JUDGMENT
Yasin Özdemir v. Turkey 07.12.2021 (app. no. 14606/18)
see here
SUMMARY
The plaintiff was a teacher, who was accused of “glorifying” crimes and criminals through comments he posted on social media in April 2015, in favor of the Gulen organization and its leader (Fethullah Gulen). This behavior led to his criminal conviction.
The ECtHR noted that the applicant’s messages contained ideas and views expressed in the context of public hearings on certain sensitive issues, such as his view of the judicial investigations launched on 17 and 25 December 2013 into allegations of corruption, criticism of the government policy against the opposition and criticism of the alleged relationship between the political authorities and an armed Islamist organization. However, these views did not motivate other people to resort to violence or revolt.
The court also noted that at the time of the facts, no member of the Gulen movement had been irrevocably convicted of any involvement in an illegal or terrorist organization.
In addition, the ECtHR ruled that Article 215§1 of the Turkish Penal Code imposed, inter alia, sanctions for the publication of comments deemed to glorify criminal acts or criminals provided that such comments posed a clear and real threat to public order. The criminal court which convicted the applicant considered that his comments published in April 2015 constituted such a risk for the coup attempt that took place in July 2016. The Court ruled that it could not reasonably be expected that the applicant could have foreseen that the disputed comments, which were clearly opposed to government policy but nevertheless constituted peaceful contributions to a public debate and did not incite the people to revolt, could pose a real and immediate threat to public order, such as an attempted military coup. a year later.
The judgment of the national court was therefore tantamount to an overly broad interpretation of the law and circumvented the citizens’ contribution to the public debate.
Consequently, the interference with the exercise of the applicant’s right to freedom of expression has led to the fulfillment of the purpose of Article 10 of the ECHR.
The ECtHR unanimously found a violation of freedom of expression (Article 10 of the ECHR).
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Yasin Özdemir, is a Turkish national who was born in 1980 and lives in Adana (Turkey).
In June 2016 the Isparta public prosecutor’s office ordered the police to conduct research on social
media (Facebook, Twitter and Instagram) to identify Internet users who belonged to terrorist
organisations.
In the same month, the Isparta Security Directorate prepared a report, classified as secret, on the
comments posted by the applicant on Facebook in reaction to articles or news about the “Gülenist”
organisation by the pro-government newspaper Yenişafak.
In July 2016 the applicant was dismissed, pursuant to Legislative Decree no. 667 (adopted by the
Council of Ministers during the state of emergency imposed following the attempted coup of 15 July
2016), on the grounds that he had previously been employed in a private school affiliated to the
“FETÖ/PYD terrorist organisation”, which had been closed down under the same Legislative Decree.
In August 2016 the applicant was placed in police custody, then in pre-trial detention, as the
authorities suspected him of being a member of the FETÖ/PYD organisation or of disseminating
propaganda in its favour.
In November 2016 the Isparta Assize Court sentenced the applicant to seven months and fifteen
days’ imprisonment, under Article 215 § 1 of the Turkish Criminal Code, finding that the applicant’s
actions fell within the offence of praising crime and criminals. The assize court also decided to
suspend the delivery of the judgment convicting the applicant (meaning that it would be set aside if
he was not convicted of any offence of the same type for a period of five years).
In its judgment, the assize court drew attention to the FETÖ/PYD’s organisational structures and
operating methods, and held that it was an armed organisation, in that it had carried out several
attacks in Turkey through its members who were employees of the armed forces or the police. As to
the condition provided for in Article 215 § 1 of the Criminal Code, under which statements
considered as praising crime and criminals had to present a clear and present danger to public order,
the assize court considered that the attempted coup of July 2016 amounted to such a danger.
An appeal lodged by the applicant and an individual application to the Turkish Constitutional Court
were dismissed.
Relying on Article 10 of the Convention (freedom of expression), the applicant complained about his
conviction, arguing that at the time he had published the contested comments, the organisation in
question had not been known as a terrorist organisation.
