınlar Derneği).

7. On the same day the Ankara Assize Court ordered the detention of Levent Çakır, Deniz Bakır, Alihan Alhan, Necla Çomak, Metin Kürekçi, Latife Canan Kaplan and Uğur Güdük. The other applicants were released.

8. On 22 March 2006 the Ankara public prosecutor filed an indictment with the Ankara Assize Court against the applicants. In the indictment, the public prosecutor noted that the applicants had participated in two demonstrations organised by trade unions and non-governmental organisations held on 17 December 2005 and 19 February 2006 with the authorisation of the governor's office. He further noted, on the basis of video footage provided by the police, that the applicants had carried banners on behalf of the ESP (the Socialist Platform of the Oppressed) and the SGD (Socialist Youth Association), which, according to information on the Internet, were connected to the MLKP. The applicants were charged with membership of an illegal organisation under Article 220 § 7 and Article 314 of the Criminal Code.

9. On 18 May 2006 the Ankara Assize Court held the first hearing in the case. The applicants conceded before the court that they had participated in the demonstrations of 17 December 2005 and 19 February 2006 but stressed that those demonstrations had been legal. As to the documents, periodicals, books and CDs found in their homes, the applicants maintained that none of the material they had had was illegal, and that they did not accept the content of the search-and-seizure reports prepared after the searches conducted in their homes, as those reports had not been drafted in their presence.

10. During the hearing held on 22 June 2006, Latife Canan Kaplan, Uğur Güdük and Levent Çakır were released pending trial.

11. Between 18 May 2006 and 17 January 2007 the Ankara Assize Court held nine hearings.

12. On 17 January 2007 the Assize Court convicted Deniz Bakır, Metin Kürekçi, Necla Çomak and Alihan Alhan of membership of a terrorist organisation under Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 7 and 314 § 3 of the same Code. Metin Kürekçi, Necla Çomak and Alihan Alhan were sentenced to six years and three months' imprisonment. Deniz Bakır was sentenced to seven years and six months' imprisonment. The rest of the applicants were convicted of disseminating propaganda in favour of a terrorist organisation under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and sentenced to one year and eight months' imprisonment each.

13. On 27 September 2007 the Court of Cassation quashed the judgment, holding that the applicants had not had an opportunity to submit their defence submissions in relation to the classification by the Assize Court of their acts under section 7(2) of Law no. 3713.

14. Between 6 February and 22 October 2008 the Ankara Assize Court held seven more hearings. On 22 October 2008 the court issued a judgment containing the same conclusions and sentences as in its judgment of 17 January 2007. It also ordered the release of Metin Kürekçi, Necla Çomak and Alihan Alhan, taking into account the period of time that they had spent in detention and the length of the sentences imposed on them.

15 In its judgment, the Assize Court noted that although the ESP and the SGD were legal entities, their activities were in line with those of the MLKP. The court observed that members of the ESP and SGD regarded members of the MLKP who had been killed by the security forces or during hunger strikes as "martyrs" and that they had organised commemorative ceremonies for them. The court further observed that the declarations issued by the MLKP on the Internet were consistent with the aims of the ESP and the SGD. The court hence considered that the ESP and the SGD appeared in the legal domain on behalf of the MLKP and had an organic relationship with it. The court found it established, on the basis of the conduct of members of the ESP and the SGD and having regard to the documents found in the accused's homes, that ESP and SGD members were carrying out activities in line with the strategies of the MLKP and had been holding legally authorised demonstrations in favour of that organisation on the pretext of exercising their democratic rights.

16. In convicting the applicants, the Ankara Assize Court noted that all the applicants except Selçuk Mart had participated in the demonstration of 17 December 2005. As regards Selçuk Mart, the court observed that he had attended the demonstration of 19 February 2006. The court found it established that the applicants had chanted the following slogans during the demonstration held on 17 December 2005: "M-L-K-P", "Yaşasın partimiz MLKP" ("Long live our Party, MLKP"), "Devrimin zaferi, biji MLKP" ("Victory to the revolution, long live the MLKP"), "İşçiler partiye, MLKP'ye" ("Workers join the party, join the MLKP"). The court further found it established that Necla Çomak and Uğur Güdük had chanted the slogan "Yaşasın 1. Kürdistan konferansı" ("Long live the first Conference of Kurdistan"). Lastly, the court noted that Selçuk Mart had chanted the slogan "Dısa dısa serhildan MLKP Kürdistan" ("Rise up again and again, MLKP Kurdistan") during the demonstration of 19 February 2006.

17. The Assize Court further noted that Metin Kürekçi and Mehmet Ali Tosun had been wearing clothes and carrying pennants with "ESP" on them during the demonstration of 17 December 2005, and that Uğur Güdük and Selçuk Mart had been wearing clothes and hats with "SGD" on them. The first-�instance court also noted that Serdar Kır and Necla Çomak had had red ribbons attached to their arms and that the latter had incited the crowd to chant slogans. The court further found it established that Levent Çakır had given a clenched-fist salute during the demonstration.

18. The Assize Court also noted that Metin Kürekçi, Alihan Alhan and Deniz Bakır had been taken into police custody in the past on account of their participation in various public meetings. There were also several police records in respect of Necla Çomak. Alihan Alhan and Deniz Bakır had also previously been remanded in custody. The court further noted that books which had previously been the subject of seizure orders had been found in the homes of Metin Kürekçi, Necla Çomak, Filiz Uluçelebi and Mehmet Ali Tosun. Metin Kürekçi had also had written material regarding the ESP and SGD. Necla Çomak had been in possession of notes on the illegal organisation and leaflets which belonged to the ESP.

19. The Assize Court concluded that Metin Kürekçi, Necla Çomak, Alihan Alhan and Deniz Bakır should be convicted as members of the MLKP because they had aided that illegal organisation. The court found it established that those applicants had directed the crowds, incited people to chant slogans in favour of the MLKP, carried banners, prepared organisational documents and been previously involved in activities in favour of the MLKP. The court considered that those applicants' acts represented continuity and diversity, and that they had an organic relationship with the MLKP. The court held that the applicants had aided the MLKP by acting and directing other people to act "in a manner planned by" that organisation. It convicted them under Articles 220 § 7 and 314 §§ 2 and 3 of the Criminal Code.

20. As regards Levent Çakır, Uğur Güdük, Latife Canan Kaplan, Serdar Kır, Selçuk Mart, Mehmet Ali Tosun, Filiz Uluçelebi and Mesut Açıkalın, the Assize Court noted that they had chanted slogans and carried banners and flags in favour of the MLKP during the demonstrations of 17 December 2005 or 19 February 2006 and had been in possession of banned books and documents in favour of that organisation. The court found that those applicants' acts had constituted propaganda in favour of the MLKP and thereby propaganda inciting people to commit violence or other methods of terrorism. They were therefore convicted pursuant to section 7(2) of Law no. 3713.

21. On 24 December 2009 the Court of Cassation upheld the judgment of 22 October 2008.

22. On various dates between 10 March 2009 and 12 July 2012 all the applicants except Necla Çomak served the prison sentences imposed on them.

