CASE OF MÜDÜR DUMAN v. TURKEY

SECOND SECTION

CASE OF MÜDÜR DUMAN v. TURKEY

(Application no. 15450/03)

JUDGMENT

STRASBOURG

6 October 2015

FINAL

06/01/2016

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

In the case of Müdür Duman v. Turkey,

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

Nebojša Vučinić, Acting President,
Işıl Karakaş,
Helen Keller,
Ksenija Turković,
Egidijus Kūris,
Robert Spano,
Jon Fridrik Kjølbro, judges,
and Abel Campos, Deputy Section Registrar,

Having deliberated in private on 1 and 8 September 2015,

Delivers the following judgment, which was adopted on the last mentioned date:

PROCEDURE

1. The case originated in an application (no. 15450/03) 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 Müdür Duman (“the applicant”), on 8 January 2003.

2. The applicant was represented by Mr F. Aydınkaya, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicant complained of an unjustified interference with his right to freedom of expression and unfairness of the criminal proceedings against him, in violation of Articles 6 §§ 1 and 3 (b), 10 and 11 of the Convention.

4. On 5 February 2009 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1956 and lives in Istanbul.

6. The applicant was the director of the Eminönü district branch of HADEP (Halkın Demokrasi Partisi – the People’s Democracy Party) in Istanbul at the time of the events giving rise to the application.

7. On 24 June 2000 a number of trade unions organised a demonstration in Istanbul. During the demonstration, some participants carried signs and chanted slogans in support of Abdullah Öcalan, the leader of the PKK (Kurdistan Workers’ Party), an illegal armed organisation. These demonstrators were identified by the police as members of HADEP.

8. On 26 June 2000 the public prosecutor at Istanbul State Security Court applied for a warrant to search the offices of four branches of HADEP to obtain incriminating evidence concerning the PKK.

9. On the same date the Istanbul State Security Court issued a search warrant.

10. That same evening police officers from the Istanbul police headquarters conducted a search of the Eminönü branch office of HADEP. The search protocol, which was signed by the applicant, indicated that illegal publications and flags and symbols of the PKK had been found there, together with pictures, articles and books pertaining to Mr Öcalan.

11. On the same date the applicant was taken to the Istanbul police headquarters for questioning. The police officers informed the applicant of his right under Article 135 (3) of the former Code of Criminal Procedure to request a lawyer. However, the applicant did not ask for a lawyer. In his statement, the applicant contended that, although he was the director of the Eminönü district office of HADEP, he was not always present at the office and that he had not been aware of the existence of the pictures and symbols regarding Mr Öcalan and the PKK found in the office. He similarly denied responsibility for the illegal publications and books which had been found on the premises, which he claimed had been brought in by publishers or other persons visiting the office without his knowledge. He claimed that whenever he came across similar pictures and symbols, he requested their removal. This statement was signed by the applicant.

12. On 27 June 2000 the applicant was questioned by the Istanbul public prosecutor, to whom he repeated the statement he had previously made to the police. The applicant also waived his right to request a lawyer before the public prosecutor.

13. On 30 June 2000 the Istanbul public prosecutor filed a bill of indictment against the applicant, charging him with praising and condoning acts punishable by law under Article 312 § 1 of the former Criminal Code.

14. On 19 January 2001 the Istanbul Criminal Court held the first hearing. At the end of the hearing, to which the applicant attended, the court decided to hold the next hearing on 15 June 2001.

15. On 15 June 2001, at the second hearing, the Istanbul public prosecutor presented his opinion (esas hakkında mütalaa) to the first‑instance court in the absence of the applicant. In his opinion, the public prosecutor advised that the court should find the applicant guilty as charged. The Istanbul Criminal Court accordingly convicted the applicant at the end of the hearing, and sentenced him to six months’ imprisonment and a fine of 91,260,000 old Turkish liras (TRL)[1]. In its judgment the domestic court held that the applicant’s defence lacked credibility and that the display of symbols and pictures pertaining to the PKK and Mr Öcalan in the party building amounted to the offence of praising and condoning acts punishable by law.

