Criminalization of participation in funerals and public demonstrations contrary to the ECHR
JUDGMENT
Işıkırık v. Turkey 14.11.2017 (no. 41226/09)
SUMMARY
The case concerned the applicant’s criminal conviction of membership in an illegal organisation,
after having participated in a funeral of four members of the PKK (Kurdish Workers’ Party, an illegal
organisation) and in a demonstration.
The Court found in particular that the relevant provision of the Turkish Criminal Code, as it had been
applied in Mr Işıkırık’s case, had not been foreseeable since it had not provided him with legal
protection against arbitrary interference with his right to freedom of assembly. The domestic courts
had extensively interpreted to his detriment the criteria for a conviction of membership in an illegal
organisation. They had made no distinction between him – a peaceful demonstrator – and an
individual who had committed offences within the structure of the PKK.
The Court pointed out that when demonstrators, as Mr Işıkırık, faced the risk of a sentence of
between five and ten years in prison for membership in an illegal organization – a sanction grossly
disproportionate to their conduct – this inevitably had a strong deterrent effect on the exercise of
the rights to freedom of expression and assembly.
PROVISION
Article 11
PRINCIPAL FACTS
The applicant, Murat Işıkırık, is a Turkish national who was born in 1984 and lives in Mardin (Turkey).
Mr Işıkırık, who was a student at Dicle University at the time, was arrested in March 2007 and
questioned at the anti-terror branch of the Diyarbakır police headquarters in connection with two
events: On 28 March 2006 a funeral of four members of the PKK, who had been killed by the security
forces, had taken place in Diyarbakır. According to police reports, after the burial ceremony had
been completed, about 1,000 people had participated in an illegal demonstration, with
demonstrators throwing stones at police officers and causing damage to buildings. On 5 March 2007
a demonstration had been held on the campus of Dicle University. A group of 40 people had entered
the university building and had asked students to leave. They had held a press conference and
chanted slogans in favour of the PKK and its leader Abdullah Öcalan.
Mr Işıkırık initially denied having taken part in the two events. After he had been shown photographs
of himself taken at the events, he stated that he had attended the funeral as a religious duty, as one
of the activists who had been killed was a relative of a friend of his, but that he had not attacked the
police. He also maintained that he had stood in front of the university on 5 March 2007 but that he
had not chanted any slogans. On the day of his questioning he was remanded in custody, and in May 2007 he was charged with membership in an illegal organisation and with disseminating propaganda in support of the PKK.
In November 2007 Mr Işıkırık was convicted of both offences, for which he received a sentence of six
years and three months and a sentence of one year and eight months, respectively. The conviction
of membership in an illegal organisation, the PKK, was based on Article 314 § 2 of the Criminal Code
(relating to membership in armed organisations) in connection with Article 220 § 6, which read, at
the time: “Anyone who commits a crime on behalf of an (illegal) organisation, even if they are not a
member of that organisation, shall also be punished for being a member of the organisation.”
Mr Işıkırık’s conviction of disseminating propaganda in support of the PKK was subsequently
quashed on procedural grounds and the proceedings in respect of that offence were eventually
suspended, in December 2012, for three years. He was released from detention in November 2011
after having served four years and eight months of his sentence.
In the meantime, Mr Işıkırık was expelled from university because he had failed to complete his
degree within the maximum period of time.
THE DECISION OF THE COURT
Article 11
The Court found that it was appropriate to examine under Article 11, in the light of Article 10, Mr
Işıkırık’s complaint about his convictions for participating in the funeral and the demonstration.
The Court considered that Mr Işıkırık’s conviction of membership in an illegal organisation, on
account of his participation in the funeral and the demonstration, had constituted an interference
with his right to freedom of assembly.
As to the question of whether that interference constituted a breach of Article 11, the Court focused
on examining whether the legal provisions on which Mr Işıkırık’s conviction had been based were
sufficiently foreseeable within the meaning of the Court’s case-law. It came to the conclusion that Article 220 § 6 of the Turkish Criminal Code, as it had been applied in his case, had not been foreseeable since it had not provided him with legal protection against arbitrary interference with his right to freedom of assembly.
In arriving at that conclusion, the Court observed in particular that Mr Işıkırık had been convicted of
membership in an illegal organisation merely on account of having attended two public meetings,
which, according to the first-instance court, had been held in line with the instructions by the PKK,
and his acts during the events, such as making a “V” sign during the funeral – as shown on the
photographs taken of him – and applauding during the demonstration. The Court therefore found
that, applied in connection with Article 220 § 6, the criteria for a conviction under Article 314 § 2 of
the Criminal Code had been extensively interpreted to his detriment.
Mr Işıkırık’s case demonstrated that there was a vast 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.
Therefore the wording of that provision, combined with the extensive interpretation by the
domestic courts, did not afford sufficient protection against arbitrary interferences by the
authorities. His conviction, for acts which fell within the scope of Article 11 of the Convention, had
made no distinction between Mr Işıkırık – a peaceful demonstrator – and an individual who had
committed offences within the structure of the PKK.
The Court noted that when demonstrators, as Mr Işıkırık, faced the charge of membership of an
illegal armed organisation, they risked a sentence of between five and ten years in prison, a sanction
which was strikingly severe and grossly disproportionate to their conduct. The application of Article
220 § 6, as in his case, inevitably had a strong deterrent effect on the exercise of the rights to
freedom of expression and assembly.
The interference with Mr Işıkırık’s rights resulting from the application of Article 220 § 6 had
therefore not been prescribed by law within the meaning of Article 11. There had accordingly been a
violation of Article 11.
Other articles
The Court declared inadmissible Mr Işıkırık’s remaining complaints. It found: that the complaint
under Article 5 § 3 had been lodged out of time; that he had not exhausted the domestic remedies in
respect of his complaint under Article 6 § 1; and that he had not substantiated his complaint under
Article 14, which was therefore manifestly ill-founded.
Just satisfaction (Article 41)
The Court held that Turkey was to pay Mr Işıkırık 7,500 euros (EUR) in respect of non-pecuniary
damage and a total of EUR 8,500 in respect of costs and expenses.
Separate opinions
Judges Lemmens and Griţco expressed a joint concurring opinion, which is annexed to the judgment(echrcaselaw.com editing).
