Dissolution of a humanitarian association for alleged propaganda in favor of terrorism. Violation of the freedom of association

JUDGMENT

Adana TAYAD v. Turkey 21.07.2020 (no. 59835/10)

see here  

SUMMARY

The case concerned the dissolution of the applicant association, known as Adana TAYAD, ordered by
the District Court on the grounds of illegal activities of certain members of the association’s board of
directors, while the judgments handed down in the proceedings relating to those offences were not
yet final.

The Court reiterated that the outright dissolution of an association was a very harsh measure
entailing significant consequences for its members, and could be taken only in the most serious
cases. Under Article 11, States had a heightened duty to provide reasons justifying such a measure.

The Court found, in particular, that as they had not established the existence of compelling reasons
for the dissolution order, the national authorities had not discharged their duty to justify the
measure, which impaired the very essence of the right to freedom of association. Accordingly, the
Court held that the interference had not been shown to be “necessary in a democratic society”.

PROVISION

Article 11

PRINCIPAL FACTS

The applicant, the Association for Mutual Aid and Solidarity with the Families of Prisoners and
Convicts in Adana (Adana Tutuklu ve Hükümlü Aileleriyle Yardımlaşma ve Dayanışma Derneği –
commonly known as “Adana TAYAD”), is an association under Turkish law. The declared aim of the
association’s founders was to provide help and support to the families of prisoners and convicts.
On 18 January 2008 the Adana Provincial Security Directorate received confidential information that,
for three or four days, signatures had been collected in support of Abdullah Öcalan in a district of the
city and that the petitions containing these signatures had been handed over to the Adana TAYAD
association. In order to verify this information, the authorities carried out a search of the
association’s premises.

From 21 April to 13 May 2008 a commission set up on 31 January 2008 with the agreement of the
governor of Adana carried out an inspection of the association. It emerged that the association was
unable to produce the original or a copy of a document concerning its income and that a comparison
of the list of participants at the general meeting of 24 December 2006 with the list of participants at
the general meeting of 8 July 2007 revealed differences in signatures.

Previously, on 7 April 2006, criminal proceedings for a breach of the Associations Act had been
brought against the directors of the association before the Adana Criminal Court. On 10 April 2006 the Criminal Court had sentenced the accused to six months’ imprisonment, a sentence
subsequently converted into a fine. The Court of Cassation upheld this judgment on 27 March 2012.
As a result of the search, criminal proceedings were initiated before the Adana Assize Court against
some of the association’s directors for disseminating propaganda in favour of a terrorist
organisation. On 31 March 2009 the Assize Court sentenced them to two years’ imprisonment.

On 19 November 2012 the Court of Cassation overturned the decision, remitting it to the Assize
Court for a fresh assessment. It noted that the offence in question fell under Law no. 6352, which
had entered into force on 5 July 2012, according to which “at the investigation stage, prosecution is
suspended”. On 24 October 2013 the Assize Court took back the case then complied with the ruling
of the Court of Cassation by suspending the criminal proceedings.

On 12 August 2008 the Adana public prosecutor’s office filed an indictment in civil proceedings with
the Adana District Court and sought the dissolution of the association.

On 17 September 2009 the court granted the request of the public prosecutor’s office and ordered
the dissolution of the association. It observed that the association was engaged in activities that no
longer corresponded to the purpose defined in its constitution, that it was disseminating
propaganda in favour of an illegal terrorist organisation, and that, as a result, its purpose “had
become incompatible with the law and with morals” and its object had become illegal under Article
89 of the Civil Code. On 7 October 2009 the applicant association appealed to the Court of Cassation.
On 3 December 2009 that court upheld the judgment, which became final.

THE DECISION OF THE COURT…

The proceedings for the dissolution of the association had been commenced at the request of the
Adana public prosecutor’s office. The Adana District Court had granted the request and ordered the
dissolution of the association.

The Court observed that the District Court had based its judgment on the Adana Assize Court’s
judgment of 31 March 2009, which had not yet been final, and that in making the dissolution order it
had referred mainly to the information in the case file and to the judgment of the Adana Criminal
Court sentencing some of the association’s directors to payment of a fine.

The Court acknowledged that the charges brought by the Adana public prosecutor against several
members and directors of the applicant association had been serious. Nevertheless, in the Court’s
view, the civil courts should have carried out an independent assessment that did not simply
reproduce the criminal courts’ findings against the individual members of the defendant association,
especially since their convictions had not been final.

The Court reiterated that the outright dissolution of an association was a very harsh measure
entailing significant consequences for its members, and could be taken only in the most serious
cases. Under Article 11, States had a heightened duty to provide reasons justifying such a measure.
In the Court’s view, some of the facts on which the District Court had based its findings could not of
themselves constitute incitement to terrorism. The only act in the present case capable of
amounting to a form of propaganda had been the distribution of the newspaper Sope Roje; however,
the judgment did not explain convincingly how the content of that newspaper constituted
incitement to terrorism.

The Court therefore found that the District Court had not based the dissolution order on acceptable
and convincing reasons. This was liable to have a chilling effect on the applicant association and its
individual members, but also on human rights organisations generally.

Lastly, even assuming that the allegations had been proven, the Court observed that the domestic
courts had not considered less stringent measures, and the Government had not provided sufficient
evidence that the dissolution of the association had been the only option capable of achieving the
authorities’ aims.

As they had not established the existence of compelling reasons for the dissolution order, the
national authorities had not discharged their heightened duty to justify the measure, which impaired
the very essence of the right to freedom of association. Accordingly, the Court held that the
interference had not been shown to be “necessary in a democratic society”. There had therefore
been a violation of Article 11 of the Convention in the particular circumstances of the case.

 

 


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