CASE OF IŞIKIRIK v. TURKEY

SECOND SECTION

CASE OF IŞIKIRIK v. TURKEY

(Application no. 41226/09)

JUDGMENT

STRASBOURG

14 November 2017

FINAL

09/04/2018

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

In the case of Işıkırık v. Turkey,

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

Robert Spano, President,
Ledi Bianku,
Işıl Karakaş,
Nebojša Vučinić,
Paul Lemmens,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 10 October 2017,

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

PROCEDURE

1. The case originated in an application (no. 41226/09) 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 Murat Işıkırık (“the applicant”), on 29 July 2009.

2. The applicant was represented by Ms C. Vine, Ms S. Karakaş and Mr O. Moore, lawyers practising in London, and Ms M. Danış Beştaş and Mr B. Büyük, lawyers practising in Diyarbakır and Mardin respectively. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicant alleged violations of Article 5 § 3, Article 6 § 1, and Articles 10, 11 and 14 of the Convention.

4. On 22 October 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1984 and lives in Mardin. At the time of the events giving rise to the present application, the applicant was a student at the Philosophy Department of the Faculty of Arts and Science at Dicle University.

A. Events of 28 March 2006 and 5 March 2007

6. On 28 March 2006 a funeral of four militants of the PKK (Kurdish Workers’ Party), an illegal armed organisation, took place in Diyarbakır.

7. An incident report regarding events that took place between 28 March and 1 April 2006 was prepared on 3 April 2006 by the police and was signed by more than 220 officers. It stated that on 24 March 2006 fourteen PKK militants had been killed by the security forces and that the remains of four of the militants were released to their families in order to be buried in Diyarbakır. On 28 March 2006 at around 7 a.m., the remains were taken to a mosque where around 1,500‑2,000 people had gathered. The crowd blocked the traffic as they carried the coffins, chanted separatist, hostile slogans in Turkish and Kurdish in support of the organisation and Abdullah Öcalan, the leader of the PKK, and waved PKK posters and banners. The crowd then walked to a cemetery for the burial of the deceased. The security forces did not intervene as there were relatives of the deceased, including children and old people, in the crowd. The police report stated that after the burial ceremony had been completed, a group of about 1,000 people continued to march. They were warned by the police that they were not allowed to chant illegal slogans, disseminate propaganda in support of the organisation or wave illegal flags. However, the crowd became agitated and started throwing stones at the police officers on duty, injuring a number of them and causing extensive damage to State buildings and vehicles, banks, shops and other vehicles belonging to private individuals. According to the police report, more people later joined the illegal demonstration, which continued on 29, 30 and 31 March and 1 April. The report further stated that prior to those events some media organs controlled by the PKK had called for mass protests.

8. On 5 March 2007 a demonstration was held on the campus of Dicle University to protest about the conditions of Abdullah Öcalan’s detention, and in particular about his alleged poisoning by the Turkish authorities. A group of forty people entered the university building and asked the students to leave. They held a press conference on the premises of the university and chanted slogans in favour of the PKK and Abdullah Öcalan.

B. Criminal proceedings against the applicant

9. On 9 March 2007 the applicant was arrested.

10. On 10 March 2007 he was questioned at the anti-terror branch of the Diyarbakır police headquarters where he denied taking part in both the demonstration of 5 March 2007 and the funeral of 28 March 2006 and the subsequent events.

11. On the same day, the applicant made a statement to the Diyarbakır public prosecutor. He was shown photographs that had been taken of him on 28 March 2006 and 5 March 2007 during the funeral and the demonstration at the university. The applicant accepted that he had participated in the funeral of one of the PKK militants. He stated that the militant had been a relative of a friend of his, that he had attended the funeral as a religious duty, but that he had not attacked the police with stones. The applicant also stated that on 5 March 2007 he had stood in front of the university building with other students for a short while and that his photograph must have been taken then. He stated that he had not chanted slogans with the demonstrators.

12. The applicant was brought before a judge of the Diyarbakır Assize Court later that day. He maintained that his statements to the public prosecutor had reflected the truth. The judge remanded the applicant in custody on the basis of a strong suspicion that he had committed the offence of disseminating propaganda in support of a terrorist organisation or its purposes.

13. On 8 May 2007 the Diyarbakır public prosecutor filed a bill of indictment against the applicant with the Diyarbakır Assize Court. The applicant was charged with disseminating propaganda in support of the PKK and with membership of an illegal organisation under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and Article 314 § 2 of the Criminal Code (Law no. 5237), on the basis of Articles 220 § 6 and 314 § 3 of the same Code. The public prosecutor noted that on 28 March 2006 the applicant had participated in an illegal demonstration held under the pretext of a funeral; had chanted a slogan; and had covered his face with the hood of his coat during the demonstration. The public prosecutor also noted that the applicant had supported the chanting of slogans in favour of the PKK by applauding during the demonstration of 5 March 2007. The public prosecutor further claimed that the applicant had regularly, willingly and knowingly participated in illegal demonstrations organised by political parties, associations and persons who supported the PKK and that therefore he should be punished for membership of an illegal organisation.

14. In support of the indictment, the public prosecutor submitted police video recordings of the funeral held on 28 March 2006 and the demonstration at Dicle University of 5 March 2007 to the court. In the first recording, the applicant was seen in a crowd next to a coffin making a “V” sign. In the second recording the applicant was again seen in a crowd with the hood of his coat on his head. In the third recording, the applicant was seen applauding with other students.

15. On 19 June 2007 the Diyarbakır Assize Court held the first hearing during which the applicant made defence submissions. He stated that he had attended the funeral on 28 March 2006 and that he had briefly participated in the gathering at the university on 5 March 2007. He accepted that he was the person in the photographs. He denied the accuracy of the allegation that he had chanted slogans during the funeral and the demonstration. He noted that he did not remember that he had made a “V” sign, but that he might have done so, along with the rest of the crowd. A witness was also heard by the trial court, and confirmed the applicant’s version of events of 5 March 2007. At the end of the hearing the court ordered the applicant’s continued detention on remand.

16. On 30 November 2007, at the end of the fourth hearing, the Diyarbakır Assize Court convicted the applicant of membership of an illegal organisation, the PKK, 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. The applicant was also convicted of two counts of disseminating propaganda in support of the PKK under section 7(2) of Law no. 3713, for which he received a sentence of a total of one year and eight months’ imprisonment.

17. The court first gave a summary of the applicant’s defence submissions, the public prosecutor’s observations on the merits of the case and the evidence in the case file. That evidence was the applicant’s statements to the police, the public prosecutor and the judge, dated 10 March 2007; a photograph relating to the funeral of 28 March 2006; printed versions of news articles published by various media in support of the PKK which had been downloaded from the Internet; the arrest and incident reports; reports on the video recordings; a copy of the leaflet distributed at Dicle University on 5 March 2007; reports by experts on the examination of the video recordings; the applicant’s identity documents; and a document showing that he had no previous criminal record.

18. In its judgment, the Assize Court observed, on the basis of the police video recordings and the photographs extracted from those recordings, that the applicant had attended the funeral of four PKK militants on 28 March 2006; that he had walked in front of one of the coffins during the funeral; and that he had made a “V” sign. Noting that the funeral had subsequently turned into propaganda for the PKK-KONGRA/GEL, thus an illegal demonstration, and considering that the applicant had walked close to the coffins, the court considered that the applicant had played an active role in the illegal demonstration. The court noted that it was not established that the applicant had chanted slogans during the funeral. As to the demonstration held on 5 March 2007 at Dicle University, the trial court noted that the applicant had applauded while other demonstrators had chanted slogans in support of Abdullah Öcalan.