16. Through his lawyer the applicant appealed against this judgment. He claimed that he had not been duly reminded of his right to request a lawyer under Article 135 of the Code of Criminal Procedure during his questioning. He further argued that he had missed the hearing as he was delayed in traffic and the first‑instance court had taken its decision in his absence without giving him the opportunity to defend himself against the allegations of the public prosecutor.

17. On 5 June 2002 the Court of Cassation quashed the fine imposed, but upheld the remainder of the judgment. On 11 July 2002 this decision was deposited with the registry of the first-instance court.

18. On 31 January 2003 the applicant started serving his sentence. On 13 April 2003 he was released on parole.

II. RELEVANT DOMESTIC LAW

19. Article 312 § 1 of the former Criminal Code (Law no. 765) reads as follows:

“A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras.”

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLES 6 § 3 (b) AND 10 OF THE CONVENTION

20. The applicant complained of a violation of his right to freedom of expression and to impart and share information. He relied on Articles 10 and 11 of the Convention. The applicant further alleged that his defence rights had been violated as the first instance court had delivered its decision without giving him the opportunity to submit his defence on the merits and to reply to the allegations of the public prosecutor presented to the court. In this respect, he relied on Article 6 § 3 (b) of the Convention.

21. The Court, being the master of the characterisation to be given in law to the facts of the case, considers that the complaints under Articles 10 and 11 fall to be examined from the standpoint of Article 10 alone (see, Perihan and Mezopotamya Basın Yayın A.Ş. v. Turkey, no. 21377/03, § 43, 21 January 2014). Article 10 of the Convention reads as follows:

“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. ...

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, [and] for the protection of the reputation or rights of others, ...”

Article 6 § 3 (b) of the Convention reads as follows:

“3. Everyone charged with a criminal offence has the following minimum rights: ...

(b) to have adequate time and the facilities for the preparation of his defence;”

22. The Government contested those arguments.

A. Admissibility

23. The Government argued that the application had been introduced outside the six-month time-limit. In this respect, they stated that the Court of Cassation’s decision had been delivered on 5 June 2002, whereas the application was introduced to the Court on 8 January 2003, more than six months later.

24. The Court notes that the decision of the Court of Cassation was deposited with the registry of the first-instance court on 11 July 2002. It reiterates that where an applicant is not entitled to be served ex officio with a written copy of the final domestic decision and if he or she was represented by a lawyer during the domestic proceedings, as in the present case, the date on which the final domestic decision was deposited with the registry of the first-instance court should be taken as the starting-point under Article 35 § 1 of the Convention, being the latest date by which the applicant or his or her representative was definitively able to find out about the content of the final decision (see İpek v. Turkey (dec.), no. 39706/98, 7 November 2000, and Okul v. Turkey (dec.), no. 45358/99, 4 September 2003). Accordingly, in the present case the applicant lodged his application to the Court within the six‑month time-limit, as required by Article 35 § 1 of the Convention. The Government’s preliminary objection should therefore be dismissed.

25. The Court further 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. Alleged violation of Article 10 of the Convention

26. The applicant maintained under Article 10 of the Convention that his conviction under Article 312 § 1 of the former Criminal Code on account of certain pictures and other materials found in the party’s office had interfered with his right to freedom of expression.

27. The Government argued that the interference with the applicant’s right to freedom of expression had been in accordance with the law, had pursued a legitimate aim and had been necessary in a democratic society. In this respect they maintained that the applicant’s conviction had been based on Article 312 § 1 of the former Criminal Code. They further argued that the interference had been justified by the need to protect public order and to prevent crime as part of the fight against terrorism, since the materials found at HADEP’s office indicated the existence of a link between the applicant and the terrorist organisation PKK. The Government further considered that the interference had been proportionate to its aims, as the applicant had been sentenced to merely six months’ imprisonment.

28. The applicant argued that the materials found in the party building did not contain any call for violence or any remarks inciting others to rebellion; thus, the penalty imposed did not pursue a legitimate aim and was not necessary in a democratic society. The applicant further maintained that, had the national courts intended to take proportionate measures, they could have imposed a judicial fine instead of imprisonment.

