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SECOND
SECTION
CASE OF
KILIÇ AND EREN v. TURKEY
(Application
no. 43807/07)
JUDGMENT
STRASBOURG
29
November 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 Kılıç and Eren v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens, President,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Işıl
Karakaş,
Guido Raimondi,
Paulo Pinto de
Albuquerque, judges,
and Françoise Elens-Passos,
Deputy Section
Registrar,
Having
deliberated in private on 8 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 43807/07) 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 two Turkish nationals, Mr Mehmet Fatih Kılıç
and Mr Kemal Eren (“the applicants”), on 1 October
2007.
- The
applicants were represented by Mr C. Demir, a lawyer practising in
Van. The Turkish Government (“the Government”) were
represented by their Agent.
- On
11 December 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
- Following
the communication of the application, the Government, but not the
applicants, filed further written observations (Rule 54 § 2).
However, the applicants indicated their wish to pursue their
application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1986 and 1980 respectively and live in Ağrı.
- On
21 March 2006 the applicants attended the Newroz celebrations
in Patnos, a district of Ağrı. During the gathering, the
crowd shouted slogans. Subsequently, the Patnos Security Directorate
initiated an investigation on account of the fact that some of the
participants had shouted slogans praising the imprisoned leader of
the PKK (the Kurdistan Workers’ Party, an illegal
organisation). Following an examination of a recording of the
gathering, it was reported that the first applicant had shouted “Biji
Serok Apo” (“Long live President Öcalan”),
while the second applicant was seen as shouting slogans such as “Biji
Serok Apo” and “Gençlik Aponun Fedaisidir”
(“Youth are the guardsmen of Öcalan”).
- On
28 March 2006 the applicants were taken into police custody. In
police statements taken from them on the same date, they both denied
shouting slogans in support of the PKK. They maintained that they had
shouted slogans in support of peace. Again on the same date, the
applicants were subsequently taken before the public prosecutor and
the investigating judge in turn. In their statements to the
prosecutor and the judge, they maintained that they had only shouted
“Kurds and Turks are brothers” and denied the
accusations. The investigating judge released the applicants when the
interrogation was over.
- On
29 March 2006 the Patnos Public Prosecutor initiated criminal
proceedings against the applicants in the Patnos Criminal Court,
charging them with disseminating the propaganda of an illegal
organisation, based on the slogans shouted during the Newroz
celebrations. The prosecution accordingly called for the applicants
to be sentenced pursuant to Article 220 § 8 of the
Criminal Code.
- On
15 August 2006 the court received an expert report regarding the
video footage of the event. According to this report, the second
applicant was seen shouting slogans in Kurdish and Turkish such as
“Dısa dısa serhildan serokeme Öcalan”
(“Rise up again and again, our president is Öcalan”),
“Biji Serok Apo” (“Long Live President Apo”)
and “Gençlik Aponun Fedaisidir” (“Youth
are the guardsmen of Öcalan”). The report stated that in
the video footage there was no sign of the first applicant.
- On
an unspecified date, the Patnos Criminal Court declared that it
lacked jurisdiction and transferred the case file to the Erzurum
Assize Court, holding that offence with which the applicants were
charged ought to be classified as praising a crime or a criminal and
thus fell to be examined under Article 215 of the Criminal Code.
- On
12 July 2007 the Erzurum Assize Court delivered its decision. While
noting that the applicants had denied shouting the alleged slogans,
based on the recording of the event, the court found the applicants
guilty of praising both a crime and a criminal pursuant to Article
215 of the Criminal Code. It accordingly sentenced the applicants to
twenty-five days’ imprisonment each. The court then commuted
the prison sentence to a fine of 500 Turkish liras (TRY) (the
equivalent to 270 euros). As domestic legislation did not provide for
an appeal, this decision was final.
- On
19 October 2007 the first applicant paid the fine.
- Subsequently,
on 26 February 2008 the Erzurum Public Prosecutor reopened the
proceedings against the second applicant for reconsideration of his
case in view of Section 562 of Law no. 5728, which was published in
the Official Gazette on 7 February 2008.
- On
27 February 2008 the Erzurum Assize Court found that in view of the
new provision, the second applicant had become entitled to benefit
from Section 231 of the Criminal Procedure Code (Law no. 5271), which
provided the possibility of suspending his sentence. Consequently, it
decided to suspend the enforcement of the judgment for a period of
five years in respect of the second applicant.
II. RELEVANT DOMESTIC LAW
- Article
215 of the Criminal Code (Law no. 5237) reads as follows:
“Any person who approves of an offence committed,
or praises a person on account of an offence he or she has committed,
shall be liable to a term of imprisonment of up to two years.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained that their conviction and sentencing had
constituted a breach of Articles 6, 7, 10 and 13 of the Convention.
In this respect, they maintained that the domestic court had erred in
its decision.
- The
Government contested that argument.