19. The Assize Court noted that the funeral of the PKK militants and the demonstration of 5 March 2007 had both been held in line with calls and instructions issued by the PKK. They had subsequently turned into propaganda events in favour of the PKK and had become illegal demonstrations. Hence, the court found it established that the applicant had acted with the intention of supporting the deceased on 28 March 2006 and had acted together with illegal demonstrators on 5 March 2007, thereby committing the offence of disseminating propaganda in favour of the PKK and its leader.

20. The Diyarbakır Assize Court further referred to a decision dated 22 March 2007 (case no. 2006/9165, decision no. 2007/2432) of the Ninth Criminal Division of the Court of Cassation, in which the latter had considered that the acts of the accused demonstrators (participation in the demonstration of 28 March 2006 after calls for a demonstration had been made by the PKK, in accordance with the latter’s aims; the chanting of slogans in support of the PKK and Abdullah Öcalan; singing the PKK’s youth march song; burning tyres and blocking traffic; carrying PKK flags and banners and Öcalan posters; attacking public buildings, as well as police and civilian vehicles with stones and Molotov cocktails; carrying the bodies of the PKK militants who had been killed by the security forces) should be considered as offences committed on behalf of that organisation. The Court of Cassation found therefore that the accused should be punished for those offences and also be convicted of membership of an illegal organisation. Noting that the applicant had acted together with the aforementioned demonstrators on 28 March 2006, the Diyarbakır Assize Court considered that the applicant’s participation in the funeral and demonstration and his conduct at that time had also occurred as a result of instructions and calls by the PKK. The court considered that the applicant had acted on behalf of the organisation, in line with the goals and activities of the PKK, and that therefore he should be punished for not only disseminating propaganda, but also for membership of an illegal organisation.

21. One of the three judges sitting on the bench of the assize court dissented. In his dissenting opinion, the judge stated that neither Article 220 § 6 of the Criminal Code nor the explanatory memorandum on Article 220 § 6 explained the concept of committing an offence on behalf of an illegal organisation. The dissenting judge noted that such an offence should be capable of producing a result for a terrorist organisation and its aims, such as the offences of aggravated injury, kidnapping, deprivation of liberty, murder or bombing. He also noted that such an offence should have devastating repercussions for society when the way of committing the offence, the time of the offence and its effects were taken into consideration. He finally opined that in order to conclude that non-members of an illegal organisation had committed an offence on behalf of that illegal organisation, there should be a decision to commit an offence on behalf of that organisation and an intention to join the organisation in question. The judge therefore concluded that the applicant should only have been convicted under section 7(2) of Law no. 3713.

22. The applicant appealed.

23. On 29 January 2009 the Court of Cassation upheld the judgment of 30 November 2007 in so far as it related to the applicant’s conviction under Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 6 and 314 § 3 of the same Code, for membership of an illegal organisation. The higher court, however, quashed the applicant’s conviction under section 7(2) of Law no. 3713 on procedural grounds.

24. On 23 March 2009 the Court of Cassation’s decision of 29 January 2009 was deposited with the registry of the first-instance court.

25. On 28 April 2009 the Diyarbakır Assize Court once again convicted the applicant under section 7(2) of Law no. 3713.

26. On 17 October 2012 the Court of Cassation quashed the applicant’s conviction under section 7(2) of Law no. 3713.

27. On 14 December 2012 the Diyarbakır Assize Court decided to suspend the criminal proceedings against the applicant under section 7(2) of Law no. 3713, pursuant to Law no. 6352, which had entered into force on 5 July 2012. The suspension was for a period of three years, on the condition that he did not commit an offence when expressing ideas and opinions through the medium of the press or other media, or by any other method.

28. In the meantime, on 25 October 2010 the applicant was expelled from Dicle University by the administrative board of the Faculty of Arts and Science because he had failed to complete his degree within the maximum period of seven years for an undergraduate programme. The case lodged by the applicant against that decision was dismissed by the Diyarbakır Administrative Court on 5 June 2012. The court considered that the fact that the applicant had been serving a prison sentence did not justify his non‑attendance at classes and examinations.

29. After serving four years and eight months of his sentence, the applicant was released from prison on 15 November 2011.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The Criminal Code (Law no. 5237)

30. On 1 April 2005 Law no. 5237 entered into force. At the material time, Article 220 of the Criminal Code read as follows:

Establishing organisations for the purpose of criminal activity

“(1) Anyone who establishes or directs organisations for the purpose of criminal activity shall be liable to imprisonment of between two and six years, provided that the structure of the organisation, the number of the members, and the quantity of the equipment and supplies are sufficient to commit the intended crimes.

(2) Anyone who becomes a member of an organisation established for the purpose of criminal activity shall be liable to imprisonment of between one and three years.

(3) If the organisation is armed, the sentences stated above shall be increased by between one quarter and one half.

(4) Any crime committed within the framework of the organisation’s activities shall be punished separately.

(5) The heads of organisations shall also be sentenced as perpetrators of all crimes committed within the framework of such organisations’ activities.

(6) Anyone who commits a crime on behalf of an (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation.

(7) Anyone who aids and abets an (illegal) organisation knowingly and intentionally, even if they do not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation.

(8) Anyone who spreads propaganda for the organisation or its objectives shall be punished by imprisonment of between one and three years. If the said crime is committed through the media and press the sentence shall be increased by one half.”

Paragraphs 6 and 7 of Article 220 were amended by Law no. 6352, which entered into force on 2 July 2012, as follows:

“(6) Anyone who commits a crime on behalf of an (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. The penalty to be imposed for membership may be reduced by up to half.

(7) Anyone who aids and abets an (illegal) organisation knowingly and intentionally, even if they do not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation. The penalty to be imposed for membership may be reduced by up to two thirds, depending on the nature of the assistance.”

Article 220 § 6 was further amended by Law no. 6459, which entered into force on 11 April 2013. It currently reads as follows:

“(6) Anyone who commits a crime on behalf of an (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. The penalty to be imposed for membership may be reduced by up to half. This paragraph shall be applicable only for armed organisations.”

31. Article 314 of the Criminal Code reads as follows:

Armed organisations

“(1) Anyone who forms an armed organisation to commit the crimes listed in the fourth and fifth sections of this chapter, or commands such an organisation, shall be liable to a term of imprisonment of between ten and fifteen years.

(2) Anyone who becomes a member of an (armed) organisation mentioned in the first paragraph of this Article shall be liable to a term of imprisonment of between five and ten years.

(3) Other provisions relating to the crime of forming an organisation for the purpose of criminal activity are also applicable for this crime.”

B. The Prevention of Terrorism Act (Law no. 3713)

32. At the material time, section 7(2) of the Prevention of Terrorism Act read as follows:

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

Law no. 6459 also amended section 7 of Law no. 3713. According to a new paragraph in the provision, people who have committed the offences proscribed by sections 6(2) and 7(2) of Law no. 3713 (printing and disseminating declarations made by terrorist organisations which provide legitimacy to or praise the methods of violence or threats used by terrorist organisations or which encourage the use of such methods and disseminate propaganda in favour of a terrorist organisation respectively), and the offence proscribed by section 28(1) of the Marches and Demonstrations Act (Law no. 2911) (participating in an unlawful demonstration), shall not in addition be held criminally liable under Article 220 § 6 of the Criminal Code.

