European Court of Human Rights

 

SECOND SECTION

CASE OF MENGIRKAON v. TURKEY

(Application no. 5825/09)

 

 

 

 

 

 

JUDGMENT

 

STRASBOURG

23 June 2020

 

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

In the case of Mengirkaon 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 (no. 5825/09) 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 Melek Mengirkaon (“the applicant”), on 20 January 2009;

the decision to give notice to the Turkish Government (“the Government”) 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 1980 and lives in Istanbul. She was represented by Mr M. Erbil, a lawyer practising in Istanbul.

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.  On 2 January 2008, in a press declaration, the applicant referred to the imprisoned leader of a terrorist organisation, namely the PKK (Workers’ Party of Kurdistan), as “Sayın”, meaning esteemed.

5.  On 9 January 2008 criminal proceedings were initiated against the applicant before the Beyoğlu Magistrates’ Court in Criminal Matters for praising an offence or offender, proscribed by Article 215 of the Criminal Code.

6.  On 15 July 2008 the Beyoğlu Magistrates’ Court convicted the applicant as charged and sentenced her to one month imprisonment. In accordance with Article 50 of the Criminal Code, the applicant’s prison sentence was converted into a fine. In the decision, it was stated that this decision was final.

7.  Subsequently, the applicant’s lawyer filed for appeal.

8.  On 12 September 2008 the Beyoğlu Magistrates’ Court dismissed the appeal request, holding that its decision of 15 July 2008 was final as the fine that had been imposed on the applicant did not reach the minimum value required for lodging an appeal with the Court of Cassation. The applicant did not file an objection against this decision.

9.  Following a decision delivered by the Constitutional Court, which annulled Article 305 of the Criminal Procedure Code and made it possible to file an appeal for those who are in the same situation as the applicant, on 20 October 2009 the public prosecutor requested the Beyoğlu Magistrates’ Court to review the case and decide whether the suspension of the execution of the applicant’s sentence was required.

10.  On 20 November 2009 the Beyoğlu Magistrates’ Court held that there was no need to suspend the execution of the applicant’s sentence. The public prosecutor filed an objection against this decision stating that the suspension of the execution of the applicant’s sentence would be the most favourable solution in the applicant’s case.

11.  On 11 December 2009 the Beyoğlu Assize Court decided to suspend the execution of the applicant’s sentence.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

12.  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, and Bayar and Gürbüz v. Turkey, no. 37569/06, §§ 12‑16, 27 November 2012.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

13.  The applicant complained that her conviction had constituted a breach of her 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.”

A.    Admissibility

14.  The Government contested the arguments. They claimed at the outset that the applicant did not have the victim status within the meaning of Article 34 of the Convention, given the fact that the execution of her sentence had been suspended. They further argued that the applicant had failed to exhaust the domestic remedies available to her within the meaning of Article 35 § 1 of the Convention and maintained that she could have filed an appeal against the decision of the Beyoğlu Magistrates’ Court dated 12 September 2008.

15.  As to the first part of the Government’s objections, concerning the victim status of the applicant, the Court reiterates that it has already examined similar objections and rejected them (see, Özer v. Turkey (no. 3), no. 69270/12, § 19, 11 February 2020).

16.  As to the Government’s second objection, concerning non-exhaustion of domestic remedies, the Court recalls that Article 35 § 1 of the Convention only requires an applicant to exhaust remedies which relate to the breaches of the Convention alleged and at the same time can provide effective and sufficient redress. An applicant does not need to exhaust remedies which, although theoretically of a nature to constitute remedies, do not in reality offer any chance of redressing the alleged breach (see Bülbül v. Turkey, no. 47297/99, § 17, 22 May 2007). In the present case, it was clear from the judgment of the Beyoğlu Magistrates’ Court, dated 15 July 2008, that it was a final ruling due to the amount of the fine imposed on the applicant. The subsequent decision, which was delivered on 12 September 2008, was not an examination of the merits of the case, but it was a review on procedural grounds. The Court observes that according to the domestic legislation at the material time, it was clear that no appeal was possible against the judgment of 15 July 2008 because the fine that had been imposed on the applicant had not reached the minimum value required for lodging an appeal. Consequently, in the Court’s view, filing an objection against the decision 12 September 2008 would have been futile.

17.  In the light of the foregoing, the Court rejects the Government’s objections.

18.  The Court notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

19.  As to the merits of the Article 10 complaint, 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.

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

II. ALLEGED VIOLATION OF ARTICLE 6 §1 OF THE CONVENTION

21.  The applicant complained that her right of access to a court, namely her right to file an appeal against her conviction, had been breached on the ground that the amount of the fine that had been imposed on her had not reached the minimum value required for lodging an appeal. She relied on Article 13 of the Convention.

22.  The Court considers that it is more appropriate to examine this complaint under Article 6 §1 of the Convention, which in so far as relevant reads:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

23.  The Court 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.

24.  The Government contested the allegation.

25.  The Court observes that it has already examined similar issues in the past (see Bayar and Gürbüz v. Turkey, no. 37569/06, §§ 40‑49, 27 November 2012, and Yalçınkaya and Others, cited above, §§ 44-45), and found a violation of Article 6 § 1 of the Convention. There is no reason to depart from those findings.

26.  Accordingly, the Court concludes that in the present case there has been a violation of Article 6 § 1 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

27.  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.”

28.  The applicant claimed 238 euros (EUR) in respect of pecuniary damage and EUR 14,494 in respect of non-pecuniary damage. Relying on an invoice from his lawyer, the applicant further claimed EUR 1,448 for costs, expenses and legal fees.

29.  The Government contested the claims.

30.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

31.  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 500 covering costs under all heads.

Default interest

32.  The Court 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 application admissible;

2.      Holds that there has been a violation of Article 6 § 1 of the Convention;

3.      Holds that there has been a violation of Article 10 of the Convention;

4.      Holds

(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 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 500 (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;

5.      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