SECOND SECTION
CASE OF BAT v. TÜRKİYE
(Application no. 57279/11)
JUDGMENT
STRASBOURG
6 September 2022
This judgment is final but it may be subject to editorial revision.
In the case of Bat v. Türkiye,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Egidijus Kūris, President,
Pauliine Koskelo,
Gilberto Felici, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
The application (no. 57279/11) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12 August 2011 by a Turkish national, Mr Özgür Bat, born in 1991 and living in Batman (“the applicant”) who was represented by Mr E. Şenses, a lawyer practising in Batman;
The decision to give notice of the application to the Turkish Government (“the Government”), represented by their Agent, Mr. Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice;
Having deliberated in private on 28 June 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The application concerns the conviction of the applicant, under Articles 220 § 6 and 314 of the Criminal Code, on account of his participation in a demonstration held in Batman on 13 December 2009. The applicant was sentenced to six years and three months’ imprisonment under the aforementioned provision. The applicant complains of a violation of his rights guaranteed by Article 11 of the Convention.
2. On 13 December 2009 the applicant was taken into police custody. On 16 December 2009, suspected of belonging to an illegal organisation, he was placed in pre-trial detention.
3. In an indictment of 13 January 2010, the Batman public prosecutor charged the applicant with committing offenses in the name of an illegal organisation without being a member of it and resisting the security forces by way of throwing stones under sections 23(b) and 33(c) of the Meetings and Demonstration Marches Act (Law no. 2911), because of the acts he allegedly committed during the demonstrations which took place on 12 and 13 December 2009.
4. On 8 June 2010 the Diyarbakır Assize Court convicted the applicant of committing offenses in the name of an illegal organisation without being a member of it pursuant to Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 6 and 314 § 3 of the same Code and sentenced him to six years and three months’ imprisonment. Finding that there was no evidence in the case file in support of the allegation that the applicant threw stones at the police officers, the Assize Court concluded that the applicant’s conduct constituted the offence prescribed by Section 32 of Law no. 2911 and sentenced him to a total of one year and three months’ imprisonment and decided to suspend the pronouncement of the judgment.
5. The Assize Court convicted the applicant also for membership of an illegal organisation, as he was considered to have committed a crime on behalf of an illegal organisation and acting in breach of Law no. 2911. The Assize Court established that the applicant had taken part in the demonstration of 13 December 2009, which was allegedly organised by the PKK (Kurdish Workers’ Party, an illegal armed organisation) and had been part of a group of demonstrators who chanted slogans in favour of the PKK and Abdullah Öcalan, the leader of the PKK.
6. The Assize Court acquitted the applicant of the charges regarding his participation in the demonstration of 12 December 2009 and throwing stones at police officers.
7. On 20 April 2011 the Court of Cassation upheld the above judgment.
8. On 5 July 2012 Law no. 6352, amending various laws with a view to suspending proceedings and sentences given in cases concerning crimes committed through the press and media and similar expressions of opinions, entered into force. On 2 August 2012 the Assize Court, hearing a request submitted by the applicant to benefit from Law no. 6352, decided to reduce the sentence imposed on the applicant by half taking into account the amendment made by the said law to Article 220 § 6 of the Criminal Code and finally sentenced him to imprisonment for a period of three years, one month and fifteen days.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION9. As to the Government’s objection on the non-exhaustion of domestic remedies and their contention that the application was, in the alternative, manifestly ill-founded, the Court notes that it has already examined and dismissed identical objections submitted by the Government (see Öner and Türk v. Turkey, no. 51962/12, §§ 14-18, 31 March 2015; and Işıkırık v.Turkey no. 41226/09, §§ 45-48, 14 November 2017). The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence.
10. As regards the Government’s objection regarding the alleged lack of victim status of the applicant, the Court observes that the applicant was arrested, detained on remand and subsequently convicted of having attended a demonstration. Thus, he was deprived of his liberty within the context of the criminal proceedings brought against him. The decision suspending the execution of the judgment neither acknowledged nor afforded redress for the alleged breach of the applicant’s right to freedom of assembly. The Court therefore finds that, the applicant did not lose his victim status to complain of a breach of Article 11 on account of his conviction.
11. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
12. As to the merits of the application, the foreseeability of Article 220 § 6 has been examined in a similar case (see, Işıkırık, cited above, §§ 56-70), where the Court concluded that the aforementioned provision was not “foreseeable” in its application since it did not afford the applicant the legal protection against arbitrary interference with his right under Article 11 of the Convention (see also Ahmet Yıldırım v. Turkey, no. 3111/10, § 67, ECHR 2012). Hence, the interference resulting from the application of Article 220 § 6 was not prescribed by law. In the present case, the Court sees no reason to deviate from this finding.
13. Accordingly, there has been a violation of Article 11 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
14. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage and 860 euros (EUR) in respect of costs and expenses.
15. The Government maintained that there was no causal link between the claim for non-pecuniary damage and the alleged violation and that this claim was also unsubstantiated and excessive. It further did not correspond to the amounts awarded in the case-law of the Court. Lastly, they stated that the applicant has not submitted any proof of payment in support of the lawyer’s fees and other alleged costs which they consider unsubstantiated and excessively high.
16. Ruling on an equitable basis (see, for example, Kerçin v. Turkey [committee], no. 55038/11, 7 July 2020), the Court awards the applicant EUR 5,000 for non-pecuniary damage.
17. Having regard to the documents in its possession, the Court considers it reasonable to award 750 EUR covering costs under all heads, plus any tax that may be chargeable to the applicant.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;Holds that there has been a violation of Article 11 of the Convention;Holds(a) that the respondent State is to pay the applicant, 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:
(b) :
(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 750 (seven hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(c) 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;
Dismisses the remainder of the applicant’s claim for just satisfaction.Done in English, and notified in writing on 6 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı, Egidijus Kūris
Registrar President