CASE OF FATİH TAŞ v. TURKEY (No. 4)

SECOND SECTION

CASE OF FATİH TAŞ v. TURKEY (No. 4)

(Application no. 51511/08)

JUDGMENT

STRASBOURG

24 April 2018

FINAL

24/07/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Fatih Taş v. Turkey (no. 4),

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

Robert Spano, President,
Paul Lemmens,
Ledi Bianku,
Işıl Karakaş,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 3 April 2018,

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

PROCEDURE

1. The case originated in an application (no. 51511/08) 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 Fatih Taş (“the applicant”), on 26 September 2008.

2. The applicant was represented by Mr İ. Akmeşe and Ms Y. Polat, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent,

3. The applicant alleged under Article 10 of the Convention that the criminal proceedings brought against him on account of the content of two books - Dağlarda Yaşamın Dili (“The Language of Life in the Mountains”) and Tufanda 33 Gün (“33 Days in the Deluge”) ‒ published by his publishing company had constituted a breach of his right to freedom of expression.

4. On 18 September 2013 the complaint concerning the alleged breach of the applicant’s right to freedom of expression was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. By a letter dated 22 June 2017 the President of the Section requested the parties to submit to the Court copies of the books entitled “The Language of Life in the Mountains”and “33 Days in the Deluge”. On 8 August 2017 the applicant submitted a copy of the book entitled The Language of Life in the Mountains. On 25 September 2017 the Government informed the Court that they had been unable to obtain a copy of the book entitled 33 Days in the Deluge. By a letter dated 20 October 2017 the applicant informed the Court that he ‒ likewise ‒ did not have the book in his possession since there had been an order for copies of the book to be seized and the copy which should have been attached to the file of the case lodged against him could not be located.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1979 and lives in Istanbul. He was the owner and the editor-in-chief of a publishing house, namely Aram Basım ve Yayıncılık, at the time of the events giving rise to the present application.

7. In June 2001 and March 2003 the applicant’s company published two books entitled Dağlarda Yaşamın Dili (“The Language of Life in the Mountains”) and Tufanda 33 Gün (“33 Days in the Deluge”), respectively.

8. On 29 August 2001 the public prosecutor attached to the Istanbul State Security Court filed an indictment with the Istanbul State Security Court charging the applicant with aiding and abetting the PKK, an illegal armed organisation, under Article 169 of the former Criminal Code, on account of the publication of the book entitled The Language of Life in the Mountains.

9. On 24 July 2002 the Istanbul State Security Court convicted the applicant as charged.

10. On 1 May 2003 the Court of Cassation, on appeal, upheld the judgment of 24 July 2002.

11. On 23 September 2003 the public prosecutor attached to the Istanbul State Security Court requested that the court revise its judgment of 24 July 2002 since Article 169 of the former Criminal Code had been amended on 7 August 2003. The Istanbul State Security Court accepted that request.

12. By Law no. 5190 of 16 June 2004, state security courts were abolished. The case against the applicant concerning the book entitled The Language of Life in the Mountains was transferred to the Istanbul Assize Court.

13. On 16 August 2003 the public prosecutor attached to the Istanbul State Security Court filed an indictment with the Istanbul State Security Court charging the applicant with aiding and abetting the PKK under Article 169 of the former Criminal Code on account of the publication of the book entitled 33 Days in the Deluge. According to the indictment, on pages 129, 130 and 135 the struggle of the PKK and its leader, Abdullah Öcalan, was praised and the applicant had therefore aided the PKK through the medium of the press.

14. On 30 April 2007 the Istanbul Assize Court decided to join the proceedings concerning The Language of Life in the Mountains and 33 Days in the Deluge.

15. On 7 December 2007 the Istanbul Assize Court convicted the applicant under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) for disseminating propaganda in favour of the PKK twice, because he had published two books, and sentenced him to a total of twenty months’ imprisonment. With regard to the publication of 33 Days in the Deluge, the assize court considered that on pages 129, 130 and 135 the PKK and its leader, Abdullah Öcalan, were praised and the offence of dissemination of propaganda in favour of a terrorist organisation had therefore been committed. The assize court furthermore found that the book allowed for the transmission of the opinions of the PKK to the public and was aimed at bringing more sympathisers into that organisation.

