CASE OF VARHAN v. TURKEY
(Application no. 2433/12)
25 September 2018
This judgment is final but it may be subject to editorial revision.
In the case of Varhan 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. 2433/12) 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 Ali Haydar Varhan ("the applicant"), on 22 November 2011.
2. The applicant was represented by Mr V. Ocak, a lawyer practising in Adıyaman. The Turkish Government ("the Government") were represented by their Agent.
3. On 9 September 2013 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.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1985 and lives in Adıyaman.
5. On 21 March 2007 the applicant participated in the Newroz (Kurdish New Year) celebrations held in Malatya.
6. On an unspecified date the Malatya public prosecutor filed an indictment charging the applicant and twenty other people with disseminating propaganda in favour of the PKK under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). The public prosecutor claimed that the applicant had waved a green, yellow and red flag symbolising the PKK.
7. On 6 March 2008 the Malatya Assize Court convicted all of the accused as charged, including the applicant. On the basis of evidence in the case file, the court found it established that one of the accused, Ms N.K., had made a press statement, and the other accused, including the applicant, had chanted slogans in favour of the PKK and its leader. The court also noted that the accused had waved the so-called flag of the PKK. The applicant was sentenced to ten months' imprisonment.
8. On 31 May 2011 the Court of Cassation upheld the judgment of 6 March 2008.
9. On 21 December 2011 the applicant started serving his prison sentence.
10. On 12 July 2012 the Malatya Assize Court ordered the applicant's release from prison in accordance with Law no. 6352, which had entered into force on 5 July 2012 and had amended certain provisions of Law no. 3713.
11. On 12 December 2012 the Malatya Assize Court decided to suspend the execution of the applicant's prison sentence in accordance with provisional section 1 of Law no. 6352. The suspension was for a period of three years, on the condition that he did not commit a terrorism-related offence during that period.
II. RELEVANT DOMESTIC LAW
12. The relevant domestic law applicable at the material time can be found in Belge v. Turkey (no. 50171/09, § 19, 6 December 2016).
13. 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. THE GOVERNMENT'S OBJECTION
14. The Government argued that the applicant's 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 he had been granted leave to use the Turkish language in the proceedings before the Court. They suggested that the Court should not take into account the applicant's observations and claims for just satisfaction.
15. The Court notes that although the applicant was informed by a letter dated 2 February 2017 that the President of the Section had decided, in accordance with Rule 34 § 3 of the Rules of Court, to grant him leave to use the Turkish language in the written proceedings before the Court (see paragraph 4 above), the Government were not informed of that decision at the time due to an oversight. Nonetheless, the Court has already rejected similar objections by the respondent Government (see Atılgan and Others v. Turkey , nos. 14495/11, 14531/11, 26274/11, 78923/11, 8408/12, 11848/12, 12078/12, 12103/12, 14745/12, 21910/12and 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 10 OF THE CONVENTION
16. 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.
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."
17. The Government argued that the applicant had failed to exhaust the domestic remedies available to him, within the meaning of Article 35 § 1 of the Convention. They submitted that on 12 December 2012 the Malatya Assize Court had revised its judgment pursuant to provisional section 1(1) of Law no. 6352, and that the applicant should have applied to the Constitutional Court and raised his Convention grievances before that 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.
18. As regards the merits of the applicant's complaint under Article 10, 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 and territorial integrity and public safety, as well as preventing disorder and crime. They noted that the applicant had disseminated propaganda in favour of the PKK, which was considered to be a terrorist organisation by a number of States and organisations, such as the United States of America, the United Nations and NATO.
19. The Court notes at the outset that it has already examined and dismissed an identical objection regarding the rule of exhaustion of domestic remedies 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. 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.
20. As to the merits of the case, 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).
21. 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 v. Turkey , no. 51962/12, §§ 19-27, 31 March 2015; Gülcü v. Turkey , no. 17526, § §§ 110-117, 19 January 2016; 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 this case.
22. In particular, the Court notes that the applicant was prosecuted and convicted under section 7(2) of Law no. 3713 on the grounds that he had waved a flag symbolising the PKK and chanted slogans. The Court observes that the first-instance court's judgment does not contain any information as to the reasons why the applicant was found guilty of disseminating propaganda in support of the PKK. Nor does the judgment contain any assessment of the content of the particular slogans chanted by the applicant. The Malatya Assize Court found that by chanting slogans and waving a flag the accused had disseminated propaganda in favour of the PKK, without making an assessment as to whether the applicant's acts 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. Besides, there is nothing in the case file showing that the Newroz celebration in question was not a peaceful public gathering or that 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. 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. Last but not least, the Court notes the severity of the penalty imposed on the applicant, that is to say ten months' imprisonment, which the applicant served in part (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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
25. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. He also claimed EUR 50,000 in respect of pecuniary damage. Lastly, he claimed an unspecified amount for legal fees.
26. The Government contested those claims.
27. Having regard to the applicant's failure to submit to the Court any document in support of his claims in respect of pecuniary damage and to specify his claim for legal fees, the Court rejects those claims. On the other hand, ruling on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage.
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, 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 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