CASE OF YILDIRIM v. TURKEY
(Application no. 74054/11)
25 September 2018
This judgment is final but it may be subject to editorial revision.
In the case of Yıldırım 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. 74054/11) 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, Mr Sinan Yıldırım ("the applicant"), on 18 November 2011.
2. The applicant was represented by Mr E. E. Şimşek, a lawyer practising in Tunceli. The Turkish Government ("the Government") were represented by their Agent.
3. On 18 January 2017 the complaint concerning the alleged breach of the applicant's 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.
4. On 9 February 2018 the Government were informed that the Court intended to assign the application to a Committee. In a letter dated 9 March 2018 the Government objected to the proposed examination of the application by a Committee. Having considered the Government's objection, the Court rejects it.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1983 and lives in Tunceli.
6. On 5 April 2007 the applicant attended a concert performed by a band called "Grup Yorum" in the Hozat district of Tunceli.
7 . On 17 October 2007 the Malatya public prosecutor filed an indictment with the Malatya Assize Court, charging the applicant with disseminating propaganda in favour of the DHKP/C (Revolutionary People's Liberation Party/Front), an illegal armed organisation, under section 7 (2) of the Prevention of Terrorism Act (Law no. 3713). The public prosecutor noted that the applicant had chanted the following slogans during the concert: "Mahir, Hüseyin, Ulaş; Fight until emancipation"  (" Mahir, Hüseyin, Ulaş; Kurtuluşa kadar savaş "); "Martyrs of the revolution are immortal" (" Devrim şehitleri ölümsüzdür "); "Revolutionary prisoners are our honour" (" Devrimci tutsaklar onurumuzdur "); and "Victory on mountains, emancipation at the front; long live victory, long live resistance" (" Dağlarda zafer, cephede kurtuluş; yaşasın zafer, yaşasın direniş ") .
8 . During the investigation and the proceedings against him, the applicant stated that he had attended the concert in question and chanted the slogans "Music shall not stop, dance shall continue" (" Türküler susmaz , halaylar sürer ") and "We will not be defeated by oppression" (" Baskılar bizi yıldıramaz "). He also noted that he had been on the concert's organising committee.
9. On 6 March 2008 the Malatya Assize Court convicted the applicant as charged and sentenced him to ten months' imprisonment. In its judgment, on the basis of a police report on a police video recording of the concert of 5 April 2007, the indictment, the applicant's defence submissions, and the public prosecutor's observations on the merits of the case, the court considered it established that the applicant had chanted the slogans noted in the indictment. The court considered that the concert, for which legal and administrative authorisation had been obtained, had become a propaganda activity in favour of the DHKP/C, and that the applicant had chanted slogans used by that organisation. The Malatya Assize Court concluded that the applicant had committed the offence of disseminating propaganda in favour of a terrorist organisation.
10. The applicant appealed.
11. On 4 July 2011 the Court of Cassation upheld the first-instance court's judgment.
12. Between 6 October 2011 and 1 August 2012 the applicant duly served his prison sentence.
II. RELEVANT DOMESTIC LAW
13. The relevant domestic law applicable at the material time can be found in Belge v. Turkey (no. 50171/09, § 19, 6 December 2016).
14. In particular, at the time of the events giving rise to the present application, section 7 (2) of Law no. 3713 read as follows:
"Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to [serve] a term of imprisonment of one to five years ..."
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
15. The applicant complained under Article 10 of the Convention that the criminal proceedings brought against him under section 7 (2) of Law no. 3713, and his subsequent conviction, had constituted a violation of his right to freedom of expression. Referring in particular to the Court's judgments in Savgın v. Turkey (no. 13304/03, 2 February 2010) and Gül and Others v. Turkey (no. 4870/02, 8 June 2010), the applicant claimed that his conviction had not been necessary in a democratic society.
Article 10 of the Convention reads as follows:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
16. The Government contested the applicant's arguments. They submitted at the outset that the applicant had failed to exhaust the domestic remedies, as he had failed to raise his Convention grievances before the domestic authorities. As regards the merits of the applicant's complaint, the Government submitted that the interference with the applicant's right to freedom of expression had had a legal basis and had pursued the legitimate aims of protecting national security, public safety and territorial integrity, as well preventing disorder and crime. The Government further submitted that the slogans chanted had incited violence and that the concert had turned into a meeting of a terrorist organisation. The Government also noted that the applicant had been on the concert's organising committee, and not simply a member of the audience. According to the Government, the applicant had had a responsibility to prevent disorder and to protect public safety: a responsibility which he had failed to discharge, as he had manipulated the crowd by chanting slogans. Noting that the applicant's conviction had been based on his participation in a propaganda event in favour of the DHKP/C - a terrorist organisation that had committed heinous acts - and on his chanting slogans in favour of that organisation, the Government concluded by stating that the applicant's conviction had responded to a pressing social need and had therefore been necessary in a democratic society.
