AYDEMIR AND KARAVIL v. TURKEY - 16624/12 (Judgment : Article 10 - Freedom of expression-{general} : Second Section Committee) [2018] ECHR 810 (09 October 2018)

SECOND SECTION

CASE OF AYDEMİR AND KARAVİL v. TURKEY

(Application no. 16624/12)

JUDGMENT

STRASBOURG

9 October 2018

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

In the case of Aydemir and Karavil 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 18 September 2018,

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

PROCEDURE

1. The case originated in an application (no. 16624/12) 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 two Turkish nationals, Mr Ziya Aydemir and Mr Kenan Karavil ("the applicants"), on 13 February 2012.

2. The applicants were represented by Ms S. Aracı Bek a lawyer practising in Adana. The Turkish Government ("the Government") were represented by their Agent.

3. On 6 September 2013 the complaint 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.

4 . On 26 February 2014 the Government submitted their observations on the admissibility and merits of the applications. By a letter dated 12 March 2014, the applicants were requested to submit by 22 April 2014 any written observations which they might wish to make in reply to those of the Government, together with any claims for just satisfaction under Article 41 of the Convention. On 22 August 2014 the applicants sent a letter to the Court enclosing their observations in reply to the Government's observations, together with their claims for just satisfaction. By a letter dated 9 October 2014 the parties were informed that the President of the Section had decided, pursuant to Rule 38 § 1 of the Rules of Court, to admit the applicants' observations and claims for just satisfaction, submitted outside the time-limit, to the case file.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1957 and 1981 and live in Diyarbakır and Adana respectively.

6. On 17 August 2006 the Adana public prosecutor filed a bill of indictment with Adana Magistrate's Court charging the applicants and five other persons with praising an offence and an offender under Article 215 of the Criminal Code. The public prosecutor alleged that the applicants had signed a petition in September 2005 which had been drafted in order to be sent to several institutions. The petition read as follows:

"As a person from Kurdistan, I consider and accept Mr/Esteemed Abdullah Öcalan of Kurdistan as a political actor." [1]

7. On 19 January 2007 the Adana Magistrate's Court decided that it lacked jurisdiction in the case due to the possibility of application of section 7(2) of the Prevention of Terrorism Act (Law no. 3713) proscribing disseminating propaganda in favour of a terrorist organisation. The court then sent the file to Adana Assize Court.

8. On 24 March 2008 the Adana Assize Court convicted the applicants of disseminating propaganda in favour of a terrorist organisation under section 7(2) of Law No. 3713 and sentenced them each to two years' imprisonment. In its judgment, the first-instance court found it established that the above-mentioned petition had been prepared for the purpose of disseminating propaganda in favour of the PKK and its leader and that by signing that petition the applicants had committed the offence proscribed in section 7(2) of Law no. 3713.

9. On 13 July 2011 the Court of Cassation upheld the judgment of 24 March 2008. On 24 August 2011 the Court of Cassation's judgment was deposited with the first instance court's registry.

10. On an unspecified date the second applicant started serving his prison sentence.

11. On 19 October 2012 the Adana Assize Court decided to suspend the execution of the applicants' prison sentence 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. The suspension was for a period of three years, on condition that they did not commit an offence through the press, media or other methods of expressing ideas and opinions.

II. RELEVANT DOMESTIC LAW

12. Between 7 August 2003 and 18 July 2006, section 7(2) of Law no. 3713 read as follows:

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

The first sentence of section 7(2) of Law no. 3713 was amended by Law no. 5532, which entered into force on 18 July 2006, as follows:

"Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of one to five years ..."

The first sentence of section 7(2) of Law no. 3713, amended on 30 April 2013 by Law no. 6459, currently reads as follows:

"Any person who disseminates propaganda in favour of a terrorist organisation by justifying, praising or encouraging the use of methods constituting coercion, violence or threats shall be liable to a term of imprisonment of one to five years ..."

THE LAW

I. THE GOVERNMENT'S OBJECTION

13. The Government claimed that the applicants' observations in reply to their observations and their claims for just satisfaction should not have been included in the case file since they had been submitted outside the time-limit.

14. The Court notes that on 9 October 2014 the parties were informed that the President of the Section had decided, pursuant to Rule 38 § 1 of the Rules of Court, to admit those observations and claims for just satisfaction to the case file (see paragraph 4 above). The Court also notes that it has already rejected similar objections by the respondent Government (see Atılgan and Others v. Turkey , no. 14495/11and 10 others, § 12, 27 January 2015; Şakir Kaçmaz v. Turkey , no. 8077/08, § 62, 10 November 2015; Yigin v. Turkey [Committee], no. 36643/09, § 16, 30 January 2018; and Aymelek v. Turkey [Committee], no. 15069/05, § 26, 30 January 2018). The Government's arguments on this point are therefore rejected.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

15. The applicants complained that their conviction on account of their participation in a petition campaign had constituted a breach of articles 10 and 11 of the Convention.

The Court considers 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."

16. The Government contested that argument. They argued that the applicants had failed to exhaust the domestic remedies available to them, within the meaning of Article 35 § 1 of the Convention. They submitted that subsequent to the Adana Assize Court's decision of 19 October 2012, the applicants should have applied to the Constitutional Court and raised their 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.

17. As regards the merits of the applicants' complaint under Article 10, the Government submitted that the interference with the applicants' 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. Leaving it to the Court's discretion to decide on the necessity of the interference with the applicants' right to freedom of expression, the Government 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.

18. 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 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.

19. As to the merits of the case, the Court considers that the applicants' criminal convictions amounted to an "interference" with the exercise of their 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, Bahçeci and Turan v. Turkey , no. 33340/03, § 30, 16 June 2009; Savgın v. Turkey , no. 13304/03, § 45, 2 February 2010; Faruk Temel , cited above, § 62; Öner and Türk , cited above, § 24; and Belge v. Turkey , no. 50171/09, § 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.

21. In particular, the Court notes that the applicants were prosecuted and convicted under section 7(2) of Law no. 3713 on the grounds that they had signed a petition in which they had declared that they recognised Abdullah Öcalan as a political actor. The Court observes that the first-instance court's judgment does not contain any information as to the reasons why the applicants were found guilty of disseminating propaganda in support of the PKK. Besides, the first-instance court did not examine whether the text of the petition 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. Hence, the Court considers that the reasons adduced by the national courts to justify the applicants' 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 applicants, that is to say two years of imprisonment, which the second applicant 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.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

24. 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."

25. The applicants claimed 150,000 euros (EUR) each in respect of pecuniary damage. They also claimed EUR 150,000 each in respect of non-pecuniary damage. Lastly, they claimed EUR 3,506 in respect of costs and expenses incurred before the Court. In support of their claim for costs and expenses, the applicants submitted the scale of fees of the Adana Bar Association.

26. The Government contested those claims.

27. Having regard to the applicants' failure to submit to the Court any document in support of their claims in respect of pecuniary damage and costs and expenses, the Court rejects those claims. On the other hand, ruling on an equitable basis, the Court awards the first applicant EUR 2,500 and the second 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;

3. Holds

(a) that the respondent State is to pay the applicants, 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 2,500 (two thousand five hundred euros) plus any tax that may be chargeable, to the first applicant in respect of non-pecuniary damage;

(ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, to the second applicant in respect of non-pecuniary damage;

(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 applicants' claim for just satisfaction.

Done in English, and notified in writing on 9 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Paul Lemmens
Deputy Registrar President

[1] . In Turkish: "Ben bir Kürdistanlı olarak Kürdistanlı Sayın Abdullah Öcalan'ı bir siyasi irade olarak görüyor ve kabul ediyorum."