SECOND SECTION
CASE OF GÖKHAN GÖKMEN v. TÜRKİYE
(Application no. 67465/12)
JUDGMENT
STRASBOURG
10 October 2023
This judgment is final but it may be subject to editorial revision.
In the case of Gökhan Gökmen v. Türkiye,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Egidijus Kūris, President,
Pauliine Koskelo,
Frédéric Krenc, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 67465/12) 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 28 August 2012 by a Turkish national, Mr Gökhan Gökmen (“the applicant”), who was born in 1985, lives in Tunceli and was represented by Mr E. Kısacık, a lawyer practising in Malatya;
the decision to give notice to the Turkish Government (“the Government”) of the complaints under Articles 6, 10 and 11 of the Convention and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated in private on 19 September 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The applicant complained of a violation of his rights to freedom of expression and assembly on account of his conviction which had been based on, inter alia, his participation in several demonstrations and press conferences. The case further concerns the alleged unfairness of the criminal proceedings against the applicant owing to his inability to question an anonymous witness at any stage of the proceedings, as well as the domestic courts’ rejection of his request to have the contents of his confiscated computer examined.
2. On 29 December 2009 the Tunceli Security Directorate received an anonymous email accusing the applicant of being a member of the Patriotic Democratic Youth Assembly (Yurtsever Demokratik Gençlik Hareketi – “the YDGM”), which is considered by the national authorities to be the youth branch of the PKK (the Workers’ Party of Kurdistan).
3. On 10 June 2010 the Malatya public prosecutor filed a bill of indictment against the applicant charging him, along with eight others, with being a member of an armed terrorist organisation, namely the PKK, under Article 314 § 2 of the Criminal Code (Law no. 5237; see for the text of this provision, for instance, Işıkırık v. Turkey, no. 41226/09, § 31, 14 November 2017) and section 5 of the Law on the Prevention of Terrorism. The prosecutor noted that the applicant had participated in certain demonstrations and press conferences in line with the PKK’s instructions as published on certain websites and a TV channel. The prosecutor also observed that the applicant had visited incarcerated members of the PKK and their family members to show moral support and undertake organisational activities; that he had been accused of being a member of the YDGM in an anonymous email; and that the anthem and symbols of the PKK, along with texts composed by its members, had been found in his computer.
4. During the proceedings the applicant denied the charges against him, submitting that he had merely visited one of his friends in prison, who had not been convicted of any crime at that time, and that his visits had not been related to any organisational activities. He stated that he had not received any instructions from any illegal organisation and that there was no evidence to support that contention. The applicant did not deny that he had taken part in the demonstrations and press conferences referred to by the prosecutor, but argued that they had been legal activities which had been permitted by the relevant authorities.
5. On 23 June 2011 the Malatya Assize Court convicted the applicant under Article 314 § 2 of the Criminal Code of being a member of an armed terrorist organisation (the PKK) on the basis of, inter alia, his participation in certain demonstrations and press conferences on the calls published on websites and in media outlets controlled by or belonging to the PKK, and sentenced him to nine years’ imprisonment.
6. The Assize Court took the view that the applicant had been a member of the YDGM and that he had participated in various events such as press conferences, panels, meetings, and demonstrations “with a view to actively maintaining the organisational activities of the YDGM in accordance with instructions given by the PKK by various ways”. In that respect, the trial court found that the applicant had taken part in
talks with other people concerning the arrests of other YDGM members which had taken place on 16 June 2009;a press conference held on 11 September 2009, the participants of which had sent faxes (containing opinions and recommendations of the PKK) to the offices of the President and the Prime Minister from the Tunceli post office (the document had been known as “the Roadmap” and had been drawn up by the PKK’s leader);a press conference held on 12 October 2009 by a member of the Grand National Assembly of Türkiye from Tunceli in commemoration of the removal of the leader of the PKK from Syria in 1998;an illegal press conference and a demonstration held on 7 December 2009 in protest against the allegedly deteriorating conditions of detention of the leader of the PKK, during which the applicant had covered his face with a mask in such a way as to show that he had been a participant in the demonstration;a march and a subsequent press conference held in Tunceli on 27 February 2010 in support of the workers of a State-run company (Tekel);a press conference held in Tunceli on 7 March 2010 in the context of the centenary of International Women’s Day;the Nawruz celebrations held on 21 March 2010 where the applicant had been part of a group of YDGM members who had been committing crimes and had – under the guidance of his co-defendant N.Y. – shouted at police officers for conducting a body search of a person named E.F.D.;a panel entitled “The 15th February Conspiracy” and a press conference named “We condemn the 15th February Conspiracy” with a view to ensuring the continuity of the campaigns organised under the legal appearance and in the form of rebellion;a march held on 1 May 2010 to celebrate International Workers’ Day;a press conference held in Samsun to protest against an attack perpetrated against A.T. who had been the then co-president of the Party for a Democratic Society (“the DTP”);talks with others about potential locations where the YDGM members could meet and review its actions.7. The trial court further grounded its decision to convict the applicant on (i) the visits he had paid together with other YDGM members to imprisoned members of the PKK and their families and relatives to provide them with moral support and (ii) on the materials found on his computer which had been seized by the police, namely the anthem of the PKK, a symbol in the form of a star with the inscription “Dersim”, pictures of members of that organisation and texts composed by them.
