Condemnation of a politician because he did not assist the police in dispersing demonstrations! Violation of freedom of expression
JUDGMENT
Ιmrek v. Turkey 10.11.2020 (app. no. 45975/12)
SUMMARY
Criminal conviction of a politician for participating in demonstrations and non-assistance of the police in the dissolution. Freedom of expression.
The applicant was convicted of propaganda in favor of a terrorist organization. The domestic courts based their conviction on his participation in two demonstrations and his lack of assistance to the police in dispersing the protesters. They considered that he did not have the appropriate reaction to the disputed actions of the protesters, that he only had to warn them, that he had not asked the government commissioner to end the demonstration and had not provided the necessary assistance to him and the police for this purpose.
The ECtHR found that the domestic courts did not explain the connection between the unjust acts committed by the crowd at the demonstrations and the applicant’s reaction, which was found guilty of his failure to assist in the repression of those acts. Nor did they justify whether these acts were considered propaganda and why they were incriminating him. The Court held that the authorities ‘arguments to justify the applicant’ s alleged criminal conduct were not sufficient and that his conviction was not necessary in a democratic society. It also held that the national authorities had failed to balance the applicant’s right to freedom of expression with the legitimate aims pursued in an appropriate manner and in accordance with the criteria laid down in the case law of the ECtHR.
The Court found a violation of freedom of expression (Article 10 of the ECHR) and awarded EUR 5,000 for non-pecuniary damage.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Halil İmrek, is a Turkish national who was born in 1973. He lives in Adana (Turkey).
The case concerned criminal proceedings brought against the secretary of the local branch of a
political party (Mr İmrek) on a charge of disseminating propaganda in favour of a terrorist
organisation, after he had taken part in two events in connection with the Newroz celebrations in
2006.
At the relevant time Mr İmrek was secretary of the local branch of the EMEP (Labour Party) in
Adana.
In April 2006 the applicant was remanded in custody for the offence of disseminating propaganda in
favour of a terrorist organisation, on account of acts allegedly committed on 18 March 2006 by the
participants in an event in Adana called the “21 March Newroz celebrations”, and a speech
purportedly made by Mr İmrek on 19 March 2006 during the Newroz celebrations in Osmaniye.
In May 2006 the Adana public prosecutor brought proceedings against Mr İmrek for alleged offences
under section 7(2) of Law no. 3713 (propaganda in favour of a terrorist organisation).
Mr İmrek, who was released in July 2006, filed defence pleadings with the Adana Assize Court on
16 September 2008. On the same day he was found guilty as charged and sentenced to one year’s
imprisonment. The Court of Cassation upheld that judgment in January 2012.
In July 2012, following the entry into force of Law no. 6352, the Assize Court decided to stay the
execution of Mr İmrek’s sentence. In November 2012, on the basis of the same Law, the Assize Court
set aside its judgment of 16 September 2008 and suspended the proceedings against the applicant
for three years.
Relying in particular on Article 10 (freedom of expression), Mr İmrek maintained that he had been
prosecuted on account of the political views he had expressed at the two events, alleging a breach of
his freedom of expression.
THE DECISION OF THE COURT…
The Court noted that the national authorities considered that the applicant had the will and intention to take part in certain acts committed by participants in the March 18, 2006 demonstration, which they alleged constituted propaganda in favor of a terrorist organization. It considered that, in order to assess whether the ‘necessity’ of infringing the applicant ‘s right to freedom of expression was convincingly established in the present case, it should, in its case – law, be determined in the light of the motive adopted by the Turkish courts their conviction of the applicant
The Criminal Court, however, considered that the accused, a member of the organizing committee of the demonstration, did not have the appropriate reaction to the disputed actions of the protesters, because he only warned them, did not ask the government commissioner to end the demonstration and did not provide the necessary assistance to him and the police for this purpose. According to the Criminal Court, this attitude proved that the applicant had the will and intention to take part in the above-mentioned acts of the protesters.
The Court notes that this reasoning adopted by the Criminal Court does not provide an adequate explanation for why the applicant, as a member of the organizing committee of the demonstration, should be responsible for suppressing the disputed acts committed by the demonstrators. in particular with regard to the duties and responsibilities of the government commissioner and the police in this regard, which the Criminal Court itself has recognized and in particular whether or not a request was required from the organizing committee to end the demonstration, if they found that it had become illegal demonstration. The Court also held that, in the present case, the Criminal Court did not explain the relationship between the incriminating slogans, placards, flags and photographs, as well as the other acts committed by the crowd during this demonstration, on the one hand, and the applicant’s reaction, which was deemed inadequate, to those acts, as a member of the organizing committee, on the other hand, in order to demonstrate the latter’s will and intention to engage in acts which would constitute a propaganda offense in favor of a terrorist organization. It also considered that the Criminal Court had failed to state reasons as to whether the acts against the applicant could, in the general context in which they took place, cause harm, incite the use of force, armed resistance or insurrection, or that they were hate speech.
In view of the above, the Court concluded that, in the circumstances of the case, in convicting the applicant of propaganda on behalf of a terrorist organization of the above-mentioned events which took place during the demonstration of 18 March 2006, the national authorities failed to to balance the individual’s right to freedom of expression with the legitimate aims pursued in an appropriate manner and in accordance with the criteria set out in the case law of the ECtHR.
The Court further notes that, in its conviction of 16 September 2008, the Criminal Court did not seek to establish whether the only evidence in its possession was to convict the applicant of his decision in question during the demonstration on March 19, 2006, ie the proceedings of March 22, 2006, were corroborated by other evidence, such as testimonies of independent witnesses, possible other recordings of this speech, nor did he receive any decrypted videos made by an independent expert. The Criminal Court also did not respond to the applicant’s arguments concerning the errors contained in these minutes, nor to its disagreements over the accuracy of these minutes, attributing to him [[solidarity] with the PKK ‘, nor to his claim that the minutes of the Government Commissioner did not relate to these disputed comments.
The Court also notes that the applicant presented the same arguments in the appeal as those before the Criminal Court and that the Supreme Court did not reply to him.
However, in the present case, the Court observed that the applicant ‘s arguments were rejected by the Court without reasoning. It therefore found that in the present case the national courts, which had not responded to the applicant’s arguments concerning the reliability and accuracy of the main evidence in support of his criminal conviction, could not be considered to have applied the procedural rules established by the case law of the Court of Justice in relation to Article 10 of the Convention, in order to make an admissible assessment of the facts and then to strike a proper balance between the various interests concerned.
In the light of all the above, the Court considered that the Government had not demonstrated that the reasons given by the national authorities to justify the criminal conduct were relevant and sufficient and that they were necessary in a democratic society.
It therefore concluded that there had been a violation of freedom of expression (Article 10 of the Convention).
Just satisfaction: EUR 5,000 (non-pecuniary damage)