29. The Court notes at the outset that Article 10 of the Convention protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204). In this respect, the wearing or displaying of symbols has also been held to fall within the spectrum of forms of “expression” within the meaning of Article 10 of the Convention. The Court held that the display of a symbol associated with a political movement or entity, like that of a flag, was capable of expressing identification with ideas or representing them and fell within the ambit of expression protected by Article 10 of the Convention (see Fáber v. Hungary, no. 40721/08, § 36, 24 July 2012).

30. The Court notes that the applicant denied any knowledge of the pictures and symbols and illegal publications and books found in his office and that the question therefore arises whether there was at all an interference with his exercise of his right to freedom of expression. In that respect, it observes that the applicant’s criminal conviction for the offence of praising and condoning acts punishable by law under Article 312 § 1 of the former Criminal Code was indisputably directed at activities falling within the scope of freedom of expression, as noted above, and that he was sanctioned for engaging in such activities, despite his denial of any knowledge of the materials. The Court considers that in such circumstances, the applicant’s conviction must be regarded as constituting an interference with his exercise of his right to freedom of expression. To hold otherwise would be tantamount to requiring him to acknowledge the acts of which he stood accused. It should be borne in mind in this respect that the right not to incriminate oneself, although not specifically mentioned in Article 6 of the Convention, is a generally recognised international standard which lies at the heart of the notion of a fair procedure under that provision (see, in the context of exhaustion of domestic remedies, Yılmaz and Kılıç v. Turkey, no. 68514/01, §§ 39-41, 17 July 2008; see also, in the context of civil proceedings, Stojanović v. Croatia, no. 23160/09, § 39, 19 September 2013). Moreover, not accepting that a criminal conviction constituted an interference, on the ground that an applicant denied any involvement in the acts at issue, would lock him in a vicious circle that would deprive him of the protection of the Convention.

31. The Court further notes that the interference was prescribed by law, namely Article 312 § 1 of the former Criminal Code. As to the legitimacy of the aims pursued, the Court observes that in the present case the national authorities sought to protect national security and to prevent disorder or crime. It therefore remains to be determined whether the interference complained of was “necessary in a democratic society”.

32. At this point, the Court recalls that it has examined complaints relating to similar issues to those in the present case and found a violation of Article 10 in a number of cases where it noted that the applicants’ convictions for praising and condoning acts punishable by law, pertaining to the PKK, went beyond any notion of “necessary” restraint in a democratic society (see, among others, Feridun Yazar v. Turkey, no. 42713/98, 23 September 2004; Bahçeci and Turan v. Turkey, no. 33340/03, 16 June 2009; and Bülent Kaya v. Turkey, no. 52056/08, 22 October 2013).

33. Turning to the particular circumstances of the present case, the Court observes that the Istanbul Criminal Court convicted the applicant under Article 312 § 1 of the former Criminal Code on the ground that the display of symbols and pictures pertaining to the PKK and Mr Öcalan in the party building amounted to the offence of praising and condoning acts punishable by law. The Court notes that the applicant was prosecuted and convicted merely for keeping the aforementioned material in the party’s office, which was interpreted by the courts as an indication of respect and approval for the illegal organisation and its leader. The Court, however, considers that the applicant’s conduct could not be construed as support for unlawful acts committed by Mr Öcalan and the PKK or any approval in this regard inasmuch as neither in the domestic court decisions nor in the observations of the Government is there any indication that the material in question advocated violence, armed resistance or an uprising (see Gerger v. Turkey [GC], no. 24919/94, § 50, 8 July 1999, and contrast Halis Doğan v. Turkey, no. 75946/01, §§ 35‑38, 7 February 2006).

34. The Court further observes that it was not indicated in the reasoning of either the Istanbul Criminal Court’s or the Court of Cassation’s decisions whether they had examined the proportionality of the interference and the balancing of rights taking into account freedom of expression (see Öner and Türk v. Turkey, no. 51962/12, § 25, 31 March 2015).

35. In the light of the foregoing, the Court considers that the reasons given by the domestic courts for convicting and sentencing the applicant cannot be considered relevant and sufficient to justify the interference with his right to freedom of expression (see, among other authorities, Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts), and Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013 (extracts)).

36. The Court further reiterates that the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the interference (see, inter alia, Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 66, ECHR 1999‑IV). In this respect the Court notes the severity of the penalty imposed on the applicant, which is six months’ imprisonment.

