European Court of Human Rights

 

 

SECOND SECTION

CASE OF A.M. v. TURKEY

(Application no. 67199/17)

 

 

 

 

JUDGMENT

STRASBOURG

19 October 2021

 

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

In the case of A.M. v. Turkey,

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

          Carlo Ranzoni, President,
          Egidijus Kūris,
          Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 67199/17) 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 a Turkish national, Mr A.M. (“the applicant”), on 11 August 2017;

the decision to give notice to the Turkish Government (“the Government”) of the complaints under Articles 6 and 10 of the Convention and to declare inadmissible the remainder of the application;

the decision not to have the applicant’s name disclosed;

the parties’ observations;

Having deliberated in private on 21 September 2021,

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

INTRODUCTION

1.  The application concerns the decision of the Turkish Federation of Sports for All to impose disciplinary sanctions on the applicant, who is a yoga trainer, on account of statements he had made on a video recording published on YouTube.

2.  The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTS

3.  The applicant was born in 1958 and lives in Istanbul. The applicant was represented by Ms B. Kurtukan Var, a lawyer practising in Istanbul.

4.  The Government were represented by their agent Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey.

5.  The facts of the case, as submitted by the parties, may be summarised as follows.

I.         BACKGROUND INFORMATION

6.  The applicant is the founder and the trademark owner of “Yoga Academy”, a yoga education centre having its branches in and outside Turkey. At the time of the application the applicant was also the president of the Uluslararası Yoga Federasyonu (International Yoga Federation) and Marmara Yoga Spor Kulübü (Marmara Yoga Sport Club).

7.  In 2013, yoga was officially recognised as a sport branch by the Ministry of Youth and Sport and was incorporated into the Türkiye Herkes İçin Spor Federasyonu (Turkish Federation of Sports for All, “THİSF”).

8.  On 4 February 2014, the applicant became a THİSF certified yoga trainer.

II.      CRIMINAL PROCEEDINGS AGAINST THE APPLICANT

9.  On 25 June 2014 the website and the social media accounts of the Yoga Academy as well as the email accounts of the applicant were subject to cyber‑attacks. On the same day the applicant lodged a criminal complaint with the Istanbul public prosecutor’s office. At the time of parties’ submissions to the Court, the investigations were still ongoing before the national authorities.

10.  On 6 July 2014 a video recording of the applicant was uploaded to the video-hosting website YouTube. In this video, the date of recording of which is not known to the Court, the applicant was giving speech to an audience and answering to various questions. The video included the following statements of the applicant:

“There is a holy master in our culture. Prophet Muhammad. Alaikum assalam. He is a master. He is a holy master. He says, ‘I’m the representative of Allah’ (...) ‘I’m Allah’s Rasul (messenger)’. A very exalted claim. I am the Rasul and representative of Allah. He says, ‘I am the one who comes after Allah’, and millions of people believe it. (...) we too are Muslims. We don’t believe, you don’t believe. Good. But there are believers. (...) 2 billion people believe that Muhammad is the holy master. They accept it (and) shape their lives around it. (...) 1400 years have passed. Two billion people follow that holy master. That holy master has certain characteristics. How many wives did he have? Thirty-two are known about and there are probably hundreds that are unknown. But nobody is surprised at that. That the holy master, the Rasul of Allah had so many women. (...) it is accepted in this culture too. Nobody reviles at Him because of this. This means that it is not a crime. And the holy master had something else. He had a huge sword. Have you seen that sword in the museum? He beheaded those who got off the track. Allahu Akbar (making a sword swing movement with his hand). It [the head] is gone. Where is ahimsa? Where is ahimsa? An interrogation mark. Some say that they did not know what ahimsa is. They were not aware but there are rumours [that] things said about ahimsa in the Quran. There is a Sura that says, ‘do not retaliate against those who step over you.’ Now where is ahimsa? Was it there or not? (...) it was there. This was the ahimsa of that time. That was the ahimsa practised by the holy master. This is why we don’t get into that kind of speculations. Was it there or not? There are many writings (...) plenty of interpretations. We only try to give you some clues. We help you see some things.”