23. On 5 July 2012 Law no. 6352 entered into force.

24. On 2 November 2012 the Ankara Assize Court revised its judgment of 22 October 2008 pursuant to Law no. 6352, which had entered into force on 5 July 2012, in respect of Metin Kürekçi, Alihan Alhan, Deniz Bakır, Necla Çomak, Levent Çakır, Serdar Kır, Selçuk Mart and Filiz Uluçelebi. The court decided to reduce the sentences imposed on Metin Kürekçi, Alihan Alhan, Deniz Bakır and Necla Çomak pursuant to Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 7 and 314 § 3 of the same Code, to two years and one month's imprisonment. As regards Levent Çakır, Serdar Kır, Selçuk Mart and Filiz Uluçelebi, the Assize Court decided to suspend the execution of the sentences imposed on them under section 7(2) of Law no. 3713, in accordance with provisional section 1 of Law no. 6352. The suspension was for a period of three years, on condition that they did not commit an offence when expressing ideas and opinions through the medium of the press or other media, or by any other means.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Criminal Code (Law no. 5237)

25. On 1 April 2005 Law no. 5237 entered into force. At the material time, Article 220 of the Criminal Code read as follows:

Establishing an organisation for the purpose of criminal activity

"(1) Anyone who establishes or directs an organisation for the purpose of criminal activity shall be liable to a term of imprisonment of between two and six years, provided that the structure of the organisation, the number of members and the quantity of equipment and supplies are sufficient to commit the intended crimes.

(2) Anyone who becomes a member of an organisation established for the purpose of criminal activity shall be liable to a term of imprisonment of between one and three years.

(3) If the organisation is armed, the sentences stated above shall be increased by between one quarter and one half.

(4) Any crime committed within the framework of the organisation's activities shall be punished separately.

(5) The heads of such an organisation shall also be sentenced as perpetrators of all crimes committed within the framework of the organisation's activities.

(6) Anyone who commits a crime on behalf of an (illegal) organisation, even if he is not a member of that organisation, shall also be punished for being a member of the organisation.

(7) Anyone who aids an (illegal) organisation knowingly and willingly, even if he does not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation.

(8) Anyone who spreads propaganda for the organisation or its objectives shall be punished by a term of imprisonment of between one and three years. If the said crime is committed through the press or other media, the sentence shall be increased by one half."

Paragraphs 6 and 7 of Article 220 were amended by Law no. 6352, which entered into force on 2 July 2012, as follows:

"(6) Anyone who commits a crime on behalf of an (illegal) organisation, even if he is not a member of that organisation, shall also be punished for being a member of the organisation. The penalty to be imposed for membership may be reduced by up to half.

(7) Anyone who aids an (illegal) organisation knowingly and willingly, even if he does not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation. The penalty to be imposed for membership may be reduced by up to two thirds, depending on the nature of the assistance."

26. Article 314 of the Criminal Code reads as follows:

Armed organisations

"(1) Anyone who forms an armed organisation to commit the crimes listed in the fourth and fifth sections of this chapter, or commands such an organisation, shall be liable to a term of imprisonment of between ten and fifteen years.

(2) Anyone who becomes a member of an (armed) organisation mentioned in the first paragraph of this Article shall be liable to a term of imprisonment of between five and ten years.

(3) Other provisions relating to the crime of establishing an organisation for the purpose of criminal activity are also applicable to this crime."

B. Prevention of Terrorism Act (Law no. 3713)

27. Between 7 August 2003 and 18 July 2006, section 7(2) of Law no. 3713 read as follows:

"Any person who assists members of the aforementioned organisations [terrorist organisations] or who disseminates propaganda inciting others to violence or other methods of terrorism shall be liable to a term of imprisonment of one to five years and a judicial fine of five million liras to one billion liras ..."

The first sentence of section 7(2) of Law no. 3713 was amended by Law no. 5532, which entered into force on 18 July 2006, as follows:

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

The first sentence of section 7(2) of Law no. 3713, as amended on 30 April 2013 by Law no. 6459, currently reads as follows:

"Any person who disseminates propaganda in favour of a terrorist organisation by justifying, praising or encouraging the use of methods constituting coercion, violence or threats shall be liable to a term of imprisonment of one to five years ..."

III. RELEVANT INTERNATIONAL MATERIAL

A. European Commission for Democracy through Law (the Venice Commission)

28. At its 106th plenary session, held on 11 and 12 March 2016, the Venice Commission adopted an Opinion on Articles 216, 299, 301 and 314 of the Penal Code of Turkey (CDL-AD(2016)002)). The relevant parts of the Opinion read as follows:

"1. Membership of an armed organisation (art. 314)

98. The Penal Code does not contain a definition of an armed organisation or an armed group. In its judgment E. 2006/10-253 K. 2007/80 of 3 April 2007, the General Criminal Board of the Court of Cassation listed the main criteria that a criminal organisation - for the purposes of Article 220 of the Penal Code - should display. The group has to have at least three members; there should be a tight or loose hierarchical connection between the members of the group and an "abstract link" between the members is not sufficient; the members should have a common intention to commit crimes (even though no crime has yet been committed); the group has to present continuity in time; and the structure of the group, the number of its members, tools and equipment at the disposal of the group should be sufficient/appropriate for the commission of the envisaged crimes.

...

100. There is a rich case-law of the Court of Cassation in which the high court developed the criterion of 'membership' in an armed organisation. The Court of Cassation examined different acts of the suspect concerned, taking account of their 'continuity, diversity and intensity' in order to see whether those acts prove that the suspect has any 'organic relationship' with the organisation or whether his or her acts may be considered as committed knowingly and wilfully within the 'hierarchical structure' of the organisation ...

101. If this 'organic relationship' with the organisation cannot be proven on the basis of acts attributed to the defendant, which do not present any 'continuity, diversity or intensity', the paragraphs on 'aiding and abetting an armed organisation' or 'committing crime on behalf of an armed organisation' under Article 220 may be applied (see below).

...

102. According to non-governmental sources, in the application of Article 314, the domestic courts, in many cases, decide on the membership of a person in an armed organisation on the basis of very weak evidence, which would raise questions as to the 'foreseeability' of the application of Article 314 ... Amnesty International, in its 2013 Report on Turkey, considered that conduct, which is not in itself criminal, as for instance an activity related to the exercise of the rights to freedom of assembly, association and expression, is considered as evidence of membership of the defendants in an armed organisation. The reason for this approach, according to the Report, is that the prosecution services perceive those activities as having the same overall objective as a terrorist group and as a result, 'individuals have been prosecuted for membership of terrorist organisation on charges relating solely to their engagement in peaceful and, in themselves, lawful pro-Kurdish activities'. The examples of concrete cases provided by Amnesty International in which the evidence was considered to link the defendants to a terrorist organisation included, attendance at six different demonstrations allegedly organised by a terrorist organisation and a speech made at one of those demonstrations, or, in another case, the participation of the defendant in the 'Political Academy' organised by the Peace and Democracy Party (BDP - a recognised Pro-Kurdish political party) and his diverse activities in the framework of this Academy.

...

104. ... in the case of Yılmaz and Kılıç v. Turkey (68514/01), the ECtHR considered (although in the context of Article 169 of the former Penal Code - concerning aiding and abetting a terrorist organisation) that where the only evidence which led to the criminal conviction of the applicants under Article 169 was forms of expression (statements by the applicants, content of the slogans they shouted during a public demonstration etc.), it should be concluded that there was an interference with the applicants' right to freedom of expression (para. 58 of the judgment). Subsequently, the Court examined whether this interference was justified as being necessary in a democratic society. The Court applied the same principle in the case of Gül and others v. Turkey (4870/02) and held that the criminal conviction of the applicants on the basis of Article 169 of the former Penal Code constituted an interference with their right to freedom of expression, since the only evidence used against them was the content of the slogans they shouted during a public demonstration.

