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SECOND SECTION

CASE OF ZENGİN AND ÇAKIR v. TURKEY

(Application no. 57069/09)

JUDGMENT

STRASBOURG

13 February 2018

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

In the case of Zengin and Çakır v. Turkey,

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

Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 23 January 2018,

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

PROCEDURE

1. The case originated in an application (no. 57069/09) 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 two Turkish nationals, Mr Faruk Zengin and Mr Hakan Çakır (-�the applicants-�), on 15 October 2009.

2. The applicants were represented by Mr H. Karakuş and Mrs G. Altay, lawyers practising in Istanbul. The Turkish Government (-�the Government-�) were represented by their Agent.

3. On 9 July 2013 the complaint concerning the alleged breach of the applicants-� right to freedom of expression was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants were born in 1987 and 1986 and live in Gümüşhane and Erzincan respectively.

5. On 18 May 2007 the applicants participated in reading out a press statement in commemoration of İbrahim Kaypakkaya, the leader of the TKP/ML[1] (Turkish Communist Party - Marxist/Leninist), who had died in 1973, allegedly under torture in police custody.

6. On 7 January 2008 the Erzurum public prosecutor initiated criminal proceedings against fifteen people, including the applicants, charging them with disseminating propaganda in favour of the TKP/ML, under section 7(2) of the Prevention of Terrorism Act (Law no. 3713). According to the indictment, during the gathering, the second applicant had read out a press declaration containing statements praising the TKP/ML and İbrahim Kaypakkaya, and the following slogans had been chanted by the demonstrators: -�İbrahim is our leader-�, -�Our struggle continues and shall continue-�, -�İbrahim Kaypakkaya is immortal-�, -�Down with the USA-� and -�We will drown fascism in the blood it has shed-�. The group had also carried a banner which read -�İbrahim Kaypakkaya is immortal - Partizan-�[2].

7. On 31 March 2009 the Erzurum Assize Court found the applicants guilty as charged and sentenced each of them to ten months-� imprisonment pursuant to section 7(2) of Law no. 3713. In its judgment, the assize court held that the applicants had disseminated propaganda in favour of the TKP/ML, given that the second applicant had read out the press statement and the first applicant had chanted slogans. The court based its judgment on a report prepared by an expert regarding a police video-recording of the public gathering in question.

8. Taking into account the applicants-� good behaviour during the trial and the fact that they had no previous criminal convictions, the court suspended pronouncement of the applicants-� conviction on the condition that they did not commit another intentional offence for a period of five years, under Article 231 of the Code of Criminal Procedure (hükmün açıklanmasının geri bırakılması).

9. The applicants filed an objection against the decision of 31 March 2009. In their petition, they stated that the first-instance court had erred in interpreting the facts and the law, and they asked to be acquitted of the charges against them. They further stated that their prosecution had constituted a breach of Article 10 of the Convention.

10. On 20 July 2009 the Diyarbakır Assize Court held that the application of Article 231 of the Code of Criminal Procedure in the case was in line with the domestic law, and rejected the applicants-� objection without examining the merits of the case. That decision was served on the applicants on 5 August 2009.

II. RELEVANT DOMESTIC LAW

11. The relevant domestic law applicable at the material time can be found in Belge v. Turkey (no. 50171/09, § 19, 6 December 2016).

12. In particular, at the time of the events giving rise to the present application, section 7(2) of Law no. 3713 read as follows:

-�Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to [serve] a term of imprisonment of one to five years ...-�

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

13. The applicants complained under Article 10 of the Convention that the criminal proceedings brought against them under section 7(2) of Law no. 3713, and their subsequent conviction, had constituted a violation of their right to freedom of expression.

14. Article 10 of the Convention reads 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. 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.-�

15. The Government submitted that the interference with the applicants-� right to freedom of expression had had a legal basis and had pursued the legitimate aims of the protection of national security and territorial integrity and the prevention of disorder and crime. They further submitted that the TKP/ML was a terrorist organisation, and that slogans praising that organisation had been chanted during the public gathering in question. Submitting that section 7 of Law no. 3713 had been amended in 2013, the Government left the issue of the necessity of the interference in a democratic society to the Court-�s discretion.