11.  In July 2014 YouTube removed the video upon request of the applicant. However, according to the case-file documents, the video was uploaded several times on YouTube afterwards despite its removal.

12.  In July 2014, the applicant also submitted a criminal complaint before the Istanbul public prosecutor’s office with a request to identify the person(s) who uploaded the video on YouTube. The investigations were still ongoing at the time of parties’ submissions to the Court.

13.  On 8 July 2014, B.A., a yoga trainer, filed a complaint with the Ankara public prosecutor’s office against the applicant. In his complaint, he submitted that the applicant’s statements had nothing to do with yoga but were of an insulting nature in respect of the Prophet Muhammad.

14.  On 28 January 2015 the Ankara public prosecutor’s office lodged a bill of indictment against the applicant with the Ankara Criminal Court of General Jurisdiction, accusing him of publicly degrading religious values of a section of the public, an offence under Article 216 § of the Criminal Code.

15.  In a judgment of 25 April 2016, the Ankara Criminal Court of General Jurisdiction found the applicant guilty of the offence of which he was accused and sentenced him to one-year’s imprisonment.

16.  The applicant appealed against the Ankara Criminal Court of General Jurisdiction’s judgment of 25 April 2016. At the time of parties’ submissions to the Court, the appeal proceedings were still ongoing before the Court of Cassation.

III.   DISCIPLINARY PROCEEDINGS AGAINST THE APPLICANT

17.  On 24 January 2017 disciplinary proceedings were initiated against the applicant under sections 16 § 17 (breach of national honour) and 17 (discrimination) of the Disciplinary Regulation of the THİSF (“Disciplinary Regulation”) in view of the criminal penalty imposed on him by the Ankara Criminal Court of General Jurisdiction.

18.  On 14 February 2017 the Disciplinary Committee of the THİSF (“Disciplinary Committee”) requested the applicant to submit his defence in writing within seven days.

19.  On 23 February 2017 the applicant submitted his defence in writing. He argued that the one-year investigation time-limit prescribed by section 30 of the Disciplinary Regulation had already expired. He maintained that, in any case, the Disciplinary Committee was not competent to examine the matter under sections 6 and 20 of the Disciplinary Regulation given that, on the one hand, his allegedly wrongful act had not taken place during the exercise of a sports activity, and on the other hand, the criminal proceedings were still ongoing before the judicial authorities. He added that the subject‑matter of the criminal proceedings brought against him was not related to sections 16 § 17 (violation of national honour) and 17 (discrimination) of the Disciplinary Regulation. He also claimed that he was not a certified yoga trainer at the time the video was recorded. He concluded that, taken as a whole, his speech was intended to praise the Prophet Muhammad and religions, but not to insult or humiliate them.

20.  On 17 April 2017 the Disciplinary Committee decided to deprive the applicant of his rights for three years pursuant to the above-mentioned sections of the Disciplinary Regulation.

The Disciplinary Committee considered that, for the public authorities, the time-limit began to run from the date on which the disciplinary body in question became aware of the wrongful act. It therefore concluded that the one-year time-limit for investigation had started to run on 24 January 2017, the date on which the applicant was referred to the Disciplinary Committee and not the date of the commission of the act.

As regards the applicant’s argument concerning the pendency of criminal proceedings, the Disciplinary Committee considered that it was not bound by the decisions of the criminal courts since it was carrying out its examination under the Disciplinary Regulation. The Disciplinary Committee further considered that the video recording made it clear that the applicant had spoken before the audience in his capacity as a yoga trainer. It did not examine whether the applicant was a certified yoga trainer at the time that the video was recorded, as it considered that the act would continue throughout the time the video was available. It also presumed that the video could not have been uploaded without the applicant’s consent.

21.  On 4 May 2017 the applicant appealed against the decision of the Disciplinary Committee before the General Directorate of Sport Arbitration Board (“Arbitration Board”). He mainly reiterated his arguments before the Disciplinary Committee. He also requested the Arbitration Board to hold a hearing.