37. Having regard to the above considerations, the Court concludes that, in the circumstances of the present case, the applicant’s conviction was disproportionate to the aims pursued and accordingly not “necessary in a democratic society”. There has therefore been a violation of Article 10 of the Convention.

2. Alleged violation of Article 6 § 3(b), in conjunction with Article 6 §1

38. The applicant alleged under Article 6 § 3 (b) of the Convention that the Istanbul Criminal Court had convicted him at the second hearing in absentia after hearing the public prosecutor’s opinion on the merits, thus depriving him of the opportunity to put forward his counter-arguments to the opinion of the public prosecutor.

39. The Government contested these arguments.

40. The Court considers that this complaint should be examined under Article 6 § 3(b), in conjunction with Article 6 § 1. Having regard to the facts of the case, the submissions of the parties and its finding of a violation of Article 10 of the Convention above (paragraph 37), the Court considers that there is no need to make a separate ruling on the applicant’s complaint under this head (see, Yalçın Küçük v. Turkey (no. 3), no. 71353/01, § 40, 22 April 2008, and Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007).

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

41. The applicant complained under Article 6 § 1 of the Convention that he had not been duly reminded of his rights under Article 135 (3) of the former Code of Criminal Procedure to request a lawyer during police custody and that he had not been provided with the assistance of a lawyer during his questioning at the Istanbul police headquarters, by the public prosecutor or before the criminal court. He further alleged under Article 6 § 3 (d) of the Convention that the public prosecutor and the first‑instance court had failed to conduct an additional investigation (tevsi-i tahkikat) in the case or to collect evidence or summon witnesses in his favour. Lastly, the applicant complained, under Article 14 of the Convention, that his conviction constituted discrimination on the ground of his Kurdish ethnic origin.

42. Having examined the material submitted to it, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

43. It follows that this part of the application is manifestly ill‑founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

44. 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

45. The applicant claimed 24,000 Turkish liras (TRY – approximately 7,270 euros (EUR)) and TRY 50,000 (approximately EUR 15,145) in respect of pecuniary and non-pecuniary damage respectively.

46. The Government submitted that the amounts claimed in respect of pecuniary and non-pecuniary damage were unsubstantiated.

47. Having regard to the applicant’s failure to submit to the Court any documents in support of his claim for pecuniary damage, the Court rejects the applicant’s claim under this head. On the other hand, it considers that the applicant suffered non‑pecuniary damage which cannot be compensated solely by the finding of a violation of Article 10. Ruling on an equitable basis, the Court awards the applicant EUR 12,500 in respect of non‑pecuniary damage.

B. Costs and expenses

48. The applicant claimed TRY 5,100 (approximately EUR 1,545) for the costs and expenses incurred before the domestic courts and TRY 12,125 (approximately EUR 3,673) before the Court as well as TRY 3,200 (approximately EUR 970) for translation costs. In support of his claims, the applicant submitted a legal fees agreement concluded with his lawyer demonstrating that he should pay TRY 12,125 (approximately EUR 3,673) to his representative. The applicant further refers to the Istanbul Bar Association’s scale of fees in respect of legal representation before the Court.

49. The Government contested these claims.

50. As regards costs and expenses, the Court reiterates that 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, regard being had to the documents in its possession, in particular the legal fees agreement concluded between the applicant and his representative (compare with Murat Vural v. Turkey, no. 9540/07, § 89, 21 October 2014) and the above criteria, the Court considers it reasonable to award the applicant EUR 3,200 under this head.

C. Default interest

51. 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 complaints concerning the alleged breaches of Article 6 § 3 (b), in conjunction with Article 6 § 1, and 10 of the Convention admissible and the remainder of the application inadmissible;

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

3. Holds that there is no need to examine separately the complaint under Article 6 § 3 (b) of the Convention, in conjunction with Article 6 § 1;

4. 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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 12,500 (twelve thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,200 (three thousand two 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 6 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel CamposNebojša Vučinić
Deputy RegistrarActing President

[1]. On 1 January 2005 the Turkish lira (TRY) entered into circulation, replacing the former Turkish lira (TRL). TRY 1 = TRL 1,000,000.

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