SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38841/07
by Resul TAŞDEMİR
against Turkey
The European Court of Human Rights (Second Section), sitting on 23 February 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 24 July 2007,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Resul Taşdemir, is a Turkish national who was born in 1979. He was serving a sentence in the Erzurum Prison when the application was lodged.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 6 September 2005, to celebrate World Peace day, the applicant participated in a demonstration in the district of Doğubeyazıt in the Ağrı Province, outside the building that housed the DEHAP (the Democratic People's Party). During the demonstration someone read out a press statement and the crowd, including the applicant, shouted slogans.
Subsequently, criminal proceedings were initiated against the applicant and five other accused persons, pursuant to Article 215 of the Criminal Code, for praising a criminal and a crime. In the indictment, the prosecution stated that the applicant had shouted “Biji Serok Apo, HPG cepheye misillemeye” (Long live Apo! HPG (the armed wing of the PKK[1]) to the front line in retaliation!).
During the proceedings, the court took into consideration the defence statements of the accused, as well as CD recordings and photographs taken during the demonstration. Before the court, the applicant accepted that he was the person in the CD recording and the photograph. He further stated he had shouted slogans in support of peace.
In a final decision dated 13 April 2007, the Erzurum Assize Court convicted the applicant as charged and sentenced him to twenty-five days' imprisonment. The court then commuted the prison sentence to a fine of 500 Turkish liras (TRY) (equivalent to 270 euros). As the applicant failed to pay the fine, he served his sentence of imprisonment.
COMPLAINT
The applicant complained that his conviction constituted a breach of Articles 9 and 10 of the Convention as he had been found guilty of shouting slogans.
THE LAW
The applicant complained under Articles 9 and 10 of the Convention that his right to freedom of expression had been breached as he had been convicted for shouting slogans.
The Court considers in the first place that the applicant's complaint should be examined solely under Article 10 of the Convention, which insofar as relevant provides 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, [or] for the prevention of disorder or crime, ...”
Secondly, the Court finds that the applicant's conviction constituted an interference with his right to freedom of expression. The Court further notes that this interference was prescribed by law, namely Article 215 of the Criminal Code. As to the legitimacy of the aims pursued, the Court observes that the authorities sought to protect national security and public order. It therefore remains to be determined whether the interference complained of was “necessary in a democratic society”.
The Court has frequently held that “necessary” implies the existence of a “pressing social need” and that the Contracting States have a certain margin of appreciation in assessing whether such a need exists, but that this goes hand in hand with a European supervision (see, Zana v. Turkey, 25 November 1997, § 51, Reports of Judgments and Decisions 1997‑VII).
In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole. In particular, it must determine whether the interference in question was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, among other authorities, Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999-I). Furthermore, the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the interference (see, Yarar v. Turkey, no. 57258/00, § 41, 19 December 2006).
The Court considers that the above-mentioned principles also apply to measures taken by domestic authorities to maintain national security and public safety as part of the fight against terrorism. In this connection, it must, with due regard to the circumstances of each case and a State's margin of appreciation, ascertain whether a fair balance has been struck between the individual's fundamental right to freedom of expression and a democratic society's legitimate right to protect itself against the activities of terrorist organisations (see Zana, cited above, § 55).
In the circumstances of the present case, the Court considers that the slogan shouted during the demonstration, “HPG (the armed wing of the PKK) to the front line in retaliation!” amounts to an apology of terrorism. In the Court's view, the interference in question was therefore compatible with Article 10 § 2 of the Convention for, at the very least, the prevention of disorder or crime. Furthermore, at the end of the proceedings the applicant was sentenced to twenty-five days' imprisonment, which was then commuted into a fine of TRY 500, which cannot be considered as disproportionate or unduly severe in the circumstances of the present case.
In the light of the foregoing, the Court concludes that the application should be rejected for being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosFrançoise Tulkens
Deputy RegistrarPresident
[1] The Kurdistan Workers’ Party, an illegal organisation.
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