CASE OF ARSLAN AND OTHERS v. TURKEY

SECOND SECTION

CASE OF ARSLAN AND OTHERS v. TURKEY

(Application no. 3752/11)

JUDGMENT

STRASBOURG

10 July 2018

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

In the case of Arslan 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. 3752/11) 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 six Turkish nationals, Mr Kürşad Arslan, Ms Dilek Kömpe, Mr Ahmet Doğan, Mr Yaşar Çalışkan, Mr Gökhan Topaloğlu and Mr Olcay Bayraktar (“the applicants”), on 30 November 2010.

2. The applicants were represented by Mr E. Cinmen, a lawyer practising in Muğla. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicants complained under Articles 10 and 11 of the Convention that their conviction under section 7(2) of Law no. 3713 had constituted a violation of their rights to freedom of expression and freedom of assembly. They further contended under Article 6 of the Convention that the trial court had not been independent and impartial. The applicants complained under the same head about the failure of the domestic courts to suspend the pronouncement of their conviction and to provide reasoning for their decisions. The applicants lastly complained of a breach of Article 6 on account of the allegedly excessive length of the criminal proceedings against them and the alleged non-communication to them of the opinion of the public prosecutor at the Court of Cassation on the merits of the case.

4. On 29 May 2012 the application was communicated to the Government.

5. On 5 December 2017 the Government were informed that the Court intended to assign the application to a Committee. In a letter dated 4 January 2018 the Government objected to the examination of the applications by a Committee. After having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicants were born in 1983, 1973, 1983, 1986, 1984 and 1984. Mr Yaşar Çalışkan lives in Ankara. The other applicants live in Samsun. According to the applicants’ submissions, which were not contested by the Government, at the time of the lodging of the application, they were serving the prison sentences arising out of their criminal convictions which gave rise to the present application.

7. On 17 and 18 June 2005 seventeen members of the Maoist Communist Party (hereinafter “the MKP”), an illegal organisation, were killed in a rural area within the administrative jurisdiction of the town of Ovacık, near the city of Tunceli, by members of the security forces.

8. On 21 June 2005 a gathering was held in protest at the alleged unlawful killings of 17 and 18 June 2005 in Samsun. University students from the Samsun Ondokuz Mayıs Üniversitesi, including the applicants, gathered in front of the building of the Black Sea Fundamental Rights and Freedoms Association (Karadeniz Temel Haklar ve Özgürlükler Derneği) where a press statement was read out.

9. On 8 July 2005 one of the applicants, Mr Ahmet Doğan, attended another reading out of a press statement in Samsun. The press statement concerned the killings of 17 and 18 June 2005, the arrest of a number of persons subsequent to the reading out of the press statement on 21 June 2005 and the alleged unlawful killing of a detainee by the police.

10. On 21 February 2007 the Ankara public prosecutor initiated criminal proceedings against twenty-three people, including the applicants, charging them with disseminating propaganda in favour of the MKP, under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). According to the indictment, during the gathering of 21 June 2005, slogans such as “Long live revolutionary solidarity” (“Yaşasın devrimci dayanışma”), “We have paid a price. We will make them pay a price.” (“Bedel ödedik, bedel ödeteceğiz.”), “Murderer State” (“Katil devlet”), “Revolutionary martyrs are immortal” (“Devrim şehitleri ölümsüzdür.”), “Martyrs are immortal” (“Şehit namırın”), were chanted and the applicants participated in the gathering. The public prosecutor further noted that Mr Ahmet Doğan had participated in the gathering of 8 June 2005, during which the following slogans had been chanted: “No emancipation alone, either all of us or none of us.” (“Kurtuluş yok tek başına, ya hep beraber ya hiçbirimiz.)”, “Arrests, provocations and coercion cannot discourage us.” (“Tutuklamalar, provakasyonlar, baskılar bizi yıldıramaz.”), “We will resist and succeed” (“Direne direne kazanacağız.”), “We have paid a price; we will make them pay a price.” “Bedel ödedik, bedel ödeteceğiz”).