8. Throughout the criminal proceedings the applicant maintained, among other things, that the YDGM had been the legal youth wing of the DTP and that all the acts imputed to him had been lawful.
9. The applicant appealed against his conviction and on 9 April 2012 the Court of Cassation upheld the first-instance court’s judgment.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION10. The applicant complained under Article 6 of the Convention that the criminal proceedings against him were unfair because (i) the trial court had deprived him of the opportunity to examine or have examined the anonymous witness who had accused him of being a member of the YDGM and (ii) the domestic courts rejected his request to have the contents of his confiscated computer examined, thereby preventing him from demonstrating that he had not visited the websites from which he had received, according to the domestic courts, the instructions of the PKK.
11. The Government invited the Court to declare the complaint inadmissible, submitting that the applicant had not been convicted on the basis of any anonymous witness statements. They further argued that the applicant had failed to exhaust domestic remedies as he had not raised that complaint before the domestic courts.
12. The applicant did not submit any comments in that regard.
13. The Court notes that while an anonymous email was indeed mentioned among the evidence in the bill of indictment filed against the applicant (see paragraph 3 above), the Malatya Assize Court did not take into consideration evidence submitted by any anonymous witness when convicting the applicant. Nor does it transpire from the case file that any statement was taken from an anonymous witness by the trial court at any stage of the criminal proceedings (see paragraphs 5-8 above).
14. As to the applicant’s complaint about the rejection by the domestic courts of his request to have his computer examined in order to determine whether he had visited the websites which were considered by the domestic courts as related to the PKK, the Court notes that in finding the applicant guilty the domestic court referred to multiple evidence without concluding that the applicant had accessed the websites in question directly from his personal computer and received the instruction of the PKK in that way. In the light of foregoing, the Court is unable to conclude that the refusal of the domestic courts to examine the applicant’s confiscated computer undermined the overall fairness of the proceedings.
15. Accordingly, the Court finds that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION16. The applicant complained that he had been convicted for activities which were in fact lawful, namely his participation in demonstrations and press conferences, and that this had amounted to a breach of his rights to freedom of expression and assembly under Articles 10 and 11 of the Convention.
17. The Government submitted by way of preliminary objection that it was not necessary for the Court to examine the merits of the applicant’s complaint under this head as it essentially concerned the question of whether his conviction had been based on a fair trial under Article 6 of the Convention. Thus, they considered that the Court’s examination should be confined to Article 6 of the Convention.
18. The Court considers that the applicant’s complaint about the fairness of the criminal proceedings against him concerns a separate legal issue in relation to the question whether his criminal conviction was in breach of Articles 10 and 11 of the Convention. It therefore dismisses the Government’s argument.
19. The Court further notes that this complaint 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.
20. Since the majority of the acts which formed the basis of the applicant’s conviction for being a member of an armed terrorist organisation under Article 314 § 2 of the Criminal Code (“the CC”) fell within the ambit of Article 11 of the Convention, namely his participation in certain press conferences as well as a demonstration and two marches, the Court finds that in this case Article 11 is to be regarded as a lex specialis in relation to Article 10, which is a lex generalis (compare also Navalnyy and Yashin v. Russia, no. 76204/11, § 49, 4 December 2014).
21. On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present case, also be considered in the light of Article 10, given that (i) certain other actions of the applicant which served as grounds for his conviction might arguably fall within the ambit of that provision and (ii) that the protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 (see Navalnyy and Yashin, cited above, § 50).
22. The general principles concerning the right to freedom of assembly have been summarised in Kudrevičius and Others v. Lithuania ([GC], no. 37553/05, §§ 142-46, ECHR 2015).
23. It is common ground between the parties that an interference with the applicant’s rights under Article 11 of the Convention did take place, specifically on account of his criminal prosecution and resultant conviction on the basis of, inter alia, acts protected under Article 11 of the Convention. The Court is prepared to assume that the interference in question was prescribed by law, namely Article 314 § 2 of the CC and section 5 of the Law on the Prevention of Terrorism, and that the national authorities may be considered to have pursued the legitimate aims of preventing disorder and crime and the protection of the rights and freedoms of others.
24. As regards the question whether the interference was necessary in a democratic society, the Court reiterates that when carrying out its scrutiny under Article 11 of the Convention, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they took. It must look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authorities to justify such interference were “relevant and sufficient” (see Kudrevičius and Others, cited above, § 143). In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see Lashmankin and Others v. Russia, nos. 57818/09 and 14 others, § 412, 7 February 2017).
