CASE OF DÜZEL v. TURKEY
(Application no. 64375/12)
25 September 2018
This judgment is final but it may be subject to editorial revision.
In the case of Düzel 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. 64375/12) 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, Ms Hüsniye Düzel ("the applicant"), on 10 August 2012.
2. The applicant was represented by Mr M. Beştaş a lawyer practising in Diyarbakır. The Turkish Government ("the Government") were represented by their Agent.
3. The applicant complained under Articles 9 and 10 of the Convention that her conviction had constituted a breach of her rights to freedom of thought and to freedom of expression.
4. On 20 December 2012 the application was communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1960 and lives in Diyarbakır.
6 . On 30 September 2007 a reading out of a press statement and a march were held in Diyarbakır in order to protest about the conditions of detention and alleged poisoning of Abdullah Öcalan, the leader of the PKK (Kurdistan Workers' Party), an illegal armed organisation. The protesters gathered in front of the building of the Diyarbakır branch of the Democratic Society Party ( Demokratik Toplum Partisi ) (DTP) where a press statement was read out. They then marched. The applicant, as a member of the DTP, participated in the gathering and the ensuing march. According to a police report dated 9 October 2007, the applicant was seen while carrying a banner which read " İnsanlık zehirleniyor " ("The humanity is being poisoned") and applauding together with other demonstrators in the police video footage.
7. On 9 October 2007 the applicant was taken into police custody. On the same day she was detained on remand.
8 . On 17 October 2007 the Diyarbakır public prosecutor charged the applicant with disseminating propaganda in favour of a terrorist organisation under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) on account of the content of the banner she had carried during the demonstration of 30 September 2007.
9. On 4 December 2007 the applicant was released pending trial.
10 . On 18 March 2008 the Diyarbakır Assize Court convicted the applicant as charged. The court found it established, on the basis of an expert report on the police video footage, that the applicant had been together with other persons who had chanted the slogan " Be Serok Jiyan Nabe " ("There is no life without the leader") and that she had carried a banner which read "The humanity is being poisoned". The applicant was sentenced to ten months' imprisonment.
11. On 9 January 2012 the Court of Cassation upheld the judgment of 18 March 2008.
12. On an unspecified date the applicant started serving her prison sentence. On 17 July 2012, upon the applicant's request, the Diyarbakır Assize Court ordered her release from prison, in accordance with Law no. 6352 which had entered into force on 5 July 2012 and which had amended certain provisions of Law no. 3713.
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 Articles 9 and 10 of the Convention that her conviction had been in violation of her rights to freedom of thought and to freedom of expression.
16. The Court considers at the outset that this part of the application should be examined from the standpoint of Article 10 of the Convention alone.
Article 10 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 contested the applicant's argument. They asked the Court to declare the application inadmissible claiming that violent acts had been committed during the demonstration. As regards the merits of the applicant's complaint under Article 10, the Government submitted that the banners carried during the demonstration had contained violent expressions and that the interference with the applicant's freedom of expression had pursued a legitimate aim and corresponded to a pressing social need.
18. As regards the Government's submission that Article 10 is not applicable, the Court observes that the applicant was not convicted for having committed violent acts (see paragraph 10 above). The Court thus considers that the Government's submission is not supported by the facts of the case. 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.
19. As to the merits of the case, the Court considers that the applicant's 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. In the light of its findings regarding the necessity of the interference (see paragraph 23 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).
20. 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 the present case.
21. In particular, the Court notes that the applicant was convicted under section 7(2) of Law no. 3713 on the ground that she had carried a banner which read "The humanity is being poisoned" and sat together with a group of persons who had chanted the slogan "There is no life without the leader". The Court observes that there is nothing in the case-file showing that the applicant had chanted the slogan in question (see paragraphs 6 and 10 above). As to the content of the banner that the applicant carried during the demonstration, the Court observes that the first-instance court did not examine whether the expression written on the banner and the applicant's acts during the demonstration could be construed as encouraging violence, armed resistance or an uprising, or being capable of inciting to violence, which are essential elements to be taken into account. In sum, the Court considers that the reasons adduced by the national courts to justify the applicant's criminal conviction under section 7(2) of Law no. 3713 were not "relevant and sufficient" for the purposes of Article 10 of the Convention.
22. Last but not least, the Court notes the severity of the penalty imposed on the applicant, that is to say ten months of imprisonment, which she served in part (see Karataş v. Turkey [GC], no. 23168/94, § 53, ECHR 1999-IV).
23 . 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
24. The applicant complained under Article 6 and 13 of the Convention that the Assize Court had not obtained her submissions in reply to the Diyarbakır public prosecutor's bill of indictment before the opening of the trial.
25. The Court considers that this complaint should be examined from the standpoint of Article 6 alone. The Court further recalls that a similar complaint was previously examined and declared inadmissible for being manifestly ill-founded (see Ökten v. Turkey (dec.), no. 22347/07, §§ 51-53, 3 November 2011). The Court finds no reason to decide otherwise in the present case. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
26. The applicant claimed 40,000 Turkish liras (TRY - approximately 14,545 euros (EUR)) in respect of non-pecuniary damage. She also claimed pecuniary damages but left the amount to the Court's discretion. The applicant lastly claimed TRY 12,000 (approximately EUR 4,724) for lawyers' fees incurred both before the domestic courts and the Court as well as for her expenses incurred before the Court. In support of her claims, the applicant submitted a document showing that her legal representatives had carried out thirteen hours and thirty minutes' legal work on the application to the Court.
27. The Government contested those claims.
28. The Court does not discern any causal link between the violation found and any pecuniary damage; it therefore rejects this claim. On the other hand, ruling on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage.
29. As to the costs and expenses, regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,300 for costs and expenses in the proceedings before the Court.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint concerning the alleged breach of the applicant's right to freedom of expression admissible and the remainder of the application inadmissible;
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 1,300 (one thousand three 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