C. Decision of the Court of Cassation of 4 March 2008 (Case no. 2007/9-282, Decision no. 2008/44)

33. On 29 September 2006, the Diyarbakır Assize Court convicted a certain F.Ö. in criminal proceedings under section 7(2) of Law no. 3713 and section 32(1) and (3) of Law no. 2911 for participation in and his conduct during three demonstrations. On 21 February 2007 the Ninth Criminal Division of the Court of Cassation quashed the first-instance judgment, holding that F.Ö.’s acts had constituted not only the offences for which he had been found guilty, but also membership of an illegal organisation under Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 6 and 314 § 3, as he had committed the offences on behalf of the organisation. The Ninth Criminal Division therefore considered that F.Ö. should be punished for the offence of membership of an illegal organisation and the other offences proscribed by section 7(2) of Law no. 3713 and section 32(1) and (3) of Law no. 2911. On 31 May 2007 the Diyarbakır Assize Court reiterated its previous judgment that F.Ö.’s acts had not constituted the offence proscribed by Article 314 § 2 of the Criminal Code. The Assize Court noted, inter alia, that in order for a court to conclude that a crime had been committed on behalf of an organisation, the latter must have issued a call for action to an individual who was capable of directly committing that act, rather than to an undefined collective group. As a result of the disagreement between the Diyarbakır Assize Court and the Ninth Criminal Division, the case was transferred to the Plenary Court of Cassation (Criminal Divisions). On 4 March 2008 the Plenary Court decided to quash the Assize Court judgment. It held that participation in unauthorised demonstrations held after appeals by an illegal organisation and acts which constituted independent offences committed during those demonstrations could be considered as having been carried out on behalf of the organisation. The Plenary Court considered that such acts should therefore also be sanctioned under Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3, along with the other criminal-law provisions. In the view of the Court of Cassation, appeals by an illegal organisation made in concrete terms through broadcasts by its media outlets did not need to target identified individuals.

III. RELEVANT INTERNATIONAL MATERIALS

A. European Commission for Democracy through Law (the Venice Commission)

34. At its 106th plenary session, held on 11 and 12 March 2016, the Venice Commission adopted an Opinion on Articles 216, 299, 301 and 314 of the Penal Code of Turkey (CDL-AD(2016)002)). The relevant parts of the Opinion read as follows:

“1. Membership of an armed organisation (art. 314)

98. The Penal Code does not contain a definition of an armed organisation or an armed group. In its judgment E. 2006/10-253 K. 2007/80 of 3 April 2007, the General Criminal Board of the Court of Cassation listed the main criteria that a criminal organisation – for the purposes of Article 220 of the Penal Code – should display. The group has to have at least three members; there should be a tight or loose hierarchical connection between the members of the group and an “abstract link” between the members is not sufficient; the members should have a common intention to commit crimes (even though no crime has yet been committed); the group has to present continuity in time; and the structure of the group, the number of its members, tools and equipment at the disposal of the group should be sufficient/appropriate for the commission of the envisaged crimes.

...

100. There is a rich case-law of the Court of Cassation in which the high court developed the criterion of “membership” in an armed organisation. The Court of Cassation examined different acts of the suspect concerned, taking account of their “continuity, diversity and intensity” in order to see whether those acts prove that the suspect has any “organic relationship” with the organisation or whether his or her acts may be considered as committed knowingly and wilfully within the “hierarchical structure” of the organisation...

101. If this “organic relationship” with the organisation cannot be proven on the basis of acts attributed to the defendant, which do not present any “continuity, diversity or intensity”, the paragraphs on “aiding and abetting an armed organisation” or “committing crime on behalf of an armed organisation” under Article 220 may be applied (see below). A person who has sympathy for the organisation, but who was arrested while he was trying to cross the border in order to join the organisation or a person who was trying to contact members of the organisation in order to become its member was not considered members of an armed organisation, since the organic relationship was not yet established at the moment of the arrest. Further, acts such as “participating in a public demonstration following a general call from pro-PKK media outlets, making victory sign and shouting slogans to support and in favour of the leader of a terrorist organisation, clashing with the security forces and forming barricades” are considered crimes committed on behalf of an organisation and not as membership.

...

106. ... the Venice Commission recommends, first, that the established criteria in the case law of the Court of Cassation that acts attributed to a defendant should show “in their continuity, diversity and intensity”, his/her “organic relationship” to an organisation or they should prove that he/she acted knowingly and willingly within the “hierarchical structure” of the organisation, should be applied strictly. The loose application of these criteria may give rise to issues concerning in particular the principle of legality within the meaning of Article 7 ECHR.

107. Second, the expression of an opinion in its different forms should not be the only evidence before the domestic courts to decide on the membership of the defendant in an armed organisation. Where the only evidence consists of forms of expression, the conviction for being a member of an armed organisation, would constitute an interference with the right of the defendants to freedom of expression, and that the necessity of this interference on the basis of the criteria as set forth in the case-law of the ECtHR, in particular the criteria of “incitement to violence”, should be examined in the concrete circumstances of each case.

2. Application of Article 314 in conjunction with Article 220

...

109. In a judgment of 4 March 2008 the General Criminal Board of the Court of Cassation held that acts such as participating in a public demonstration following a general call from pro-PKK media outlets, making a victory sign and shouting slogans to support and in favour of the leader of a terrorist organisation, and clashing with the security forces, are considered crimes committed on behalf of the terrorist organisation. In this case, although the membership in an armed organisation was not established, the defendant was convicted as a member of a criminal organisation, according to paragraph 6 of Article 220 applied in conjunction with Article 314. By this judgment, the Court of Cassation annulled the decision of the Diyarbakır Assize Court, which had considered that, in order for a court to conclude that a crime was committed on behalf of an organisation, “the latter must have called for action not to an undefined collective, but rather to an individual person who is capable of directly committing that act”.

...

114. ... a new paragraph has been added to Article 7 of the Anti-Terror Law no. 3713 by an amendment of 11 April 2013. According to this new paragraph, those who committed the crime indicated in the second paragraph of Article 7 (propaganda in support of a terrorist organisation); the crime indicated in the second paragraph of Article 6 (printing and disseminating declarations made by terrorist organisations which legitimise or praise the violent or threatening methods of terrorist organisations or encourage the use of such methods); the crime indicated in the first paragraph of Article 28 of the Public Demonstrations Law no. 2911 (participating to an unlawful demonstration), shall not be sentenced separately under Article 220(6) of the Penal Code. The authorities indicated that with this amendment, the scope of the freedom of expression was broadened in the application of anti-terror legislation.

115. The Venice Commission welcomes the amendment introduced to Article 7 of the Anti-Terror Law, which excluded the above-mentioned crimes from the scope of application of Article 220(6). With this amendment, the suspects accused of having committed such crimes shall not be punished separately as members of an armed organisation under Article 314.