105. ... the Commission reiterates that conviction on the basis of weak evidence in the application of Article 314 may create problems in the field of Article 7 ECHR since this provision embodies, inter alia, the principle that the criminal law must not be extensively construed to an accused's detriment, for instance by analogy. In the cases where the only evidence which led the domestic courts to convict the defendant for being a member of an armed organisation, are forms of expression, as for instance in the above-mentioned Yılmaz and Kılıç case, reliance on weak evidence may also give rise to problems concerning the 'foreseeability' of the interference into the right to freedom of expression of the defendant ... For the Venice Commission ... any allegation of membership to an armed organisation must be established with convincing evidence and beyond any reasonable doubt.

106. ... the Venice Commission recommends, first, that the established criteria in the case law of the Court of Cassation that acts attributed to a defendant should show 'in their continuity, diversity and intensity', his/her 'organic relationship' to an organisation or they should prove that he/she acted knowingly and willingly within the 'hierarchical structure' of the organisation, should be applied strictly. The loose application of these criteria may give rise to issues concerning in particular the principle of legality within the meaning of Article 7 ECHR.

107. Second, the expression of an opinion in its different forms should not be the only evidence before the domestic courts to decide on the membership of the defendant in an armed organisation. Where the only evidence consists of forms of expression, the conviction for being a member of an armed organisation, would constitute an interference with the right of the defendants to freedom of expression, and that the necessity of this interference on the basis of the criteria as set forth in the case-law of the ECtHR, in particular the criteria of 'incitement to violence', should be examined in the concrete circumstances of each case.

2. Application of Article 314 in conjunction with Article 220

108. Paragraph (3) of Article 314 provides that 'All other provisions related to the crime of establishing an organization to commit a crime will be applied in conjunction with this provision.' Article 220 of the Criminal Code is of particular importance, since in many recent judgments of the Court of Cassation, Article 314 was applied in conjunction with paragraphs (6) and (7) of Article 220, on the basis of the reference made in Article 314(3) to 'other provisions' related to forming a criminal organisation. According to paragraphs (6) and (7) of Article 220, any person who commits an offence on behalf of an organisation (para. 6) or aids and abets an organisation knowingly and willingly (para. 7), shall also be sentenced for the offence of being a member of that organisation (art. 314), although he/she is not a member of that organisation.

109. In a judgment of 4 March 2008 the General Criminal Board of the Court of Cassation held that acts such as participating in a public demonstration following a general call from pro-PKK media outlets, making a victory sign and shouting slogans to support and in favour of the leader of a terrorist organisation, and clashing with the security forces, are considered crimes committed on behalf of the terrorist organisation. In this case, although the membership in an armed organisation was not established, the defendant was convicted as a member of a criminal organisation, according to paragraph 6 of Article 220 applied in conjunction with Article 314. By this judgment, the Court of Cassation annulled the decision of the Diyarbakır Assize Court, which had considered that, in order for a court to conclude that a crime was committed on behalf of an organisation, "the latter must have called for action not to an undefined collective, but rather to an individual person who is capable of directly committing that act".

110. In a judgment of 24 March 2011, the 9th Chamber of the Court of Cassation also held that participation in an illegal public demonstration following a general call of the armed organisation on its Internet site, covering one's face during a demonstration in order to hide his/her identity, and shouting slogans in support of the armed organisation were considered as committing crimes on behalf of an armed organisation and the defendant, although his membership was not proven, was convicted also as a member of an armed organisation (Article 220(6) in conjunction with Article 314).

111. Article 220(7), concerning aiding and abetting an organisation knowingly and willingly, was also applied to cases involving freedom of expression. In the Nedim Şener case, the applicant was prosecuted under Article 314(3) in conjunction with Article 220(7) (aiding and abetting an armed organisation) for having contributed, at the request of the suspected members of a criminal organisation, to the preparation of books criticising the actions of the government. In a judgment of 4 June 2012 of the Court of Cassation, the fact that the defendants, in the framework of a campaign instigated by the terrorist organisation on its internet sites, have prepared a declaration which states 'If it is a crime to refer to Öcalan as Mr. Öcalan, I hereby commit this crime [by referring to Öcalan as Mr. Öcalan] and I denounce myself [to the authorities]' and have collected signatures for this declaration, was considered as 'knowingly and willingly aiding the criminal organisation'.

112. Consequently, although the 'organic relationship' of the defendant with an armed organisation cannot be proven on the basis of the established criterion developed by the Court of Cassation in its case-law related to Article 314 (paras. 100 and 101), the defendants who are considered to have committed crimes on behalf of an armed organisation (para. 6 of Article 220) or have aided and abetted an armed organisation knowingly and willingly (para. 7 of Article 220) are also sentenced for the offence of being a member of that organisation under Article 314.

...

114. ... a new paragraph has been added to Article 7 of the Anti-Terror Law no. 3713 by an amendment of 11 April 2013. According to this new paragraph, those who committed the crime indicated in the second paragraph of Article 7 (propaganda in support of a terrorist organisation); the crime indicated in the second paragraph of Article 6 (printing and disseminating declarations made by terrorist organisations which legitimise or praise the violent or threatening methods of terrorist organisations or encourage the use of such methods); the crime indicated in the first paragraph of Article 28 of the Public Demonstrations Law no. 2911 (participating to an unlawful demonstration), shall not be sentenced separately under Article 220(6) of the Penal Code. The authorities indicated that with this amendment, the scope of the freedom of expression was broadened in the application of anti-terror legislation.

115. The Venice Commission welcomes the amendment introduced to Article 7 of the Anti-Terror Law, which excluded the above-mentioned crimes from the scope of application of Article 220(6). With this amendment, the suspects accused of having committed such crimes shall not be punished separately as members of an armed organisation under Article 314.

116. Nevertheless, the Venice Commission considers that the scope of this amendment is rather limited and does not provide for sufficient protection to the exercise of freedom of expression and assembly in particular. First, the amendment to Article 7 of the Anti-Terror Law excluded the above-mentioned crimes only from the scope of application of Article 220(6). However, some forms of expression, as indicated in the judgments of the Court of Cassation cited in paragraph 111, may also fall under the scope of Article 220(7) (aiding and abetting an organisation). This may lead to abusive application in practice, since a form of expression considered as being in support of an organisation, may be sanctioned under Article 220(7), instead of Article 220(6), in order to sentence the defendants as if they were members of an armed organisation under Article 314, although their organic relationship with an armed organisation is not established.

...

120. In conclusion, the Venice Commission recommends that the sentence 'although he is not a member of that organisation, shall also be sentenced for the offence of being a member of that organisation.' in paragraphs 6 and 7 of Article 220 be repealed. In this case, those who commit the crimes indicated in paragraphs 6 and 7 of Article 220 would not be sanctioned as members of an armed organisation under Article 314, but by other, separate sanctions.

121. Should this sentence in paragraph 6 and 7 be maintained, the Turkish authorities should consider limiting the application of Article 220 in conjunction with Article 314, to cases which do not involve the exercise of the rights to freedom of expression and assembly."

B. Commissioner for Human Rights of the Council of Europe

1. Report of 10 January 2012 (CommDH(2012)2)

29. In a report published on 10 January 2012 following a visit to Turkey between 10 and 14 October 2011, Mr Thomas Hammarberg, the former Commissioner for Human Rights of the Council of Europe, stated the following:

"68. The Commissioner is fully aware of the severe threat posed to Turkish society by terrorism and terrorist organisations, as well as of the obligation of the Turkish state to combat it with effective measures, including effective investigations and fair proceedings. He wishes to underline, however, that a major lesson learned in the fight against terrorism in Europe has been the importance of public confidence in the justice system. This means that any allegation of terrorist activity must be established with convincing evidence and beyond any reasonable doubt. Experience has shown time and time again that any deviation from established human rights principles in the fight against terrorism, including in the functioning of the judiciary, ultimately serves the interests of terrorist organisations.

