CASE OF YÜKSEL v. TURKEY
(Application no. 30682/11)
25 September 2018
This judgment is final but it may be subject to editorial revision.
In the case of Yüksel v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
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:
1. The case originated in an application (no. 30682/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Turkish national, Ms Hamide Yüksel ("the applicant"), on 29 March 2011.
2. The applicant was represented by Ms T. Aslan Ağaç, a lawyer practising in İzmir. The Turkish Government ("the Government") were represented by their Agent.
3. The applicants complained that her conviction under section 7(2) of Law no. 3713 on account of a speech she had made had constituted a breach of her rights under Articles 7 and 10 of the Convention.
4. On 21 September 2016 the above-mentioned complaints under Articles 7 and 10 of the Convention were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
5. The Government objected to the examination of the application by a Committee. Having considered the Government's objection, the Court rejects it.
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1974 and lives in İzmir.
7. On 21 March 2007 the applicant attended celebrations for the festival of Newroz in Buca, a district of the city of İzmir, as one of the moderators. While she was hosting the event, the applicant addressed the crowd in Kurdish and invited them to observe a minute's silence in memory of "Newroz martyrs" and martyrs for freedom and democracy.
8. On 10 April 2007 the İzmir Assize Court issued a warrant for the applicant's arrest and a search of her residence.
9. On 11 April 2007 she was arrested at her house.
10. On 12 April 2007 the applicant was brought before the public prosecutor and the investigating judge. In her statements to the public prosecutor and the judge, she maintained that she had attended the Newroz celebrations as a moderator and that she had not shouted any illegal slogans. She stated that she had called for a minute's silence in memory of revolutionary martyrs. The investigating judge remanded the applicant in custody following her questioning.
11. On 24 April 2007 the public prosecutor instituted criminal proceedings before the İzmir Assize Court against the applicant and seven other individuals, charging them under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) with disseminating propaganda in favour of an illegal organisation and, under Article 215 of the Criminal Code, praising a crime or a criminal. Subsequently the criminal proceedings commenced before the İzmir Assize Court.
12. On 13 August 2007, at the end of the first hearing in the trial, the first-instance court ordered the applicant's release.
13 . On 10 September 2008 the İzmir Assize Court convicted the applicant under section 7(2) of Law no. 3713 of disseminating propaganda in favour of an illegal organisation and sentenced her to one year's imprisonment. The court observed that the applicant had made a speech in Kurdish, that a man had translated her words into Turkish at the end of her speech, and that according to the translation she had uttered the following sentences:
"Welcome. I wish you a happy Newroz. We thank those who enabled us to be where we are today. I invite you to stand to observe a moment of silence in memory of Newroz martyrs, martyrs for freedom and democracy, and those who enabled us to be where we are today."
14 . The Assize Court further noted that following the applicant's speech the crowd had made a "V" sign and that during the speeches made by the other speakers, the crowd had chanted slogans in favour of the PKK and its leader. According to the court, the Newroz celebrations had turned into a propaganda event in favour of the PKK and the speakers had chanted slogans and had incited the crowd to chant slogans. The court also observed that during the celebrations, symbols and banners of the PKK had been carried by the crowd. The court found that the speakers had provoked the crowd and had as a result committed the offence of disseminating propaganda in favour of a terrorist organisation. The court considered that in view of the applicant's conviction under section 7(2) of Law no. 3713 it was unnecessary to deliver a decision in respect of the charges under Article 215 of the Criminal Code.
15. On 21 September 2010 the Court of Cassation upheld the judgment of the İzmir Assize Court.
16. Between 13 January and 22 June 2012 the applicant served her prison sentence. On 22 June 2012 the Diyarbakır Assize Court ordered her conditional release.
II. RELEVANT DOMESTIC LAW
17. The relevant domestic law applicable at the material time can be found in Belge v. Turkey (no. 50171/09, § 19, 6 December 2016).
18. In particular, at the time of the events giving rise to the present application, section 7(2) of Law no. 3713 read as follows:
"Anyone who disseminates propaganda in favour of a terrorist organisation shall be liable to [serve] a term of imprisonment of one to five years ..."
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
19. The applicant complained under Article 10 of the Convention that her prosecution and subsequent conviction on account of a speech she had made during the Newroz celebrations had constituted an unjustified interference with her freedom of expression. She further alleged under Article 7 of the Convention that section 7(2) of Law no. 3713 had been insufficiently precise to justify her criminal conviction.
