CASE OF KINIK v. TURKEY

SECOND SECTION

CASE OF KINIK v. TURKEY

(Application no. 39047/11)

JUDGMENT

STRASBOURG

25 September 2018

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

In the case of Kınık 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. 39047/11) 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 a Turkish national, Mr Ahmet Kınık (“the applicant”), on 22 April 2011.

2. The applicant was represented by Mrs M. Danış Beştaş and Mr M. Beştaş, lawyers practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicant complained under Articles 1, 10 and 11 of the Convention that the criminal proceedings brought against him under section 7 (2) of the Prevention of Terrorism Act (Law No. 3713) had constituted a breach of his rights to freedom of expression and freedom of assembly.

4. On 18 January 2017 the applicant’s complaints under Articles 1, 10 and 11 of the Convention were communicated to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1957 and lives in Diyarbakır.

7. At the time of the events giving rise to the application, the applicant was the head of the district branch of the Democratic People’s Party (Demokratik Halklar Partisi – DEHAP) in the Ergani district of Diyarbakır.

8. On 15 February 2005, on the anniversary of the arrest and transfer of Abdullah Öcalan, the leader of the PKK[1], to Turkey, the Ergani district branch of DEHAP organised a gathering in front of the district branch office in order to read out a press statement. The applicant read the statement in question.

9. On 31 May 2005 the Ergani public prosecutor filed a bill of indictment with the Ergani Criminal Court against twenty-six persons, including the applicant, charging them with breach of the Marches and Demonstrations Act (Law no. 2911) on account of their participation in the above-mentioned event. They were accused of participating in the gathering and carrying banners with slogans such as “The solution is in İmralı[2]” (“Çözüm İmralı’da”), “Solitary confinement is a crime against humanity” (“Tecrit insanlık suçudur”), “Not EU, not US, Öcalan has the solution” (“Ne AB ne ABD, Çözüm Öcalan’da”) , “The youth is Öcalan’s fedai”[3] (“Gençlik Apo’nun Fedaisidir”), and “Freedom to Öcalan” (“Öcalan’a özgürlük”), as well as posters of Abdullah Öcalan. They were also accused of chanting slogans such as “To the sun, to freedom” (Güneşe güneşe, özgürleşmeye”), “Long live the brotherhood of peoples” (“Yaşasın halkların kardeşliği”), “May those hands which aim to damage peace be broken” (“Barışa uzanan eller kırılsın”), “A tooth for a tooth, blood for blood, we are with you” (“Dişe diş kana kan, seninleyiz”) and “AKP, be careful, do not abuse our patience” (“AKP şaşırma, sabrımızı taşırma”).

10. On 5 October 2006 the Ergani Criminal Court decided that it lacked jurisdiction to examine the case. It held that the impugned acts constituted the offence proscribed by section 7 (2) of Law no. 3713 and that the accused should therefore be tried by the Diyarbakır Assize Court.

11. On an unspecified date the Diyarbakır Assize Court remitted the case file to the Ergani Criminal Court.

12. On 19 March 2007 the Ergani Criminal Court once again decided that the Diyarbakır Assize Court had jurisdiction over the case.

13. On 10 August 2007 the Sixth Chamber of the Diyarbakır Assize Court began the trial in the case.

14. On 15 April 2010 the Diyarbakır public prosecutor submitted to the first-instance court his observations on the merits of the case. According to those submissions, the public prosecutor considered that the applicant should be convicted under section 7 (2) of Law no. 3713, as the press statement read out by him had referred to Abdullah Öcalan as the “honourable Kurdish people’s leader”.

15. On the same day the Diyarbakır Assize Court convicted the applicant of disseminating propaganda in favour of a terrorist organisation under section 7 (2) of Law no. 3713. The court based its judgment, among others, on a police report regarding the reading out of the press statement dated 15 February 2005 and a police report dated 23 February 2005 on the examination of a police video recording of the event of 15 February 2005. The court judgment read as follows:

“... it has been decided that Ahmet Kınık and R.A. committed the offence proscribed by section 7(2) of Law no. 3713, as they participated in the reading out of a press statement organised by the DEHAP in Ergani on 15 February 2005 on the anniversary of the arrest of Abdullah Öcalan, and chanted slogans such as ‘The solution is in İmralı’, ‘Solitary confinement is a crime against humanity’, ‘Not EU, not US, Öcalan has the solution’, and ‘The youth is Öcalan’s fedai’. They marched and chanted these slogans without obtaining prior permission.”

16. The Sixth Chamber of the Diyarbakır Assize Court sentenced the applicant to ten months’ imprisonment but decided to suspend the pronouncement of the judgment (hükmün açıklanmasının geri bırakılması) for a period of five years, under Article 231 of the Code of Criminal Procedure.

17. On 5 July 2010 the applicant objected to the decision of the Assize Court to suspend the pronouncement of the judgment.

18. On 22 November 2010 the Fourth Chamber of the Diyarbakır Assize Court dismissed the applicant’s objection.

II. RELEVANT DOMESTIC LAW

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

20. In particular, 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 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 PRELIMINARY OBJECTION

21. The Government submitted that the deadline for the applicant to submit his observations in reply to their observations and his claims for just satisfaction had been 10 October 2017, and that there was no document in the case file showing that the applicant had complied with that deadline. They asked the Court not to include the applicant’s observations and just satisfaction claims if they had been submitted late.

