CASE OF ALTUN AND OTHERS v. TURKEY

SECOND SECTION

CASE OF ALTUN AND OTHERS v. TURKEY

(Application no. 54093/10)

JUDGMENT

STRASBOURG

10 July 2018

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

In the case of Altun and Others v. Turkey,

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

Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 19 June 2018,

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

PROCEDURE

1. The case originated in an application (no. 54093/10) 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 three Turkish nationals, Ms Nurhayat Altun, Mr Salih Karaaslan and Mr Abdurrahim Bilen and (“the applicants”), on 17 August 2010.

2. The applicants were represented by Mr L. Kanat, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicants alleged that their criminal conviction under section 7(2) of Law no. 3713 on the basis of their participation in a religious ceremony had constituted a breach of Articles 9 and 11 of the Convention.

4. On 6 December 2011 the Government were given notice of the application.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1964, 1957 and 1947 respectively. The first and third applicants live in Ankara. The second applicant left Turkey subsequent to his criminal conviction giving rise to the present application.

6. On 21 August 2006 the applicants took part in a religious ceremony (mevlüt)[1] on the premises of the Altındağ district branch of the Party for a Democratic Society (Demokratik Toplum Partisi – “the DTP”) in Ankara, at which they paid tribute to three members of the PKK, an illegal armed organisation, who had been killed by the security forces. One of the deceased was the first applicant’s nephew. The second applicant was the head of the Ankara branch of the DTP at the relevant time. The third applicant was a member of the DTP and a friend of the first applicant.

7. On 23 November 2007 the Ankara public prosecutor filed a bill of indictment with the Ankara Assize Court, charging the applicants and a number of other persons with dissemination of propaganda in favour of the PKK, under section 7(2) of the Prevention of Terrorism Act (Law no. 3713), on account of their participation in the ceremony of 21 August 2006. According to the indictment, during the ceremony photographs of the deceased and the PKK’s flag were displayed at the venue and a film about the lives of the deceased was shown. In addition, the second applicant, the head of the Ankara branch of the DTP, made the following statement:

“Our fears and worries continue. People are still being killed. In such a context, we would like this mevlüt to be a moment of peace and fraternity.”

8. On 24 September 2008 the Ankara Assize Court convicted the applicants of disseminating propaganda in favour of the PKK and sentenced them to ten months’ imprisonment each. In its judgment, the Assize Court observed, firstly, that the persons in whose memory the ceremony had been held were members of a terrorist organisation and that they had been killed by the security forces during an operation against that organisation. It also took the view that the choice of venue for the ceremony – the premises of a political party – and the fact that the PKK flag had been spread over the tables and photographs of members of the organisation had been displayed, contributed to raising serious doubts as to the applicants’ submissions that they had taken part in the ceremony in observance of their religious duties. The court considered that the applicants had committed the offence of dissemination of propaganda given that they had shared the feelings of mourning and sorrow for the deceased who had been involved in terrorism. It further considered that the venue where the ceremony had been held had turned into a propaganda venue in favour of the PKK.

9. Following an appeal lodged by the applicants, their conviction was upheld by a final decision of the Court of Cassation on 8 March 2010.

10. The first and third applicants served their prison sentences.

II. RELEVANT DOMESTIC LAW

11. The relevant domestic law applicable at the material time can be found in Belge v. Turkey (no. 50171/09, § 19, 6 December 2016).

12. At the time of the events giving rise to the present application, section 7(2) of Law no. 3713 read as follows:

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

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION

13. The applicants complained that their criminal conviction under section 7(2) of Law no. 3713 on the basis of their participation in a religious ceremony had constituted a breach of Articles 9 and 11 of the Convention.

The Court considers that the complaints should be examined solely under Article 9 of the Convention (see Güler and Uğur v. Turkey, nos. 31706/10 and 33088/10, § 26, 2 December 2014), which reads:

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

14. The Government submitted that the applicants’ conviction had had a legal basis and pursued the legitimate aims of protecting national security, public safety, public order and the rights of others, as well as preventing crime. The applicants had been convicted of disseminating propaganda in favour of a terrorist organisation and not for a manifestation of their beliefs. The venue chosen – the premises of a political party – had not been an appropriate venue for a religious ceremony.

15. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

16. As regards the merits, the Court notes that it has already examined an application brought by the applicants’ co-accused regarding the same criminal proceedings and found a violation of Article 9 of the Convention (see Güler and Uğur, cited above, §§ 34-57). In that case, the Court considered that the interference with the applicants’ freedom of religion had not been “prescribed by law” in the sense that it had not met the requirements of clarity and foreseeability. In that regard, the Court found that it had not been possible for Mr Güler and Mr Uğur to foresee that participation in a religious service would fall within the scope of section 7(2) of Law no. 3713.