22.  On 13 June 2017 the Arbitration Board upheld the decision of the Disciplinary Committee without holding a hearing. Firstly, it rejected the applicant’s objection relating to the expiry of the time-limit for investigation. By making an analogy with the section of the Criminal Code relating to genocide and crimes against humanity, which stipulates that there is no prescription period for such crimes, the Arbitration Board considered that the rules of prescription could not be applied for acts committed against a prophet. Secondly, referring to a decision of the Court of Cassation of 11 July 2006, the Arbitration Board held that offending the Prophet of Islam should be qualified as an act aimed at humiliating Turkishness falling within the scope of section 16 § 17 (violation of national honour) of the Disciplinary Regulation. It therefore found the disciplinary measure to be proportionate with regard to the applicant’s behaviour.

23.  On 11 July 2017 the Arbitration Board rejected the request of the applicant for the rectification of the decision of 13 June 2017.

IV.   SUBSEQUENT DEVELOPMENTS

A.    Request for the reopening of the proceedings

24.  On 25 September 2017 the applicant submitted a petition with the Arbitration Board to request for the reopening of the proceedings. On 23 October 2017 the applicant’s request was dismissed on the ground that there were no new developments requiring the reopening of the proceedings.

B.    Individual application before the Constitutional Court

25.  On 11 August 2017 the applicant applied to the Turkish Constitutional Court, complaining of a violation of his rights to a fair trial and freedom of expression.

26.  On 6 March 2018 the Constitutional Court declared the applicant’s individual application inadmissible for being incompatible ratione materiae with Article 59 of the Constitution and Article 45 § 3 of the Law no. 6216 on the establishment and rules of procedure of the Constitutional Court.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

I.         Constitution

27.  Article 59 § 3 of the Constitution, introduced by the constitutional amendment of 17 March 2011, provides that decisions of sports federations relating to the administration and discipline of sports activities may be challenged only through compulsory arbitration. The decisions of the Arbitration Board are final and shall not be appealed to any judicial authority.

II.      Criminal Code

28.  Article 216 of the Criminal Code provides as follows:

“(...)

3. Any person who publicly denigrates religious beliefs of a section of the public shall be sentenced to a term of imprisonment of six months to one year if the act is conducive to a breach of the public peace.”

III.   Disciplinary Regulation of the THİSF

29.  The relevant parts of the Disciplinary Regulation of the THİSF which entered into force on 5 September 2016, read as follows:

 

Section 2

Scope

“The present Regulation, (...) applies to the following:

a) The proceedings with a view to sanctioning behaviours incompatible with sport ethics and discipline committed by (...), trainers, (...) while carrying out activities with regard to the events included in the programme of the federations;

(...)”

Section 6

Duties of the Disciplinary Committee

“The disciplinary committee is empowered to examine disciplinary matters that take place during sport for all activities ... and, where necessary and within the framework of the regulations, to investigate the persons and organisations who caused the incidents and to impose sanctions on those who committed infringements.”

Section 16

Disciplinary Infringements and Sanctions

“(...)

(17) Violation of national dignity

(a) Those who commit acts that are derogatory to Turkishness or national dignity of a foreign nation by any means inside or outside the country as well as those who display inappropriate behaviour or remarks in the competition group inside or outside the country shall be sanctioned with suspension from competition or deprivation of rights for a period of 6 months to 2 years (...)”

Section 17

Discrimination

“Executives, referees, observers, organisers or other persons at any grade who harm the human dignity in any way by discriminating on the basis of race, language, religion or ethnicity shall be sanctioned with deprivation of rights for a period of 90 days to 1 year (...).”

Section 30

Time-limit for Investigation

“The investigation shall discontinue after three months for behaviours which are sanctioned with a warning; after one year for behaviours which are sanctioned with suspension from competition or temporary deprivation of rights; (...). The time-limit runs from the day of the event.”

