7 years imprisonment for participating in a demonstration! Deprivation of the right of the freedom of assembly.

JUDGMENT 

Zülküf Murat Kahraman v. Turkey 16.07.2019 (no. 65808/10)

see here 

SUMMARY

The applicant was accused of participating in a protest against the detention conditions of Adhullah Öcalan, a member of the PKK. His conviction of a prison sentence of more than 7 years was based on a photograph of a man with his face partially covered.

The Court held that there had been a violation of Article 11 (freedom of assembly) because such an extended interpretation of a legal rule under which the applicant was convicted could not be justified where it would amount to a mere obstruction of his fundamental rights as member in a political organization, in the absence of specific evidence that proves membership. The very essence of the right to freedom of assembly is to peacefully assemble and therefore the foundations of a democratic society are undermined when such penalties are imposed under Articles 220 § 6 and 314 of the Penal Code merely for the purpose of participating in a public demonstration and expression.

PROVISION 

Article 11

PRINCIPAL FACTS 

The applicant, Zülküf Murat Kahraman, is a Turkish national who was born in 1984 and lives in
Ankara.

The case concerned his conviction for participating in a demonstration held in Gaziantep in 2008 to
protest about the conditions of detention and alleged ill-treatment of Abdullah Öcalan, the leader of
the PKK, an illegal armed organisation.

Mr Kahraman was convicted in 2009 of being a member of the PKK and disseminating propaganda in
support of the organisation. He was sentenced to more than seven years’ imprisonment in total. The
first-instance court based its decision on photographs taken during the demonstration of a man with
his face partially covered, which it considered to be the applicant, and a police report stating that he
had participated in the protest, chanting slogans and throwing stones at the police. This ruling was
upheld on appeal in 2010.

He started to serve his sentence in 2009 but was released in 2012 under new legislation deferring
enforcement of sentences in certain cases concerning crimes committed through the press and
media.

His conviction for being a member of the PKK was quashed in 2013. He was acquitted of other
charges related to the demonstration, namely obstructing the security forces, in 2014.

Mr Kahraman alleged that his conviction for participating in the demonstration had been unjustified
and that the sentences imposed on him had been disproportionate. The Court examined this
complaint under Article 11 (freedom of assembly and association).

THE DECISION OF THE COURT 

The Court recalls that the applicant’s complaint under Article 6 of the Convention was declared inadmissible by the Court on 12 September 2013.

It also notes that in his observations of 7 August 2018 the applicant alleged that he had attended the demonstration of 26 October 2008 and had exercised his rights to freedom of expression and freedom of assembly. In any event, the Court observes that the applicant’s criminal conviction under Articles 220 § 6 and 314 § 2 of the Criminal Code undoubtedly concerned activities falling within the scope of his freedom of assembly and was punished for participating in a demonstration held on 26 October 2008. The Court considers that in those circumstances the applicant ‘s conviction must be regarded as constituting an infringement of his right to freedom of assembly. To the contrary would amount to his requirement to acknowledge the acts for which he was charged. In this respect, it should be borne in mind that the right of non-self-indulgence, although not explicitly referred to in Article 6 of the Convention, is a generally recognized international standard that is at the heart of the concept of a fair process under that provision.

The Court concludes that the applicant’s criminal conviction for membership of the PKK and the imposition of a prison sentence constituted interference with the exercise of his right to freedom of assembly, as guaranteed by Article 11 of the Convention. Therefore, the Government’s objection that the applicant’s complaint is incompatible ratione materiae must be rejected.

The Court notes that it has already examined an almost identical grievance in the case of Işıkırık v. Turkey  and found a breach of Article 11 of the Convention. In that case, having examined the application of Article 314 § 2 of the Criminal Code alone and in connection with Article 220 § 6 of the same Code, the Court firstly found that when applied in connection with Article 220 § 6, the criteria for a conviction under Article 314 § 2 were extensively applied to the detriment of the applicant. It also observed that the array of acts that potentially constituted a basis for the application of a severe criminal sanction in the form of imprisonment, under Article 220 § 6 of the Criminal Code, were so vast that the wording of the provision, including its extensive interpretation by the domestic courts, did not afford a sufficient measure of protection against arbitrary interferences by the public authorities . The Court further observed that on account of Mr Işıkırıks conviction, for acts which fell within the scope of Article 11 of Convention, there remained no distinction between him, a peaceful demonstrator, and an individual who had committed offences within the structure of the PKK. For the Court, such an extensive interpretation of a legal norm could not be justified when it had the effect of equating mere exercise of fundamental freedoms with membership of an illegal organisation in the absence of any concrete evidence of such membershipIt considered that the very essence of the right to freedom of peaceful assembly and, thereby, the foundations of a democratic society, had been undermined when Mr Işıkırık had been held criminally liable under Articles 220 § 6 and 314 of the Criminal Code for the mere fact of attending a public meeting and expressing his views therein. Noting that when demonstrators faced the charge of membership of an illegal armed organisation, they risked an additional sentence of between five and ten years in prison, the Court found that Article 220 § 6 of the Criminal Code would inevitably have a particularly chilling effect onthose who were found criminally liable on reexercising their rights under Articles 10 and 11 of the Convention. In the Courts view, the provision in question would also have a great deal of potential to deter other members of the public from attending demonstrations and, more generally, from participating in open political debate . The Court as a result concluded that Article 220 § 6 of the Criminal Code had not been “foreseeable” in its application since it did not afford the applicant the legal protection against arbitrary interference with his right under Article 11 of the Convention .

In view of its finding of a violation of Article 11 of the Convention above, the Court does not consider it necessary to examine whether the criminal proceedings brought against the applicant under section 7(2) of Law no. 3713 constituted an interference with his right to freedom of assembly and, if so, whether they were justified.

Violation of Article 11 – on account of Mr Kahraman’s conviction under Article 314 § 2 of the
Criminal Code in connection with Article 220 § 6 of the same Code.

Just satisfaction: EUR 7,500 (non-pecuniary damage) and EUR 2,000 (costs and expenses)


ECHRCaseLaw

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