SECOND SECTION
CASE OF AYAYDIN v. TURKEY
(Application no. 20509/10)
JUDGMENT
STRASBOURG
25 September 2018
This judgment is final but it may be subject to editorial revision.
In the case of Ayaydın 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 4 September 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 20509/10) 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 a Turkish national, Mr Engin Ayaydın (“the applicant”), on 9 March 2010.
2. The applicant was represented by Ms R. Bataray Saman, a lawyer practising in Diyarbakir. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant alleged that his criminal conviction under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) had constituted a breach of his rights guaranteed under Articles 9, 10 and 11 of the Convention.
4. On 28 November 2011 the Government were given notice of the application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1985 and lives in the Kızıltepe district of Mardin.
6. On 30 March 2006 the applicant participated in a march and the reading out of a press statement held by the Party for a Democratic Society (Demokratik Toplum Partisi –“the DTP”) in Kızıltepe. The protesters gathered in front of the building of the Kızıltepe branch of the DTP and walked to the building of the district branch of the Justice and Development Party (Adalet ve Kalkınma Partisi), where a press statement was read out. The press statement concerned the clashes that had occurred between demonstrators and the police in Diyarbakır on 29 and 30 March 2006. The protestors then returned to the DTP building. During the march the protesters chanted slogans. The applicant participated in the march and the reading out of the press statement as a member of the DTP.
7. On 8 March 2007 the Diyarbakır public prosecutor filed an indictment charging the applicant and eleven other individuals with disseminating propaganda in favour of the PKK under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). The public prosecutor claimed that the applicant had attended the demonstration of 30 March 2006 and chanted the slogan “Tooth for tooth, blood for blood, we are with you Öcalan” (“Dişe diş, kana kan, seninleyiz Öcalan”).
8. Within the context of the criminal proceedings initiated following the indictment dated 8 March 2007, an expert who had examined the police video recordings of the public gathering of 30 March 2006 observed that the applicant had acted together with the crowd, but that it could not be established whether he had chanted the above-mentioned slogan since he had covered his mouth and nose.
9. On 22 April 2008 the Diyarbakır Assize Court convicted the applicant under section 7(2) of Law no. 3713. In its judgment, the court noted that the applicant had accepted that he had participated in the march and the reading out of the press statement, but denied the veracity of the allegation that he had chanted any slogan. The Assize Court found it established that the march and the gathering at which a press statement had been read out on 30 March 2006 had turned into a propaganda event in favour of the PKK and an illegal demonstration, and that the accused, including the applicant, had actively participated in that event. The Assize Court further observed that although, according to the expert report, it could not be established that the applicant had chanted the slogan, on the basis of the photographs in the case file, it was established that he had acted together with the demonstrators. Noting that there were other demonstrators who had covered their mouths and that the police documents showed that the applicant had actively taken part in the demonstration and instructed others to chant slogans, the Assize Court concluded that the applicant had committed the offence of dissemination of propaganda in favour of a terrorist organisation. The applicant was sentenced to ten months’ imprisonment.
10. On 2 July 2009 the Court of Cassation upheld the judgment of 22 April 2008.
11. On 4 February 2011 the applicant started serving his prison sentence. On 21 June 2011 he was conditionally released.
II. RELEVANT DOMESTIC LAW
12. The relevant domestic law applicable at the material time can be found in Belge v. Turkey (no. 50171/09, § 19, 6 December 2016).
13. 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 [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. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
14. The applicant complained that his conviction under section 7(2) of Law no. 3713 had constituted a breach of his rights guaranteed under Articles 9, 10 and 11 of the Convention.
The Court considers that the applicant’s complaint 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.”
15. The Government contested the applicant’s arguments. They submitted that he had failed to exhaust domestic remedies as he had not raised his Convention grievances before the domestic authorities. As regards the merits of the applicant’s complaint, the Government submitted that the interference with his right to freedom of expression had had a legal basis and had pursued the legitimate aims of protecting national security, public safety and the rights of others, as well as preventing disorder and crime. Noting that the applicant’s conviction had been based on his participation in an illegal demonstration which had turned into a propaganda event in favour of the PKK and on the fact that he had acted together with and led the other demonstrators, the Government claimed that the present case was different from the case of Faruk Temel v. Turkey (no. 16853/05, 1 February 2011). They concluded that the applicant’s conviction had responded to a pressing social need and had therefore been necessary in a democratic society.