16. On 25 June 2009 the Court of Cassation quashed the judgment of 7 December 2007, holding that the first-instance court should not have joined the two cases, since the case concerning The Language of Life in the Mountains was a re-qualification of the applicant’s previous final conviction (uyarlama yargılaması).

17. On 7 December 2009 the Istanbul Assize Court convicted the applicant once again under section 7(2) of Law no. 3713 on account of the publication of The Language of Life in the Mountains and sentenced him to a fine.

18. On 3 June 2013 the Court of Cassation quashed the first-instance judgment.

19. On 13 November 2013 the Istanbul Assize Court decided to suspend the execution of the sentence pronounced in its judgment of 7 December 2009.

20. In the meantime, the Istanbul Assize Court resumed the trial concerning the publication of 33 Days in the Deluge following the Court of Cassation’s decision of 25 June 2009.

21. On 21 October 2009 the Istanbul Assize Court convicted the applicant under section 7(2) of Law no. 3713 for disseminating propaganda in favour of the PKK on account of the publication of 33 Days in the Deluge and sentenced him to ten months’ imprisonment. In its judgment, the assize court reiterated that on pages 129, 130 and 135 the PKK and its leader, Abdullah Öcalan, were praised and the offence of dissemination of propaganda in favour of a terrorist organisation had therefore been committed. The court held that the turns of phrase used on those pages were not protected by Article 10 of the Convention and constituted an abuse of the right to freedom of expression. The assize court further found that the book permitted the opinions of the PKK to be transmitted to the public and was aimed at bringing more sympathisers into that organisation and thus at destroying the unitary nature of the State of the Republic of Turkey.

22. The applicant appealed.

23. On 15 February 2012 the Court of Cassation decided to discontinue the proceedings concerning the publication of 33 Days in the Deluge, holding that the prosecution was time-barred.

II. RELEVANT DOMESTIC LAW

24. Until 7 August 2003 Article 169 of the former Criminal Code provided as follows:

“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes, or facilitates its operations in any manner whatsoever, shall be sentenced to not less than three and not more than five years’ imprisonment ...”

By Law no. 4963, which entered into force on 7 August 2003, the phrase “or facilitates its operations in any manner whatsoever” was removed from the aforementioned text.

25. Between 7 August 2003 and 18 July 2006, section 7(2) of Law no. 3713 read as follows:

“Any person who assists members of the aforementioned organisations [terrorist organisations] or who disseminates propaganda inciting others to violence or other methods of terrorism shall be liable to a term of imprisonment of between one and five years and a judicial fine of five million liras to one billion liras ...”

The first sentence of section 7(2) of Law no. 3713 was amended by Law no. 5532, which entered into force on 18 July 2006, as follows:

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

The first sentence of section 7(2) of Law no. 3713, amended on 30 April 2013 by Law no. 6459, currently reads as follows:

“Any person who disseminates propaganda in favour of a terrorist organisation by justifying, praising or encouraging the use of methods constituting coercion, violence or threats shall be liable to a term of imprisonment of between one and five years ...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

26. The applicant complained that the criminal proceedings brought against him on account of the publication of the books entitled The Language of Life in the Mountains and 33 Days in the Deluge had amounted to a breach of Article 10 of the Convention, 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.”

27. The Government contested that argument.

A. Admissibility

1. Regarding the criminal proceedings brought against the applicant on account of the publication of The Language of Life in the Mountains

28. The Court observes that the criminal proceedings brought against the applicant under the indictment dated 29 August 2001 ended when the Court of Cassation upheld the applicant’s conviction under Article 169 of the former Criminal Code on 1 May 2003. The subsequent proceedings which were pending between 23 September 2003 and 13 November 2013 were simply a re-qualification of the applicant’s conviction in view of the legislative changes. As the Court of Cassation held in its decision of 25 June 2009, the applicant’s conviction had become final with the Court of Cassation’s decision of 1 May 2003. Given that the application was lodged on 26 September 2008, the Court concludes that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. Regarding the criminal proceedings brought against the applicant on account of the publication of 33 Days in the Deluge

29. The Government claimed that the applicant did not have victim status within the meaning of Article 34 of the Convention, as he had not been convicted at the end of the proceedings. They asked the Court to reject the applicant’s complaint as being incompatible ratione personae with the provisions of the Convention.