IV.   Regulation on Amateur Sports Sanctions

30.  Section 42 of the Regulation on Amateur Sports Sanctions, issued by the General Directorate of Sports, entered into force on 7 January 1993 contains a similar provision as the one proscribed in section 16 § 17 of the Disciplinary Regulation.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

31.  The applicant complained that the disciplinary sanction imposed on him on account of his statements had constituted a breach of Article 10 of the Convention, which provides as follows, as relevant:

“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, 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.”

32.  The Government contested that argument and submitted that the alleged interference with the applicant’s right to freedom of expression had had a legal basis. They maintained that although the Disciplinary Regulation had not been in force at the time of the events, the General Directorate of Sports’ Regulation on Amateur Sports Sanctions containing similar provisions as the ones set out in Sections 16 § 17 of the Disciplinary Regulation had been in force on the date of the video was uploaded. The Government also maintained that the interference had pursued the legitimate aims of prevention of disorder, crime and unsportsmanlike behaviours and protection of national dignity. Moreover, having regard to the content of the applicant’s statements, the Government argued that the alleged interference with the applicant’s freedom of expression had stemmed from a pressing social need and was necessary in a democratic society.

33.  The applicant submitted that the disciplinary proceedings had been initiated against him in breach of the statutory one-year time limit prescribed in the Disciplinary Regulation. He maintained that the Arbitration Board’s interpretation that the statute of limitations could not be applied for acts committed against a prophet, by analogy with the section of the Criminal Code on genocide and crimes against humanity, could not be said to have been provided for by law. He stated that he had not made the statements in his capacity as a yoga trainer because he was not a THİSF certified yoga trainer at that time. He further argued that the Disciplinary Regulation were not in force at the time of the incident. He also argued that the Disciplinary Committee and the Arbitration Board had failed in the legal qualification of his acts. He explained in that respect that before the criminal courts he had been accused of publicly degrading religious values, while disciplinary sanctions were imposed on him for humiliating Turkishness and discrimination.

34.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

35.  The Court considers that the disciplinary sanction imposed on the applicant on account of his statements amounted to an interference with his freedom of expression, as guaranteed by Article 10 § 1 of the Convention. Such an interference will be in breach of Article 10 unless it is in accordance with the requirements of the second paragraph of that provision.

36.  The Court reiterates that the expression “prescribed by law” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, for instance, Delfi AS v. Estonia [GC], no. 64569/09, § 120, 16 June 2015). One of the requirements flowing from the expression “prescribed by law” is foreseeability. Thus, a norm cannot be regarded as a “law” within the meaning of Article 10 § 2 unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty. Whilst certainty is desirable, it may bring in its train 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 questions of practice (see, for example, Lindon, Otchakovsky‑Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007‑IV, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 141, ECHR 2012, and Delfi AS, cited above, § 121).

37.  In the present case, the Court notes at the outset that the Disciplinary Regulation on the basis of which the applicant was sanctioned entered into force on 5 September 2016. Nevertheless, the video in which the applicant made the incriminated statements was uploaded on YouTube on 6 July 2014. The Court observes that the Disciplinary Regulation was not in force on the upload date. In this connection, the Court observes that the Government did not submit to the Court any previous disciplinary regulation issued by the THİSF and having similar provisions with sections 16 § 17 and 17 of the Disciplinary Regulation of 5 September 2016. The Court further notes that it has not been made aware of any other disciplinary regulation applicable to certified THISF yoga trainers at the time when the video was uploaded on Youtube.

38.  As to the Government’s submission that the provisions of General Directorate of Sports’ Regulation on Amateur Sports Sanctions which were identical with the provisions of section 16 § 17 of the Disciplinary Regulation were in effect on the upload date, the Court considers that this argument lacks substantiation. It notes in particular that, during the disciplinary proceedings neither the Disciplinary Committee nor the Arbitration Board have referred to or applied the provisions of the General Directorate of Sports’ Regulation on Amateur Sports Sanctions. Thus, the Court is not convinced that the national authorities relied upon the provisions of the said regulation while imposing a sanction on the applicant.

