European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

CASE OF BAKIR v. TURKEY

(Application no. 2257/11)

 

 

 

 

JUDGMENT

 

 

 

 

 

 

STRASBOURG

13 October 2020

 

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

In the case of Bakır 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. 2257/11) 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 Abdurrahman Bakır (“the applicant”), on 14 January 2011;

the decision to give notice of the application to the Turkish Government (“the Government”);

the parties’ observations;

Having deliberated in private on 22 September 2020,

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

THE FACTS

1.  The applicant was born in 1953 and lives in Diyarbakır. The applicant was represented by Mr M. Biçen, a lawyer practising in Diyarbakır.

2.  The Government were represented by their Agent.

3.  The Government did not object to the examination of the application by a Committee.

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

5.  At the time of the events giving rise to the present application, the applicant was the president of the Ergani district branch of the DTP (Party for a Democratic Society).

6.  On an unspecified date a criminal investigation was instituted against the applicant for dissemination of propaganda in favour of a terrorist organisation, namely the PKK (Kurdistan Workers’ Party). The allegations against the applicant were based on (i) speeches that he had allegedly made in the village coffee house in Ergani in which he had allegedly praised the PKK and its leader, Abdullah Öcalan, stating that the activities of the organisation should be supported, and (ii) his actions during his nephew’s wedding party in 2008.

7.  On 6 March 2009 the Diyarbakır public prosecutor filed an indictment with the Diyarbakır Assize Court charging the applicant, under section 7 (2) of the Prevention of Terrorism Act (Law no. 3713), with disseminating propaganda on behalf of a terrorist organisation. The public prosecutor noted that the applicant had disseminated propaganda in favour of the PKK in the village coffee house that he frequented and that he had waved a piece of cloth symbolising the PKK and had chanted the slogans “Leader President Öcalan” (“Serok Apo”) and “Long live Öcalan” (“Biji Apo”) during his nephew’s wedding party.

8.  At the first hearing held on 28 April 2009 the trial court decided that the applicant should be compelled to appear after noting that he was absent. The trial court further decided, without giving any reasons, to examine two anonymous witnesses, namely Salihli X1 and Salihli X2, in the absence of the parties.

9.  At the second hearing held on 2 June 2009 the applicant was present and he stated that he would like to give evidence with the assistance of a lawyer. The public prosecutor requested that the applicant be remanded in custody in the light of the fact that he had acted in a blatant (pervasız) and callous (fütursuz) way by making speeches with a view to convincing the villagers to adopt the purpose and strategy of the leader of the terrorist organisation. At the end of the hearing, the trial court ordered the applicant’s detention and directed that an expert report be obtained regarding the video recording of his nephew’s wedding party.

10.  On 22 May 2009 the trial court held a hearing of its own motion during which it examined the anonymous witness Salihli X1 in the presence of the public prosecutor, but in the absence of the applicant and his lawyer. Salihli X1 stated that the applicant had frequented the village’s coffee house, where he had made speeches praising the PKK, its activities and its leader Abdullah Öcalan, and had stated that families should encourage their children to learn Kurdish and to join the PKK. As for the wedding party, Salihli X1 stated that no slogans had been chanted, but that some people had waved and danced with the flags symbolising the colours of the terrorist organisation (red, yellow and green), adding that he had not seen the applicant among them.

11.  On 25 May 2009 the trial court held another hearing of its own motion during which it examined the other anonymous witness, Salihli X2, in the presence of the public prosecutor, but in the absence of the applicant and his lawyer. Salihli X2 gave very similar statements to those of Salihli X1, although, unlike the latter, he asserted that he had seen the applicant dancing and waving a red, yellow and green flag, allegedly symbolising the PKK, and chanting the slogans “Leader President Öcalan” (“Serok Apo”) and “Long live Öcalan” (“Biji Apo”) while doing a victory sign during the wedding party.

12.  On 5 June 2009 the court received an expert report regarding the video footage of the wedding party of the applicant’s nephew. According to that report, the applicant was seen in the footage dancing and waving a red, yellow and green flag, allegedly symbolising the PKK, while a group of people were shouting slogans and carrying banners praising the PKK and Abdullah Öcalan, and displaying photographs of the latter and flags of the so‑called “Confederation”.