69. In this connection, it is crucial to bear in mind that violence or the threat to use violence is an essential component of an act of terrorism, and that restrictions of human rights in the fight against terrorism 'must be defined as precisely as possible and be necessary and proportionate to the aim pursued'.

70. The Commissioner considers that the provisions contained in the Turkish anti-terror legislation and Article 220 TCC allow for a very wide margin of appreciation, in particular in cases where membership in a terrorist organisation has not been proven and when an act or statement may be deemed to coincide with the aims or instructions of a terrorist organisation. The Commissioner encourages the Turkish authorities to reflect on and address these concerns through legislative measures and/or case-law."

2. Memorandum of 15 February 2017 ((CommDH(2017)5))

30. In a memorandum on freedom of expression and media freedom in Turkey, published on 15 February 2017 following a visit to Turkey between 6 and 14 April 2016 (CommDH(2017)5), Mr Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe, stressed the need for a complete overhaul of the Turkish Criminal Code, including Article 220 §§ 6 and 7 and Article 314. He considered that the overhaul should take full account of the Court's case-law and the opinion of the Venice Commission cited above.

C. Non-governmental organisations' reports

1. Report of Human Rights Watch of 1 November 2010

31. On 1 November 2010 Human Rights Watch published a report entitled "Protesting as a Terrorist Offence / The Arbitrary Use of Terrorism Laws to Prosecute and Incarcerate Demonstrators in Turkey". The seventy-�five-page report mainly concerned trials and convictions of demonstrators in Turkey under Laws nos. 5237, 2911 and 3713. The report, in so far as relevant, reads as follows:

"In Turkey, many hundreds of people currently face prosecution, or are serving substantial sentences for terrorism convictions. Their 'crime' was to engage in peaceful protest, or to throw stones or burn a tire at a protest. Legal amendments since 2005, along with case law since 2008, have allowed courts in Turkey to convict demonstrators under the harshest terrorism laws, by invoking two articles of the Turkish Penal Code in combination with the Anti-Terror Law.

The 2005 Penal Code introduced Article 220, entitled, 'Forming Organized Groups with the Intention of Committing Crime' ... This article has been most commonly used to punish criminal gangs, as a separate article, discussed below, criminalizes membership in armed political organizations. However, courts have also applied Article 220 to those deemed to be associated with armed political organizations.

This article also introduced a provision allowing individuals to be treated as if they are members of an armed organization even if they are not.

...

Article 220/7 states:

A person who aids and abets the organization knowingly and willingly, although he or she does not belong to the hierarchical structure of the organization, shall be punished as though a member of the organization.

While Article 220/7 has not recently been applied to pro-Kurdish demonstrators, it has in some cases been applied to leftist demonstrators who have been punished as 'members' of armed organizations for 'knowingly and willingly aiding' them without providing any material assistance. This undefined and vague charge currently in use against leftist demonstrators deserves a separate study.

...

Turkish Penal Code Articles 220/6 and 220/7 ('committing a crime on behalf of an organization' and 'knowingly and willingly aiding and abetting an organization') are striking examples of legal provisions that are so vaguely worded and lacking in clarity about what is prohibited as to offer an individual no indication of how to regulate or limit conduct.

...

X. Recommendations

To the Turkish Government:

Urgently amend Turkish Penal Code Article 220 ('forming criminal organizations'), and repeal 220/6 ('committing a crime on behalf of an organization') and 220/7 ('aiding and abetting an organization knowingly and willingly'), which are vague, lack legal clarity and specificity, and are therefore subject to arbitrary application.

...

Set up a review board to examine all cases concluded under these articles for compliance with international human rights law obligations, with a view to quashing sentences under Turkish Penal Code Articles 314/2 and 314/3 in connection with Articles 220/6 and 220/7."

2. Report of Amnesty International of 27 March 2013

32. On 27 March 2013 Amnesty International published a report entitled "Turkey: Decriminalize Dissent / Time to deliver on the Right to Freedom of Expression". The relevant passages of the report read as follows:

ARTICLE 220/7: ASSISTING A TERRORIST ORGANIZATION

"Article 220/7 of the Turkish Penal Code criminalises assisting a terrorist organisation. Unlike Article 220/6, it is a self-standing offence that does not require the commission of a further criminal act. Like Article 220/6, however, it allows for the sentencing of those convicted under it as though they were members of the organisation they are found to have assisted. In full the article reads:

'A person who knowingly and willingly assists the organization but is not within the hierarchical structure of the organization is punished as a member of the organization. The punishment given for membership can be reduced by one third, depending on the nature of the assistance given.'

As with Article 220/6, this Article is often used to prosecute conduct protected by the rights to freedom of expression, association and assembly. Indeed, the choice of prosecutors to prosecute under 220/6 or 220/7 often appears arbitrary, with similar behaviour sometimes prosecuted under one, sometimes under the other - and sometimes under Article 314 (criminalizing membership of a terrorist organization) directly. As with prosecutions under 220/6, when prosecutors seek to convict a person under Article 220/7 they often do not provide evidence demonstrating a link to a terrorist organization, nor do they attempt to prove that the accused was engaged in any criminal offence, or in aiding and abetting, other than supposedly assisting the proscribed organization.

It is incumbent on the Turkish authorities to ensure that Article 220/7 is not used to bring prosecutions that violate the rights to freedom of expression, association and assembly or other human rights. To this end, the government should issue and publish guidelines for prosecutors that set out clear criteria for when assisting an armed group can be criminalized, including the requirement that such assistance must either in and of itself be a recognizable criminal offence, or be directly linked to the planning or commission of one. Short of evidence of such acts, no inference should be drawn from someone undertaking a lawful act, such as for example participating in a peaceful demonstration. This is so, even if such acts benefit, through lawful means, goals shared by a terrorist organization. The motive of the individual who is carrying out the lawful acts is irrelevant: anyone carrying out a lawful act which does not aid and abet the planning or commission of a crime should not be criminalized on the sole basis of their political convictions.

...

Amnesty International urges the Turkish government to:

...

Adopt guidelines for prosecutors on the application of Article 220/7 of the Penal Code that set out clear criteria for when assisting an armed group can be criminalized, including the requirement that such assistance must either in and of itself be a recognizable criminal offence, or be directly linked to the planning or commission of one.

..."

THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTION

33. In their observations dated 27 March 2014, 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 invited the Court not to take into account the applicants' observations and claims for just satisfaction.

34. The Court notes that although by a letter dated 3 January 2014 the applicants were informed 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). Due to an administrative oversight at the time, the Government were not informed of that decision. Nonetheless, the Court has already examined and dismissed 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). In the present case, the Court finds no reason to depart from that conclusion. The Government's arguments on this point should therefore be rejected.

II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

35. The applicants complained that their trial and criminal conviction on the basis of their participation in demonstrations and their acts therein constituted a violation of their rights under Articles 10 and 11 of the Convention.

36. Having regard to the fact that the applicants' criminal convictions were mostly based on their participation in demonstrations and their conduct therein, the Court considers that these complaints should be examined from the standpoint of Article 11 of the Convention (see Galstyan v. Armenia, no. 26986/03, § 95, 15 November 2007; Kasparov and Others v. Russia, no. 21613/07, § 82, 3 October 2013; Lütfiye Zengin and Others v. Turkey, no. 36443/06, § 35, 14 April 2015; and Gülcü v. Turkey, no. 17526/10, § 75, 19 January 2016).