39.  Moreover, the Court notes that the Arbitration Board considered that acts against a prophet could not be subject to prescription by analogy with the section of the Criminal Code relating to genocide and crimes against humanity. In this respect, the Court observes that section 30 of the Disciplinary Regulation stipulates a general one-year investigation time-limit which starts to run from the day of the event. The Court further observes that no exception to the provisions of section 30 is provided for in the Disciplinary Regulation. In the Court’s view, the Arbitration Board’s interpretation extended the scope of section 30 beyond what had reasonably been foreseeable in the circumstances of the case. The applicant could not, therefore, reasonably have foreseen that his statements would be considered to be within the scope of section of the Criminal Code relating to genocide and crimes against humanity (see, for instance, Karademirci and Others v. Turkey, nos. 37096/97 and 37101/97, § 42, ECHR 2005‑I).

40.  Therefore, not only the disciplinary sanction inflicted on the applicant on the basis of the Disciplinary Regulation was not in force at the time of the events, but also the interpretation of the Arbitration Board extending the scope of section 30 of the Disciplinary Regulation by analogy with the Criminal Code was not foreseeable within the meaning of Article 10 of the Convention. The Court considers, accordingly, that the interference at issue was not “prescribed by law” within the meaning of Article 10 § 2 of the Convention. Having regard to that conclusion, it considers that it is not necessary to verify whether the other conditions required by that paragraph - namely the existence of a legitimate aim and the necessity of the interference in a democratic society - were complied with in this case.

41.  The Court therefore finds that there has been a violation of Article 10 of the Convention.

V.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION

42.  The applicant also complained under Article 6 of the Convention that the Disciplinary Committee and the Arbitration Board lacked independence and impartiality and that the proceedings before them were consequently unfair. He also alleged that his right to access to court was infringed as he was unable to challenge the decision of the Arbitration Board before the domestic courts.

43.  Having regard to the facts of the case and its finding of a violation of Article 10, the Court considers that it is unnecessary to examine the admissibility or merits of the above-mentioned complaints under Article 6 of the Convention. (see, for a similar approach, Pakdemirli v. Turkey, no. 35839/97, § 63, 22 February 2005, Mustafa Erdoğan and Others v. Turkey, nos. 346/04 and 39779/04, § 48, 27 May 2014).

VI.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

44.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.    Damage

45.  The applicant claimed 350,000 euros (EUR) in respect of pecuniary damage due to the alleged loss of income as a result of the sanction imposed on him. He also claimed EUR 2,000,000 in respect of non-pecuniary damage.

46.  The Government contested the applicant’s claim.

47.  The Court notes that the disciplinary sanction inflicted on the applicant prohibited him from participating in the official events of the THİSF but did not otherwise affect his capacity to teach yoga or his private yoga business. The Court further reiterates that, under Rule 60 of the Rules of Court, any claim for just satisfaction must be itemised and submitted in writing, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. In the present case, even assuming that there is a causal link between the damage claimed and the violation found, the Court observes that the applicant did not submit relevant documentary evidence supporting this part of their claim (see, inter alia, Hajibeyli and Aliyev v. Azerbaijan, nos. 6477/08 and 10414/08, § 73, 19 April 2018). The Court therefore rejects this claim. However, it awards the applicant EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B.     Costs and expenses

48.  The applicant also claimed EUR 12,806 for the costs and expenses incurred before the domestic courts and the Court.

49.  The Government challenged the applicant’s claim.

50.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Since the applicant failed to submit itemised claims or any supporting documents or particulars concerning the costs and expenses incurred in the domestic proceedings or those before the Court, as required under Rule 60 §§ 2 and 3 of the Rules of Court, the Court dismisses his claims (see, mutatis mutandis, Malić v. Croatia, Committee judgment no. 8402/17, § 34, 22 April 2021).

C.    Default interest

51.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

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 is no need to examine the complaints under Article 6 of the Convention;

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.      Dismisses, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 19 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 {signature_p_2}

 Hasan Bakırcı                                                                        Carlo Ranzoni
Deputy Registrar                                                                       President