13.  At the fifth hearing held on 14 July 2009 the applicant gave evidence in person and pleaded not guilty, arguing that he had only been to the village coffee house for fifteen minutes during the run-up to the elections because he had been the president of Ergani district branch of the DTP. When the trial court read out the evidence given by the anonymous witnesses, the applicant objected to their statements, arguing that he had not disseminated any propaganda on behalf of a terrorist organisation. He further denied having chanted any slogans at the wedding, and when asked about the statements he had made to the gendarmerie on 19 November 2008, when he had stated that he did not consider Abdullah Öcalan as a terrorist leader, but rather saw him as the leader of all the peoples of Turkey, the applicant stated that these had been part of the informal conversation he had had with the officers, and not any propaganda on behalf of a terrorist organisation.

14.  At the same hearing, the applicant’s lawyer submitted that since neither he nor the applicant knew the identities of the anonymous witnesses, they could not challenge them on personality grounds. He also argued that the applicant’s acts could not be considered as propaganda on behalf of a terrorist organisation as they had been part of his political activities as a politician. Lastly, he went on to argue that it was traditional to wave pieces of cloth consisting of the colours red, yellow and green.

15.  At the hearing held on 18 August 2009 the applicant’s lawyer made his defence submissions together with his additional investigation requests. The trial court rejected his request that the two anonymous witnesses be examined again, considering that their testimony was not the sole evidence in the case file. At the end of the hearing, the trial court convicted the applicant under section 7 (2) of Law no. 3713 for disseminating propaganda in favour of a terrorist organisation, on the basis of the testimony of the two anonymous witnesses, the applicant’s defence statements, the video footage of the wedding and the expert report. The applicant was sentenced to three years’ imprisonment.

16.  In its reasoning, the Assize Court firstly noted that, based on his statements to the public prosecutor and during the trial, the applicant had not considered the PKK to be a terrorist group but an organisation which, according to him, fought for the rights of the Kurdish people, and he had regarded Abdullah Öcalan as the leader of the people of Turkey. In the trial court’s view, such statements had shown the applicant’s approval of, and support for, the activities of the PKK and its leader. Thus it interpreted those statements as the applicant’s efforts to legitimise the terrorist organisation and its leader. Then the court referred to the statements of the two anonymous witnesses, Salihli X1 and Salihli X2, and stated that their identities had been kept secret for fear of their being targeted by the PKK, given that they had testified against a person who had been spreading its propaganda. It went on to note that the applicant’s statements throughout the proceedings had demonstrated that he held opinions similar to the explanations given by the anonymous witnesses regarding the words he had used. Further, the trial court also listed the content of the expert report and its findings regarding the wedding party held by the applicant’s nephew.

17.  On the basis of the content of the case file, the Diyarbakır Assize Court concluded that the applicant had praised the PKK and Abdullah Öcalan in his speeches during the gatherings in the village coffee house and that those gatherings had consequently constituted illegal demonstrations. The court also concluded that the applicant’s actions during his nephew’s wedding party, that is to say waving a red, yellow and green flag allegedly symbolising the PKK, had prompted other persons to chant slogans and wave banners in favour of the PKK and its leader. As a result, the Assize Court found the applicant guilty of disseminating propaganda in favour of a terrorist organisation. According to the trial court, as the applicant’s speeches and acts were in support of a terrorist organisation, which employed the method of armed violence, and of its convicted leader, they could not be considered to fall within the applicant’s freedom of expression.

18.  On 7 September 2009 the applicant lodged an appeal against the judgment of 18 August 2009. In his statement of appeal the applicant contended that neither he nor his lawyer had been able to question the anonymous witnesses and that his requests to do so had been rejected for no reason. The applicant further contended that his opinions, which he had expressed when he had made a statement to the public prosecutor and which did not constitute propaganda in favour of a terrorist organisation, had served as a basis for his criminal conviction.

19.  On 15 July 2010 the Court of Cassation upheld the first-instance court’s judgment.

RELEVANT LEGAL FRAMEWORK

20.  The relevant legal framework relating to anonymous witnesses may be found in Balta and Demir v. Turkey, no. 48628/12, §§ 24-5, 23 June 2015.

