European Court of Human Rights

 

SECOND SECTION

CASE OF KAYA v. TURKEY

(Application no. 27110/08)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

23 June 2020

 

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

In the case of Kaya v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Valeriu Griţco, President,
          Arnfinn Bårdsen,
          Peeter Roosma, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application 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 Ferhat Kaya (“the applicant”), on 30 May 2008;

the decision to give notice to the Turkish Government (“the Government”) of the complaint concerning Article 10 of the Convention and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 26 May 2020,

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

THE FACTS

1.  The applicant was born in 1974 and lives in Ardahan. The applicant was represented by Ms C. Vine and Ms S. Karakaş, lawyers practising in London.

2.  The Government were represented by their Agent.

3.  The facts of the case, as submitted by the parties, may be summarised as follows.

4.  In 2003 criminal proceedings were initiated against the applicant for having referred to Abdullah Öcalan as “Sayın”, meaning esteemed, in a speech.

5.  On 30 November 2007 the Erzurum Assize Court convicted the applicant as charged under Article 215 of the Criminal Code and sentenced him to one month imprisonment. In accordance with Article 50 of the Criminal Code, the applicant’s prison sentence was commuted to a fine.

6.  Subsequently, following the entry into force of a new Law in February 2008, which enlarged the scope of Article 231 of the Criminal Procedure Code, the public prosecutor asked the trial court to re-examine the case.

7.  On 27 February 2008 the Erzurum Assize Court held that Article 231 was not applicable to the applicant’s case as he had a criminal record, and therefore decided not to suspend the pronouncement of the judgment that had been delivered on 30 November 2007.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

8.  A full description of the relevant domestic law may be found in Yalçınkaya and Others v. Turkey (nos. 25764/09 and 18 others, §§ 12‑13, 1 October 2013).

9.  Furthermore, the suspension of the pronouncement of a judgment is governed by Article 231 of the Code of Criminal Procedure, the relevant paragraphs of which read as follows at the material time:

“...

(5) If the accused has been convicted of the charges against him and ordered to pay a fine or sentenced to imprisonment for a period of less than two years, the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment means that the judgment shall not bear any legal consequences for the offender.

(6) A decision to suspend the pronouncement of a judgment may be issued provided that:

(a) the offender has never been found guilty of an intentional offence;

(b) the court is convinced, taking into account the offender’s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; [and]

(c) the damage caused to the victim or to society is redressed by way of restitution or compensation.

...

(12) An objection to the decision to suspend the pronouncement of the judgment may be filed.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

10.  The applicant complained that his conviction had constituted a breach of his right to freedom of expression, as provided in Article 10 of the Convention, which 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.”

11.  The Government argued that this part of the application should be declared inadmissible due to non-exhaustion of domestic remedies. They argued that the applicant should have filed an objection against the decision of 27 February 2008 in which the Erzurum Assize Court decided not to suspend the pronouncement of the judgment.

12.  The applicant contested the Government’s claim and argued that he was not required to file an objection against the decision of 27 February 2008 as in any event Article 231 of the Criminal Code was not applicable in his case due to the fact that he had a previous conviction record.

13.  The Court reiterates that Article 35 of the Convention requires only the exhaustion of remedies which are effective and available - that is to say, remedies which are accessible, are capable of providing redress in respect of the applicant’s complaints and offer reasonable prospects of success (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006‑II).

14.  In the present case, as indicated in the decision of the Erzurum Assize Court, the applicant had a previous criminal record, and thus the filing an objection against the decision of 27 February 2008 would have had, no prospects of success. Accordingly, the Court considers that the applicant was not required to make use of this compensatory remedy. It therefore dismisses the Government’s objection in this respect.

15.  The Court further notes that this complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

16.  As to the merits of the case, the Court reiterates that it has already examined a similar complaint in the case of Yalçınkaya and Others v. Turkey (nos. 25764/09 and 18 others, §§ 26‑38, 1 October 2013) and found a violation of Article 10 of the Convention. It has also examined the present case and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment.

17.  In view of the foregoing, the Court holds that there has been a violation of Article 10 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

18.  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.”

19.  The applicant claimed 5,000 euros (EUR) in respect of non‑pecuniary damage, and a total of 9,200 pounds sterling (GBP) (approximately EUR 10,500) in respect of legal fees. In support of his claim, the applicant submitted a time-sheet drafted by his representatives.

20.  The Government contested the claims.

21.  As regards the applicant’s claim concerning non-pecuniary damage, the Court accepts that the applicant must have suffered non-pecuniary damage which is not sufficiently compensated for by the finding of a violation. Making its assessment on an equitable basis and having regard to its case-law, the Court awards EUR 2,000 to the applicant under this head.

22.  As regards costs and expenses, according to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads.

23.  The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint concerning Article 10 of the Convention 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 applicant, within three months, the following amounts:

(i) EUR 2,000 (two 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;

(ii) EUR 1,500 (one thousand and five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses in respect of costs and expenses incurred before the Court, to be converted into pounds sterling at the rate applicable at the date of settlement and paid into his representatives’ bank account in the United Kingdom;

(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 23 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                      Valeriu Griţco
Deputy Registrar                                                                       President