116. Nevertheless, the Venice Commission considers that the scope of this amendment is rather limited and does not provide for sufficient protection to the exercise of freedom of expression and assembly in particular. First, the amendment to Article 7 of the Anti-Terror Law excluded the above-mentioned crimes only from the scope of application of Article 220(6). However, some forms of expression, as indicated in the judgments of the Court of Cassation cited in paragraph 111, may also fall under the scope of Article 220(7) (aiding and abetting an organisation). This may lead to abusive application in practice, since a form of expression considered as being in support of an organisation, may be sanctioned under Article 220(7), instead of Article 220(6), in order to sentence the defendants as if they were members of an armed organisation under Article 314, although their organic relationship with an armed organisation is not established.

117. Secondly, the new paragraph added to Article 7 of the Anti-terror Law refers to the first paragraph of Article 28 of the Law on Public Demonstrations. This paragraph merely criminalises the organisation of or participation in unlawful public demonstrations, while for instance the crime regulated under Article 32(1) of the Law on Public Demonstrations, i.e. “to refuse to obey the warnings of the security forces during a public demonstration to disperse”, may still fall under the scope of Article 220(6) (committing crime on behalf of an organisation), in conjunction with Article 314.

...

120. In conclusion, the Venice Commission recommends that the sentence “although he is not a member of that organisation, shall also be sentenced for the offence of being a member of that organisation.” in paragraphs 6 and 7 of Article 220 be repealed. In this case, those who commit the crimes indicated in paragraphs 6 and 7 of Article 220 would not be sanctioned as members of an armed organisation under Article 314, but by other, separate sanctions.

121. Should this sentence in paragraph 6 and 7 be maintained, the Turkish authorities should consider limiting the application of Article 220 in conjunction with Article 314, to cases which do not involve the exercise of the rights to freedom of expression and assembly.”

B. Commissioner for Human Rights of the Council of Europe

1. Reports of 1 October 2009 and 12 July 2011 (CommDH(2017)5) and (CommDH(2011)25)

35. In a report published on 1 October 2009 following a visit to Turkey between 28 June and 3 July 2009, Mr Thomas Hammarberg, the former Commissioner for Human Rights of the Council of Europe, expressed concerns about the interpretation and application of, inter alia, Article 220 of the Criminal Code. In a report dated 12 July 2011, Mr Hammarberg stated that his concerns regarding Article 220 remained valid.

2. Report of 10 January 2012 (CommDH(2012)2)

36. In a report published on 10 January 2012 following a visit to Turkey between 10 and 14 October 2011, Mr Hammarberg stated the following:

“...68. The Commissioner is fully aware of the severe threat posed to Turkish society by terrorism and terrorist organisations, as well as of the obligation of the Turkish state to combat it with effective measures, including effective investigations and fair proceedings. He wishes to underline, however, that a major lesson learned in the fight against terrorism in Europe has been the importance of public confidence in the justice system. This means that any allegation of terrorist activity must be established with convincing evidence and beyond any reasonable doubt. Experience has shown time and time again that any deviation from established human rights principles in the fight against terrorism, including in the functioning of the judiciary, ultimately serves the interests of terrorist organisations.

69. In this connection, it is crucial to bear in mind that violence or the threat to use violence is an essential component of an act of terrorism, and that restrictions of human rights in the fight against terrorism ‘must be defined as precisely as possible and be necessary and proportionate to the aim pursued’.

70. The Commissioner considers that the provisions contained in the Turkish anti-terror legislation and Article 220 TCC allow for a very wide margin of appreciation, in particular in cases where membership in a terrorist organisation has not been proven and when an act or statement may be deemed to coincide with the aims or instructions of a terrorist organisation. The Commissioner encourages the Turkish authorities to reflect on and address these concerns through legislative measures and/or case-law.”

3. Memorandum of 15 February 2017 ((CommDH(2017)5))

37. In a memorandum on freedom of expression and media freedom in Turkey, published on 15 February 2017 following a visit to Turkey between 6 and 14 April 2016 (CommDH(2017)5), Mr Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe, stressed the need for a complete overhaul of the Turkish Criminal Code, including Article 220 §§ 6 and 7 and Article 314. He considered that the overhaul should take full account of the Court’s case-law and the aforementioned Venice Commission opinion.

THE LAW

I. THE GOVERNMENT’S OBJECTION

38. The Government submitted that the facts and the applicant’s complaints in the application form had not been in accordance with the Rules of Court as they had not been submitted succinctly, consisting of forty-one pages in total. They further noted that the applicant had failed to submit a brief summary of the facts of the case and his complaints, as he should have done under Rule 47 of the Rules of Court and paragraph 11 of the Practice Directions. They therefore asked the Court to reject the application for failing to meet the requirements of Rule 47 in the version that was in force until 1 January 2014.

39. The Court reiterates that it has already examined and dismissed that objection when it was made by the respondent Government in the cases of Yüksel v. Turkey ((dec.), no. 49756/09, § 42, 1 October 2013), Öner Aktaş v. Turkey (no. 59860/10, § 29, 29 October 2013) and T. and A. v. Turkey (no. 47146/11, § 41, 21 October 2014). The Court finds no reason to depart from that conclusion in the present case. The Government’s argument on this point should therefore be rejected.

II. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION

40. The applicant complained under Articles 10 and 11 of the Convention about his convictions for participating in a funeral and demonstration and the allegedly disproportionate sentences imposed on him.

41. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case and is not bound by the characterisation given by the applicant or the Government (see Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005; Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012; and Zorica Jovanović v. Serbia, no. 21794/08, § 43, ECHR 2013).

42. The Court notes that in the circumstances of the present case Article 10 is to be regarded as a lex generalis in relation to Article 11, which is a lex specialis (see Ezelin v. France, 26 April 1991, § 35, Series A no. 202; Galstyan v. Armenia, no. 26986/03, § 95, 15 November 2007; Kasparov and Others v. Russia, no. 21613/07, § 82, 3 October 2013; and Lütfiye Zengin and Others v. Turkey, no. 36443/06, § 35, 14 April 2015). Accordingly, the Court will examine these complaints from the standpoint of Article 11 of the Convention (see Gülcü v. Turkey, no. 17526/10, § 75, 19 January 2016).

43. However, 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. The protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful assembly enshrined in Article 11 (see Ezelin, cited above, § 37; Galstyan, cited above, § 96; and Kasparov and Others, cited above, § 83).

Article 11 of the Convention reads as follows:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

44. The Government contested the applicant’s allegations.

A. Admissibility

45. Referring to the Court’s decision in Kartal v. Turkey ((dec.), no. 29768/03, 16 December 2008), the Government argued that Article 11 of the Convention was not applicable in the present case. They contended that the funeral of 28 March 2006 and the demonstration of 5 March 2007 and the applicant’s conduct on those occasions did not fall within the scope of Article 11. In that regard, they submitted that during the funeral and the demonstration illegal slogans had been chanted and demonstrators had committed acts of violence. The Government submitted that the applicant should be considered as having been engaged in acts of violence, taking into account the expressions he had used and the fact that he had damaged vehicles and public property.

46. The applicant replied that he had not been violent during the funeral or demonstration. He submitted that he had not been charged with or convicted of acts of violence and that the domestic courts had not found that it had been established that the funeral of 28 March 2006 or the demonstration of 5 March 2007 had been violent in any way. He stated that the circumstances of the case referred to by the Government were different from those in the present case as in the former case the applicants had been accused of using violence, whereas he had not been engaged in any violent act.