21.  At the material time, section 7 (2) of the Prevention of Terrorism Act read as follows:

“Any person who disseminates propaganda in support of a terrorist organisation shall be liable to a term of imprisonment of between one and five years...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) OF THE CONVENTION

22.  The applicant complained that he had not had a fair trial owing to the national courts’ failure to provide him with the opportunity to put questions to the anonymous witnesses whose identities had remained unknown to him. Article 6 of the Convention, in so far as relevant, reads as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing by [a] ... tribunal ...

...

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

...”

A.    Admissibility

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.

B.     Merits

1.  The parties’ submissions

(a)  The applicant

24.  The applicant asserted that waving a flag consisting of the colours red, yellow and green at a wedding and the statements of the anonymous witnesses should not have been sufficient to imprison anyone. That mere fact had given rise to a violation of his right to a fair trial.

25.  Moreover, the applicant further argued that at no stage of the proceedings had he been given the chance to question the anonymous witnesses, who had provided the domestic courts with the key evidence for his conviction.

(b)  The Government

26.  The Government pointed out that the Assize Court had noted, in its reasoned judgment dated 18 August 2009, that the identities of the anonymous witnesses had been kept secret due to their fear of being exposed to pressure from the PKK, a terrorist organisation. As a result, they had been heard in closed hearings, in the light of the fact that they had resided in the same village as the applicant. Thus there had existed an objective and serious fear on the part of the anonymous witnesses.

27.  The Government further argued that the evidence given by the anonymous witnesses had not been the sole evidence against the applicant and that it could only be described as substantiating other evidence. Even assuming that it had been decisive for the applicant’s conviction, there had been other supporting, clarifying and probative evidence to show that the applicant had disseminated propaganda praising and glorifying a terrorist organisation.

28.  As to the counterbalancing factors resolving the difficulties faced by the defence, the Government noted that when the statements of the anonymous witnesses had been read out to the applicant, at the hearing on 14 July 2009, he had merely stated that he did not accept them, failing to raise any questions in that regard.

29.  Moreover, the judges on the bench had had the opportunity to directly assess the plausibility and reliability of the testimony of the anonymous witnesses, as they had been heard in person by the trial court.

2.  The Court’s assessment

(a)  General principles

30.  The general principles with regard to the right to obtain the attendance and examination of witnesses can be found in the Grand Chamber judgments of Al‑Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, ECHR 2011) and Schatschaschwili v. Germany ([GC], no. 9154/10, § 100, ECHR 2015).

31.  While the problems raised by anonymous and absent witnesses are not identical, the two situations are not different in principle, since each results in a potential disadvantage for the defendant. The underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against him. This principle requires not merely that a defendant should know the identity of his accusers so that he is in a position to challenge their probity and credibility but that he should be able to test the truthfulness and reliability of their evidence, by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage in the proceedings (see Al‑Khawaja and Tahery, cited above, § 127, and Sarkizov and Others v. Bulgaria, nos. 37981/06 and 3 others, § 55, 17 April 2012).

32.  However, the precise limitations on the defence’s ability to challenge a witness in proceedings differ in the two situations. Thus absent witnesses present the particular problem that their accounts cannot be subjected to searching examination by defence counsel. However, their identities are known to the defence, which is therefore able to identify or investigate any motives they may have for lying (see Ellis, Simms and Martin v. the United Kingdom (dec.), nos. 46099/06 and 46699/06, § 74, 10 April 2012).

33.  If the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable (see Pesukic v. Switzerland, no. 25088/07, § 45, 6 December 2012). Testimony or other declarations inculpating an accused may well be designedly untruthful or simply erroneous and the defence will scarcely be able to bring this to light if it lacks the information permitting it to test the author’s reliability or cast doubt on his credibility (see Kostovski v. the Netherlands, 20 November 1989, § 42, Series A no. 166).

34.  In the case of a fully anonymous witness, where no details whatsoever are known as to the witness’ identity or background, the defence faces the difficulty of being unable to put to the witness any reasons which the witness may have for lying. In this case, the extent of the disclosure regarding the anonymous witness has an impact on the extent of the handicap under which the defence is labouring (see Ellis, Simms and Martin, cited above, § 74).

35.  Whilst it is true that the maintenance of the anonymity of the witnesses presents the defence with difficulties which criminal proceedings should not normally involve, the use of statements made by anonymous witnesses to found a conviction is not in all circumstances incompatible with the Convention provided that the handicaps under which the defence laboured were sufficiently counterbalanced by the procedures followed by the judicial authorities (see Doorson v. the Netherlands, 26 March 1996, § 72, Reports of Judgments and Decisions 1996‑II, and Krasniki v. the Czech Republic, no. 51277/99, § 76, 28 February 2006). That said, evidence obtained from witnesses under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care (see Doorson, cited above, § 76).