30. The Court considers that the Government’s objection that the applicant does not have “victim status” is closely linked to the merits of his complaints under this head. It therefore joins this issue to the merits. 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.

B. Merits

1. The parties’ submissions

31. The Government submitted that the applicant could not claim to be a victim as the proceedings against him had ended, due to being time-barred. They therefore considered that there had been no interference with the applicant’s freedom of expression. Alternatively, they submitted that the applicant had been prosecuted pursuant to section 7(2) of Law no. 3713 and thus the interference, if any, was prescribed by law. They further submitted that the domestic authorities had pursued the legitimate aims of protection of national security, territorial integrity and public safety as well as prevention of crime. As to the necessity of the interference in a democratic society, the Government stated that they were aware of the Court’s case-law in that field. They nevertheless noted that the applicant had been convicted of generating propaganda in favour of the PKK, an organisation which was considered to be a terrorist organisation by a number of international organisations and states, such as the United States of America, the United Nations, the NATO and the European Union.

32. The applicant submitted that his trial, at the end of which he had been convicted under section 7(2) of Law no. 3713, had amounted to an interference with his right as guaranteed under Article 10 of the Convention. He also claimed that the interference in question had not been necessary in a democratic society.

2. The Court’s assessment

a. Whether there was an interference

33. The Court notes at the outset that it has already examined and rejected a similar objection by the Government to the admissibility in the case of Dilipak v. Turkey (no. 29680/05, §§ 44-51, 15 September 2015), the circumstances of which were similar to the present case. The Court finds no reason which would require it to reach a different conclusion. In particular, criminal charges were pending against the applicant for a considerable length of time and he could not be sure that he would not, either during those criminal proceedings or at any future stage, face further legal consequences if, as a publisher, he published other books on similar matters. The Court considers that the eight-and-a-half years’ criminal proceedings conducted against the applicant, in view of the chilling effect which those proceedings may well have produced, cannot be viewed as comprising purely hypothetical risks to the applicant, but constituted genuine and effective restrictions per se. The declaration that the proceedings had become time-barred merely put an end to the aforementioned risks but did not alter the fact that those risks had placed the applicant under pressure for a substantial period of time (ibid. §§ 49 and 50; see also Semir Güzel v. Turkey, no. 29483/09, §§ 26-31, 13 September 2016). The Court accordingly rejects the Government’s objection and finds that the criminal proceedings in question constituted an “interference” with the applicant’s right to freedom of expression as secured by Article 10 of the Convention.

b. Whether the interference was justified

34 The Court notes that it is not disputed between the parties that the interference was prescribed by law. The dispute in the present case concerns the questions whether the interference pursued a legitimate aim and whether it was “necessary in a democratic society” (Agit Demir v. Turkey, no. 36475/10, § 73, 27 February 2018[1]). The Court is prepared to accept that, in the instant 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).

35. As regards the necessity of the interference in a democratic society, the Court reiterates the basic principles laid down in its judgments concerning Article 10 (see, for example, Sürek v. Turkey (no. 1) [GC], no. 26682/95, §§ 58-59, ECHR 1999‑IV; Şener v. Turkey, no. 26680/95, §§ 39-43, 18 July 2000; and Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016). The Court considers that the principles contained in the above‑mentioned judgments pertaining to the media also apply to the publication of books in general or written texts other than the periodical press (see Association Ekin v. France, no 39288/98, §§ 56-57, ECHR 2001‑VIII, and Çamyar and Berktaş v. Turkey, no. 41959/02, § 36, 15 February 2011). The Court notes that criminal proceedings were brought against the applicant on the basis of charges of aiding and abetting an illegal organisation and disseminating propaganda in its favour through the publication of a book because he was the owner of the publishing house and editor-in-chief of the book in question. Therefore, the impugned interference must also be seen in the context of the essential role of the press in ensuring the proper functioning of political democracy (ibid., § 37, and the cases cited therein).

