Information Note on the Court’s case-law No. 180
December 2014
Güler and Uğur v. Turkey - 31706/10 and 33088/10
Judgment 2.12.2014 [Section II]
Article 9
Article 9-1
Manifest religion or belief
Imposition of prison sentence for taking part in religious ceremony commemorating deaths of members of illegal organisation: violation
Facts – In 2006 both applicants took part in a religious service (mevlût)* on the premises of the Party for a Democratic Society in memory of three members of the PKK (Workers’ Party of Kurdistan) who had been killed by the security forces. After an anonymous letter was sent informing the authorities of their participation in the religious service, they were prosecuted in the Assize Court. They pleaded before the court that they had taken part in the service in order to comply with their religious obligations. The Assize Court sentenced them to ten months’ imprisonment under section 7(2) of the Anti-Terrorism Act (Law no. 3713). It found in particular that the persons in memory of whom the service had been organised were members of a terrorist organisation and that they had been killed by the security forces in the course of actions conducted by that organisation. It also found that the choice of venue for the service – the premises of a political party –, the fact that the PKK flag had been displayed on the tables and that photos of the members of the organisation had also been placed there were factors giving rise to serious doubts as to the real motives for the gathering advanced by the applicants’ defence lawyers.
Law – Article 9: It was not disputed by the parties that the mevlût was a religious rite commonly practised by Muslims in Turkey. Furthermore, according to General Comment No. 22 adopted by the United Nations Human Rights Committee, the freedom to manifest religion or belief in worship, observance, practice and teaching encompassed a broad range of acts. Thus, the concept of rites extended to ritual and ceremonial acts giving direct expression to belief, including ceremonies following a death. In the Court’s view, it mattered little whether or not the deceased had been members of an illegal organisation. The mere fact that the service in question had been organised on the premises of a political party where symbols of a terrorist organisation had been present did not deprive the participants of the protection guaranteed by Article 9 of the Convention. Accordingly, the prison sentence imposed on the applicants amounted to an interference with their right to freedom to manifest their religion.
The legal basis for the applicants’ conviction had been section 7(2) of Law no. 3713. Under that provision, “it shall be an offence, punishable by two to five years’ imprisonment, to spread propaganda in support of a terrorist organisation”. However, neither the reasoning of the national courts nor the Government’s observations showed that the applicants had had a role in choosing the venue for the religious service or been responsible for the presence of the symbols of an illegal organisation on the premises where the service in question had taken place. The criminal act of which the applicants had been convicted had been their participation in the service, which had been organised following the death of members of an illegal organisation. Having regard to the wording of the Anti-Terrorism Act and its interpretation by the courts when convicting the applicants of spreading propaganda, it had not been possible to foresee that merely taking part in a religious service could fall within the scope of application of that Act. The interference in the applicants’ freedom of religion could not therefore be regarded as “prescribed by law”, because it had not met the requirements of clarity and foreseeability.
Conclusion: violation (five votes to two).
Article 41: EUR 7,500 each in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
* The mevlût is a common religious rite practised by Muslims in Turkey. It mainly consists of poetry readings about the birth of the Prophet.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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