36.  Accordingly, in assessing the fairness of a trial involving anonymous witnesses called to give oral evidence before the court, this Court must examine, first, whether there are good reasons to keep secret the identity of the witness and to examine them in the absence of the parties. Second, the Court must consider whether the evidence of the anonymous witness was the sole or decisive basis of the conviction. Third, where a conviction is based solely or decisively on the evidence of anonymous witnesses, the Court must subject the proceedings to the most searching scrutiny. Accordingly, the Court must be satisfied that there are sufficient counterbalancing factors, including the existence of strong procedural safeguards, to permit a fair and proper assessment of the reliability of that evidence to take place (see Al-Khawaja and Tahery, cited above, § 147).

(b)  Application of those principles to the instant case

(i)  Whether there was a good reason to keep secret the identity of the witnesses and to examine them in the absence of the parties

37.  As to whether there were good reasons to keep secret the identities of the two anonymous witnesses, the Court notes that at the first hearing which was held on 28 April 2009, the trial court decided to examine the anonymous witnesses in the absence of the parties without any reasons being given. Nevertheless, it ruled on that question in its reasoned judgment and held that the identities of the two anonymous witnesses had been kept secret in order to prevent any pressure from being exerted on them by the PKK in view of the fact that they had testified against the applicant, who had been disseminating PKK propaganda, and they lived in the same village as him.

38.  That said, and despite the scant and general reasoning employed by the trial court, the Court considers that, in the circumstances of the present case, fear of reprisals from a terrorist organisation cannot be taken to be far-fetched, having due regard to the difficulties encountered by the States in their efforts to fight against terrorism.

39.  The Court underlines, however, that the above factor could not, as such, justify, by and of itself, a free choice of means by the authorities in handling the anonymous witness evidence (see Birutis and Others v. Lithuania, nos. 47698/99 and 48115/99, § 30 in fine, 28 March 2002). Be that as it may, the Court finds it more appropriate to address this aspect, namely whether the trial court attempted to determine whether there were less restrictive measures than examining the anonymous witnesses in the absence of the applicant and his lawyer, in the third part of its examination, when considering whether any counterbalancing factors compensated for the handicaps under which the defence laboured. For the purposes of the present case, the Court is prepared to assume that there was a good reason to grant anonymity to Salihli X1 and Salihli X2.

(ii)  Whether the evidence of the anonymous witnesses was the sole or decisive basis for the applicant’s conviction

40.  Secondly, the Court will examine whether the statements given by the anonymous witnesses were the sole or decisive evidence, or whether they carried a significant weight to such an extent that they may have handicapped the defence (see Schatschaschwili, cited above, § 116). In that connection, the Court notes that the applicant was convicted on the basis of two incidents: firstly, the speeches he had allegedly made in the village coffee house in favour of the PKK and Abdullah Öcalan, and secondly, on the basis of his acts during his nephew’s wedding party, namely waving a piece of cloth purportedly symbolising the PKK.

41.  The Court observes that, according to the expert report in which the video recording of the wedding party was analysed, the applicant had waved and danced with a piece of cloth consisting of the colours red, green and yellow. As that recording is of itself objectively capable of demonstrating the applicant’s acts during the wedding party, the Court does not consider that the evidence given by the anonymous witnesses carried any significant weight in that respect.

42.  On the other hand, the Court is satisfied that the testimony of the anonymous witnesses was the decisive, if not the sole, evidence for the applicant’s conviction in so far as it concerned the speeches he had allegedly made in the village coffee house. At this point, the Court finds it important to underline that whilst the views expressed by the applicant in the statements he made during the proceedings is proof of his political views and opinions, they are not relevant for the criminal charges against him, given that they could not form part of the evidence capable of proving the act attributed to the applicant.

(iii)  Whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured

43.  The Court will now examine whether there were sufficient counterbalancing factors, including the existence of strong procedural safeguards, to permit a fair and proper assessment of the reliability of the evidence given by the anonymous witnesses. This would allow a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case (see Al-Khawaja and Tahery, cited above, § 147).