11. On 31 March 2009 the Ankara Assize Court found the applicants guilty as charged and sentenced each of them to ten months’ imprisonment pursuant to section 7(2) of Law no. 3713, except for Mr Ahmet Doğan, who was sentenced to twenty months’ imprisonment. As regards the gathering of 21 June 2005, the assize court found it established that the slogan “Martyrs are immortal” had been chanted by Mr Kürşad Arslan, Ms Dilek Kömpe, Mr Olcay Bayraktar and Mr Ahmet Doğan and that the slogans “The murderer state will pay the price”, “Revolutionary martyrs are immortal” and “Long live revolutionary solidarity” had been chanted by Mr Yaşar Çalışkan, Mr Kürşad Arslan and Ms Dilek Kömpe. The court also found it established that all the applicants except for Mr Olcay Bayraktar had chanted the slogan “We have paid a price; we will make them pay a price” and that Mr Ahmet Doğan had carried a banner bearing the slogan “Ovacık Martyrs are immortal”. As regards the gathering of 8 July 2005, the court noted that Mr Ahmet Doğan had chanted the slogans “Arrests, provocations and coercion cannot discourage us.”, “We will resist and succeed” and “We have paid a price; we will make them pay a price.” during that public gathering.

12. In its judgment, the Ankara Assize Court referred to Article 10 of the Convention as well as to the Court’s judgment in the case of Sürek v. Turkey (no. 1) ([GC], no. 26682/95, ECHR 1999‑IV) and the report of the European Commission of Human Rights in the case of Karataş v. Turkey (no. 23168/94, Commission’s report of 11 December 1997). The court held that by chanting the above-mentioned slogans the applicants had not exercised their democratic rights but had glorified terror by adopting the style of discourse of terror organisations and that they had not distanced themselves from violence. In the court’s view, by chanting those slogans the applicants had not intended to find a solution to a problem but had praised and glorified the source of the problem, that is to say, the terrorist organisations concerned. Hence, the applicants had incited terror. The Ankara Assize Court concluded that chanting the slogans in question could not be considered as falling within the scope of the right to freedom of expression.

13. On 8 July 2010 the Court of Cassation upheld the judgment of 31 March 2009 in so far as it concerned the applicants’ conviction.

14. On unspecified dates the applicants served their prison sentences.

II. RELEVANT DOMESTIC LAW

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

16. In particular, 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 assists members of the above-mentioned organisations [terrorist organisations] or who disseminates propaganda inciting others to violence or other methods of terrorism shall be liable to [serve] a term of imprisonment of one to five years and [receive] a judicial fine of five million liras to one billion liras ...”

THE LAW

I. THE GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION

17. In their letter dated 4 January 2018, the Government claimed that on 19 August 2013 they had submitted a unilateral declaration and requested that the Court strike out the application. They submitted a copy of the unilateral declaration in question by way of annex to their letter.

18. The Court notes at the outset that the Government’s unilateral declaration was only submitted to the Court for the first time on 4 January 2018, contrary to the Government’s assertion. It further notes that, under certain circumstances, it may be appropriate to strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government, even if the applicant wishes the examination of the case to be continued. It will, however, depend on the particular circumstances whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003‑VI, and Angelov and Others v. Bulgaria, no. 43586/04, § 12, 4 November 2010).

19. In this connection, the Court observes that Article 311 § 1 (f) of the Code on Criminal Procedure (Law no. 5271), provides that where a final judgment of the European Court of Human Rights establishes that a judgment has violated the Convention or its Protocols, a retrial may be requested. The Court therefore considers that the unilateral declaration, which will deprive the applicant of filing a retrial request, does not provide a sufficient basis for concluding that respect for human rights as defined in the Convention and its Protocols does not require it to continue its examination of the case (see Çalar v. Turkey [Committee], no. 9626/12, § 11, 28 November 2017).

20. This being so, the Court rejects the Government’s request to strike the application out under Article 37 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

21. The applicants complained under Articles 10 and 11 of the Convention that the criminal proceedings brought against them under section 7(2) of Law no. 3713, and their subsequent conviction, had constituted a violation of their rights to freedom of expression and freedom of assembly.

22. The Court considers at the outset that the application should be examined from the standpoint of Article 10 which reads:

“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.”