The Court considers at the outset that the application should be examined from the standpoint of Article 10 of the Convention (see, mutatis mutandis , Döner and Others v. Turkey , no. 29994/02, § 79, 7 March 2017). Article 10 reads:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
20. The Government contested the applicant's arguments. They submitted that the interference with her right to freedom of expression had had a legal basis and had pursued the legitimate aims of the protection of national security and public order, as well as the prevention of disorder and crime. The Government further submitted that in her speech the applicant had legitimised the PKK and called for a moment of silence for the terrorists who had died during the conflicts with the Turkish Armed Forces. Besides, following her speech, the crowd had made a "V" sign. The Government took the view that, having regard to the content of her speech and to the fact that the applicant was not a politician, her speech could not be protected as political discourse. They further submitted that the first-instance court had assessed the circumstances of the event as a whole and had had regard to the other speakers' speeches and the slogans chanted by the crowd when it had convicted the applicant. The Government also contended that the investigation against the applicant had not only been based on her acts during the event of 21 March 2007 but also on the books and documents found in her house. They lastly noted that the applicant had been sentenced to imprisonment of only one year, the minimum possible sentence under section 7(2) of Law no. 3713. In sum, the Government considered that the applicant's conviction had been necessary in a democratic society and proportionate to the legitimate aims pursued.
21. The Court notes that 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.
22. As regards the merits of the applicant's complaint, the Court considers that her criminal conviction amounted to an "interference" with the exercise of her freedom of expression and that the interference was based on section 7(2) of Law no. 3713. While questions could arise with respect to the foreseeability of that provision in its application, the Court does not consider it necessary to deal with this issue, in the light of its findings regarding the necessity of the interference (see paragraph 28 below) (see Öner and Türk v. Turkey , no. 51962/12, § 21, 31 March 2015). The Court is also prepared to accept that, in the present case, the national authorities may be considered to have pursued the legitimate aims of protecting national security and preventing disorder and crime (see Faruk Temel v. Turkey , no. 16853/05, § 52, 1 February 2011).
23. As regards the necessity of the interference in a democratic society, the Court notes that it has already examined similar grievances in a number of cases and found violations of Article 10 of the Convention (see, for example, Savgın v. Turkey , no. 13304/03, §§ 39-48, 2 February 2010; Gül and Others v. Turkey , no. 4870/02, §§ 32-45, 8 June 2010; 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; Belge , cited above, §§ 24-38; Yigin v. Turkey [Committee], no. 36643/09, §§ 22-24, 30 January 2018; and Zengin and Çakır v. Turkey [Committee], no. 57069/09, §§ 18-20, 13 February 2018). 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.
24. In particular, the Court notes that the applicant was prosecuted and convicted under section 7(2) of Law no. 3713 on the grounds that she had made the statement referred in the judgment of 10 September 2008 and because the crowd had made a "V" sign following her speech (see paragraphs 13 and 14 above). The Court observes that the İzmir Assize Court did not provide an assessment regarding the content of the applicant's statement in the light of the principles embodied in Article 10. In particular, the Assize Court failed to conduct an assessment as to whether the applicant's statement could be construed as encouraging violence, armed resistance or an uprising, or being capable of inciting violence. These are essential elements to be taken into account. The Court considers that the statement in question cannot be construed as encouraging violence, armed resistance or an uprising.
25. The Court further notes that according to the first-instance judgment the speakers had provoked the crowd and had as a result committed the offence of disseminating propaganda in favour of a terrorist organisation. In this connection, the Court observes that there is no indication in the case file that the gathering in question was not peaceful or that the people who attended the celebrations engaged in acts of violence after listening to the applicant's statement (see Kılıç and Eren v. Turkey , no. 43807/07, § 27, 29 November 2011, and Belge , cited above, § 34). According to the first-instance judgment, the demonstrators simply made a "V" sign following the applicant's statement, a sign which, in the Court's view, cannot be considered to be an act of violence or capable of inciting violence.
26. In sum, the Court considers that the national courts did not provide "relevant and sufficient" reasons for the applicant's criminal conviction under section 7(2) of Law no. 3713.
27. Lastly, the Court notes the severity of the penalty imposed on the applicant, that is to say one year of imprisonment, which the applicant partially served (see Karataş v. Turkey [GC], no. 23168/94, § 53, ECHR 1999-IV).
28 . The Court concludes that the interference in question was not "necessary in a democratic society". Accordingly, there has been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
29. 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."
30. The applicant claimed 23,000 euros (EUR) and EUR 50,000 in respect of pecuniary and non-pecuniary damage respectively. She also claimed EUR 5,650 for the costs and expenses incurred before the domestic authorities and the Court. In support of her claim for costs and expenses the applicant submitted a time sheet showing that her representative had carried out sixty-six hours of legal work during the domestic proceedings and the proceedings before the Court.
31. The Government contested those claims.
32. The Court rejects the applicant's claim in respect of pecuniary damage as unsubstantiated. On the other hand, ruling on an equitable basis, it awards the applicant EUR 5,000 in respect of non-pecuniary damage. The Court also considers it reasonable to award the sum of EUR 2,500 for the proceedings before the Court.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 10 of the Convention;
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the 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.
Deputy Registrar President