- The
Court notes at the outset that the application should be examined
solely under Article 10 of the Convention, which reads:
“1. Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by
public authority and regardless of frontiers...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime...”
A. Admissibility
- The
Court further considers that 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
- The
Government argued that the interference with the applicants’
right to freedom of expression had been in accordance with the law,
had pursued a legitimate aim and had been necessary in a democratic
society. The applicants’ convictions had been based on Article
215 of the Criminal Code and had been justified by the need to
protect national security, public safety and to prevent disorder and
crime. The Government further considered that the interference had
been proportionate to its aims, as the applicants had received minor
fines and the second applicant’s sentence had subsequently been
suspended for five years.
- The
applicants did not reply to the Government’s observations.
- In
the Court’s view, the criminal proceedings instituted against
the applicants and their subsequent convictions for shouting slogans
amounted to an interference with their right to freedom of
expression, notwithstanding the fact that the second applicant’s
sentence was subsequently suspended by the domestic court (see,
mutatis mutandis, Balçık v. Turkey,
no. 63878/00, §§ 40 42, 26 April 2005). It
further notes that the interference was prescribed by law, namely
Article 215 of the Criminal Code (see paragraph 15 above). As to
the legitimacy of the aims pursued, the Court observes that in the
present case the national authorities sought to protect national
security and to prevent disorder or crime. It therefore remains to be
determined whether the interference complained of was “necessary
in a democratic society”.
- 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
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).
- 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 the 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, and
Gül and Others v. Turkey, no. 4870/02, § 38, 8
June 2010).
- At
this point, the Court recalls that it has examined complaints
relating to similar issues to those in the present case and found a
violation of Article 10 of the Convention (see Gül and
Others, cited above, §§ 32 45; and Bahçeci
and Turan v. Turkey, no. 33340/03, §§ 24-34, 16 June
2009).
- Turning
to the particular circumstances of the present case, the Court
observes from the documents in the case file that, based on the video
recordings of the gathering, the Assize Court found it established
that the first applicant had shouted “Biji Serok Apo”
(“Long live President Öcalan”), and the second
applicant had shouted “Biji Serok Apo”, “Gençlik
Aponun Fedaisidir” (“Youth are the guardsmen
of Öcalan”) and “Dısa dısa serhildan
serokeme Öcalan” (“Rise up again and
again, our president is Öcalan”) during Newroz
celebrations held in Ağrı. There is no indication in the
case file that this celebration was not peaceful or that the people
who had attended the celebration engaged in acts of violence.
Consequently, the applicants were prosecuted solely for shouting
slogans.
- The
Court observes that, taken literally, one of the slogans shouted by
the second applicant “Rise up again and again, our president is
Öcalan” might be construed as having a violent tone.
Nevertheless, as stated above, this slogan was shouted during a
lawful and peaceful gathering – which limited its potential
impact on “national security” and “public order”
– and thus it is not a call for violence. The Court further
notes that the present application is distinguishable on its context
from the case of Taşdemir v. Turkey ((dec.), no.
38841/07, 23 February 2010). In the latter case, the slogan shouted
by the applicant, “Biji Serok Apo, HPG cepheye misillemeye”
(Long live Apo, HPG (the armed wing of the PKK) to the front line in
retaliation) had clearly amounted to an apology for terrorism. In
this connection, the Court stresses that Article 10 protects not only
the substance of the ideas and information expressed, but also the
form in which they are conveyed (see Karataş v. Turkey
[GC], no. 23168/94, § 49, ECHR 1999 IV; and Gül and
Others, cited above, § 41). The Court also reiterates
that, according to its well-established case-law, paragraph 2 of
Article 10 is applicable not only to “information” or
“ideas” which are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that
offend, shock or disturb. Such are the demands of pluralism,
tolerance and broadmindedness, without which there is no “democratic
society” (see Sürek and Özdemir v. Turkey
[GC], nos. 23927/94 and 24277/94, § 57, 8 July 1999).
- The
Court observes that, in the circumstances of the present case, by
shouting these slogans, the applicants did not advocate violence,
injury or harm to any person. Furthermore, neither in the domestic
court decisions nor in the observations of the Government is there
any indication that there was a clear and imminent danger which
required the interference faced by the applicants (Gül and
Others, cited above, § 42).
- In
view of the above findings, the Court is of the view that
the applicants’ conduct cannot be considered to have had an
impact on “national security” or “public order”
by way of encouraging the use of violence or inciting others to armed
resistance or rebellion, which are essential elements to be taken
into account (see, a contrario,
Sürek v. Turkey (no. 1) [GC], no.
26682/95, § 62, ECHR 1999 IV).
- Having
regard to the above considerations, the Court concludes that, in the
circumstances of the present case, the interference in question was
not “necessary in a democratic society”. Accordingly,
there has been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicants did not submit any just satisfaction claim. Accordingly,
the Court considers that there is no call to award them any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
10 of the Convention.
Done in English, and notified in writing on 29 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens
Deputy
Registrar President