16. The Court notes that the 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.

17. As to the merits of the case, the Court considers that, although the pronouncement of the convictions was suspended, the applicants-� convictions amounted to an -�interference-� with the exercise of their right to freedom of expression (see Şükran Aydın and Others v. Turkey, nos. 49197/06 and 4 others, § 44, 22 January 2013; Gülcü v. Turkey, no. 17526/10, §§ 98-102, 19 January 2016; and Fatih Taş v. Turkey (No. 2), no. 6813/09, § 15, 10 October 2017). The Court further considers that the interference was based on section 7(2) of Law no. 3713. In the light of its findings regarding the necessity of the interference (see paragraph 20 below), the Court considers that it is not required to conduct an examination of the -�lawfulness-� of the interference. The Court is also prepared to accept that, in the present case, the national authorities may be considered to have pursued the legitimate aims of protecting national security and preventing disorder and crime (see Faruk Temel v. Turkey, no. 16853/05, § 52, 1 February 2011).

18. As regards the necessity of the interference in a democratic society, the Court notes that it has already examined similar grievances in a number of cases and found violations of Article 10 of the Convention (see, for example, Savgın v. Turkey, no. 13304/03, §§ 39-48, 2 February 2010; Gül and Others v. Turkey, no. 4870/02, §§ 32-45, 8 June 2010; Kılıç and Eren v. Turkey, no. 43807/07, §§ 20-31, 29 November 2011; Faruk Temel, cited above, §§ 58-64; and Gülcü, cited above, §§ 113 and 117). The Court has examined the present case and finds no reason to reach a different conclusion.

19. In particular, the Court observes that the applicants were prosecuted and convicted under section 7(2) of Law no. 3713 on the grounds that they had participated in reading out a press statement. In this connection, the Court notes that when notice of the application was given to the respondent Government, the parties were requested to submit a copy of the video-recording of the reading out of the press declaration and the expert report submitted to the trial court containing the declaration in question. The parties failed to do so. Hence, the Court does not have in its possession the text of the press declaration read out by the second applicant. Nevertheless, the Court observes that the first-instance court-�s judgment does not contain any assessment of the content of the press declaration in question either. Nor did the court examine the slogans chanted during the event. The assize court found that the declaration, the slogans and the banner carried during the event constituted propaganda in favour of the TKP/ML, without providing an explanation as to why it considered the slogans and the content of the banner referred to in the indictment (see paragraph 6 above) as encouraging violence, armed resistance or an uprising, or being capable of inciting to violence. These are essential elements to be taken into account. Besides, slogans were chanted and the press statement was read out during a peaceful public gathering, and there is nothing in the case file showing that the applicants were involved in any violent acts or had the intention of inciting violence. The Erzurum Assize Court, however, does not appear to have given consideration to any of the above factors. In sum, the Court considers that the national courts did not provide -�relevant and sufficient-� reasons for the applicants-� criminal conviction under section 7(2) of Law no. 3713.

20. The foregoing considerations are sufficient to enable the Court to conclude that the interference with the applicants-� right to freedom of expression 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

21. The applicants claimed 20,000 euros (EUR) each in respect of non-pecuniary damage. They also claimed EUR 2,000 each for their lawyers-� fees. However, they did not submit any document in support of their claim for legal fees.

22. The Government contested the claim for legal fees. They left the issue of non-pecuniary damage to the Court-�s discretion.

23. Ruling on an equitable basis, the Court awards the applicants EUR 2,500 each in respect of non-pecuniary damage.

24. As to costs and expenses, in the absence of any document submitted by the applicants, the Court rejects the claim under this head.

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

(a) that the respondent State is to pay the applicants, within three months, EUR 2,500 (two thousand five hundred euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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;

4. Dismisses the remainder of the applicants-� claim for just satisfaction.

Done in English, and notified in writing on 13 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıLedi Bianku
Deputy RegistrarPresident