23. The Government submitted that on 5 July 2012 a new law (Law no. 6352) had entered into force amending various laws with a view to rendering judicial services more effective and to suspending cases and sentences given in cases concerning crimes committed through the press and other media. They claimed that the applicants should have applied to the trial court and requested that the latter suspend the execution of their conviction in the light of the provisions of Law no. 6352. In the Government’s view, the applicants had failed to exhaust the domestic remedies as they had not availed themselves of the remedy provided for in Law no. 6352.

24. As regards the merits of the applicants’ complaint under Article 10, the Government submitted that the interference with the applicants’ right to freedom of expression had pursued the legitimate aims of the protection of public security and national security. They further submitted that the applicants had chanted the slogans in question only four days after seventeen members of the MKP had been killed by the security forces. They noted that the applicants had chanted the slogan “We have paid a price; we will make them pay a price”, and thereby incited to violence. The Government contended that the security forces had not intervened to stop the reading out of the press statements and that the applicants had been free to express their opinions.

25. As regards the Government’s submission that the applicants had failed to exhaust the domestic remedies, the Court notes that the remedy referred to by the Government does not provide a substantive review of the case (see Öner and Türk v. Turkey, no. 51962/12, § 17, 31 March 2015). Had the applicants applied to the trial court, the latter would have merely reviewed the question of whether the execution of the applicants’ sentences should have been suspended following the amendments made by Law no. 6352. The applicants’ conviction had become final as a result of the Court of Cassation’s decision of 8 July 2010, and according to the applicants’ submissions ‒ which were not contested by the Government ‒ the applicants served the prison sentences arising out of that conviction before the entry into force of Law no. 6352 (see paragraph 5 above). Hence, the Court finds that the applicants were not required to make use of the remedy referred to by the Government. It follows that this complaint cannot be rejected for non‑exhaustion of domestic remedies and the Government’s objection must therefore be dismissed.

26. The Court further notes that this complaint 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.

27. As to the merits of the case, the Court considers that the applicants’ criminal conviction amounted to an “interference” with the exercise of their freedom of expression and that the interference was based on section 7(2) of Law no. 3713. In the light of its findings regarding the necessity of the interference (see paragraph 29 below) the Court considers that it is not required to conduct an examination of the “lawfulness” thereof. The Court is also prepared to accept that, in the present case, the national authorities may be considered to have pursued the legitimate aims of protecting national security and preventing disorder and crime (see Faruk Temel v. Turkey, no. 16853/05, § 52, 1 February 2011).

28. As regards the necessity of the interference in a democratic society, the Court notes that it has already examined similar grievances in a number of cases and found violations of Articles 10 and 11 of the Convention (see, for example, Savgın v. Turkey, no. 13304/03, §§ 39-48, 2 February 2010; Gül and Others v. Turkey, no. 4870/02, §§ 32-45, 8 June 2010; Menteş v. Turkey (no. 2), no. 33347/04, §§ 39-54, 25 January 2011; Kılıç and Eren v. Turkey, no. 43807/07, §§ 20-31, 29 November 2011; Faruk Temel, cited above, §§ 58-64; Yavuz and Yaylalı v. Turkey, no. 12606/11, §§ 42-55, 17 December 2013; Öner and Türk, cited above, §§ 19-27, 31 March 2015; Gülcü v. Turkey, no. 17526/10, §§ 110-117, 19 January 2016; and Belge, cited above, §§ 24-38). In particular, in the above-mentioned case of Yavuz and Yaylalı, the Court found a breach of Article 10 of the Convention on account of the conviction of Ms Yavuz and Mr Yaylalı under section 7(2) of Law no. 3713 for having attended the public gatherings of 21 June and 8 July 2005 and having chanted the slogans described in paragraph 9 above.

29. The Court has examined the present case and considers that the Government have not put forward any argument which would require it to reach a different conclusion in the present case. In particular, the Ankara Assize Court convicted the applicants for not distancing themselves from violence and for adopting terrorist organisations’ discourse without providing an explanation as to why it considered that chanting the slogans referred to in the indictment had constituted encouragement of violence, armed resistance or an uprising, or had been capable of inciting to violence. In the Court’s view, the applicants’ reaction to the above-mentioned killings amounted to a criticism of the acts committed by the security forces but did not incite the use of violence, armed resistance or uprising and did not constitute hate speech (see Yavuz and Yaylalı, cited above, § 52). Besides, the slogans in question are well-known and stereotyped leftist slogans and they were chanted during peaceful public gatherings (see Gül and Others, cited above, § 41). There is also nothing in the case file showing that the applicants were involved in any violent acts or had the intention of inciting violence. The Ankara Assize Court, however, does not appear to have given consideration to any of the above factors. In sum, the Court considers that the national courts did not provide “relevant and sufficient” reasons for the applicants’ criminal conviction under section 7(2) of Law no. 3713.

