MUSLUM YALCINKAYA AND OTHERS v. TURKEY - 51497/09 (Judgment : Violation of Freedom of expression-{general}) [2018] ECHR 60 (16 January 2018)

SECOND SECTION

CASE OF MÜSLÜM YALÇINKAYA AND OTHERS v. TURKEY

(Application no. 51497/09)

JUDGMENT

STRASBOURG

16 January 2018

This judgment is final but it may be subject to editorial revision.

In the case of Müslüm Yalçınkaya and Others v. Turkey,

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

          Ledi Bianku, President,
          Valeriu Griţco,
          Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 19 December 2017,

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

PROCEDURE

1. The case originated in an application (no. 51497/09) 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 fifteen Turkish nationals (“the applicants”) on 7 September 2009.

2. The applicants, whose names, dates of birth and places of residence are set out in the attached table, were represented by Mr Sedat Gözkıran, a lawyer practising in Şanlıurfa. Following the communication of the case, the applicants’ representative informed the Registry that two of the applicants, namely Mr Ali Öcalan and Mr Mustafa Akşahin, died on 15 November 2009 and 25 July 2011 respectively, and that their heirs, Ms Fatma Öcalan, Mr Mehmet Öcalan, Mr Abdullah Öcalan, Mr İlhami Öcalan, Ms Hacer Eyibilen (Öcalan), Mr Erol Öcalan, Mr Orhan Öcalan, Mr Vediha Öcalan, Mr Belkız Öcalan, Ms Naziha Akşahin, Ms Fatma Taştan, Mr Halis Akşahin, Mr Mehmet Akşahin, Ms Leyla Yavuz, Ms Aysel Büyükertaş indicated their wish to continue the application before the Court.

3. The Turkish Government (“the Government”) were represented by their Agent.

4. On 25 August 2014 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants, whose names are listed in the appendix, are Turkish nationals.

6. On 17 and 18 July 2008, each of the applicants sent a letter to the Halfeti (Şanlıurfa) public prosecutor`s office which contained the following passage:

"If using the word of “sayın” (esteemed) is an offense, then I also say “Sayın Abdullah Öcalan”, I commit this offense and denounce myself."

7. On 19 September 2008, the public prosecutor filed a bill of indictment with the Halfeti Magistrates’ Court in Criminal Matters against the applicants. They were charged with praising an offence and offender, prescribed by Article 215 of the Criminal Code (Law no. 5237), on account of their statements in the above mentioned letters.

8. On 9 March 2009 the Halfeti Magistrates’ Court in Criminal Matters found the applicants guilty of praising the imprisoned leader of the PKK, an illegal armed organisation, on account of their statements in the aforementioned letters and accordingly, sentenced them each to two months and fifteen days’ imprisonment. In accordance with Article 50 of the Criminal Code, this prison sentence was commuted to a fine of 1,500 Turkish Liras (TRY).

9. The applicants appealed against this judgment. On 20 June 2012 the Court of Cassation, holding that the amount of the fine that had been imposed on the applicants did not attain the minimum requisite level, dismissed the appeal request.

II. RELEVANT DOMESTIC LAW

10 A full description of the relevant domestic law at the material time can be found in Yalçınkaya and Others v. Turkey (nos. 25764/09 and 18 others, §§ 12-13, 1 October 2013, and Bayar and Gürbüz v. Turkey, no. 37569/06, §§ 13-14, 27 November 2012).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

11. The applicants complained that their conviction for using the honorific “Sayın” (esteemed) when referring to the imprisoned leader of the PKK in their letters, had constituted an unjustified interference with their right to freedom of expression under Article 10 of the Convention.

12. The Court notes that this complaint 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.

13. The applicants complained that their convictions, which were based on Article 215 of the Criminal Code, had infringed their rights under the Convention.

14. The Court notes at the outset that the Government did not submit any observations on the merits, stating that they were aware of the Court’s relevant case-law.

15. The Court has already examined a similar complaint in the case of Yalçınkaya and Others v. Turkey (nos. 25764/09 and 18 others, §§ 26-38, 1 October 2013) and found a violation of Article 10 of the Convention. It has also examined the present case and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment.

16. In view of the foregoing, the Court holds that there has been a violation of Article 10 of the Convention.

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

17. The applicants complained under Article 6 § 1 of the Convention that their right of access to a court, namely their right to file an appeal against their conviction, had been breached on the ground that the amount of the fines that had been imposed on them had not reached the minimum value required for lodging an appeal.

18. The Government, stating that they were aware of the Court’s case-law, did not submit any observations on the merits

19. The Court notes that it has already examined similar issues in the past (see Bayar and Gürbüz v. Turkey, no. 37569/06, §§ 40-49, 27 November 2012, and Yalçınkaya and Others, cited above, §§ 44-45), and found a violation of Article 6 § 1 of the Convention. There is no reason to depart from those findings.

20. Accordingly, the Court concludes that in the present case there has been a violation of Article 6 § 1 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

21. The applicants did not submit a claim for just satisfaction within the time-limit set by the Court. Accordingly, the Court considers that there is no call to award them any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 10 of the Convention;

3. Holds that there has been a violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 16 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Ledi Bianku
Deputy Registrar President

APPENDIX

No.	Surname NAME	Date of Birth	Place of Residence
1.	Müslüm YALÇINKAYA	01/11/1964	Şanlıurfa
2.	Mustafa AKŞAHİN	24/03/1944	Şanlıurfa
3.	Eşref BÜYÜKERTAŞ	01/04/1954	Şanlıurfa
4.	Mehmet BÜYÜKERTAŞ	26/07/1980	Şanlıurfa
5.	Selahaddin ÇERİ	11/11/1948	Şanlıurfa
6.	Abdurrahman ÇİFTÇİ	01/01/1964	Şanlıurfa
7.	Ahmet COLAYIR	01/04/1964	Şanlıurfa
8.	Halit COLAYIR	24/02/1937	Şanlıurfa
9.	Kadir EVİN	16/05/1985	Şanlıurfa
10.	Ali ÖCALAN	25/08/1945	Şanlıurfa
11.	Mehmet Reşit ÖCALAN	21/05/1943	Şanlıurfa
12.	Müslüm ÖCALAN	01/01/1951	Şanlıurfa
13.	Mehmet Emin YALÇINKAYA	01/06/1964	Şanlıurfa
14.	Ahmet YILDIZ	15/09/1965	Şanlıurfa
15.	Sabiha YILMAZ	15/09/1969	Şanlıurfa

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You are here: BAILII >> Databases >> European Court of Human Rights >> MUSLUM YALCINKAYA AND OTHERS v. TURKEY - 51497/09 (Judgment : Violation of Freedom of expression-{general}) [2018] ECHR 60 (16 January 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/60.html Cite as: [2018] ECHR 60, ECLI:CE:ECHR:2018:0116JUD005149709, CE:ECHR:2018:0116JUD005149709