44.  In that connection, the Court also reiterates that the right to a fair administration of justice holds such a prominent place in a democratic society that any measures restricting the rights of the defence should be strictly necessary (see Van Mechelen and Others v. the Netherlands, 23 April 1997, § 58, Reports 1997‑III). If a less restrictive measure can suffice then that measure should be applied instead.

45.  Turning to the circumstances of the present case, the Court notes that the trial court was entitled, by virtue of section 58 (3) of the Code of Criminal Procedure, to take evidence from an anonymous witness in the absence of the parties when (i) examining the witness in the presence of the parties would cause “a grave danger”, and where (ii) such danger could not be averted in any other way. However, there is no indication that the trial court indeed considered and examined those legal requirements in adopting its approach vis-à-vis the manner in which it handled the anonymous evidence.

46.  Even if the requirements are met, section 58 (3) of the Code of Criminal Procedure directs that there must be an audio-visual transmission of the examination of anonymous witnesses with a right for the defence to ask questions. Yet the trial court did not provide that statutory safeguard, to enable the applicant and his lawyer to challenge the evidence given anonymously in a manner compliant with the statutory requirements provided for in the event of hearing a witness in the absence of the parties (see Pesukic, cited above, § 51, and Rozumecki v. Poland (dec.), no. 32605/11, § 64, 1 September 2015). Neither did it give any reasons capable of showing that such a course of action had been impossible for technical reasons (see Özgüç v. Turkey, [Committee], no. 3094/09, § 45, 2 February 2020). Nor did it make any reasonable efforts to explore whether alternative less restrictive measures, accompanied by appropriate safeguards, could be used in examining the anonymous witnesses so as to allow the defence to test their reliability and truthfulness in a fair and proper manner.

47.  The Court further observes that the procedural imbalance in the instant case appears to have further exacerbated when the trial court examined the two anonymous witnesses, whose identities had not been disclosed to the defence, in two separate hearings dated 22 May 2009 and 25 May 2009 in the absence of the applicant and his lawyer, but in the presence of the public prosecutor (see Ürek and Ürek v. Turkey, no. 74845/12, § 52, 30 July 2019), in spite of its prior decision to examine them “in the absence of the parties”. Moreover, the applicant and his lawyer had neither been informed of nor invited to attend those hearings. That practice clearly put the defence in a disadvantageous position vis-à-vis the public prosecutor and, in the absence of any procedural safeguards, breached the right to equality of arms (compare Doorson v. the Netherlands, 26 March 1996, § 66, Reports 1996‑II, where the participation of the defendant’s lawyer in the questioning of two anonymous witnesses by the investigating judge was considered sufficient).

It follows from the documents submitted by the parties that the anonymous witnesses were not examined by the applicant or his lawyer at any stage of the proceedings. More importantly, the Court also notes that neither the trial court nor the Court of Cassation stated any reasons in their judgments capable of showing that they had indeed performed an examination of the reliability or the credibility of the anonymous witnesses.

48.  The Court takes note of the Government’s argument that when the trial court read out the transcripts of the testimony of the anonymous witnesses during the hearing of 14 July 2009, the applicant merely stated that he did not accept them and had been unable to put any questions to the witnesses. However, the Court observes that at the same hearing, the applicant’s lawyer submitted that he could not subject the personalities of the two anonymous witnesses to a challenge given that he had not been informed of their identities. In addition, at the hearing of 18 August 2009 the applicant’s lawyer requested that the anonymous witnesses be examined. Similarly, when the applicant’s lawyer raised that issue in some detail in his appeal, the Court of Cassation did not address that submission by providing reasons in respect of it. In view of the above, the Court is unable to accept the Government’s argument that the applicant merely objected to the evidence given by the anonymous witnesses. In any event, the Court reiterates that challenging the written statements of anonymous witnesses or putting written questions to them are not sufficient to enable the defence to properly test the credibility and reliability of their evidence when the witnesses’ identities are not known or disclosed to the defence (see Balta and Demir, cited above, § 59, and compare Tseber v. the Czech Republic, no. 46203/08, § 63, 22 November 2012).