22. The Court notes that the applicant submitted his observations in reply to the Government’s observations and his claims for just satisfaction on 10 October 2017. Nonetheless, the Court has already dismissed similar objections by the respondent Government (see Öner Aktaş v. Turkey, no. 59860/10, § 29, 29 October 2013; Atılgan and Others v. Turkey, nos. 14495/11, 14531/11, 26274/11, 78923/11, 8408/12, 11848/12, 12078/12, 12103/12, 14745/12, 21910/12 and 41087/12, § 12, 27 January 2015; and Şakir Kaçmaz v. Turkey, no. 8077/08, § 62, 10 November 2015). In the present case, the Court finds no reason to depart from that conclusion. The Government’s argument on this point should therefore be rejected.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

23. The applicant complained under Articles 1, 10 and 11 of the Convention that the criminal proceedings brought against him on account of the expression of his opinions, which had not constituted incitement to violence under section 7 (2) of Law no. 3713, had been in breach of his rights to freedom of expression and freedom of assembly.

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.”

24. The Government contested the applicant’s argument. They claimed at the outset that the applicant did not have victim status, within the meaning of Article 34 of the Convention, given that the pronouncement of his conviction had been suspended. They further claimed that there had been no interference with the applicant’s right to freedom of expression, given that the proceedings against him had ended with the suspension of the pronouncement of the judgment. The Government submitted that should the Court conclude that there had been an interference, that interference had been prescribed by law and had pursued the legitimate aims of maintaining national security, territorial integrity and public safety, as well as preventing disorder and crime. The Government claimed that the interference with the applicant’s freedom of expression had been necessary in a democratic society. According to the Government, as a politician, the applicant had showed his support for a terrorist organisation’s activities by chanting the slogans noted in the first-instance judgment. Taking into account the necessity to fight against terrorism, the Government contended that the criminal proceedings against the applicant had corresponded to a pressing social need and had been proportionate.

25. The Court considers that the Government’s objection regarding the lack of the applicant’s “victim status” is closely linked to the merits of the complaints. It therefore joins this issue to the merits. The Court also 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.

26. As to the merits, the Court notes at the outset that it has already found – in cases concerning Articles 10 and 11 of the Convention where the pronouncement of the applicants’ convictions had been suspended ‑ an interference nonetheless with the applicants’ rights guaranteed under the above-mentioned Articles (see Şükran Aydın and Others v. Turkey, nos. 49197/06 and 4 others, § 44, 22 January 2013; Gülcü v. Turkey, no. 17526/10, §§ 98 - 102, 19 January 2016; and Fatih Taş v. Turkey (no. 2), no. 6813/09, § 15, 10 October 2017). The Court finds no reason to depart from its findings in the above-mentioned cases, particularly in view of the fact that the applicant, a local politician, faced the threat of a penalty for five years. In the Court’s opinion, that condition entailed a real and effective restraint and had a deterrent effect on the exercise of the applicant’s right to freedom of expression. The Court thus finds that the criminal proceedings brought against the applicant and the judgment of 15 April 2010 amounted to an “interference” with the exercise of his freedom of expression, and that he does therefore have “victim status” under Article 10. The Court accordingly rejects the Government’s objection.

27. The Court furthermore considers 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 30 below), the Court considers that it is not required to conduct an examination of the “lawfulness” of the interference. It 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; Öner and Türk v. Turkey, no. 51962/12, §§ 19-27, 31 March 2015; Gülcü v. Turkey, no. 17526/10, §§ 110 - 117, 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 in the present case.

29. In particular, the Court notes that the applicant was prosecuted and convicted under section 7 (2) of Law no. 3713 on the grounds that he had chanted slogans. In the Court’s view, one of the slogans mentioned in the first-instance judgment, “the youth is Öcalan’s fedai” might be construed as having a violent tone. However, the first-instance court’s judgment does not contain any information as to the reasons why the applicant was found guilty of disseminating propaganda in support of the PKK. Nor does the judgment contain any assessment of the content of the particular slogans chanted by the applicant. The Assize Court found that by participating in the reading out of the press statement and chanting slogans, the applicant had disseminated propaganda in favour of the PKK, without making an assessment as to whether the applicant’s acts could be construed as encouraging violence, armed resistance or an uprising, or being capable of inciting to violence. These are essential elements to be taken into account. Besides, there is nothing in the case file showing that the event in question was not a peaceful public gathering or that applicant was involved in any violent acts or had the intention of inciting violence. However, the Diyarbakır Assize Court 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.

30. 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION

31. 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.”

32. The applicant claimed 100,000 Turkish liras (TRY ‑ approximately 22,915 euros (EUR)) in respect of non-pecuniary damage. He also claimed pecuniary damages, without specifying any amount. The applicant lastly claimed TRY 12,000 (approximately EUR 2,750) in respect of costs and expenses. In support of his claim for costs and expenses, the applicant submitted a time sheet showing that his representatives had carried out thirteen hours and thirty minutes of legal work during the proceedings before the Court, and a list of the tasks carried out by his representatives both during the proceedings before the domestic courts and the Court.

33. The Government contested those claims.

34. Having regard to the applicant’s failure to substantiate his claims for pecuniary damages, the Court rejects those claims. On the other hand, ruling on an equitable basis, the Court awards the applicant EUR 2,500 in respect of non-pecuniary damage. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 1,300 covering costs under all heads.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Joins to the merits the Government’s objection regarding the applicant’s lack of victim status under Article 10 of the Convention and dismisses it;

2. Declares the complaint under Article 10 of the Convention admissible;

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

4. 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:

(i) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,300 (one thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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 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]. An illegal armed organisation.

[2]2. İmralı is the island where Abdullah Öcalan is serving a prison sentence.

[3]. The word “fedai” (from Arabic) has two meanings in Turkish: 1. A person who gives his or her life for another person or for a cause; 2. A person who protects another person or a place.

Full & Egal Universal Law Academy