36. The Court notes that it does not have in its possession a copy of 33 Days in the Deluge, the book which was at the focus of the criminal proceedings brought against the applicant, since the parties were unable to provide such a copy to the Court (see paragraph 5 above). Nevertheless, in view of the subsidiary nature of the Court’s role and given that as a general rule it is for the national courts to assess the evidence before them (see Ringier Axel Springer Slovakia, a. s. v. Slovakia, no. 41262/05, § 107, 26 July 2011), the Court considers that the “necessity” assessment in the instant case should be made on the basis of the reasoning adopted by the domestic judicial authorities (see Gündüz v. Turkey, no. 35071/97, § 46, ECHR 2003‑XI).

37. In this connection, the Court notes that ‒ according to the documents in the case file ‒ on 16 August 2003 the applicant was charged by the public prosecutor attached to the Istanbul State Security Court with aiding and abetting the PKK on account of the publication of 33 Days in the Deluge. In its judgments of 7 December 2007 and 21 October 2009 convicting the applicant under section 7(2) of Law no. 3713, the Istanbul Assize Court held that on pages 129, 130 and 135 the PKK and its leader, Abdullah Öcalan, were praised, and therefore the offence of dissemination of propaganda in favour of a terrorist organisation had been committed. The assize court found that the book facilitated transmission of the opinions of the PKK to the public and thus was used to bringing more sympathisers into that organisation in both of its judgments. In its judgment of 21 October 2009, the aforementioned court also found that the book was aimed at destroying the unitary nature of the State of Republic of Turkey.

38. The Court observes that the Istanbul Assize Court failed to seek to explain or clarify in its judgments the way in which the impugned statements had praised the PKK and its leader. More importantly, neither the public prosecutor who initiated the criminal proceedings against the applicant nor the Istanbul Assize Court appeared to have made an assessment of the impugned statements in the light of the principles embodied in Article 10 of the Convention. There is nothing in the case file showing that the domestic authorities assessed whether or not the impugned statements could be construed as encouraging violence, armed resistance or an uprising, or be capable of inciting to violence by instilling a deep-seated and irrational hatred against identifiable persons. In the Court’s view, finding that “the book in question facilitated the transmission of the opinions of the PKK to the public and was aimed at bringing more sympathisers into that organisation and, hence, destroying the unitary nature of the State” cannot be regarded as applying standards in conformity with the principles embodied in Article 10.

39. In the light of the foregoing considerations, the Court holds that the impugned interference – that is to say the continuation over a substantial period of time of criminal proceedings against the applicant on the basis of a serious criminal charge subject to a prison sentence – did not meet any overriding social need and that it was not proportionate to the legitimate aims pursued. The interference in the present case was therefore not necessary in a democratic society (ibid. § 73).

There has accordingly been a violation of Article 10 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

40. 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

41. The applicant claimed 20,000 euros (EUR) in respect of non‑pecuniary damage.

42. The Government submitted that the amount requested by the applicant was excessive.

43. Ruling on an equitable basis, the Court awards the applicant EUR 2,500 in respect of non-pecuniary damage.

B. Costs and expenses

44. The applicant also claimed 5,622 Turkish liras (TRY) (approximately 1,866 euros (EUR)) for the costs and expenses incurred before the Court. In support of his claim, the applicant submitted the scale of fees of the Union of Bar Associations in Turkey.

45. The Government contested that claim.

46. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that the applicant merely referred to the Turkish Bar Association’s scale of fees and failed to submit any supporting documents. The Court therefore does not award any sum under this head.

C. Default interest

47. 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 in so far as it concerns the criminal proceedings brought against the applicant on account of the publication of the book entitled 33 Days in the Deluge and declares the remainder inadmissible;

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 from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,500 (two thousand five hundred 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 amounts 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 24 April 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıRobert Spano
Deputy RegistrarPresident

[1]1. The judgment is not final yet.

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