49.  As regards the Government’s contention that the fact of the judges’ observations as to the anonymous witnesses’ credibility and reliability was sufficient of itself to remedy the shortcomings in the instant case, the Court reiterates that the right laid down in Article 6 § 3 (d) of the Convention would be devoid of substance if the taking of impugned witness statements in the presence, and under the supervision, of a trial judge, but in the absence of the applicant and his or her lawyer, were in itself to be regarded as a substitute for the applicant’s right to be confronted with and to put questions to the witness in person (see Ürek and Ürek, cited above, § 66, and compare Bátěk and Others v. the Czech Republic, no. 54146/09, § 53, 12 January 2017).

50.  In view of the foregoing considerations, the Court considers that both the trial court and the Court of Cassation failed to afford the necessary procedural safeguards provided for by Turkish law, which could have provided the defence with measures that permitted a fair and proper assessment of the reliability of the evidence given by the anonymous witnesses. In the absence of any such procedural safeguards enabling the applicant to test the reliability and the credibility of the evidence given by the two anonymous witnesses in a manner compliant with the requirements of Article 6 § 3 (d) of the Convention, the Court concludes that the applicant’s defence rights were restricted to such an extent that it prejudiced the overall fairness of the criminal proceedings against him.

51.  There has accordingly been a violation of Article 6 §§ 1 and 3 (d) of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

52.  The applicant complained that his conviction for making speeches at the village coffee house, as well as dancing and waving a red, yellow and green flag at his nephew’s wedding, had breached his freedom of expression as provided for 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

53.  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.

B.     Merits

1.      The parties’ submissions

(a)    The applicant

54.  The applicant submitted that as the district head of DTP in Ergani he had been active in politics and had thus opposed the opinions and ideas of the Government by stating his own opinions against the official ideology of the State, which had been a necessity in a democratic society. In his view, when subjected to scrutiny, it would be seen that his speeches had contained no element promoting or legitimising violence. The applicant further argued that it had been against the law to punish him for his individual opinion, namely that he neither considered the PKK to be a terrorist organisation nor accepted its leader as a terrorist.

55.  Besides, the applicant pointed out that the red, yellow and green flag, which the national courts had considered as belonging to the PKK, had in fact not been the emblem or symbol of the PKK. Instead, these were the colours of the Kurdish flag, which was generally valued by the Kurds. Moreover, the same colours had also been used by the Kurds in Iraq.

(b)    The Government

56.  The Government argued that the interference with the applicant’s right under Article 10 of the Convention had been prescribed by law, namely section 7 (2) of the Prevention of Terrorism Act (Law no. 3713), and further submitted that it had pursued the legitimate aims of protecting national security, territorial integrity, public safety and the prevention of disorder or crime, as his speeches and acts had amounted to a call to violence. By waving a red, yellow and green flag symbolising the terrorist organisation, the applicant had given the opportunity to other participants in the wedding party to shout slogans and open banners in favour of the terrorist organisation and its leader. In their view, any such “advertisement” of a terrorist organisation amounted to praising and glorifying its terrorist acts.

57.  In the Government’s submission, the time when, and the circumstances in which, the impugned slogans had been chanted and the impugned acts had been carried out should be taken into account in order to decide whether the sentence imposed on the applicant was necessary in a democratic society. Considering that (i) the acts and slogans in question had been carried out and chanted in Diyarbakır, where armed terrorist activities had been widely and intensely committed for many years, and (ii) that the terrorist organisation had been actively maintaining its terrorist acts in the specified period of time, the Government invited the Court to find the interference proportionate and therefore necessary in a democratic society.

2.  The Court’s assessment

58.  The Court notes that it has not been disputed between the parties that the applicant’s conviction on the basis of the speeches he had made in the village coffee house, and the fact that he had danced and waved a red, yellow and green flag allegedly symbolising the PKK during his nephew’s wedding party, constituted an interference with his rights under Article 10 of the Convention. The Court is also prepared to accept that that interference was prescribed by law, namely section 7 (2) of the Prevention of Terrorism Act and that the national authorities may be considered to have pursued the legitimate aims suggested by the Government (see Faruk Temel v. Turkey, no. 16853/05, § 52, 1 February 2011).

