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You are here: BAILII >> Databases >> European Court of Human Rights >> AYDIN v. GERMANY - 16637/07 [2011] ECHR 141 (27 January 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/141.html Cite as: 57 EHRR 35, 29 BHRC 744, (2013) 57 EHRR 35, [2011] ECHR 141 |
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FIFTH SECTION
(Application no. 16637/07)
JUDGMENT
STRASBOURG
27 January 2011
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Aydin v. Germany,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
and Claudia Westerdiek,
Section Registrar,
Having deliberated in private on 14 December 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
(Article 29 § 1). Having been informed of the case by a letter of
3 December 2010, the Turkish Government did not express any wish to intervene under Article 36 § 1 of the Convention.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background to the case
“1. The activities pursued by the “Workers' Party of Kurdistan” (PKK)...run contrary to provisions of the criminal law, are directed against the concept of international understanding, endanger inner security and other important interests of the Federal Republic of Germany.
2. The “Workers' Party of Kurdistan” (PKK)...is not allowed to pursue its activities within the territorial ambit of the Law on Associations.”
large-scale campaign, during which their supporters should address themselves to the German authorities, should acknowledge their support for the PKK and should demand that the ban on the PKK's activities be lifted.
“Self declaration (Selbsterklärung)
“I also am a follower of the PKK” (“Auch ich bin ein PKK'ler”)
As the Kurdish people has been denied its basic right to life, it has had no choice but to take up arms. After twenty years of war, our national leader, Abdullah Öcalan, has initiated a strategic change. For two years the PKK has been using exclusively political means to fight for a peaceful and democratic solution to the Kurdish question. On the basis of this new strategy the Workers' Party of Kurdistan (PKK) is undergoing a global reformation. Strongly determined to find a solution, it has developed its political activities against all resistance without leaving the framework of legality.
Although the Kurdish question emerged geographically in the Middle East, having regard to its historical, political and international connections it is a European problem waiting for a solution. Europe played a major role in the setting of Middle Eastern boundaries. That is why Europe is now confronted with the task of playing a role in the solution of the problems. Just as it failed to offer a prospect of a solution when our leader was abducted in the framework of an international conspiracy, Europe fails today to make use of the opportunities offered by the PKK.
While the majority of the European Member States make Turkey's accession to the European Union dependent on the Copenhagen criteria, they deny the national and political status of the Kurds living in Europe. Germany and England, in particular, insist on a policy of bans. With this destructive attitude Europe puts itself within the context of the policy of destruction and negation which is directed against the Kurdish people. Today as in the past Europe continues its negative tradition. This is nothing but a policy of double moral standards.
1. On this basis I, as a member of the Kurdish people,
declare that I share the PKK's new policy, which, for two years, has
been leading its political fight on a legal basis.
I further
declare that I belong to the PKK.
2. I challenge the European Member States to apply the same standards to themselves they apply to non-member States. I furthermore request these States to comply themselves with the express criteria for accession to the European Union with regard to the Kurds living in Europe. I therefore demand the full recognition of the rights granted to other peoples for the Kurdish people.
3. I further demand the official recognition of the cultural and political values created by the Kurdish people in the course of their great struggle. In this context I demand respect for my people's national and political identity.
4. I support the line of the PKK's democratic struggle, as has been confirmed by its seventh congress. Having regard to the fact that the PKK has not committed one single violent act for two years, I demand the lifting of all bans which are applied on the PKK.
5. I further declare that the liberty of our leader,
Abdullah Öcalan, and the possibility of his political activity
are the only guarantee for an enduring solution.
I therefore
demand: “Freedom for Abdullah Öcalan – Peace in
Kurdistan”.
I hereby declare that I most severely condemn the prohibition issued against the PKK and the criminal prosecution of PKK membership and of active sympathy for the PKK. I further declare that I do not acknowledge this prohibition and that I assume all responsibility arising therefrom.”
2. Criminal proceedings against the applicant
On 24 September 2001 the applicant handed over one further folder containing declarations. Furthermore, the applicant donated certain sums of money to a sub-organisation of the PKK, which was also subject to the ban.
27 March 2003 (see relevant domestic law and practice, below), dismissed the applicant's appeal on points of law. According to that court, the Regional Court's interpretation of the applicant's statement and the evaluation of her behaviour were compatible with the right to freedom of expression as enshrined in Article 5 of the Basic Law. Having regard to the context and the circumstances of the case, the Regional Court had comprehensively and coherently refuted the applicant's allegations that she had not participated in a campaign which had been organised by the PKK with the aim to hamper the criminal prosecution of breaches of the ban by provoking a massive quantity of criminal investigations, but that she had merely intended to express her opinion on the ban. This was demonstrated by the fact that the applicant and the other campaigners did not address themselves to the Federal Interior Ministry, which would have been competent for lifting the ban, but addressed a massive quantity of collected individually signed declarations to the public prosecutor's office.