37. The Court notes nonetheless that the applicants were not only convicted for their participation in demonstrations but also for having expressed their opinions during those demonstrations. It further notes that when the execution of some of the applicants' prison sentences was suspended, they were required not to commit any offence involving expression of ideas and opinions (see paragraphs 16, 17, 19, 20 and 24 above). Therefore, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present case, also be considered in the light of Article 10. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly enshrined in Article 11 (see Ezelin v. France, 26 April 1991, § 37, Series A no. 202; Galstyan, cited above, § 96; and Kasparov and Others, cited above, § 83).

Article 11 of the Convention reads as follows:

"1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."

38. The Government contested the applicants' allegations.

A. Admissibility

39. The Government argued that the applicants had failed to exhaust the domestic remedies available to them, within the meaning of Article 35 § 1 of the Convention. They submitted that on 2 November 2012 the Ankara Assize Court had revised its judgment pursuant to provisional section 1(1) of Law no. 6352 and that the applicants should have applied to the Constitutional Court, as that decision had been rendered after 23 September 2012, that is to say after the individual application system had been put in place.

40. The Court notes that it has already examined and dismissed an identical objection by the respondent Government (see Öner and Türk v. Turkey, no. 51962/12, §§ 14-18, 31 March 2015). The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence. The Court accordingly rejects the Government's objection.

41. The Court further considers that although the respondent State did not raise any objection as to the Court's competence ratione personae in relation to the applicants' complaints under this head, the issue of victim status calls for consideration by the Court (see Gülcü, cited above, § 78, and Döner and Others v. Turkey, no. 29994/02, § 81, 7 March 2017). In that regard, the Court observes that the applicants' criminal convictions under Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 7 and 314 § 3 of the same Code, and section 7(2) of Law no. 3713, amounted to an "interference" with the exercise of their right to freedom of assembly. The Court further observes that after the entry into force of Law no. 6352, on 2 November 2012 the Ankara Assize Court decided to suspend the execution of the sentences imposed on Levent Çakır, Serdar Kır, Selçuk Mart and Filiz Uluçelebi under section 7(2) of Law no. 3713 for a period of three years, and reduced the sentences imposed on Metin Kürekçi, Alihan Alhan, Deniz Bakır, and Necla Çomak under Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 7 and 314 § 3 of the same Code.

42. The Court notes, however, that the decision of 2 November 2012 did not acknowledge or provide redress for the alleged breach of the applicants' right to freedom of assembly on account of their convictions under Article 314 § 2 of the Criminal Code and section 7(2) of Law no. 3713. Thus, in the Court's view, the reduction of some applicants' prison sentences and suspension of the execution of some other applicants' sentences for a period of three years did not deprive them of victim status.

43. The Court further finds 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.

B. Merits

1. The parties' submissions

(a) The applicants

44. The applicants alleged that their conviction under Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 7 and 314 § 3 of the same Code, and section 7(2) of Law no. 3713 constituted an interference with their right to freedom of assembly. They stated that the interference in question was not prescribed by law, within the meaning of Article 11 of the Convention, since they had been unable to anticipate that their participation in the demonstrations of 17 December 2005 and 19 February 2006 and their conduct during those events would lead to them being prosecuted pursuant to these provisions and to the sentences imposed on them. They stressed in this connection that both the ESP and the SGD, in whose activities they had participated, were legal civil society organisations and that the demonstrations in question had been lawful and peaceful.

45. The applicants further contended that the interference in question was not necessary in a democratic society, since the slogans chanted by them had not contained any element of incitement to violence. They had not chanted the slogans "Long live our Party, MLKP" and "Victory to the revolution, long live the MLKP" and the Ankara Assize Court had established the circumstances of the case only on the basis of a police report. The allegedly illegal documents found in the homes of some of them were books, scientific articles, legal associations' leaflets, and notes regarding a non-governmental organisation and a legal political party.

46. The applicants lastly submitted that the sentences imposed on them was clearly disproportionate, especially in view of the fact that the demonstrations had been peaceful.

(b) The Government

47. The Government submitted that the interference with the applicants' right to freedom of assembly was prescribed by law. The applicants' convictions had been based on Articles 220 § 7 and 314 § 2 of the Criminal Code and section 7(2) of Law no. 3713. The wording of those provisions met the explicitness and predictability requirements within the meaning of Articles 10 and 11 of the Convention. The applicants had participated in demonstrations in favour of the MLKP and had chanted illegal slogans. Moreover, the police had seized illegal items from the homes of Deniz Bakır, Metin Kürekçi, Alihan Alhan and Necla Çomak, who had been found to have organic links with the MLKP and who had disseminated propaganda in favour of that organisation.

48. The Government further contended that the interference in question pursued the aims of protecting national security, territorial integrity and public safety, as well as prevention of disorder or crime.

49. As to the question whether the interference was necessary in a democratic society, the Government submitted that the slogans chanted by the applicants had been in favour of the MLKP, which was a terrorist organisation. Moreover, no investigation had been initiated against the applicants under the Meetings and Demonstration Marches Act (Law no. 2911) on account of the slogans chanted by them, and the security forces had not intervened during the demonstrations. The Government nevertheless left it to the Court's discretion to rule on the necessity of the interference with the applicants' right under Article 11 in a democratic society, stating that they were aware of the Court's case-law in the domain in question.

2. The Court's assessment

(a) Whether there was interference

50. The Court finds that the applicants' criminal convictions for membership of the MLKP and for dissemination of propaganda in support of the MLKP, as well as the imposition of prison sentences on them, constituted an interference with the exercise of their right to freedom of assembly, as guaranteed by Article 11 of the Convention (see Gülcü, cited above, §§ 98-102, and Döner and Others, cited above, § 89).

(b) Whether the interference was justified

(i) As regards Deniz Bakır, Metin Kürekçi, Alihan Alhan and Necla Çomak

51. An interference will constitute a breach of Article 11 unless it was "prescribed by law", pursued one or more of the legitimate aims set out in paragraph 2 of that provision and was "necessary in a democratic society" for the achievement of those aims.

52. The Court reiterates its settled case-law, according to which the expressions "in accordance with the law" and "prescribed by law" not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question, requiring that it should be accessible to the persons concerned and foreseeable as to its effects (see De Tommaso v. Italy [GC], no. 43395/09, § 106, 23 February 2017 and the cases cited therein; Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 68, ECHR 2017; and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 142, ECHR 2017 (extracts)). In addition, the legal norms should be compatible with the rule of law (see, for example, Association Ekin v. France, no. 39288/98, § 44, ECHR 2001-�VIII; Ahmet Yıldırım v. Turkey, no. 3111/10, § 57, ECHR 2012; and Cumhuriyet Vakfı and Others v. Turkey, no. 28255/07, § 50, 8 October 2013). The Court further reiterates that the "law" is the provision in force as the competent courts have interpreted it (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 88, ECHR 2005-�XI).

53. One of the requirements flowing from the expression "prescribed by law" is foreseeability. Thus, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable individuals to regulate their conduct; they must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Such consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30; De Tommaso, cited above, § 107; Medžlis Islamske Zajednice Brčko and Others, cited above, § 70; and Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 143).

54. The Court emphasises in this context that a rule is "foreseeable" when it affords a measure of protection against arbitrary interferences by the public authorities and against the extensive application of a restriction to any party's detriment (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 143, ECHR 2012; Mesut Yurtsever and Others v. Turkey, nos. 14946/08 and 11 others, § 103, 20 January 2015; Işıkırık v. Turkey, no. 41226/09, § 58, 14 November 2017; and also, mutatis mutandis, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-�XI; and De Tommaso, cited above, § 109). In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for legal discretion to be granted in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise (see Hasan and Chaush, cited above, § 84; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004-�I; S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008; Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 82, 14 September 2010; and Güler and Uğur v. Turkey, nos. 31706/10 and 33088/10, § 48, 2 December 2014).

