European Court of Human Rights

 

SECOND SECTION

CASE OF YILMAZ v. TURKEY

(Application no. 19607/10)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

23 June 2020

 

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

In the case of Yılmaz 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 Ömer Yılmaz (“the applicant”), on 12 February 2010;

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 1961 and lives in Ardahan. The applicant was represented by Mr A.Y. Yılmaz, a lawyer practising in Ardahan.

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.  At the material time, the applicant was the chairman of the Ardahan Branch of the DTP (Party for a Democratic Society).

I. First set of proceedings

5.  On 13 November 2006, in a press declaration, the applicant referred to the imprisoned leader of the PKK, as “Sayın”, meaning esteemed.

6.  On 28 December 2006 the Ardahan Public Prosecutor initiated criminal proceedings against the applicant before the Ardahan Magistrates’ Court in Criminal Matters, charging him with praising an offence or offender, proscribed by Article 215 of the Criminal Code.

7.  On 4 April 2007 the Ardahan Magistrates’ Court convicted the applicant as charged under Article 215 of the Criminal Code and sentenced him to twenty five days’ imprisonment. In accordance with Article 50 of the Criminal Code, the applicant’s prison sentence was converted into a fine. In its judgment, the Ardahan Magistrates’ Court further noted that the applicant could file an appeal within one week.

8.  The applicant appealed.

9.  On 9 March 2011 the Court of Cassation dismissed the applicant’s appeal request, holding that the amount of the fine that had been imposed on him was below the monetary limit to file an appeal.

10.  On 6 May 2011 the judgment of the Ardahan Magistrates’ Court was deposited with the public prosecutor’s office for execution.

11.  On 9 May 2011 the public prosecutor applied to the Ardahan Magistrates’ Court, and asked the court to review the case in respect of Article 231 of the Criminal Procedure Code which regulates the suspension of the pronouncement of the judgment.

12.  On 11 May 2011 the Ardahan Magistrates’ Court decided to annul its decision dated 4 April 2007. It found the applicant guilty as charged once again and sentenced him to twenty five days’ imprisonment. In view of Article 231 of the Criminal Procedure Code, the court further decided to suspend the pronouncement of the judgment on condition that he did not commit another intentional offence for a period of five years.

II. Second set of proceedings

13.  On 29 September 2009 the applicant was interrogated by the public prosecutor on account of praising an offence or offender for referring to the imprisoned leader of the PKK as “Sayın”. In his statement, the applicant used the same term again.

14.  On 26 November 2009 the public prosecutor filed a new bill of indictment with the Ardahan Magistrates’ Court in Criminal Matters against the applicant.

15.  On 29 June 2010 the court found the applicant guilty under Article 215 of the Criminal Code for praising an offence and offender and sentenced him to twenty five days’ imprisonment. In accordance with Article 50 of the Criminal Code, the applicant’s prison sentence was converted into a fine. In its judgment, the Ardahan Magistrates’ Court further noted that the applicant could file an appeal within one week.

16.  The applicant appealed.

17.  On 7 September 2012 the Court of Cassation dismissed the applicant’s appeal request, holding that the amount of the fine that had been imposed on him was below the monetary limit to file an appeal.

18.  On 27 November 2012 the judgment of the Ardahan Magistrates’ Court was deposited with the public prosecutor’s office for execution. Subsequently, the public prosecutor applied to the Ardahan Magistrates’ Court, and asked the court to review the case in the light of the Provisional Article 1 § 1 of Law no. 6352, which had entered into force on 5 July 2012, regarding the suspension of the execution of the sentences.

19.  On 31 December 2012 the court revised its judgment pursuant to Provisional Article 1 § 1 of the Law no. 6352 and suspended the execution of the applicant’s sentence. According to the information in the file, this decision became final on 21 January 2013.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

20.  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).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

21.  The applicant complained that his convictions 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.

A.    Admissibility

22.  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 in the first set of proceedings the pronouncement of the judgment and in the second set of proceedings the execution of his sentence had been suspended. They further argued that as regards the second set of proceedings, the applicant had failed to exhaust the domestic remedies available to him, within the meaning of Article 35 § 1 of the Convention. In this connection, they relied on the decision of the Ardahan Magistrates’ Court dated 31 December 2012, and maintained 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.

23.  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, regarding the suspension of the pronouncement of the judgment, Fatih Taş v. Turkey (no. 2), no. 6813/09, § 14, 10 October 2017; and regarding the suspension of the execution of the sentence, Özer v. Turkey (no. 3), no. 69270/12, § 19, 11 February 2020).

24.  As to the Government’s preliminary objection regarding the second set of proceedings about the alleged failure of the applicant to apply to the Constitutional Court, the Court notes that it has already examined and dismissed identical objections 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 and Aydemir and Karavil v. Turkey [Committee], no.16624/12, § 18, 9 October 2018).

25.  The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence.

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

27.  The Court notes that 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

28.  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.

29.  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

30.  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.”

31.  Without making a specific claim, the applicant asked the Court to award him compensation for pecuniary and non-pecuniary damage, as well as for the costs and expenses in accordance with the Court’s practice.

32.  The Government submitted that no award should be made since the applicant had failed to specify his claims.

33.  As to pecuniary damage, pursuant to Rule 60 § 1 of the Rules of Court, an applicant who wishes to obtain an award of just satisfaction in respect of pecuniary damage must make a specific claim to that effect. Since in the present case the applicant failed to specify any amount, the Court makes no award under that head (Rule 60 § 3) (see, Narodni List D.D. v. Croatia, no. 2782/12, § 77, 8 November 2018).

34.  By contrast, since non-pecuniary damage does not, by its nature, lend itself to precise calculation, Rule 60 does not prevent the Court from examining claims for non-pecuniary damage which applicants did not quantify, leaving the amount to the Court’s discretion (see, Nagmetov v. Russia [GC], no. 35589/08, § 72, 30 March 2017). Making an assessment on an equitable basis, the Court awards the applicant 2,000 euros (EUR) in respect of non-pecuniary damage.

35.  As to 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. The Court observes that the applicant has not provided any documents to justify his costs and expenses. The Court therefore rejects the claim for costs and expenses.

36.  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 10 of the Convention;

3.       Holds

(a)   that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros) plus any tax that any 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 23 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                      Valeriu Griţco
Deputy Registrar                                                                       President