17. The Court has examined the present case and finds no reason that would require it to depart from its conclusion in the aforementioned case. In particular, there is nothing in the reasoning of the national courts showing that the applicants had played a role in choosing the venue for the religious ceremony or had been responsible for the presence of symbols of an illegal organisation on the premises where the ceremony was held. Moreover, the criminal act for which the applicants were convicted was merely their participation in the ceremony in question, which had been organised following the death of members of an illegal organisation. Having regard to the wording of section 7(2) of Law no. 3713 and to its interpretation by the Ankara Assize Court and the Court of Cassation when convicting the applicants of the dissemination of propaganda, the Court takes the view that the interference with the applicants’ freedom of religion was not “prescribed by law”.

There has accordingly been a violation of Article 9 of the Convention.

II. ALLEGED VIOLATIONS OF ARTICLES 8 AND 10 OF THE CONVENTION

18. The first applicant complained that her conviction had also constituted a breach of her right guaranteed under Article 8 of the Convention, given that one of the deceased had been her nephew. The second applicant complained that he had made a speech during the ceremony and that therefore his conviction had also breached his right to freedom of expression.

19. The Court observes that in convicting the first applicant, the Ankara Assize Court did not make any reference to the family tie between her and one of the deceased members of the PKK. Nor did it take into consideration the second applicant’s speech in its judgment. Having regard to the circumstances of the case and its finding of a violation of Article 9 of the Convention, the Court considers that there is no need to give a separate ruling on the admissibility or the merits of the applicants’ complaints under Articles 8 and 10 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and the cases cited therein).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

20. 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

21. The first and third applicants claimed EUR 10,000 each in respect of pecuniary damage, stating that following their release from prison they had been served with payment orders for the costs of food that they had been provided with while in prison. The first and third applicants submitted that they had paid 636 Turkish liras (TRY) (approximately EUR 287) and TRY 1,101 (approximately EUR 474) respectively. The first applicant further claimed TRY 18 (approximately EUR 9), the amount that she had paid for the costs of the criminal proceedings against her. In support of the aforementioned pecuniary claims, both applicants submitted payment orders and proof of payment. They also submitted that they had suffered loss of earnings as a direct result of their imprisonment.

22. The applicants further claimed 10,000 euros (EUR) each in respect of non-pecuniary damage.

23. The Government contested those claims.

24. The Court does not discern any causal link between the violation found and the loss of earnings claimed by the first and third applicants. Moreover, those claims are not supported with any documentation. The Court therefore rejects them. On the other hand, the Court finds that the costs of the food provided to the applicants in prison and the costs of the proceedings against the first applicant result directly from the violation found. It therefore awards the first and third applicants EUR 296 and EUR 474 respectively in respect of pecuniary damage.

25. Ruling on an equitable basis, the Court further awards the first and third applicants EUR 5,000 each and the second applicant EUR 2,500 in respect of non-pecuniary damage.

B. Costs and expenses

26. The applicants also claimed EUR 5,900 for the costs and expenses incurred before the Court. They stated that their representative had conducted interviews with them on nine occasions and that those interviews had lasted a total of three hours. The applicants also contended that they had to pay their representative TRY 11,000 (approximately EUR 4,950), namely the amount specified for an application to the Court in the Turkish Bar Association’s scale of fees, and submitted a copy of the relevant scale of fees.

27. The Government contested that claim.

28. 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 1,000 for the proceedings before the Court.

C. Default interest

29. 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 complaint under Article 9 of the Convention admissible in respect of all applicants;

2. Holds that there has been a violation of Article 9 of the Convention in respect of all applicants;

3. Holds that there is no need to examine the admissibility or the merits of the first and the third applicants’ complaints under Articles 8 and 10 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicants, 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 296 (two hundred and ninety-six euros), plus any tax that may be chargeable, to the first applicant in respect of pecuniary damage;

(i) EUR 474 (four hundred and seventy-four euros), plus any tax that may be chargeable, to the third applicant in respect of pecuniary damage;

(iii) EUR 5,000 (five thousand euros) each, plus any tax that may be chargeable, to the first and third applicants in respect of non-pecuniary damage;

(iv) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, to the second applicant in respect of non-pecuniary damage;

(v) EUR 1,000 (one thousand euros) plus any tax that may be chargeable, to the applicants jointly, 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 applicants’ claim for just satisfaction.

Done in English, and notified in writing on 10 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident

[1]. Mevlüt is a common religious ceremony observed by Muslims in Turkey. It consists mainly in the reading of poetry concerning the birth of the Prophet.

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