55. The Court observes that Deniz Bakır, Metin Kürekçi, Alihan Alhan and Necla Çomak were convicted of membership of the MLKP on the basis of Article 220 § 7 of the Criminal Code.

56. The Court considers that there is no doubt that Article 220 § 7 of the Criminal Code was accessible.

57. As to the foreseeability requirement, the Court first notes that in its recent judgment in the above-�mentioned case of Işıkırık v. Turkey, it found a breach of Article 11 of the Convention on the grounds that that applicant's criminal conviction under Articles 220 § 6 and 314 § 2 of the Criminal Code had not been prescribed by law. The Court held that Article 220 § 6 of the Criminal Code was not "foreseeable" in its application since it did not afford the applicant legal protection against arbitrary interference with his right under Article 11. In that case, Mr Işıkırık had been prosecuted and punished because of his participation in two public meetings - a funeral and a demonstration - and his conduct therein. The domestic courts had considered that the applicant had acted on behalf of the PKK and thus should be punished as a member of that organisation pursuant to Article 220 § 6 of the Criminal Code.

58. In the Court's view, paragraphs 6 and 7 of Article 220 of the Criminal Code do not appear to be fundamentally different in terms of their construction. The texts of both paragraphs 6 and 7 of Article 220 of the Criminal Code tie the status of membership of an illegal organisation to the mere facts of a person having acted "on behalf" of that organisation and "aided an illegal organisation knowingly and willingly" respectively, without the prosecution having to prove the material elements of actual membership. The wording of neither paragraph 6 nor paragraph 7 of Article 220 of the Criminal Code defines the meaning of the expressions "on behalf of" and "aiding knowingly and willingly". The sole difference between those two paragraphs is that paragraph 6 requires an offence to be committed on behalf of an illegal organisation for a conviction for membership of that organisation, whereas for such a conviction with reference to paragraph 7, the person in question does not have to have committed an offence proscribed by the criminal codes. A person's acts which are regarded by the domestic courts as providing aid to an illegal organisation may lead to his or her conviction for membership of that organisation, even where those acts do not constitute an offence under domestic law.

59. As regards the judicial authorities' interpretation of Article 220 § 7 of the Criminal Code in the context of demonstrations, the Court first notes that the Government did not refer to any practice of the domestic courts at the time when the applicants were tried and convicted. Such domestic case-�law interpreting the notion of "aiding knowingly and willingly" referred to in Article 220 § 7 of the Criminal Code would have defined its meaning and scope in the context of demonstrations and would have indicated the "actions" which could result in terms of criminal liability under that provision.

60. Nonetheless, the Court observes that in certain cases, such as the above-�mentioned case of Işıkırık, the Plenary Court of Cassation and the Ninth Criminal Division of the Court of Cassation considered acts comparable to those of the applicants' under Article 220 § 6 of the Criminal Code and upheld first-instance judgments convicting demonstrators of membership of illegal organisations (see paragraphs 109 and 110 of the Venice Commission's Opinion on Articles 216, 299, 301 and 314 of the Penal Code of Turkey in paragraph 28 and paragraph 57 above).

61. The Court is well aware of the fact that the decision of the 9th Chamber of the Court of Cassation was rendered after the applicants had attended the public meetings and been convicted. On the other hand, the domestic decisions referred to above demonstrate that cases comparable to the applicants' case were assessed differently by the Ninth Criminal Division of the Court of Cassation and the Plenary Court of Cassation. Hence, the Court of Cassation appears to lack established case-law setting out the criteria regarding the nature of acts and activities which may engage individuals' criminal liability under different criminal provisions, including Article 220 § 7 of the Criminal Code, in the context of demonstrations and similar public meetings. In particular, despite the content of the Plenary Court of Cassation's decision of 4 March 2008, the Ankara Assize Court convicted the applicants under Articles 220 § 7 and 314 § 2 of the Criminal Code on 22 October 2008 and the Ninth Criminal Division of the Court of Cassation upheld the applicants' conviction on 24 February 2009 (see paragraph 21 above).

62. Hence, in the Court's view, not only is Article 220 § 7 of the Criminal Code formulated without a definition of the expressions contained therein, but also the domestic courts have seemingly not developed a consistent judicial interpretation of that provision in the context of demonstrations. Nevertheless, the Court reiterates that the requirement of foreseeability not only requires that a rule constituting the basis for criminal liability be formulated with sufficient precision, but also and importantly, that the rule affords a measure of protection against arbitrary interference by the public authorities and against the extensive application of a restriction to any party's detriment (see paragraph 54 above). Bearing in mind that the provision is still in force, and taking account of the nature and overall scope of its examination of the facts of the applicant's case, the Court will proceed with examining the foreseeability of Article 220 § 7 of the Criminal Code in the applicants' case, in the light of its text and its interrelationship with Article 314 of the same Code. In so doing, it will take account of the interpretation by the domestic courts that convicted the applicants, in particular whether that interpretation afforded sufficient protection against arbitrary application of the provision.

63. In this connection, the Court observes that the applicants were convicted on 22 October 2008 of membership of the MLKP on the basis of Article 220 § 7 of the Criminal Code on the grounds that they had attended a demonstration held on 17 December 2005, disseminated propaganda in favour of the MLKP, directed the crowds and incited people to chant slogans in favour of the MLKP, carried banners and pennants and worn clothes with "ESP" written on them and had had red ribbons attached to their arms. The Ankara Assize Court also noted that the applicants had prepared documents in favour of the MLKP and that they had previously carried out activities in favour of that organisation. The court therefore considered that the applicants had "organic relationships" with the MLKP and, at the same time, that they had aided the organisation by acting and directing other people to act "in a manner planned by" the MLKP. As a matter of fact, the first-instance court's conclusion was based on its considerations regarding the relationship between the ESP, the SGD and the MLKP. In its judgment, the court noted that the ESP and the SGD were legal entities but that their activities were in line with those of the MLKP. The court considered that the ESP and the SGD appeared in the legal domain on behalf of the MLKP and had an organic relationship with it. The Assize Court found it established that ESP and SGD members had been carrying out activities in line with the strategies of the MLKP.

64. The Court further observes that although the Ankara Assize Court noted that the applicants' acts had demonstrated "continuity and diversity" and that they had "organic relationships" with the MLKP, it did not apply Article 314 of the Criminal Code alone, despite the fact that according to the Court of Cassation's established case-law, when an organic relationship with an illegal organisation was established on the basis of the "continuity, diversity and intensity" of the accused's acts, that person had to be held liable under Article 314 of the Criminal Code (see paragraph 100 of the Venice Commission's Opinion on Articles 216, 299, 301 and 314 of the Penal Code of Turkey in paragraph 28 above). The applicants were convicted of membership of the MLKP on the basis of Article 220 § 7 of the Criminal Code, as they were found to have aided that organisation knowingly and willingly. The Court does not find it necessary to attach importance to the above-mentioned inconsistency in the Ankara Assize Court's judgment. It will examine the legal consequences attached to the applicants' conviction on the basis of the application of Article 220 § 7 of the Criminal Code.

