POLAT AND TALI v. TURKEY - 5782/10 (Judgment : Article 10 - Freedom of expression-{general} : Second Section Committee) [2018] ECHR 753 (25 September 2018)

SECOND SECTION

CASE OF POLAT AND TALİ v. TURKEY

(Application no. 5782/10)

JUDGMENT

STRASBOURG

25 September 2018

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

In the case of Polat and Tali 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 4 September 2018,

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

PROCEDURE

1. The case originated in an application (no. 5782/10) 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 two Turkish nationals, Ms Eylem Dilan Polat and Mr Mehmet Tali ("the applicants"), on 27 January 2010.

2. The applicants were represented by Mrs G. Altay and Mr H. Karakuş, lawyers practising in Istanbul. The Turkish Government ("the Government") were represented by their Agent.

3. The applicants alleged that the criminal proceedings brought against them under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and their subsequent conviction had constituted a violation of their right to freedom of expression.

4. On 26 August 2016 the complaints concerning the alleged breach of the applicants' right to freedom of expression was communicated to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. On 20 March 2018 the Government were informed that the Court envisaged assigning the application to a Committee. By a letter dated 10 April 2018 the Government objected to the examination of the application by a Committee. Having considered the Government's objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicants were born in 1973 and 1976 respectively and live in Switzerland. At the relevant time, they were members of a research cooperative called the East Scientific Research Cooperative ( Doğu Bilimsel Araştırmalar Kooperatifi -� "the Cooperative").

7. Between 30 May and 1 June 2005 the Cooperative organised an exhibition in Diyarbakır as part of the fifth Diyarbakır Culture and Art Festival, entitled "Witnesses of War Talk". Within the context of the exhibition, photographs of deceased members of the PKK (an illegal armed organisation), deceased members of the security forces who had been killed in security operations, persons who had lost their lives in prison, victims of enforced disappearances and victims of assassinations by unknown assailants in south-east Turkey were publicly displayed. The exhibition also included statements from family members of deceased and disappeared individuals, presenting their relatives and containing their personal views on the disturbances going on in south-east Turkey, and their wish for an enduring peace.

8. On an unspecified date a criminal investigation was launched against the applicants and five other people in relation to a charge of disseminating propaganda in favour of the PKK. On 31 May 2005 the applicants gave a statement to the investigating judge. Both of the applicants maintained that the exhibition in question had been organised for purely sociological reasons, and that they had conducted interviews with the families of the deceased which had also been included in the exhibition. They asserted that there had been no intention to disseminate propaganda in favour of the PKK. The investigating judge dismissed an application by the public prosecutor to remand the accused in custody.

9. On 6 October 2005 the public prosecutor filed an indictment with the Diyarbakır Assize Court, charging the applicants and five other suspects with disseminating propaganda in favour of the PKK under section 7(2) of Law no. 3713.

10. Throughout the proceedings before the Diyarbakır Assize Court the applicants repeated their previous statements and contended that photographs of deceased members of the security forces had also been displayed in the exhibition alongside those of members of the PKK.

11. On 18 May 2006 the Diyarbakır Assize Court convicted both applicants of disseminating propaganda in favour of an illegal organisation under section 7(2) of Law no. 3713. The applicants were sentenced to two years and a year and eight months' imprisonment, respectively. In its judgment, the court observed that the invitations to the exhibition had referred to the armed conflict between the security forces and the PKK as a "war", and the PKK members as "guerrillas", thus glorifying the deceased terrorists and inciting young people to become members of the PKK. The court also noted that a "war" was an armed conflict between two States and a "guerrilla" was an armed person who fought against unjust occupation. The court further observed that a couple of photographs of deceased soldiers had also been displayed in order to conceal the accused's intention to incite young people to join the PKK.

12. On 9 June 2009 the Court of Cassation quashed the judgment in respect of the second applicant, holding that the case should be reviewed in the light of Article 231 of the Code of Criminal Procedure (Law no. 5271), which regulates the suspension of a judgment's pronouncement. However, the trial court's judgment of 18 May 2006 became final in respect of the first applicant. On 3 August 2009 the decision of the Court of Cassation was filed with the registry of the first-instance court.

13. On 22 October 2009, in accordance with Article 231 of the Code of Criminal Procedure, the Diyarbakır Assize Court decided to suspend the pronouncement of its judgment in respect of the second applicant on the condition that he did not commit another intentional offence for a period of five years.

14. The first applicant served the sentence arising from the judgment of 18 May 2006.

II. RELEVANT DOMESTIC LAW

A. The Prevention of Terrorism Act (Law no. 3713)

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

B. The Code of Criminal Procedure (Law no. 5271)

16. Suspension of the pronouncement of a judgment is governed by Article 231 of the Code of Criminal Procedure, the relevant paragraphs of which read as follows at the material time:

"...

(5) If the accused has been convicted of the charges against him and ordered to pay a fine or sentenced to imprisonment for a period of less than two years, the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment means that the judgment shall not bear any legal consequences for the offender.