47. The Court observes that the indictment dated 8 May 2007 did not contain any charge against the applicant on account of alleged acts of violence (see paragraph 13 above). In addition, the applicant was not convicted of committing acts of violence in the judgments of 30 November 2007 and 28 April 2009 (see paragraphs 16-20, 25 and 27 above). The Court therefore agrees with the applicant’s assertion that the present case and that of Kartal v. Turkey (cited above) should be distinguished. The Court also observes that it did not find in that decision that the applicants’ rights under Article 11 had not been engaged, but that the interference with their right to freedom of assembly had been necessary in a democratic society. In those circumstances, the Court rejects the Government’s submission that Article 11 of the Convention is not applicable in the present case.

48. 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

(a) The applicant

49. The applicant argued that his convictions under Article 314 § 2 of the Criminal Code and section 7(2) of Law no. 3713 had constituted an interference with his right to freedom of assembly. He stated that the interference in question had not been prescribed by law, within the meaning of Article 11 of the Convention, since he had been unable to foresee that his participation in the funeral of 28 March 2006 or the demonstration of 5 March 2007 and his conduct during those events would lead to his prosecution and conviction for membership of an illegal organisation and a prison sentence of seven years and eleven months. The applicant referred to the opinion of the dissenting assize court judge (see paragraph 21 above).

50. The applicant further argued that there had been no legitimate aim in punishing his conduct during the funeral and the demonstration, which had consisted of him walking in front of a coffin, making a “V” sign and applauding. Even assuming that there had been a legitimate aim in his criminal convictions, they had in any case not been necessary in a democratic society. In that regard, the applicant submitted that he had not used or advocated violence and had not incited other people to hatred or violence. The applicant therefore argued that his criminal convictions had not corresponded to any pressing social need. In that connection, the applicant referred to a number of the Court’s judgments, such as Incal v. Turkey (9 June 1998, Reports of Judgments and Decisions 1998‑IV), İsak Tepe v. Turkey (no. 17129/02, 21 October 2008), Unay v. Turkey (no. 5290/02, 21 October 2008), Açık and Others v. Turkey (no. 31451/03, 13 January 2009) and Gözel and Özer v. Turkey (nos. 43453/04 and 31098/05, 6 July 2010).

51. Lastly, the applicant argued that the interference with his right to freedom of assembly had not been proportionate given that he had been sentenced to a total of seven years and eleven months’ imprisonment. He noted that he had served four years and eight months of those sentences.

(b) The Government

52. The Government did not argue that there had not been an interference with the applicant’s right to freedom of assembly other than to submit that the case was not within the scope of Article 11. Even assuming that the applicant’s acts had fallen within the scope of Article 11, they submitted that the State authorities’ acts and decisions had had the legitimate aims of protecting national security, territorial integrity, public safety and public order as well as the prevention of crime. They argued that interfering with the demonstrations in question, which had incited people to violence and which had been organised by members of the PKK, a terrorist organisation, had corresponded to a pressing social need and had been necessary in a democratic society. They stressed that the applicant had not been convicted for taking part in a funeral.

2. The Court’s assessment

(a) As regards the applicant’s conviction under Articles 220 § 6 and 314 of the Criminal Code

(i) Whether there was an interference

53. The Court reiterates that an interference with the exercise of freedom of peaceful assembly does not need to amount to an outright ban, whether legal or de facto, but can consist of various other measures taken by the authorities. The term “restrictions” in Article 11 § 2 must be interpreted as including both measures taken before or during an act of assembly and those, such as punitive measures, taken afterwards (see Ezelin, cited above, § 39). Thus, the Court has found in a number of cases that penalties imposed for taking part in a rally amounted to an interference with the right to freedom of assembly (see, for example, Ezelin, cited above, § 41; Osmani and Others v. “the former Yugoslav Republic of Macedonia” (dec.), no. 50841/99, ECHR 2001‑X; Mkrtchyan v. Armenia, no. 6562/03, § 37, 11 January 2007; Galstyan, cited above, § 101; Ashughyan v. Armenia, no. 33268/03, § 77, 17 July 2008; Sergey Kuznetsov v. Russia, no. 10877/04, § 36, 23 October 2008; Uzunget and Others v. Turkey, no. 21831/03, § 43, 13 October 2009; and Yılmaz Yıldız and Others v. Turkey, no. 4524/06, § 34, 14 October 2014).

54. In the instant case, the Court considers that there has been an interference with the applicant’s exercise of his right to freedom of assembly on account of his conviction for membership of an illegal organisation under Articles 220 § 6 and 314 § 2 of the Criminal Code based on his participation in a funeral and a demonstration.

(ii) Whether the interference was justified

55. An interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more of the legitimate aims set out in paragraph 2 of that provision and was “necessary in a democratic society” for the achievement of those aims.

56. The Court reiterates its settled case-law, according to which the expressions “in accordance with law” and “prescribed by law” not only require that the impugned measure should have some basis in domestic law, but also refer to the quality of the law in question, requiring that it should be accessible to the persons concerned and foreseeable as to its effects (see De Tommaso v. Italy [GC], no. 43395/09, § 106, 23 February 2017 and the cases cited therein; Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], nos. 17224/11, § 68, 27 June 2017; and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 142, ECHR 2017 (extracts)). In addition, the legal norms should be compatible with the rule of law (see, for example, Association Ekin v. France, no. 39288/98, § 44, ECHR 2001‑VIII; Ahmet Yıldırım v. Turkey, no. 3111/10, § 57, ECHR 2012; and Cumhuriyet Vakfı and Others v. Turkey, no. 28255/07, § 50, 8 October 2013). The Court further reiterates that the “law” is the provision in force as the competent courts have interpreted it (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 88, ECHR 2005‑XI).

57. One of the requirements flowing from the expression “prescribed by law” is foreseeability. Thus, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable individuals to regulate their conduct; they must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Such consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Again, whilst certainty is highly desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30; De Tommaso, cited above, § 107; Medžlis Islamske Zajednice Brčko and Others, cited above, § 70; and Satakunnan Markkinapörssi Oy and Satamedia Oy cited above, § 143).

58. The Court emphasises in this context that a rule is “foreseeable” when it affords a measure of protection against arbitrary interferences by the public authorities and against the extensive application of a restriction to any party’s detriment (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 143, ECHR 2012; Mesut Yurtsever and Others v. Turkey, nos. 14946/08, and 11 others, § 103, 20 January 2015; and also, mutatis mutandis, Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000‑XI; and De Tommaso, cited above, § 109). In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for legal discretion to be granted in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise (see Hasan and Chaush, cited above, § 84; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004‑I; S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008; Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 82, 14 September 2010; and Güler and Uğur v. Turkey, nos. 31706/10 and 33088/10, § 48, 2 December 2014).

59. In that connection, the Court notes that in Gülcü (cited above), which also concerned an alleged violation of the right protected by Article 11 of the Convention on account of, inter alia, conviction under Articles 220 § 6 and 314 of the Criminal Code, the Court considered that it was not required to conduct an examination of the lawfulness of the interference in the light of its examination of the “necessity” of the interference in a democratic society. The Court notes that the applicant in Gülcü was a minor who had been sentenced to a total of seven years and six months in prison and detained for more than two years in the context of the criminal proceedings against him. Therefore, in the Court’s view, an examination of the necessity and, in particular, the proportionality of the interference was essential in that case in the light of international human rights law standards concerning minors (ibid., §§ 110 and 115). In the present case, on the other hand, the Court finds that the question of lawfulness calls for a separate examination.