THE DECISION OF THE COURT…
Article 10 (freedom of expression)
The Court considered that the applicant’s criminal conviction and the decision to stay delivery of
judgment given at the close of proceedings in the present case, which had subjected the applicant to
a five-year stay of execution, amounted to genuine and effective restrictions, and that they
therefore amounted to an “interference” with the applicant’s exercise of his right to freedom of
expression.
It decided to consider whether the domestic law as interpreted and applied in the present case had
been foreseeable when the applicant had posted the comments which had led to his conviction.
The Court noted that the applicant had been convicted with final effect of praising crime or
criminals, and that his conviction had been based solely on the comments which he had posted on
Facebook concerning newspaper articles.
The Court took the view that the comments in question had mainly consisted of the applicant’s
opinions on topical political issues: his criticism of measures adopted by the administrative and
judicial authorities to combat the Gülenist organisation, his point of view on the underlying facts of
the judicial investigations conducted from 17 to 25 December 2013 into allegations of corruption, his
critique of the policies conducted by the political authorities against the opposition, and his criticism
of the alleged relations between the political authorities and an armed Islamist organisation.
At the time of their publication, the messages had contained ideas and opinions expressed in the
framework of public debates on certain sensitive subjects – similar ideas had already been expressed
not only by members of the Gülenist movement but also by the legal opposition, including political
opposition parties, as well as by the national and international media. Furthermore, those opinions
had in no way incited people to commit violence or revolt.
In the Court’s view, the fact that members of the Gülenist movement had launched an attempted
coup almost fifteen months later, using a section of the opinions expressed as an excuse, altered
nothing in the above-mentioned findings concerning the freedom to express such opinions during
public debates.
The Court pointed out that an interpretation of criminal law leading to confusion between, on the
one hand, criticism levelled at the Government in the framework of public debates, and on the
other, pretexts used by terrorist organisations to justify their acts of violence, was necessarily
incompatible with both Turkish national law, which recognised public freedoms, and the Convention
provisions protecting individuals against arbitrary infringements of those Convention freedoms.
The Court observed that at the material time no members of the Gülenist movement had been
finally convicted of being leaders or members of an illegal or terrorist organisation, even though the
group had been considered dangerous by some parts of the executive. Indeed, the question whether
the movement was an educational and religious community or an organisation endeavouring
unlawfully to infiltrate the State organs had been the subject of heated public debate in April 2015,
around the time when the applicant had published the impugned comments.
It further noted that Article 215 § 1 of the Turkish Criminal Code laid down safeguards against
excessively broad interpretations of the law to the detriment of persons charged with offences, in
particular making the criminalisation of statements considered as praising crime or criminals subject
to the condition that those comments gave rise to a clear and present danger to public order. It
observed that the criminal court which had convicted the applicant had considered that the failed
military coup which had been launched in July 2016, long after the applicant had posted his
comments in April 2015, had amounted to just such a danger. The Court considered that the
applicant could not reasonably be expected to have foreseen that the impugned comments, which had opposed the Government’s line but which had constituted peaceful contributions to a public
debate and had incited no one to revolt, might give rise to a real and immediate risk of disorder,
such as an attempted military coup, over one year later. The fact of basing a conviction on circular
reasoning, as the court in question had done in the instant case, amounted to an excessively broad
interpretation of the law and a circumvention by that court of the obstacle set up by the legislature
to ambiguous accusations punishing the expression of peaceful opinions in a public debate.
Consequently, the Court considered that such a broad interpretation of the relevant provision of
criminal law (Article 215 of the Penal Code) had been unforeseeable for the applicant at the material
time.
As regards Article 15 of the Convention and the Turkish derogation, the Court noted that Article 215
§ 1 of the Penal Code had not been amended during the state of emergency and that no derogating
measure was applicable to the situation.
Having established that the interference with the applicant’s exercise of his right to freedom of
expression had failed to meet the “quality of the law” requirement, the Court found that there had
been a violation of Article 10 of the Convention.
Just satisfaction (Article 41)
The Court ruled that no award could be made for damages and costs and expenses because the
applicant had not lodged his claim for just satisfaction in accordance with the Rules of Court.