16. As regards the Government’s objection concerning the rule of exhaustion of domestic remedies, the Court notes at the outset that the applicant was charged with dissemination of propaganda in favour of a terrorist organisation. The public prosecutor brought that charge against the applicant, alleging that he had chanted a slogan which had a particularly violent tone (paragraph 7 above) (see Yılmaz and Kılıç v. Turkey, no. 68514/01, § 66, 17 July 2008, and Belge v. Turkey, no. 50171/09, § 35, 6 December 2016). The applicant denied the veracity of the public prosecutor’s allegation while acknowledging that he had participated in the march and the reading out of the press statement on 30 March 2006 (see paragraph 9 above). Hence, by acknowledging some of the facts which concern the exercise of his freedom of expression, the applicant must be considered to have raised, in substance, his complaint under Article 10 of the Convention before the national courts (see Ulusoy v. Turkey, no. 52709/99, § 38, 31 July 2007; Yılmaz and Kılıç, cited above, § 43; and Agit Demir v. Turkey, no. 36475/10, §§ 66-67, 27 February 2018[1]; see also Özgür Radyo-Ses Radyo Televizyon Yayın Yapım Ve Tanıtım A.Ş. v. Turkey (no. 1), nos. 64178/00 and 4 others, § 68, 30 March 2006, and Perihan and Mezopotamya Basın Yayın A.Ş. v. Turkey, no. 21377/03, §§ 48-49, 21 January 2014). The Court accordingly rejects the Government’s objection.
17. The Court 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.
18. As to the merits of the case, the Court considers that the applicant’s criminal conviction amounted to an “interference” with the exercise of his freedom of expression and notes 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 22 below), the Court considers that it is not required to conduct an examination of the “lawfulness” of the interference. 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, cited above, § 52).
19. 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; Öner and Türk v. Turkey, no. 51962/12, §§ 19-27, 31 March 2015; Gülcü v. Turkey, no. 17526, § §§ 110-17, 19 January 2016; Belge, cited above, §§ 24-38; Yigin v. Turkey [Committee], no. 36643/09, §§ 22-24, 30 January 2018; and Zengin and Çakır v. Turkey [Committee], no. 57069/09, §§ 18-20, 13 February 2018). 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.
20. In particular, the Court notes that the applicant was convicted under section 7(2) of Law no. 3713 on the grounds that he had actively taken part in the march and the reading out of a press statement on 30 March 2006, which had turned into a propaganda event in favour of the PKK. The Court observes that the Assize Court found that by attending and actively participating in the public gathering in question and instructing the other demonstrators to chant slogans, the applicant had disseminated propaganda in favour of the PKK. The court did not, however, provide an explanation as to why it considered that the applicant’s acts during the march and the reading out of the press statement had constituted incitement to violence, or armed resistance or an uprising, or had been capable of incitement to violence. Moreover, there is nothing in the case file showing that the event in question was not a peaceful public gathering and that the applicant was involved in any violent acts or had the intention of inciting violence. The Diyarbakır 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 applicant’s criminal conviction under section 7(2) of Law no. 3713.
21. Last but not least, the Court notes the severity of the penalty imposed on the applicant, that is to say ten months of imprisonment, which the applicant partially served (see Karataş v. Turkey [GC], no. 23168/94, § 53, ECHR 1999‑IV).
22. 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.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
23. The applicant claimed 7,000 euros (EUR) in respect of non‑pecuniary damage. He also claimed EUR 5,000 in respect of pecuniary damage.
24. The Government contested those claims.
25. Having regard to the applicant’s failure to substantiate his claims for pecuniary damage, the Court rejects those claims. On the other hand, ruling on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage.
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 5,000 (five thousand euros), 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 25 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
[1] The judgment is not final yet.
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