25. In that connection, the Court observes that when finding that the applicant had been a member of the PKK, the Malatya Assize Court relied on his participation in several demonstrations, press conferences and panels in accordance with instructions which the PKK had published on certain websites. In that context, the Court observes that it is not in dispute that the applicant’s participation in the above-mentioned events (see paragraphs 5-7 above) had a decisive impact on the national court’s conclusion regarding his membership of the PKK. Thus, the Court considers that it is prudent to focus on the national courts’ reasoning in that respect.
26. The Court reiterates at the outset its concerns about the conviction of a person for membership of an illegal organisation for an act which may be deemed to coincide with the aims or instructions of such organisation (see Gülcü v. Turkey, no. 17526/10, § 112, 19 January 2016). The Court observes in that respect that there is no justification in the national courts’ judgments for the conclusion that when the applicant participated in those demonstrations he had been acting for the PKK or on its behalf upon its specific instructions to him.
27. Secondly, the Court observes that there is no finding in the reasoning of the national courts indicating that the events in question were of a violent nature or that the organisers or participants, including the applicant, had violent intentions. Significantly, it seems that the Malatya Assize Court merely listed the events without providing any information as to their nature. Likewise, the Government did not argue before the Court that those events had not been peaceful. Accordingly, the trial court’s conclusion appears to have been based to a very significant extent on its finding that the applicant’s participation in the impugned events had been upon the instructions of the PKK, without carrying out an assessment as to whether his participation in the events could have been regarded as falling within the exercise of his right to freedom of assembly under Article 11 of the Convention.
28. Lastly, the Court observes that the Assize Court did not address the applicant’s repeated submissions that the events in question had been legal and that the YDGM was a structure of a political party – the DTP. In particular, the Court finds it noteworthy that the Malatya Assize Court failed to provide any reason as to why the applicant’s participation in certain events held in a national and/or international context, such as events concerning the labour rights of workers at the State-run company Tekel, the centenary of International Women’s Day, Nawruz celebrations, or 1st May International Workers’ Day amounted to an organic link with the terrorist organisation. In that regard, while it is true that the trial court relied on the calls made by the websites and media outlets controlled by or belonging to the PKK, it appears that they either did not fully correspond to the acts imputed to the applicant (with the exception of the one concerning the Nawruz celebrations) or post‑dated them, which called for an additional level of scrutiny on the part of the trial court to explain why and how they could have been regarded as demonstrating the applicant’s organic link with the PKK. However, the trial court’s reasoned judgment did not contain any such explanation.
29. In view of the foregoing considerations, the Court concludes that in convicting the applicant the national authorities failed to weigh up the applicant’s right to freedom of peaceful assembly against the legitimate aims pursued in a manner that was adequate and in conformity with the criteria established by its case-law (compare also Gülcü, cited above, § 114, with further references, and Kemal Çetin v. Turkey, no. 3704/13, § 52, 26 May 2020). Faced with the domestic courts’ failure to give relevant and sufficient reasons to justify the interference, the Court finds that the domestic courts cannot be said to have “applied standards which were in conformity with the principles embodied in Article 11” or to have “based their decisions on an acceptable assessment of the relevant facts”.
30. Furthermore, the Court cannot but note that the applicant was sentenced to a very severe penalty, namely nine years’ imprisonment, which must have had a chilling effect on his right to freedom of assembly. All the more so, given that neither the domestic courts nor the Government were able to demonstrate that the criminal sanction in question following demonstrations and events which had not been found to be violent had corresponded to a pressing social need (compare Kudrevičius and Others, cited above, § 146; Akgöl and Göl v. Turkey, nos. 28495/06 and 28516/06, § 43, 17 May 2011; and Silgir v. Turkey, no. 60389/10, § 34, 3 May 2022).
31. The Court therefore concludes that the Government have not demonstrated that the applicant’s conviction was proportionate to the aims pursued and, accordingly, “necessary in a democratic society”.
32. There has consequently been a violation of Article 11 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
33. The applicant claimed 100,000 euros (EUR) in respect of pecuniary damage and EUR 150,000 in respect of non-pecuniary damage. In addition, he claimed EUR 2,000 in respect of legal fees. In support of his claims, the applicant submitted the Turkish Bar Association’s recommended fee scales.
34. The Government contested the applicant’s claims as being unsubstantiated and excessive.
35. As regards the pecuniary damage, the Court observes that the applicant did not provide information specifying the details of any pecuniary loss. It therefore rejects that claim. However, ruling on an equitable basis, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.
36. The applicant’s claim for costs and expenses must be rejected, regard being had to the terms of Rule 60 § 2 of the Rules of Court and to his failure to provide the Court with any documents in support of his claim.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaint under Article 11 of the Convention admissible and the remainder of the application inadmissible;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, EUR 10,000 (ten thousand 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 amount 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 10 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Dorothee von Arnim Egidijus Kūris
Deputy Registrar President