60. The Court observes that the applicant was convicted on 30 November 2007 of the crime proscribed by Article 314 § 2 of the Criminal Code, with reference to Article 220 § 6 of the same legislation. In that connection, the Court observes that the Diyarbakır Assize Court, in convicting the applicant, referred to a decision of the Ninth Criminal Division of the Court of Cassation of 22 March 2007 (see paragraph 20 above). The Court further notes that the same line of legal reasoning was confirmed by the decision of the Plenary Court of Cassation (Criminal Divisions) on 4 March 2008 (decision no. 2008/44) (see Gülcü, cited above, §§ 56-59, and paragraph 33 above). According to Article 220 § 6, anyone who commits a crime on behalf of an illegal organisation will be punished as a member of that organisation under Article 314 § 2 of the Criminal Code, even if he is not. In its aforementioned decisions dated 22 March 2007 and 4 March 2008, the Court of Cassation considered that Article 220 § 6 of the Criminal Code imposed further criminal liability for offences committed in line with an illegal organisation’s activities (see paragraphs 20 and 33 above). The Court of Cassation also held that if a person participated in a demonstration which had been called by an illegal armed organisation, there was no need for such calls to target particular individuals. It found that under Articles 220 § 6 and 314 § 2 of the Criminal Code, any offence during such a demonstration meant the offender should be considered as having acted on behalf of the organisation concerned, with its knowledge and in line with its wishes and, as a result, be punished for being a member of that organisation.

61. The Court further notes that the aforementioned approach was adopted in the applicant’s case. He was convicted of membership of the PKK on the basis of Article 220 § 6 of the Criminal Code. He was sentenced to six years and three months in prison on the grounds that he had attended the funeral of four PKK militants, had walked in front of one of the coffins during the funeral and made a “V” sign, and that he had applauded while other demonstrators chanted slogans in support of Abdullah Öcalan during a gathering at his university. The courts considered that since both the funeral and the demonstration had been held following calls and instructions issued by the PKK, the applicant, who had participated in those events, should be considered as having acted on behalf of that organisation.

62. The Court considers that there is no doubt that Article 220 § 6 of the Criminal Code was accessible.

63. As to the foreseeability requirement, the Court notes at the outset that the text of Article 220 § 6 of the Criminal Code tied the status of membership of an illegal organisation to the mere fact of a person having acted “on behalf” of that organisation, without the prosecution having to prove the material elements of actual membership. Furthermore, the wording of Article 220 § 6 of the Criminal Code did not itself define the meaning of the expression “on behalf of an illegal organisation”. In the context of demonstrations, the meaning of that expression and Article 220 § 6 was elaborated by the decision dated 4 March 2008 of the Plenary Court of Cassation (Criminal Divisions) (see paragraphs 33 and 34 above).

64. The Court recalls that the requirement of foreseeability not only requires that a rule, constituting the basis for criminal liability, is formulated with sufficient precision, but, also and importantly, that the rule affords a measure of protection against arbitrary interferences by the public authorities and against the extensive application of a restriction to any party’s detriment (see paragraphs 57 and 58 above). Moreover, the Court emphasises that the question before the Court is whether the applicant’s criminal conviction was based on a foreseeable provision within the meaning of Article 11 § 2 of the Convention, as the impugned measure constituted an interference with a substantive Convention right.

65. In the light of the above, the Court will proceed with examining the foreseeability of Article 220 § 6 of the Criminal Code in the light of its text, its interrelationship with Article 314 of the same Code, and taking account of the clarifications as to its scope and substance provided by the national courts, in particular whether they afforded sufficient protection against arbitrary applications of the provision. Bearing in mind that the provision is still in force, and taking account of the nature and overall scope of its examination of the facts of the applicant’s case, the Court does not consider it appropriate to distinguish its examination of the foreseeability of the provision in question between the period preceding the adoption of Plenary decision of 4 March 2008 and the period thereafter. In this regard, the Court recalls that it has repeatedly stated that its “judgments in fact serve not only to decide those cases brought before the Court but, more generally, to elucidate, safeguard and develop the rules instituted by the Convention, thereby contributing to the observance by the States of the engagements undertaken by them as Contracting Parties” (see Karner v. Austria, no. 40016/98, § 26, ECHR 2003‑IX).

66. The Court observes that the domestic courts have interpreted the notion of “membership” of an illegal organisation under Article 220 § 6 of the Criminal Code in extensive terms. The mere fact of being present at a demonstration, called for by an illegal organisation, and openly acting in a manner expressing a positive opinion towards the organisation in question, is sufficient to be considered acting “on behalf of” the organisation authorising the punishing of the person in question as an actual member. The Court notes in contrast that when Article 314 of the Criminal Code is applied alone, the domestic courts must have regard to the “continuity, diversity and intensity” of the acts of the accused (see paragraph 100 of the Opinion on Articles 216, 299, 301 and 314 of the Penal Code of Turkey of the Venice Commission, in paragraph 34 above), whereas when the same Article was applied in connection with Article 220 § 6, in the applicant’s case, he was convicted of membership of an armed organisation merely on account of his attendance at two public meetings, which, according to the first-instance court, were held in line with the instructions by the PKK, and his acts therein, that is to say, walking close to coffins and making a “V” sign during the funeral and applauding during the demonstration. Hence, the Court finds that when applied in connection with Article 220 § 6, the criteria for a conviction under Article 314 § 2 of the Criminal Code were extensively applied to the detriment of the applicant.

67. Similarly, when Article 314 is applied alone, the courts assess whether an accused person has committed offences within the “hierarchical structure” of an armed organisation. On the other hand, when the same Article was applied with reference to Article 220 § 6 in the applicant’s case, the question of acting within a hierarchy became irrelevant and he was convicted of membership of an armed organisation simply because he was considered to have acted “on behalf of” the PKK. In sum, as the applicant’s case demonstrates, the array of acts that potentially constitute a basis for the application of a severe criminal sanction in the form of imprisonment, under Article 220 § 6 of the Criminal Code, are so vast that the wording of the provision, including its extensive interpretation by the domestic courts, do not afford a sufficient measure of protection against arbitrary interferences by the public authorities.

68. Furthermore, and importantly, on account of his conviction, for acts which fell within the scope of Article 11 of the Convention, there remained no distinction between the applicant, a peaceful demonstrator, and an individual who had committed offences within the structure of the PKK. Such extensive interpretation of a legal norm cannot be justified when it has the effect of equating mere exercise of fundamental freedoms with membership of an illegal organisation in the absence of any concrete evidence of such membership. The Court does not underestimate the difficulties to which the fight against terrorism has given rise (see Incal v. Turkey, 9 June 1998, § 58, Reports of Judgments and Decisions 1998‑IV, and Döner and Others v. Turkey, no. 29994/02, § 102, 7 March 2017). However, in its view, the very essence of the right to freedom of peaceful assembly and, thereby, the foundations of a democratic society, was undermined when the applicant was held criminally liable under Articles 220 § 6 and 314 of the Criminal Code for the mere fact of attending a public meeting and expressing his views therein (see, mutatis mutandis, Galstyan, cited above, § 117).