Criminal conviction for comments on facebook related to a coup that took place a year later! Violation of freedom of expression
JUDGMENT
Yasin Özdemir v. Turkey 07.12.2021 (app. no. 14606/18)
see here
SUMMARY
The plaintiff was a teacher, who was accused of “glorifying” crimes and criminals through comments he posted on social media in April 2015, in favor of the Gulen organization and its leader (Fethullah Gulen). This behavior led to his criminal conviction.
The ECtHR noted that the applicant’s messages contained ideas and views expressed in the context of public hearings on certain sensitive issues, such as his view of the judicial investigations launched on 17 and 25 December 2013 into allegations of corruption, criticism of the government policy against the opposition and criticism of the alleged relationship between the political authorities and an armed Islamist organization. However, these views did not motivate other people to resort to violence or revolt.
The court also noted that at the time of the facts, no member of the Gulen movement had been irrevocably convicted of any involvement in an illegal or terrorist organization.
In addition, the ECtHR ruled that Article 215§1 of the Turkish Penal Code imposed, inter alia, sanctions for the publication of comments deemed to glorify criminal acts or criminals provided that such comments posed a clear and real threat to public order. The criminal court which convicted the applicant considered that his comments published in April 2015 constituted such a risk for the coup attempt that took place in July 2016. The Court ruled that it could not reasonably be expected that the applicant could have foreseen that the disputed comments, which were clearly opposed to government policy but nevertheless constituted peaceful contributions to a public debate and did not incite the people to revolt, could pose a real and immediate threat to public order, such as an attempted military coup. a year later.
The judgment of the national court was therefore tantamount to an overly broad interpretation of the law and circumvented the citizens’ contribution to the public debate.
Consequently, the interference with the exercise of the applicant’s right to freedom of expression has led to the fulfillment of the purpose of Article 10 of the ECHR.
The ECtHR unanimously found a violation of freedom of expression (Article 10 of the ECHR).
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Yasin Özdemir, is a Turkish national who was born in 1980 and lives in Adana (Turkey).
In June 2016 the Isparta public prosecutor’s office ordered the police to conduct research on social
media (Facebook, Twitter and Instagram) to identify Internet users who belonged to terrorist
organisations.
In the same month, the Isparta Security Directorate prepared a report, classified as secret, on the
comments posted by the applicant on Facebook in reaction to articles or news about the “Gülenist”
organisation by the pro-government newspaper Yenişafak.
In July 2016 the applicant was dismissed, pursuant to Legislative Decree no. 667 (adopted by the
Council of Ministers during the state of emergency imposed following the attempted coup of 15 July
2016), on the grounds that he had previously been employed in a private school affiliated to the
“FETÖ/PYD terrorist organisation”, which had been closed down under the same Legislative Decree.
In August 2016 the applicant was placed in police custody, then in pre-trial detention, as the
authorities suspected him of being a member of the FETÖ/PYD organisation or of disseminating
propaganda in its favour.
In November 2016 the Isparta Assize Court sentenced the applicant to seven months and fifteen
days’ imprisonment, under Article 215 § 1 of the Turkish Criminal Code, finding that the applicant’s
actions fell within the offence of praising crime and criminals. The assize court also decided to
suspend the delivery of the judgment convicting the applicant (meaning that it would be set aside if
he was not convicted of any offence of the same type for a period of five years).
In its judgment, the assize court drew attention to the FETÖ/PYD’s organisational structures and
operating methods, and held that it was an armed organisation, in that it had carried out several
attacks in Turkey through its members who were employees of the armed forces or the police. As to
the condition provided for in Article 215 § 1 of the Criminal Code, under which statements
considered as praising crime and criminals had to present a clear and present danger to public order,
the assize court considered that the attempted coup of July 2016 amounted to such a danger.
An appeal lodged by the applicant and an individual application to the Turkish Constitutional Court
were dismissed.
Relying on Article 10 of the Convention (freedom of expression), the applicant complained about his
conviction, arguing that at the time he had published the contested comments, the organisation in
question had not been known as a terrorist organisation.