30. Lastly, the Court notes the severity of the penalty imposed on the applicants, that is to say ten months’ imprisonment, and in the case of Ahmet Doğan even twenty months’ imprisonment, which the applicants served (see Karataş v. Turkey [GC], no. 23168/94, § 53, ECHR 1999‑IV).

31. The Court concludes that the interference in question was not “necessary in a democratic society”. Accordingly, there has been a violation of Article 10 of the Convention.

III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

32. The applicants complained under Article 6 of the Convention that the trial court had not been independent and impartial. They further complained about the failure of the domestic courts to suspend the pronouncement of their conviction and to provide reasoning for their decisions. The applicants also complained of a breach of Article 6 on account of the allegedly excessive length of the criminal proceedings against them and the alleged non-communication to them of the opinion of the public prosecutor at the Court of Cassation on the merits of the case.

33. Taking into account the facts of the case and its finding of a violation of Article 10 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’ complaint under Article 6 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).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

34. 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

35. Mr Kürşad Arslan, Mr Yaşar Çalışkan and Mr Olcay Bayraktar claimed 40,000 euros (EUR) and Ms Dilek Kömpe, Mr Ahmet Doğan, Mr Gökhan Topaloğlu claimed 45,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. Mr Kürşad Arslan and Mr Ahmet Doğan submitted that they had suffered pecuniary damage as a result of their criminal conviction since they had obtained degree qualifications in teaching but had been unable to work as teachers due to their criminal conviction. Ms Dilek Kömpe submitted that she had worked as an agricultural engineer prior to her conviction and that she had had to quit her job in the private sector as she had had to serve her prison sentence. Mr Gökhan Topaloğlu submitted that he had been a teacher working on a contract basis prior to his conviction. He claimed that as a result of his conviction he had lost his teaching post and therefore his salary.

36. The Government contested those claims.

37. The Court finds that no causal link has been satisfactorily established between the applicants’ alleged loss of earnings and the violation of Article 10 of the Convention. Moreover, the loss which the applicants claim to have suffered has not been sufficiently proved. It therefore rejects the applicants’ claims for pecuniary damage.

38. However, the Court considers that the applicants must have sustained non-pecuniary damage which the finding of a violation of the Convention in this judgment does not suffice to remedy. Ruling on an equitable basis, the Court awards Mr Kürşad Arslan, Ms Dilek Kömpe, Mr Yaşar Çalışkan, Mr Gökhan Topaloğlu and Mr Olcay Bayraktar EUR 5,000 and Mr Ahmet Doğan EUR 10,000 in respect of non‑pecuniary damage.

B. Costs and expenses

39. The applicants did not make a separate claim for their costs and expenses incurred before the domestic authorities and the Court. They contended that they had agreed to pay their representative 15% of any compensation awarded to each of them by the Court and submitted copies of the fee agreements that they had concluded with their representative containing the above-mentioned terms.

40. The Government contested those claims.

41. The Court notes that the applicants failed to quantify their claims and that they gave no breakdown of the number of hours of work for which their lawyer sought payment. Nor did they submit any information or documents showing the costs incurred by them - such as translation, postage, stationary and secretarial fees etc. - in submitting their application to the Court. Accordingly, the Court considers that there is no call to award the applicants any sum under this head (Rule 60 § 2 of the Rules of Court).

C. Default interest

42. 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 10 of the Convention admissible;

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

3. Holds that there is no need to examine the admissibility or the merits of the complaints under Article 6 of the Convention;

4. Holds

(a) that the respondent State is to pay the following 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 5,000 (five thousand euros) each to Mr Kürşad Arslan, Ms Dilek Kömpe, Mr Yaşar Çalışkan, Mr Gökhan Topaloğlu and Mr Olcay Bayraktar, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 10,000 (ten thousand euros) to Mr Ahmet Doğan, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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

 

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