Failure to examine defendant’s arguments for the credibility of the evidence on which her conviction for a speech was based violated the freedom of expression
JUDGMENT
Hatice Çoban v. Turkey 29.10.2019 (no. 36226/11)
SUMMARY
The case concerned Ms Çoban’s criminal conviction for disseminating propaganda in favour of a
terrorist organisation on account of a speech she had given.
The Court reiterated that the fairness of proceedings and the procedural guarantees afforded were
factors to be taken into account when assessing the proportionality of an interference with freedom
of expression.
The Court went on to find that the national courts had not addressed the relevant arguments raised
by Ms Çoban, who had challenged the reliability and accuracy of the main item of evidence used in
support of her conviction. The Court of Cassation had endorsed the Assize Court’s findings in a
summary fashion, without giving any further consideration to the arguments submitted by Ms Çoban
in her appeal on points of law. The domestic courts had therefore not performed their task of
weighing up the various interests at stake for the purposes of Article 10 of the Convention
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Hatice Çoban, is a Turkish national who was born in 1965 and lives in Ankara. At the
material time, she was a member of the board of the Party for a Democratic Society (DTP,
Demokratik Toplum Partisi).
In 2007 Ms Çoban was charged with disseminating propaganda in favour of a terrorist organisation
on account of a speech she had given during a “World Peace Day” demonstration held by the DTP.
In 2008 the Assize Court sentenced Ms Çoban to a prison term of two years and one month. It found,
in particular, that she had supported a statement by the PKK (Kurdistan Workers’ Party, an illegal
armed organisation); that she had called for the Republic of Turkey to enter into talks with the PKK;
and that she had stated that the PKK was engaged in an honourable campaign for identity and
freedom in the name of the Kurds, that this terrorist organisation’s existence was necessary and that
its members should never surrender to the security forces.
Ms Çoban appealed on points of law. She alleged, among other points, that the police officers who
had monitored the demonstration had not related the full contents of her speech in their report
dated 2 September 2006; that, not having made a recording of her speech, they had distorted her
words; and that in any event they could not have lawfully monitored the demonstration and taken
notes in the absence of a decision by a judge. Moreover, Ms Çoban argued that the version of her
speech reported in the press differed from that recounted by the police, and that the Assize Court
had not sought to elucidate this discrepancy or to obtain recordings of her speech. Lastly, she explained that the speech had concerned the need to resolve the Kurdish problem by democratic
and peaceful means. Her appeal was rejected.
In 2014 the Assize Court, pursuant to a new law, decided to stay the execution of her sentence,
which had not yet begun.
THE DECISION OF THE COURT
Article 10 (freedom of expression)
The question arising was whether the criminal proceedings against Ms Çoban had been fair as a
whole, including the way in which evidence had been taken for the establishment of the facts. The
Court reiterated in that connection that the fairness of proceedings and the procedural guarantees
afforded were factors to be taken into account when assessing the proportionality of an interference
with freedom of expression.
In the present case, it noted that the Assize Court had not sought to ascertain whether the only
incriminating evidence it had against Ms Çoban, namely the report dated 2 September 2006 as
presented by the prosecution and subsequently confirmed by the police officers who had drawn it
up, was corroborated by other evidence, such as statements by independent witnesses or any
recordings that might have been made by media outlets. Nor had the Assize Court explained why it
had found the defence statement by Ms Çoban, who had denied making the offending comments, to
be “evasive”.
In her appeal on points of law Ms Çoban had pointed out the divergence between the contents of
her speech as reported in press articles and as recounted in the police report. She had also
submitted that the precise contents of her speech could have been established by calling as
witnesses the individuals whom she had named as having been present at the demonstration.
In the Court’s view, since Ms Çoban had put forward arguments in her appeal on points of law that
could have cast doubt on the accuracy of the main item of evidence used in support of her
conviction, had contended that the Assize Court’s reasoning had been devoid of any factual basis,
and had asked for new evidence to be produced, the Court of Cassation should not simply have
relied on the single item of evidence in question (the police report of 2 September 2006) without
examining the grounds of appeal submitted by Ms Çoban in that regard. It had therefore been required to provide reasons in addressing her arguments. However, Ms Çoban’s argument that there
were discrepancies between the contents of the respective documents reporting her speech –
namely the police report and the press articles published on the subject – had been dismissed by the
Court of Cassation as irrelevant, as had her request for defence witnesses to be called in order to
establish the precise contents of the speech.
However, the Court found that the articles reporting on Ms Çoban’s speech or recordings of the
speech by the media and statements by witnesses other than the police officers who had drawn up
the report could arguably have strengthened the position of the defence or even led to Ms Çoban’s
acquittal. Yet the Court of Cassation had endorsed the Assize Court’s findings in a summary fashion,
without giving any further consideration to the arguments submitted by Ms Çoban in her appeal on
points of law. While such an approach was in principle acceptable for an appellate court, in the
circumstances of the present case, where the factual basis for the Assize Court’s reasoning had been
called into question by sound arguments, it had failed to satisfy the requirements of a fair trial.
Consequently, the domestic courts had not addressed the relevant arguments put forward by Ms
Çoban regarding the reliability and accuracy of the main item of evidence on which they had relied in
support of her conviction, and had not performed their task of weighing up the various interests at
stake for the purposes of Article 10 of the Convention. The national courts could therefore not be
said to have applied standards conforming to the principles embodied in Article 10 of the
Convention, or to have based their decisions on an acceptable assessment of the relevant facts.
There had been a violation of Article 10 of the Convention.
Just satisfaction (Article 41)
The Court held that Turkey was to pay Ms Çoban 2,500 euros in respect of non-pecuniary damage