The applicant's unwillingness to abide by the ban was further demonstrated by the fact that she had been previously convicted of a similar offence and that she had flouted the ban in another, separate way by financially supporting a sub-organisation of the PKK.
The Federal Constitutional Court considered, at the outset, that the activities of an association could only be banned if it generally and continuously pursued dangerous aims, which was established by the enforceable ban issued by the Interior Ministry. Section 20 § 1 no. 4 of the Law on Association was not directed against the expression of an opinion as such, but only against the purposeful support it lent to the association's activity which had been prohibited in the interest of protecting the democratic state based on the rule of law. An individual person who pursued his own political aims was not concerned; he was merely prevented from doing so by supporting the activities of a prohibited association.
The necessary relation to the purpose of the banning order was lacking where statements of opinions worked towards a lift of a ban of activities, which was protected by the right to freedom of expression in the interest of the openness of the democratic process.
(a) The courts answered the question of whether the self-declarations bore sufficient relation to the association's activity in the affirmative. According to the facts established by the lower courts, which are constitutionally unobjectionable, the declarations were made in the context of a mass campaign initiated and steered by the PKK leadership, which was carried out Germany-wide and attracted considerable public attention. The campaign was preceded by large-scale advertising, the content of the declaration was discussed among Kurdish compatriots, and the letters were collected and submitted, sometimes in the course of demonstrations. The headline and the text of the declaration itself (“I am also a follower of the PKK”, “I further declare that I belong to the PKK”) also made it possible for the courts to infer, in a constitutionally unobjectionable manner, a sufficient relation precisely to the PKK as the organisation affected from the ban on activities.
(b) The courts observed the principles established by
the Federal Court of Justice in its judgment dated 27 March 2003,
that the self declarations would nevertheless have been exempt from
criminal liability as expressions of the right to freedom of
expression if they had restricted themselves to demanding freedom and
self-determination for the Kurdish people, to calling for a lift
of the ban on the PKK's activities and severely condemning the
maintenance of that ban. The right to freedom of expression includes
the right to assert one's opinion as effectively as possible.
The
effect of a strengthening of solidarity that goes along with a
support of the lift of the ban is to be tolerated in the interest of
the free expression of opinion even if it is at the same time an
expression of sympathy for the banned association.
The courts, however, assumed in a constitutionally
unobjectionable manner that the self-declarations in favour of the
PKK transgressed the boundaries, thus determined, of declarations of
solidarity and sympathy in favour of an association affected by a ban
on activities to the extent that they had to be understood as a
commitment made by those signing it not to respect the ban on
activities in the future and not to be deterred from contravening the
ban even by the threat of criminal sanctions.
The courts could
assume without misjudging freedom of opinion that such a declaration
of willingness to break the law that was made in the context of a
mass campaign complied with the constituent element of the offence in
question.”
16 October 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Constitutional Law
“(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources(...).
(2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.
(3)....”
Article 9 of the Basic Law (Freedom of Association) provides:
“(1) All Germans shall have the right to form corporations and other associations.
(2) Associations whose aims or activities contravene the criminal laws, or that are directed against the constitutional order or the concept of international understanding, shall be prohibited.”
“(1)...
(2) An act may be punished only if it was defined by a law as a criminal offence before the act was committed.”
2. The Law on Associations
Section 3
Banning
“An association can only be treated as being banned if the competent authority established by decree that its aims or its activity contravene the criminal law or that it is directed against the constitutional order or against the idea of international understanding ...”
Section 18
Geographical applicability of bans imposed on associations
“...If a (foreign) association does not have a sub-organisation within the geographical applicability of this Act, the ban (section 3 paragraph 1) is directed against its activity within that territory.”
Section 20
“Anyone who, within the geographical applicability of this act, by pursuing an activity
(...)
4. contravenes an enforceable prohibition under section 18 sentence 2 (...)
Will be sentenced to up to one year's imprisonment or to a fine.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
A. Admissibility
B. Merits
1. The applicant's submissions
2. The Government's submissions
no. 4 in accordance with these principles. The courts also examined in detail the interpretation put forward by the applicant. The examination was not limited to the last sentence of the self-declaration, although this was of decisive importance. The addition would otherwise not make sense, since possible consequences for which responsibility was to be assumed were obviously not to be expected when one only voiced criticism of a ban and called for it to be lifted. Such a statement would without doubt be covered by the right to freedom of expression and would thus not be a punishable offence. This the applicant could also recognise. She could thus not invoke the fact that she bore a “risk of interpretation”.
3. Assessment by the Court
self-determination for the Kurdish people, to call for a lift of the ban on the PKK's activities and severely to condemn the maintenance of that ban.
The courts considered, however, that the declaration also had to be understood as a commitment made by those signing it not to respect the ban on activities in the future. According to the courts, this statement was suited to provide the PKK with security for planning further unlawful activities and was likely to strengthen solidarity with other potential supporters and thus contravened the ban imposed on the PKK's activities.