65. In this connection, the Court observes that the Ankara Assize Court interpreted the notion of "membership" of an illegal organisation under Article 220 § 7 of the Criminal Code in extensive terms and the Court of Cassation upheld its judgment. The fact that the applicants were present at a legally organised demonstration, had chanted slogans, carried banners, worn clothes and carried pennants with "ESP" written on them and had had red ribbons attached to their arms during that demonstration was considered by those courts to constitute sufficient evidence to conclude that as members of legal organisations, the applicants had aided the MLKP, for which they could be punished as actual members. As the applicants' case demonstrates, the array of acts that potentially constitute evidence for the application of a severe criminal sanction in the form of imprisonment, under Article 220 § 7 of the Criminal Code, is so vast that the wording of the provision, including its extensive interpretation by the domestic courts, does not afford a sufficient measure of protection against arbitrary interference by the public authorities (see Işıkırık, cited above, § 67).

66. The Court further notes that when Article 314 is applied alone, the courts assess whether an accused person has committed offences within the "hierarchical structure" of an armed organisation. On the other hand, when the same Article was applied with reference to Article 220 § 7 in the applicants' case, the question of whether the applicants had acted within a hierarchy became irrelevant and they were convicted of membership of an armed organisation simply because they were considered to have aided the MLKP. Hence, the Court finds that when applied in connection with Article 220 § 7, the criteria for conviction under Article 314 § 2 of the Criminal Code were extensively applied to the detriment of the applicants.

67. Furthermore, and importantly, on account of their conviction, on the basis of acts which fell within the scope of Articles 10 and 11 of the Convention, no distinction was made between the applicants and individuals who had committed offences within the structure of the MLKP. Such extensive interpretation of a legal norm cannot be justified when it has the effect of equating the mere exercise of fundamental freedoms with membership of an illegal organisation in the absence of any concrete evidence of such membership. The Court does not underestimate the difficulties to which the fight against terrorism has given rise (see Incal v. Turkey, 9 June 1998, § 58, Reports 1998-�IV; Döner and Others v. Turkey, no. 29994/02, § 102, 7 March 2017; and Işıkırık, cited above, § 68; see also paragraph 68 of the report of 10 January 2012 (CommDH(2012)2) of the Commissioner for Human Rights of the Council of Europe, cited in paragraph 29 above). However, in its view, the very essence of the right to freedom of peaceful assembly and, thereby, the foundations of a democratic society, was undermined when the applicants were held criminally liable under Article 220 § 7 and Article 314 of the Criminal Code on the grounds that they had attended a demonstration and expressed their views therein (see, mutatis mutandis, Galstyan, cited above, § 117, and Işıkırık, cited above, § 68).

68. The Court further observes that Deniz Bakır was given a prison sentence of seven years and six months and Metin Kürekçi, Necla Çomak and Alihan Alhan were given prison sentences of six years and three months. The length of those prison sentences was subsequently reduced to two years and one month. Yet, the applicants served those prison sentences. The Court notes that when demonstrators, such as the applicants, face the charge of membership of an illegal armed organisation, they risk a sentence of between five and ten years in prison, a sanction which is strikingly severe and grossly disproportionate to their conduct. The Court finds therefore that Article 220 § 7 of the Criminal Code, as applied in the instant case, would inevitably have a particularly chilling effect on the exercise of the rights to freedom of expression and freedom of assembly. Moreover, the application of the provision at issue was not only likely to deter those who were found criminally liable from exercising their rights under Articles 10 and 11 of the Convention in the future, but also had a great deal of potential to deter other members of the public from attending demonstrations and, more generally, from participating in open political debate (see, mutatis mutandis, Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, § 99, 11 February 2016; Süleyman Çelebi and Others v. Turkey, nos. 37273/10 and 17 others, § 134, 24 May 2016; Kasparov and Others v. Russia (no. 2), no. 51988/07, § 32, 13 December 2016; and Işıkırık, cited above, § 69).

69. In the light of the aforementioned considerations, the Court concludes that Article 220 § 7 of the Criminal Code was not "foreseeable" in its application, since it did not afford the applicants the legal protection against arbitrary interference with their rights under Article 11 of the Convention (see Ahmet Yıldırım v. Turkey, no. 3111/10, § 67, ECHR 2012, and Işıkırık, cited above, § 70). Hence, the interference resulting from the application of Article 220 § 7 was not prescribed by law. That being so, the Court is not required to determine whether the interference pursued a legitimate aim and, if so, whether it was necessary in a democratic society.

Accordingly, there has been a violation of Article 11 of the Convention in respect of Deniz Bakır, Metin Kürekçi, Necla Çomak and Alihan Alhan.

(ii) As regards Levent Çakır, Uğur Güdük, Latife Canan Kaplan, Serdar Kır, Selçuk Mart, Mehmet Ali Tosun, Filiz Uluçelebi and Mesut Açıkalın

70. The Court observes that it is not in dispute between the parties that the interference with the right to freedom of assembly of Levent Çakır, Uğur Güdük, Latife Canan Kaplan, Serdar Kır, Selçuk Mart, Mehmet Ali Tosun, Filiz Uluçelebi and Mesut Açıkalın had a legal basis. They were convicted of the offence proscribed by section 7(2) of Law no. 3713. While questions could arise with respect to foreseeability in terms of the manner in which that provision would be applied, in the light of its examination below regarding the "necessity" of the interference in a democratic society (see paragraphs 72 - 78 below), the Court considers that it is not required to reach a final conclusion on the lawfulness issue (see, mutatis mutandis, Faruk Temel v. Turkey, no. 16853/05, § 49, 1 February 2011; Öner and Türk, cited above, § 21).

71. The Court is prepared to accept that the national authorities may be considered to have pursued the legitimate aims of protecting national security and preventing disorder and crime (see Faruk Temel, cited above, § 52, and Gülcü, cited above, § 109).

72. 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 Articles 10 and 11 of the Convention (see, for example, Savgın v. Turkey, no. 13304/03, §§ 39-48, 2 February 2010; Gül and Others v. Turkey, no. 4870/02, §§ 32-45, 8 June 2010; Menteş v. Turkey (no. 2), no. 33347/04, §§ 39-54, 25 January 2011; Kılıç and Eren v. Turkey, no. 43807/07, §§ 20-31, 29 November 2011; Faruk Temel, cited above, §§ 58-64; Öner and Türk, cited above, §§ 19-27; Gülcü, cited above, §§ 110-17; and Belge, cited above, §§ 24-38). 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 in the present case.

73. In particular, the Court notes that the Ankara Assize Court found that the applicants had chanted the following slogans: "M-L-K-P", "Long live our Party MLKP", "Victory to the revolution, long live the MLKP", "Workers join the party, join the MLKP", "Long live the first Conference of Kurdistan". The Assize Court also noted that Selçuk Mart had chanted the slogan "Rise up again and again, MLKP Kurdistan". The Assize Court further found that some of the applicants had been wearing clothes and hats and carrying pennants with "ESP" and "SGD" on them and had had red ribbons attached to their arms; one of the applicants had also given a clenched-fist salute during the demonstration of 17 December 2005. The Assize Court further noted that Mehmet Ali Tosun had been in possession of books which had been subject to seizure decisions.

74. Although the applicants denied the allegation that they had chanted the slogans "Long live our Party MLKP" and "Workers join the party, join the MLKP", the Court does not find it necessary to examine their claim, given that the judgments of the Ankara Assize Court did not contain any information as to the reasons why those slogans were considered to have incited violence or other methods of terrorism. Nor did the Assize Court examine whether the applicants' conduct had had any impact on public order. There is no indication in the case file that the demonstrations in the present case were not peaceful or that the demonstrators engaged in acts of violence. The first-instance court appears to have failed to take into account the context in which the demonstrations had been held and the conduct of the demonstrators, in particular that of the applicants, in convicting them (see Faruk Temel, cited above, § 61).