(6) A decision to suspend the pronouncement of a judgment may be issued provided that:

(a) the offender has never been found guilty of an intentional offence;

(b) the court is convinced, taking into account the offender's personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; [and]

...

(8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the next five years.

...

(10) If the offender does not commit another intentional offence and abides by the obligations of the supervision order, the judgment [whose] pronouncement had been suspended will be cancelled and the case discontinued.

(11) If the offender commits another intentional offence or acts in violation of the obligations of the supervision order, the court shall impose the sentence. Nevertheless, the court may evaluate the offender's situation and may decide that ... up to half of the total sentence will not be executed. If the conditions so permit, the court may also suspend the execution of [any] sentence of imprisonment or commute it to other optional measures.

(12) An objection to the decision to suspend the pronouncement of the judgment may be filed."

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

17. The applicants complained 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. They relied on Article 10 of the Convention, which reads as follows:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 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."

18. The Government contested that argument.

A. Admissibility

1. The second applicant

19. The Government claimed that the second applicant did not have victim status within the meaning of Article 34 of the Convention, as he had not been convicted at the end of the proceedings. They also claimed that the second applicant had failed to exhaust the domestic remedies, because he had not objected to the decision of 22 October 2009 suspending the pronouncement of the judgment against him. They submitted that the second applicant could have raised his Convention grievances by using the remedy in question. In support of their submissions, the Government provided a copy of the Plenary Court of Cassation's decision dated 22 January 2013 (decision no. 2013/15). In that decision, the Court of Cassation had held that in a case where the accused had been convicted of illicit substance use and where the first-instance court had ordered the accused's treatment and the application of judicial control measures after his treatment, an objection by the public prosecutor regarding the qualification of the accused's acts and challenging the court's above-mentioned orders had to be examined on its merits and in adversarial proceedings.

20. The second applicant did not respond to the Government's above-mentioned objections.

21. The Court does not find it necessary to examine the first limb of the Government's objections, as it considers that the application lodged by the second applicant is inadmissible on the following grounds.

22. The Court reiterates that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy in question was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Mocanu and Others v. Romania [GC], nos. 10865/09and 2 others, § 225, ECHR 2014 (extracts) and the cases cited therein).

23. In this connection, the Court observes that the Government submitted that the second applicant had failed to use the remedy provided for in Article 231 § 12 of the Code of Criminal Procedure, and provided a copy of the decision dated 22 January 2013 rendered by the Plenary Court of Cassation in support of their submissions. The Court notes that the decision in question concerns the Court of Cassation's considerations in a case involving the general objection procedure under the Code of Criminal Procedure, and not specifically the procedure concerning objections to decisions suspending the pronouncement of judgments. However, the Court also observes that the second applicant did not submit any arguments in response to the Government's objection. He neither attempted to argue before the Court that he had actually exhausted the domestic remedies, nor claimed that the remedy referred to by the Government had been inadequate or ineffective. In these circumstances, the Court is led to conclude that the second applicant failed to exhaust the domestic remedies (see, mutatis mutandis , Czernuszewicz v. Poland (dec.) [Committee], no. 2891/12, 19 January 2016).

24. Accordingly, the application as regards the second applicant must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The first applicant

25. The Court notes that the application as regards the first applicant 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

26. The first applicant submitted that she had not had any intention to disseminate propaganda in favour of the PKK. The exhibition had aimed to portray the suffering caused by the Kurdish problem in Turkey and create a platform to discuss that problem. According to the first applicant, the content of the exhibition had not incited violence. Nor had it constituted glorification of violence or a risk to public order. The first applicant considered that the armed conflict in Turkey could be described as a "low-intensity war", and that in any event she was not bound by the official definitions of the State. Besides, freedom of expression allowed her to use strong language when criticising official military policies.

27. The Government submitted that the first applicant had been prosecuted under section 7(2) of Law no. 3713 and thus any interference had been prescribed by law. They further submitted that the domestic authorities had pursued the legitimate aims of protecting national security and public order as well as preventing crime. As to the necessity of the interference in a democratic society, the Government stated that by referring to the security forces' struggle against terrorism as a "war" in the title of the exhibition, the first applicant had disseminated propaganda in favour of the PKK. The Government further noted that members of the PKK were defined as "guerrillas" by persons who had connections with or supported the PKK, and that by referring to the deceased members of the PKK as guerrillas the first applicant had considered them heroes. The Government submitted that the first applicant had not defined the persons whose photographs had been displayed as members of a terrorist organisation. The Government also argued that the exhibition had not reflected any sociological work, and that the content of the visitors' book showed that the first applicant had encouraged the public to participate in the terrorist organisation. The Government lastly noted that the exhibition had been held in Diyarbakır, where the authorities had to be alert to acts capable of fuelling violence.

28. The Court considers that the interference with the first applicant's right to freedom of expression was based on section 7(2) of Law no. 3713. In the light of its conclusion below (see paragraph 35), the Court considers that it is not required to conduct an examination of the "lawfulness" of the interference. Moreover, the Court is prepared to accept that, in the present case, the national authorities may be considered to have pursued the legitimate aims of protecting national security and preventing disorder and crime (see Faruk Temel v. Turkey , no. 16853/05, § 52, 1 February 2011).