THE DECISION OF THE COURT…
Article 10 (freedom of expression)
The Court considered that the applicant’s criminal conviction and the decision to stay delivery of
judgment given at the close of proceedings in the present case, which had subjected the applicant to
a five-year stay of execution, amounted to genuine and effective restrictions, and that they
therefore amounted to an “interference” with the applicant’s exercise of his right to freedom of
expression.
It decided to consider whether the domestic law as interpreted and applied in the present case had
been foreseeable when the applicant had posted the comments which had led to his conviction.
The Court noted that the applicant had been convicted with final effect of praising crime or
criminals, and that his conviction had been based solely on the comments which he had posted on
Facebook concerning newspaper articles.
The Court took the view that the comments in question had mainly consisted of the applicant’s
opinions on topical political issues: his criticism of measures adopted by the administrative and
judicial authorities to combat the Gülenist organisation, his point of view on the underlying facts of
the judicial investigations conducted from 17 to 25 December 2013 into allegations of corruption, his
critique of the policies conducted by the political authorities against the opposition, and his criticism
of the alleged relations between the political authorities and an armed Islamist organisation.
At the time of their publication, the messages had contained ideas and opinions expressed in the
framework of public debates on certain sensitive subjects – similar ideas had already been expressed
not only by members of the Gülenist movement but also by the legal opposition, including political
opposition parties, as well as by the national and international media. Furthermore, those opinions
had in no way incited people to commit violence or revolt.
In the Court’s view, the fact that members of the Gülenist movement had launched an attempted
coup almost fifteen months later, using a section of the opinions expressed as an excuse, altered
nothing in the above-mentioned findings concerning the freedom to express such opinions during
public debates.
The Court pointed out that an interpretation of criminal law leading to confusion between, on the
one hand, criticism levelled at the Government in the framework of public debates, and on the
other, pretexts used by terrorist organisations to justify their acts of violence, was necessarily
incompatible with both Turkish national law, which recognised public freedoms, and the Convention
provisions protecting individuals against arbitrary infringements of those Convention freedoms.
The Court observed that at the material time no members of the Gülenist movement had been
finally convicted of being leaders or members of an illegal or terrorist organisation, even though the
group had been considered dangerous by some parts of the executive. Indeed, the question whether
the movement was an educational and religious community or an organisation endeavouring
unlawfully to infiltrate the State organs had been the subject of heated public debate in April 2015,
around the time when the applicant had published the impugned comments.
It further noted that Article 215 § 1 of the Turkish Criminal Code laid down safeguards against
excessively broad interpretations of the law to the detriment of persons charged with offences, in
particular making the criminalisation of statements considered as praising crime or criminals subject
to the condition that those comments gave rise to a clear and present danger to public order. It
observed that the criminal court which had convicted the applicant had considered that the failed
military coup which had been launched in July 2016, long after the applicant had posted his
comments in April 2015, had amounted to just such a danger. The Court considered that the
applicant could not reasonably be expected to have foreseen that the impugned comments, which had opposed the Government’s line but which had constituted peaceful contributions to a public
debate and had incited no one to revolt, might give rise to a real and immediate risk of disorder,
such as an attempted military coup, over one year later. The fact of basing a conviction on circular
reasoning, as the court in question had done in the instant case, amounted to an excessively broad
interpretation of the law and a circumvention by that court of the obstacle set up by the legislature
to ambiguous accusations punishing the expression of peaceful opinions in a public debate.
Consequently, the Court considered that such a broad interpretation of the relevant provision of
criminal law (Article 215 of the Penal Code) had been unforeseeable for the applicant at the material
time.
As regards Article 15 of the Convention and the Turkish derogation, the Court noted that Article 215
§ 1 of the Penal Code had not been amended during the state of emergency and that no derogating
measure was applicable to the situation.
Having established that the interference with the applicant’s exercise of his right to freedom of
expression had failed to meet the “quality of the law” requirement, the Court found that there had
been a violation of Article 10 of the Convention.
Just satisfaction (Article 41)
The Court ruled that no award could be made for damages and costs and expenses because the
applicant had not lodged his claim for just satisfaction in accordance with the Rules of Court.