European Court of Human Rights

SECOND SECTION

CASE OF YAŞAR v. TURKEY

(Application no. 40381/10)

JUDGMENT

STRASBOURG

23 June 2020

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

In the case of Yaşar 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 Edip Yaşar (“the applicant”), on 31 May 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 1968 and lives in Ankara. He was represented by Ms S. Karaduman, a lawyer practising in Ankara.

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 2007, criminal proceedings were initiated against the applicant for having referred to Abdullah Öcalan as “Sayın”, meaning esteemed, in a press statement.

5.  On 24 December 2009, in a final judgment, the Diyarbakır 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.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

6.  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

7.  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.”

8.  The Government contested the argument.

9.  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.

10.  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.

11.  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

12.  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.”

13.  Without submitting any supporting documents, the applicant claimed 500 euros (EUR) in respect of pecuniary damage and EUR 5,000 in respect of non-pecuniary damage. Referring to the Ankara Bar Association’s scale of fees, the applicant further requested EUR 4,000 in respect of costs and expenses.

14.  The Government contested the claims.

15.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged. It therefore rejects that claim. However, it considers that the applicant must have sustained 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.

16.  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 absence of any supporting documents, the Court rejects this claim.

17.  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, within three months, EUR 2,000 (two thousand euros) to the applicant 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