Article 10. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve those aims.
section 20 § 1 no. 4 in conjunction with section 18, second sentence, of the Law on Associations.
25 November 1997, § 37, Reports of Judgments and Decisions 1997 VII). Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Whilst certainty is highly desirable, it may entail 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 a question of practice (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30 and Flinkkilä and Others v. Finland, no. 25576/04, § 65, 6 April 2010).
The Court observes that the prohibition order imposed on an organisation's activities would be ineffective if its followers were de facto free to pursue the banned organisation's activities (see, mutatis mutandis, Etxeberria and Others v. Spain, nos. 35579/03, 35613/03, 35626/03 and 35634/03, § 52,
30 June 2009). The Court further observes that the domestic courts expressly acknowledged the applicant's right to call for a lifting of the prohibition order imposed on the PKK in 1993. It was not disputed by the parties that the prohibition order was subject to review and could be lifted by the Interior Ministry. It follows that the applicant remained free to address herself – also in a public way – to the competent authority and to demand the lifting of the prohibition order in view of the alleged change of circumstances. It follows that the applicant would have been in a position effectively to work towards a lifting of the prohibition order without risking criminal prosecution.
sub-organisation of the PKK which had also been subjected to the ban.
By way of conclusion, the German courts ruled out that the declaration could be interpreted in a different way which did not call for criminal liability. Having regard to the thorough examination by the domestic courts, the Court does not consider that the interpretation they gave to the applicant's statement was contrary to her rights under Article 10 of the Convention.
There has accordingly been no violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 IN COMJUNCTION WITH ARTICLE 7 OF THE CONVENTION
“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”
The Court considers that the guarantees in Article 7 § 1 of the Convention and in Article 103 § 2 of the German Basic Law are largely identical.
In order to exhaust domestic remedies within the meaning of Article 35 § 1, the applicant would therefore have been obliged to invoke Article 103 § 2 of the Basic Law before the Federal Constitutional Court. It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
FOR THESE REASONS, THE COURT
Done in English, and notified in writing on 27 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Kalaydjieva is annexed to this judgment.
P.L.
C.W.
DISSENTING OPINION OF JUDGE Kalaydjieva
I find myself unable to follow the logic which brought the majority to the conclusion that “the [national] courts have sufficiently taken account of the applicant's right to freedom of expression in the course of the criminal proceedings against her”. In the absence of any reasoning in the domestic decision-making process, these conclusions appear to deviate from the principle of subsidiarity and to substitute the Court's own considerations for those of the national courts in determining the compatibility of a measure affecting the rights under Article 10.
The applicant was sentenced for signing a declaration in 2001 in support of lifting the ban on activities of PKK imposed by virtue of an Order of the Minister of Interior in 1994. On 27 March 2003 the Federal Court of Justice issued a pilot judgment on the criminal responsibility incurred by this act, finding that it could be ruled out that the signatories limited themselves to demanding freedom and self-determination - a statement which would have been covered by the right to freedom of expression and thus be exempt from criminal liability. In their view the content of the “self-declarations” went beyond the mere exercise of this freedom and made it unequivocally clear that signatories were “ready to flout the ban and to bear the responsibilities thereof”.
In so far as the majority was convinced that in view of this interpretation the applicant was not convicted for an act committed in exercising her freedom of expression within the ambit of Article 10 of the Convention, a conclusion that this provision was not applicable to the circumstances of the case might have been more appropriate to meet their views. Having however come to the conclusion that the imposed sentence interfered with the applicant's freedom of expression, with which I agree, this Court is required to determine “whether the reasons adduced by the national authorities to justify the interference were 'relevant and sufficient'... [T]he Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10” (see among many others Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298, Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, §§ 88-91, ECHR 2004 XI).
In the present case the competent Regional Court found that the declaration which the applicant signed, “was not covered by her right to freedom of expression and at the same time considered the importance of this right as a mitigating factor in determining the imposed fine” (§§ 16-17). The Federal Court of Justice found on appeal that the court below had “sufficiently weighed the importance of the applicant's right to freedom of expression”. Like in several similar cases (see page 4 of the Observations of the Applicant), the Federal Constitutional Court was of the view that the applicant's statements fell within the ambit of the applicant's right to freedom of expression (§ 22). It considered that in the context of the criminal courts' examination, “freedom of expression took second place without a weighing being required in the individual case” (§ 24). In my view these circumstances suffice to demonstrate that the national courts were not required to and accordingly failed to determine whether the interference with the freedom of expression reflected a pressing social need justifying the interference in the individual case of the applicant.
Looking also at the fact that the applicant's conviction was based on an interpretation of the law which classified her act as punishable two years after it was committed, I am far from convinced that the interference with the applicant's rights under Article 10 was “prescribed by law”, or that “the (national) courts have sufficiently taken account of the applicant's right to freedom of expression in the course of the criminal proceedings against her”.