69. The Court further observes that the applicant was given a prison sentence of six years and three months under Articles 220 § 6 and 314 § 2 of the Criminal Code and was imprisoned for a period of four years and eight months in total. The Court notes that when demonstrators, such as the applicant, face the charge of membership of an illegal armed organisation, they risk an additional sentence of between five and ten years in prison, a sanction which is strikingly severe and grossly disproportionate to their conduct. The Court finds therefore that Article 220 § 6 of the Criminal Code, as applied in the instant case, would inevitably have a particularly chilling effect on the exercise of the rights to freedom of expression and assembly. Moreover, the application of the provision at issue was not only likely to deter those who were found criminally liable from re‑exercising their rights under Articles 10 and 11 of the Convention, but also had a great deal of potential to deter other members of the public from attending demonstrations and, more generally, from participating in open political debate (see, mutatis mutandis, Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, § 99, 11 February 2016; Süleyman Çelebi and Others v. Turkey, nos. 37273/10 and 17 others, § 134, 24 May 2016; and Kasparov and Others v. Russia (no. 2), no. 51988/07, § 32, 13 December 2016).

70. In the light of the aforementioned considerations, the Court concludes that Article 220 § 6 of the Criminal Code 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 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.

Accordingly, there has been a violation of Article 11 of the Convention.

(b) As regards the criminal proceedings brought against the applicant under section 7(2) of Law no. 3713

71. In view of its finding of a violation of Article 11 of the Convention above, the Court does not consider it necessary to examine whether the criminal proceedings brought against the applicant under section 7(2) of Law no. 3713 constituted an interference with his right to freedom of assembly and, if so, whether they were justified.

III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

72. The applicant complained under Article 5 § 3 of the Convention that the length of his detention on remand had been unreasonably long.

Article 5 § 3 reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

73. Referring to the possibility of claiming compensation for excessive length of detention on remand, under Article 141 § 1 (d) of the Code of Criminal Procedure (Law no. 5271) and to the Court’s decision in Şefik Demir v. Turkey ((dec.) no. 51770/07, 16 October 2012), the Government submitted that the applicant had failed to exhaust domestic remedies.

74. The applicant responded that the remedy referred to by the Government could not be considered effective.

75. The Court does not consider it necessary to examine the Government’s objection since, even assuming that no effective remedy was available, the application brought by the applicant was in any event not lodged within the six-month time-limit pursuant to Article 35 § 1 of the Convention, for the reasons set out below.

76. The applicant submitted that he had been detained on remand between 10 March 2007 and 29 January 2009, for twenty-two months. The Government submitted that the applicant had been detained on remand between 10 March and 30 November 2007 and between 29 January and 28 April 2009.

77. The Court observes that the applicant was taken into police custody on 9 March 2007 and that the first-instance court rendered its first judgment on 30 November 2007. Despite the parties’ submissions, the subsequent period, from 30 November 2007 until the applicant’s release on 15 November 2011, cannot be taken into consideration for the purposes of Article 5 § 3 of the Convention because the applicant’s detention on remand during that period, pursuant to section 7(2) of Law no. 3713, coincided with his detention after his conviction for membership of an illegal organisation under Article 314 § 2 of the Criminal Code (see Bąk v. Poland, no. 7870/04, § 54, 16 January 2007; Ürfi Çetinkaya v. Turkey, no. 19866/04, § 124, 23 July 2013; and Çakar v. Turkey (dec.), no. 47749/11, 10 December 2013). The applicant’s detention on remand thus ended on 30 November 2007 whereas the present application was lodged with the Court on 29 July 2009. Accordingly, this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

IV. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

78. The applicant complained about the excessive length of the proceedings. He relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

79. The Government submitted that the applicant had failed to exhaust the remedies available to him under domestic law, as he had not applied to the Compensation Commission set up by Law no. 6384 to deal with applications concerning the length of proceedings.

80. The applicant argued that the effectiveness of the remedy under Law no. 6384 was unknown.

81. The Court observes that, as pointed out by the Government, a new domestic remedy was established in Turkey following the application of the pilot-judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013), the Court declared a new application inadmissible on the grounds that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.

82. The Court notes that in Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless pursue the examination of such complaints under the normal procedure in cases which had already been communicated to the Government before prior to the entry into force of the new remedy.

83. However, taking into account of the Government’s preliminary objection with regard to the applicants’ failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in Turgut and Others. It therefore concludes that the complaint of the excessive length of the criminal proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see Rifat Demir v. Turkey, no. 24267/07, § 35, 4 June 2013, and Yiğitdoğan v. Turkey (no. 2), no. 72174/10, § 59, 3 June 2014).

V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION

84. Lastly, the applicant alleged under Article 14 of the Convention that he had been tried and convicted on account of his Kurdish origin.

85. The Court finds that the applicant has not substantiated his complaint under that provision. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

86. Article 41 of the Convention provides as follows:

“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

87. The applicant claimed 217,600 Turkish liras (TRY) (88,000 euros (EUR)) and EUR 50,000 in respect of pecuniary and non-pecuniary damage respectively. As regards his claim in respect of pecuniary damage, he stated that had he not been imprisoned, he would have graduated in 2007 and started to work as a teacher, which would have given him an income of TRY 175,000 (approximately EUR 70,700) in total. He also claimed that his family had had to spend TRY 28,000 (approximately EUR 11,320) on his behalf when he was in prison. Lastly, he submitted that he had had to pay TRY 14,600 (approximately EUR 5,900) to his lawyer in order to be represented before the domestic courts. In support of his claims the applicant submitted a legal services’ agreement, which showed that the applicant paid “14,600,000,000 Turkish liras” to his lawyer. The contract in question does not bear a date.

88. The Government considered that the applicant’s claims were unsubstantiated and excessive.

89. The Court considers that the amount claimed for legal representation in the domestic proceedings should be considered below, under the heading of costs and expenses. As regards the other amounts claimed, the Court observes that the applicant did not provide information specifying the details of any pecuniary loss. It therefore rejects that claim. However, it awards the applicant EUR 7,500 in respect of non-pecuniary damage.

B. Costs and expenses

90. The applicant claimed TRY 14,600 (approximately EUR 5,900) for costs and expenses incurred before the domestic courts, referring to an agreement between him and his lawyer (see paragraph 87 above). The applicant also claimed 11,437.50 pounds sterling (GBP) (approximately EUR 13,615) in respect of lawyer’s fees and GBP 603.46 (approximately EUR 718) for other costs and expenses incurred before the Court, such as postage, photocopying and telephone expenses and translation costs. As to the costs and expenses incurred before the Court, the applicant submitted a time-sheet which showed that his representatives in the United Kingdom had carried out seventy-five hours and thirty-five minutes of legal work. He also submitted receipts for postage expenses and translation costs.

91. The Government claimed that the applicant’s claims under this head were not substantiated.

92. 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, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,500 for costs and expenses incurred in the domestic proceedings. The Court also considers it reasonable to award the sum of EUR 6,000 for the proceedings before the Court, to be paid in pounds sterling to his representatives’ bank account in the United Kingdom.