75. The Court further considers that by shouting the other slogans and wearing clothes and hats with "ESP" and "SGD" on them, carrying pennants with the same letters and giving a clenched-fist salute during the demonstrations - acts which constituted the basis of their criminal conviction - the applicants were not advocating violence or the infliction of injury or harm on anyone (see Gül and Others, cited above, § 42, and Kılıç and Eren, cited above, § 29).

76. Having regard to the above, the Court considers that the reasons adduced by the national courts to justify the criminal convictions of Levent Çakır, Uğur Güdük, Latife Canan Kaplan, Serdar Kır, Selçuk Mart, Mehmet Ali Tosun, Filiz Uluçelebi and Mesut Açıkalın pursuant to section 7(2) of Law no. 3713 were not "relevant and sufficient" within the meaning of Article 11 of the Convention.

77. Last but not least, the Court reiterates that the nature and severity of the penalty imposed are also factors to be taken into account when assessing the proportionality of the interference (see Karataş v. Turkey [GC], no. 23168/94, § 53, ECHR 1999-�IV). In this connection, the Court notes the severity of the penalties imposed on the other applicants, which was imprisonment for a term of one year and eight months. The Court considers that the applicants' acts, by which in any case they did not advocate violence or the infliction of injury or harm on anyone, were not at all of a gravity that would justify the imposition of such lengthy prison sentences (see, mutatis mutandis, Murat Vural, cited above, § 66).

78. The foregoing considerations are sufficient to enable the Court to conclude that the criminal conviction of the applicants for disseminating propaganda in support of the MLKP under section 7(2) of Law no. 3713 was not "necessary in a democratic society".

There has accordingly been a violation of Article 11 of the Convention in respect of Levent Çakır, Uğur Güdük, Latife Canan Kaplan, Serdar Kır, Selçuk Mart, Mehmet Ali Tosun, Filiz Uluçelebi and Mesut Açıkalın.

B. Alleged violation of Article 6 of the Convention

79. The applicants complained under Article 6 of the Convention that they had been convicted on the basis of search-and-seizure reports and video footage that did not reflect the truth. They had also been unable to challenge the veracity of the evidence, as the court had rejected their requests for an expert examination of the video footage without reason. They further submitted under the same head that admission of the video footage by the police in the case file had been unlawful, as the police had filmed the demonstrations illegally. The applicants also complained that the courts' decisions had not been reasoned. Lastly, the applicants complained that the references to past arrests and detentions of some of them had been in breach of the right to be presumed innocent.

80. Having regard to the facts of the case, the submissions of the parties and its finding of a violation of Article 11 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' complaints 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

81. 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

82. The applicants claimed the following sums in respect of pecuniary and non-pecuniary damage:

83. The sixth applicant, Mr Uğur Güdük, submitted that he had been a civil servant and had been working as a teacher prior to his criminal conviction. He claimed that as a result of his conviction he had been dismissed from his post and had lost his salary. In support of his claim for compensation for pecuniary damage, Mr Güdük submitted a document showing that he had been dismissed from the civil service on account of his criminal conviction by the Ankara Assize Court on 22 October 2008, and a document detailing his career in the civil service between 16 February 2007, the date on which he had started working as a civil servant, and 14 October 2010, the date on which he had been dismissed from his post.

84. The Government contested those claims. They considered that there was no causal link between the alleged violation and the claim for pecuniary damage. They also considered that the sum claimed for non-pecuniary damage was excessive.

85. As regards the sixth applicant, Mr Uğur Güdük, the Court finds that the applicant must have incurred pecuniary loss on account of his dismissal from civil service subsequent to his criminal conviction by the Ankara Assize Court on 22 October 2008. However, he failed to provide a detailed calculation of his claim for pecuniary damage. The Court therefore rejects this claim. As regards the remaining applicants, the Court does not discern any causal link between the violation found and the pecuniary damage alleged by them; it therefore rejects their claims.

86. As to the applicants' claims for non-pecuniary damage, the Court considers that the applicants must have sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy. The Court considers that it must make awards taking into account the legal provision under which the applicants were convicted and the periods of their detention. The Court hence awards Mr Deniz Bakır, Mr Alihan Alhan, Mr Metin Kürekçi and Ms Necla Çomak EUR 7,500 each in respect of non-�pecuniary damage. It further awards Mr Selçuk Mart EUR 6,000 under this head. The Court also awards Mr Mesut Açıkalın, Mr Uğur Güdük, Ms Latife Canan Kaplan, Mr Mehmet Ali Tosun and Mr Serdar Kır EUR 4,500 each in respect of non-pecuniary damage. Lastly, the Court awards Mr Levent Çakır and Ms Filiz Uluçelebi EUR 3,000 each in respect of non-pecuniary damage.

B. Costs and expenses

87. The applicants also claimed EUR 25,900 for costs and expenses incurred before the Court. They submitted that their representatives had carried out sixty hours of legal work. In support of their claim, four of the applicants, Ms Latife Canan Kaplan, Mr Serdar Kır, Mr Selçuk Mart and Mr Mehmet Ali Tosun, provided the legal fees agreements that they had concluded with their representatives, demonstrating that they should pay EUR 2,000 each to their representatives for the legal advice and representation provided before the Court.

88. The Government submitted that the amount claimed by the applicants was excessive and unsubstantiated.

89. According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the sum of EUR 3,500 for the proceedings before the Court.

C. Default interest

90. 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 11 of the Convention admissible;

2. Holds that there has been a violation of Article 11 of the Convention;

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

4. Holds

(a) that the respondent State is to pay the following applicants, 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, plus any tax that may be chargeable, in respect of non-pecuniary damage:

(i) EUR 7,500 (seven thousand five hundred euros) each to Mr Deniz Bakır, Mr Alihan Alhan, Mr Metin Kürekçi and Ms Necla Çomak;

(ii) EUR 6,000 (six thousand euros) to Mr Selçuk Mart;

(iii) EUR 4,500 (four thousand five hundred euros) each to Mr Mesut Açıkalın, Mr Uğur Güdük, Ms Latife Canan Kaplan, Mr Mehmet Ali Tosun and Mr Serdar Kır;

(iv) EUR 3,000 (three thousand euros) each to Mr Levent Çakır and Ms Filiz Uluçelebi;

(b) that the respondent State is to pay the applicants jointly, within the same three months, EUR 3,500 (three thousand five hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicants, in respect of costs and expenses;

(c) 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;

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

Done in English, and notified in writing on 10 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithRobert Spano
RegistrarPresident

APPENDIX

1.     Deniz BAKIR, who was born in 1979, lives in Ankara, Turkey
2.     Mesut AÇIKALIN, who was born in 1986, lives in Ankara, Turkey
3.     Alihan ALHAN, who was born in 1974, lives in Ankara, Turkey
4.     Levent ÇAKIR, who was born in 1982, lives in Basel, Switzerland
5.     Necla ÇOMAK, who was born in 1975, lives in Ballene, France
6.     Uğur GÜDÜK, who was born in 1982, lives in Ankara, Turkey
7.     Latife Canan KAPLAN, who was born in 1984, lives in İzmir
8.     Serdar KIR, who was born in 1987, lives in Ankara, Turkey
9.     Metin KÜREKÇİ, who was born in 1983, lives in Istanbul, Turkey
10. Selçuk MART, who was born in 1982, lives in Ankara, Turkey
11. Mehmet Ali TOSUN, who was born in 1954, lives in Ankara, Turkey
12. Filiz ULUÇELEBİ, who was born in 1970, lives in Ankara, Turkey