17. As regards the Government's objection concerning the rule of exhaustion of domestic remedies, the Court notes at the outset that the applicant was charged with disseminating propaganda in favour of a terrorist organisation. The public prosecutor brought that charge against him, alleging that he had chanted a number of slogans (see paragraph 7 above). The applicant denied the allegation that he had chanted the slogans noted in the indictment, while acknowledging that he had attended the concert and chanted slogans (see paragraph 8 above). Hence, by acknowledging some of the facts concerning the exercise of his freedom of expression, the applicant must be considered to have raised his complaint under Article 10 of the Convention in substance before the national courts (see Ulusoy v. Turkey , no. 52709/99, § 38, 31 July 2007; Yılmaz and Kılıç , no. 68514/10, § 43, 17 July 2008; and Agit Demir v. Turkey , no. 36475/10, §§ 66 - 67, 27 February 2018  ; see also Özgür Radyo-Ses Radyo Televizyon Yayın Yapım Ve Tanıtım A.Ş. v. Turkey (no. 1) , nos. 64178/00and 4 others, § 68, 30 March 2006, and Perihan and Mezopotamya Basın Yayın A.Ş. v. Turkey , no. 21377/03, §§ 48 - 49, 21 January 2014). The Court accordingly rejects the Government's objection. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
18. As regards the merits of the applicant's complaint, the Court considers that the applicant's criminal conviction amounted to an "interference" with the exercise of his freedom of expression, and that the interference was based on section 7 (2) of Law no. 3713. In the light of its findings regarding the necessity of the interference (see paragraph 24 below), the Court considers that it is not required to conduct an examination of the "lawfulness" of the interference. The Court is also prepared to accept that, in the present case, the national authorities may be considered to have pursued the legitimate aims of protecting national security and preventing disorder and crime (see Faruk Temel v. Turkey , no. 16853/05, § 52, 1 February 2011).
19. 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 , cited above, §§ 39 - 48; Gül and Others, cited above, §§ 32 - 45; Kılıç and Eren v. Turkey , no. 43807/07, §§ 20 - 31, 29 November 2011; Faruk Temel , cited above, §§ 58 - 64; and Gülcü v. Turkey , no. 17526/10, §§ 113 and 117, 19 January 2016). The Court has examined the present case and finds no reason to reach a different conclusion.
20. In particular, the Court notes that the Malatya Assize Court found that the applicant had chanted the following slogans during the concert of 5 April 2007: "Mahir, Hüseyin, Ulaş; Fight until emancipation; "Martyrs of the revolution are immortal"; "Revolutionary prisoners are our honour"; and "Victory on mountains, emancipation at the front; long live victory, long live resistance". The court considered that by chanting the above-mentioned slogans, the applicant had disseminated propaganda in favour of the DHKP/C, without providing any explanation as to why it considered that the chanting of the slogans referred to in the indictment had constituted encouragement of violence, armed resistance or an uprising, or had been capable of inciting violence. Besides, there is nothing in the case file showing that the applicant was involved in any violent acts or had the intention of inciting violence. However, the Malatya Assize Court does not appear to have given consideration to any of the above factors.
21. As regards the Government's submission that the applicant had been involved in organising the concert in question, and that therefore he had failed to discharge his responsibility to prevent disorder and protect public safety, the Court reiterates that there is nothing in the case file showing that violent acts were committed during or after the concert. In any event, the Malatya Assize Court did not make any reference to the applicant's role in the organising committee. It only noted that the concert had been held with legal and administrative authorisation, but had turned into a meeting of a terrorist organisation due to the slogans chanted and the speeches made.
22. 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.
23. Lastly, the Court notes the severity of the penalty imposed on the applicant, that is to say ten months' imprisonment, which the applicant duly served (see Karataş v. Turkey [GC], no. 23168/94, § 53, ECHR 1999-IV).
24 . 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
25. The applicant claimed 100,000 Turkish Liras (TRY - approximately 24,340 euros (EUR)) in respect of non-pecuniary damage. He further claimed TRY 13,963.35 (approximately EUR 3,400) for costs and expenses incurred before the Court of Cassation and the Court. In support of his claims, the applicant submitted a time sheet showing that his representative had carried out fifteen hours' legal work in respect of his application to the Court.
26. The Government contested those claims.
27. Ruling on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage. Regard being had to the documents in its possession and to its case-law, it also considers it reasonable to award the sum of EUR 1,500 for costs and expenses in 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 1,500 (one 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
 . Mahir Çayan was one of the founders and Hüseyin Cevahir and Ulaş Bardakçı were members of the THKP/C (People's Liberation Party-Front of Turkey), an illegal armed organisation founded in 1970. They were killed by the security forces in 1971 and 1972.
 . The judgment is not final yet.