C. Default interest

93. 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 complaint under Article 11 of the Convention admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 11 of the Convention on account of the applicant’s conviction under Article 314 § 2 of the Criminal Code in connection with Article 220 § 6 of the same Code;

3. Holds that there is no need to examine whether the criminal proceedings brought against the applicant under section 7(2) of Law no. 3713 constituted an interference with his right to freedom of assembly and, if so, whether they were justified;

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:

(i) EUR 7,500 (seven 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;

(ii) EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses incurred in the domestic proceedings, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(iii) EUR 6,000 (six thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses incurred before the Court, to be converted into pounds sterling at the rate applicable at the date of settlement and paid into his representatives’ bank account in the United Kingdom;

(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 14 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley NaismithRobert Spano
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Lemmens and Griţco is annexed to this judgment.

R.S.
S.H.N.

JOINT CONCURRING OPINION OF JUDGES LEMMENS AND GRIȚCO

1. We agree with all the conclusions of the judgment.

However, as far as the finding of a violation of Article 11 of the Convention is concerned, we have some reservations as regards the reasoning adopted by the majority.

2. The majority find that the interference resulting from the application of Article 220 § 6 of the Criminal Code in the applicant’s case was not “prescribed by law” since that provision did not afford the applicant the required legal protection against arbitrary interference with his right to freedom of assembly (see paragraph 70 of the judgment).

We agree with the majority that the provision of domestic law that forms the legal basis for an interference with an applicant’s fundamental rights must be accessible to the person concerned, foreseeable as to its effects and moreover compatible with the rule of law (see paragraph 56 of the judgment).

3. The majority consider that a rule is foreseeable when it “affords a measure of protection against arbitrary interferences by the public authorities and against the extensive application of a restriction to any party’s detriment” (see paragraphs 58 and 64 of the judgment). We find that this statement needs to be qualified.

Where the Court has spoken of the need for domestic law to offer a measure of protection against arbitrary interferences with an individual’s human rights, in the context of the requirement of foreseeability of the law, it has generally been in situations where the domestic law under review granted discretion to an administrative or other authority. The discretion granted could be wide or narrow. In order for the individual to be able to foresee the consequences of his or her conduct, the Court has held that “it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power” (see Malone v. the United Kingdom, § 68, 2 August 1984, Series A no. 82; see also, in the more recent case-law of the Grand Chamber, Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 82, 14 September 2010, and Roman Zakharov v. Russia [GC], no. 47143/06, § 230, ECHR 2015). The link between the foreseeability requirement and the more general objective of protection against arbitrary interferences is thus clearly established via the need to circumscribe the discretion granted to the authorities entrusted with the application of the law: “[T]he law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference” (see Malone, cited above, § 68; see also, among many other authorities, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98 and 3 others, § 57, ECHR 2003‑II; Ahmet Yıldırım v. Turkey, no. 3111/10, § 59, ECHR 2012 (cited in paragraph 70 of the present judgment); and Roman Zakharov, cited above, § 230).

The case of Centro Europa 7 S.r.l. and Di Stefano v. Italy, to which the majority refer in paragraph 58, broke this link between foreseeability, discretionary power and protection against arbitrary interferences. In that case the Court held that a rule is foreseeable “when it affords a measure of protection against arbitrary interferences by the public authorities (see Tourancheau and July v. France, no. 53886/00, § 54, 24 November 2005), and against the extensive application of a restriction to any party’s detriment (see, mutatis mutandis, Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 36, ECHR 1999‑IV)” (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 143, ECHR 2012 and, to the same effect, Mesut Yurtsever and Others v. Turkey, nos. 14946/08 and 11 others, § 103, 20 January 2015; see also Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 97, 25 October 2012). There is no longer any reference to the scope of discretion granted to an administrative or other authority. The foreseeability of the law is directly translated into a requirement of protection against arbitrary interference.

We would like to observe that it is one thing to hold (as in Malone) that a law granting discretion to an administrative or other authority must circumscribe that discretion in order to ensure the foreseeability of the law in its application, and quite another to hold (as in Centro Europa 7 S.r.l. and Di Stefano and in the present judgment) that a law, whether or not it grants discretion to an authority, must in any event afford protection against arbitrary interferences. In our opinion, the second requirement has little to do with the foreseeability of the law.

4. In the present case, we consider that the law is quite clear. As interpreted by the Court of Cassation in its judgments of 21 February 2007 and 4 March 2008, Article 220 § 6 of the Criminal Code, which states that “anyone who commits a crime on behalf of an (illegal) organisation” (emphasis added) shall be punished as if he or she were a member of the organisation, applies to anyone who participates in an unauthorised demonstration held after appeals by an illegal organisation. Moreover, it follows from Article 314 § 3 of the Code that if the organisation in question is an armed organisation, the sanction shall be the one provided for by Article 314 § 2 of the Code (see paragraphs 30, 31 and 33 of the judgment).

Anyone participating in a demonstration called for by the PKK, and organised after 21 February 2007[1], should have known that he or she could be convicted as a member of an armed organisation.

For us, the problem with Articles 220 § 6 and 314 § 2 of the Criminal Code lies with the very content of these provisions, not with the fact that they are drafted in such a way that they could give rise to arbitrary applications (as well as to perhaps justifiable applications).

5. This brings us to what, in our opinion, is the main issue in this case: whether the interference with the applicant’s right to freedom of assembly was necessary in a democratic society.

As indicated above, Article 220 § 6 of the Criminal Code makes it a crime to participate in a demonstration held after appeals by an illegal organisation. If that organisation is an armed organisation, it follows from the combination of Articles 220 § 6 and 314 § 2 that the crime is punishable by a prison sentence of between five and ten years. These provisions were applied in the applicant’s case. Thus, because of his participation in two demonstrations called by the PKK, he was found guilty of the offence of committing a crime on behalf of an armed organisation and sentenced to six years and three months’ imprisonment, of which he actually served four years and eight months.

The majority state that the sanction provided for by Article 220 § 6 in combination with Article 314 § 2 “is strikingly severe and grossly disproportionate” to the conduct declared illegal, and that the application of Article 220 § 6 in the applicant’s case was likely to have a chilling effect on the applicant and others (see paragraph 69 of the judgment). We fully agree. In our opinion, the conclusion to be drawn from this assessment is that the interference with the applicant’s rights did not respond to a pressing social need, and was in any event disproportionate to the aims pursued. In sum, it was not necessary in a democratic society.

6. We note that in Gülcü v. Turkey (no. 17526/10, §§ 103-117, 19 January 2016), the Court did not find it necessary to examine whether the applicant’s conviction under Articles 220 § 6 and 314 § 2 of the Criminal Code had been foreseeable. Instead, it found that his conviction, in part because of his participation in a march called by the PKK, had not been necessary in a democratic society. We see no reason why the same approach should not have been followed in the present case. The mere fact that the applicant in Gülcü was a minor while the applicant in the present case is an adult does not, in our opinion, justify a difference in approach (compare paragraph 59 of the judgment).

We would have preferred a clear message that a law such as the one applied in the present case cannot be deemed compatible with the principles of a democratic society. To hold that the law is not “foreseeable” does not in our opinion convey a message of such strength.

[1]. We could accept that domestic law was not sufficiently foreseeable before 21 February 2007, and that therefore the applicant’s conviction was not “prescribed by law” in so far as it was based on his participation in the demonstration of 28 March 2006. However, we believe that even for that part of the conviction it would be preferable to go further and to examine the “necessity” of the interference. Besides, we note that the majority state that they do not distinguish between the periods before and after 4 March 2008 (paragraph 65 of the judgment).

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