59.  It therefore remains to be ascertained whether the interference complained of was “necessary in a democratic society”. The Court reiterates that it has previously examined complaints relating to issues that were similar to those in the present case and has found a violation of Article 10 of the Convention (see Kılıç and Eren v. Turkey, no. 43807/07, §§ 20‑31, 29 November 2011; Gül and Others, cited above, §§ 32-45; Bahçeci and Turan v. Turkey, no. 33340/03, §§ 24-34, 16 June 2009; and in particular Belge v. Turkey, no. 50171/09, §§ 17 and 35, 6 December 2016, and Varhan v. Turkey ([Committee], no. 2433/12, §§ 16‑24, 25 September 2018), where the Court found a violation on account of the applicant’s conviction for disseminating propaganda on the basis of waving a green, yellow and red flag symbolising the PKK and chanting slogans). The Court considers that the “necessity” assessment in the instant case should focus on the reasoning adopted by the national courts (see, among others, Mart and Others v. Turkey, no. 57031/10, § 32, 19 March 2019; Saygılı and Karataş v. Turkey, no. 6875/05, §§ 34-46, 16 January 2018; and Gözel and Özer v. Turkey, nos. 43453/04 and 31098/05, § 51, 6 July 2010).

60.  As regards the applicant’s conviction on the basis of dancing while waving a red, yellow and green flag, thereby prompting other persons to chant slogans and wave banners in favour of the PKK and its leader, the Court observes that the national courts failed to carry out a sufficient examination of the interests at stake or to weigh them in the balance having due regard to the criteria set out and applied by the Court in similar cases. Significantly, the trial court neither examined whether the applicant’s acts could be interpreted as encouraging violence, armed resistance or an uprising, or could be capable of inciting violence, nor analysed whether the applicant was involved in any violent acts or had the intention of inciting violence. Thus, the Court cannot accept the Government’s contention that the applicant’s acts amounted to a call to violence.

61.  In sum, the Court considers that the national courts did not provide “relevant and sufficient” reasons for the applicant’s criminal conviction under section 7 (2) of Law no. 3713. Moreover, the Court notes the severity of the penalty imposed on the applicant, that is to say three years’ imprisonment, which the applicant served in full (see Karataş v. Turkey [GC], no. 23168/94, §53, ECHR 1999‑IV).

62.  There has accordingly been a violation of Article 10 of the Convention in so far as the applicant’s acts during his nephew’s wedding party are concerned.

63.  In view of the above finding and bearing in mind its finding of a violation of Article 6 §§ 1 and 3 (d) of the Convention (see paragraph 51), the Court does not consider it necessary to examine separately the speeches the applicant allegedly made in the coffee house in Ergani from the viewpoint of Article 10 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

64.  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.”

A.    Damage, costs and expenses

65.  The applicant claimed 9,605 euros (EUR) in respect of pecuniary damage, this sum consisting of the minimum monthly wage for the twenty seven months which he had served in prison, plus the legal interest at 9 % applied to each month. In support of that claim, the applicant submitted a one-page document which indicated the calculation of the above amount.

66.  The applicant further claimed EUR 10,000 in respect of non-pecuniary damage and EUR 2,395 for the attorney’s fee.

67.  The Government contested those claims.

68.  The Court rejects the applicant’s claims for pecuniary damage, considering that he has failed to submit any detailed documents substantiating that request (see Murat Vural v. Turkey, no. 9540/07, § 86, 21 October 2014). Similarly, the Court also rejects the applicant’s claim for the attorney’s fee having regard to his failure to submit any documentary proof for that claim.

69.  On the other hand, the Court finds that the applicant must have suffered pain and distress which cannot be compensated for solely by the Court’s finding of a violation of Article 10 of the Convention. It therefore finds it appropriate to award the applicant EUR 5,000 in respect of non‑pecuniary damage. As to the finding of a violation of Article 6 §§ 1 and 3 (d), the Court considers that this finding in itself constitutes sufficient just satisfaction. It further considers that the most appropriate form of redress would be a retrial of the applicant in accordance with the requirements of Article 6 of the Convention, should he so request.

B.     Default interest

70.  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 and 3 (d) of the Convention;

3.      Holds that there has been a violation of Article 10 of the Convention on account of the applicant’s conviction for dancing and waving a red, yellow and green flag;

4.      Holds that there is no need to examine the complaint under Article 10 of the Convention concerning the applicant’s conviction relating to the speeches allegedly made by him in the village coffee house;

5.      Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant under Article 6 §§ 1 and 3 (d) of the Convention;

6.      Holds

(a)   that the respondent State is to pay the applicant, within three months, EUR 5,000 (five 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;

(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;

7.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                      Valeriu Griţco
Deputy Registrar                                                                       President