29. 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 a violation of Article 10 of the Convention (see, for example, Erdoğdu and İnce v. Turkey [GC], nos. 25067/94and 25068/94, §§ 32-55, ECHR 1999-IV; Gerger v. Turkey [GC], no. 24919/94, §§ 34-52, 8 July 1999; Koç and Tambaş v. Turkey , no. 50934/99, §§ 25-40, 21 March 2006; Ulusoy v. Turkey , no. 52709/99, §§ 31-49, 31 July 2007; 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; Yavuz and Yaylalı v. Turkey , no. 12606/11, §§ 42-55, 17 December 2013; Öner and Türk, cited above, §§ 19-27, 31 March 2015; and Belge v. Turkey , no. 50171/09, §§ 24-38, 6 December 2016). 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 this case.

30. In this connection, the Court observes that within the context of the exhibition held by the Cooperative on 30 May and 1 June 2005, photographs of deceased members of the PKK, deceased members of the security forces who had been killed during security operations, persons who had lost their lives in prison, victims of enforced disappearances and victims of assassinations by unknown assailants in south-east Turkey were publicly displayed. The exhibition also included statements from family members of deceased and disappeared individuals presenting their relatives. Most of those family members also affirmed their wish for peace in their statements. The Court further observes that, when convicting the first applicant, the Diyarbakır Assize Court noted that the invitations to the exhibition had referred to the armed conflict between the security forces and the PKK as a "war", and the PKK members as "guerrillas". In that court's view, the first applicant had thus glorified the deceased terrorists and incited young people to become members of the PKK. The court further noted that a "war" was an armed conflict between two states and a "guerrilla" was an armed person who fought against unjust occupation. The court also observed that a couple of photographs of deceased soldiers had also been displayed in order to conceal the accused's intention to incite young people to join the PKK.

31. The Court considers that the expressions "war" and "guerrilla" by themselves do not incite to violence (see, in particular, Erdoğdu and İnce , cited above, § 52, in which the Court considered that an interview published in a monthly review in which members of the PKK had been referred to as "guerrillas" had not constituted an incitement to violence and could not be construed as liable to incite to violence; Gerger , cited above, § 50, and Belge cited above, § 34, in which the Court held that the applicants' speeches, which had referred to members of the PKK as "guerrillas", had constituted political criticism of the Turkish authorities and not an incitement to violence, armed resistance or an uprising; and Koç and Tambaş , cited above, § 38, and Ulusoy , cited above, § 48, in which the Court considered that articles published and written by the applicants, in which the authors had described the State security forces' actions against the PKK as a "dirty war", had constituted a critical assessment of Turkey's policies concerning the Kurdish problem, and had not encouraged violence, armed resistance or insurrection, or amounted to hate speech). Besides, the Diyarbakır Assize Court did not conduct an assessment of the content of the exhibition as a whole. It focused on the use of those two expressions and found that their use had constituted the dissemination of propaganda in favour of a terrorist organisation.

32. The Court has examined the content of the exhibition in its entirety and considers that, as a whole, it cannot be construed as encouraging violence, armed resistance or an uprising (see Belge , cited above, § 34). On the contrary, most of the relatives of the deceased and disappeared persons made statements which were in favour of peace in Turkey and finding a peaceful solution to the Kurdish issue. The Court further observes that the first-instance court failed to examine whether the content of the exhibition had had any adverse impact on public order. In this connection, the Court notes that there is no indication in the case file that the people who had visited the exhibition engaged in acts of violence after visiting it (see Kılıç and Eren v. Turkey , no. 43807/07, § 27, 29 November 2011).

33. Having regard to the above, the Court considers that the reasons given by the national courts to justify the first applicant's criminal conviction pursuant to section 7(2) of Law no. 3713 were not "relevant and sufficient" for the purposes of Article 10 of the Convention.

34. Lastly, 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 an interference. In that regard, the Court notes the severity of the penalty imposed on the first applicant, that is to say two years' imprisonment which she served (see Karataş v. Turkey [GC], no. 23168/94, § 53, ECHR 1999-IV).

35 . In the light of the foregoing, and having regard to the interpretation of section 7(2) of Law no. 3713 by the national courts, the Court concludes that the interference in question was not "necessary in a democratic society" (see Faruk Temel , cited above, § 64).

There has accordingly been a violation of Article 10 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

36. The first applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. She also claimed EUR 2,200 for costs and expenses incurred before the Court.

37. The Government contested the first applicant's claims as excessive and undocumented.

38. Ruling on an equitable basis, the Court awards the first applicant EUR 5,000 in respect of non-pecuniary damage. On the other hand, in the absence of any document in support of her claim for costs and expenses, the Court rejects the claim under this head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint brought by the first applicant under Article 10 of the Convention admissible, and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 10 of the Convention in respect of the first applicant;

3. Holds

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

4. Dismisses the remainder of the first applicant's claim for just satisfaction.

Done in English, and notified in writing on 25 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Paul Lemmens
Deputy Registrar President