The criminal conviction of a protester for giving a speech against the police, based on provisions without the necessary predictability, violated his freedom of expression.

JUDGMENT

Bozan v. Turkey 29.09.2020 (app. no. 56816/10 and 4175/11)

see here

SUMMARY

Criminal conviction and freedom of expression. Demonstration in memory of fourteen members of the PKK who were killed by police. When the protesters stayed silent for a minute as a tribute to the dead, the plaintiff spoke out against the police actions with intense emotional charge. Criminal conviction of the applicant on the charge that “he had spoken during a demonstration”.

The Court considered that the criminal provisions which the applicant was convicted of did not have the necessary foreseeability because they did not provide the applicants with a reliable guarantee against arbitrary criminal prosecution, in particular because of the scope of the cases covered by them, and that does not seem to rectify this deficiency. The Court therefore found that the intervention in question was not ‘in accordance with the law’ within the meaning of Article 10 άρθρου 2 of the Convention.

Violation of Article 10 (freedom of expression) of the ECHR.

PROVISIONS

Article 10

Article 6

Article 3 of the First Additional Protocol

PRINCIPAL FACTS

The applicant was born in 1978 and lives in Mersin.

Suspected of having committed offenses during two demonstrations on 31 March and 21 April 2006 in Mersin, the applicant was arrested on 3 May 2006 and remanded in custody the following day.

On 26 May 2006, the Adana prosecutor accused the applicant as the head of propaganda for a terrorist organization for his speeches and actions during the above-mentioned demonstrations.

On 11 July 2006, the applicant was released.

On 6 December 2007, after reconstructing the facts, the Adana Criminal Court found the applicant guilty of committing offenses in the name of an illegal organization without his being a member and sentenced him to six years and three months’ imprisonment pursuant to Article 314 § 2 of the Penal Code and with reference to articles 314 § 3 and 220 § 6 of the same code. He noted that during the March 31, 2006 demonstration, which was allegedly organized at the invitation of the PKK (Kurdistan Workers’ Party, an illegal armed organization) to commemorate the deaths of fourteen members of this organization who were killed by police, The protesters had marched in front of protesters, shouting slogans, waving placards in support of the PKK and its leader, and committing acts of violence. It added that the protesters had been silent for a minute as a tribute to the dead and that the plaintiff, despite police calls, had prevented the group from dispersing. It stated that the applicant had made the following speech:

“(…) friends, I invite you to stay for a minute in silence in memory of our people who were killed last week (…) our people have appointed an interlocutor to resolve the Kurdish issue with the participation of millions of people (.. .) people used the honorable Öcalan as their representative (…) slaughtered fourteen HPG Popular Defense Forces guerrillas, a PKK affiliate using chemical weapons during an operation in Muş (…) Due to the intolerance of some, our people did not even have the right to demand the bodies of their dead to be buried and intervened in the funeral that was organized.During the event they killed our people, the exact number of whom we do not know.Among them were children six and nine You have to ask yourself: Is a six-year-old terrorist? Is a nine-year-old terrorist? In my opinion, the real terrorists are the ones who killed the six- and nine-year-olds, filling them with bullets (…) We now rely on the solidarity of the cities of Amed, Siirt, Batman, Hakkari, Van and Mersin. The people of Mersin have today shown their solidarity with the city of Amed. ”

In addition, the Criminal Court found the applicant guilty of confessing to the crime and the criminals because of his speech on 21 April 2006.

On 2 June 2010, the Court of Cassation upheld the decision of the Criminal Court to convict the applicant of offenses in the name of an illegal organization without being a member and rejected it in relation to the offense of confession.

On 1 November 2010 the applicant began serving his sentence of imprisonment as part of a criminal offense for committing an offense on behalf of an illegal organization without being a member.

On 23 June 2011, considering that the content of the applicant’s speech on 21 April 2006 constituted a propaganda offense in favor of a terrorist organization, the Criminal Court sentenced the applicant to ten months ‘imprisonment’ pursuant to Article 7 § 2 of Law 3713 “. before the adoption of this Decision is suspended.

On 22 July 2011, the Criminal Court rejected the applicant ‘s objection to the decision suspending the judgment of 23 June 2011.

On 10 July 2012, at the request of the applicant and the prosecutor, the Criminal Court decided to stay the sentence imposed on the applicant for his conviction for committing offenses in the name of an illegal organization without being a member, considering that in the meantime certain legislative changes would could work in favor of the applicant.

On 10 September 2013, after the resumption of the case in the context of a review procedure, the Criminal Court annulled the prison sentence of the applicant for committing offenses on behalf of an illegal organization without being a member on the grounds that, under Article 7 § 5 of Law 3713 as amended by Article 8 § 2 of Law no. 6459 entered into force on 30 April 2013 (see paragraph 21 below), there was no reason to impose a penalty on the applicant for this offense.

The applicant lodged an appeal against that decision, which was rejected by the Criminal Court on 20 February 2015.

THE DECISION OF THE COURT…

Article 10

a) Existence of an interference

The Court notes that the applicant was convicted of offenses in the name of an illegal organization without being a member of it and of propaganda for a terrorist organization because of the acts he had committed and his speeches, in particular that he had ‘spoken during demonstrations’. It observes, on the one hand, that before the annulment of the prison sentence imposed on him for his criminal conviction for committing offenses on behalf of an illegal organization without being a member, the applicant had served part of it (approximately twenty-two months) and, on the other, that the the decision to convict him as the head of propaganda in favor of a terrorist organization was suspended.

Taking into account the sentences of imprisonment of more than seven years imposed on the applicant, the sentences of which he served, as well as the deterrent effect of the criminal proceedings against him, which were time-consuming, the Court considers that there was an interference with his of the expression (Erdoğdu v. Turkey, no 25723/94, § 72, ECHR 2000-VI, Dilipak v. Turkey, no 29680/05, § 51, 15 September 2015, Ergündoğan, above, § 26 and Selahattin Demirtaş v. Turkey ( No. 3), No. 8732/11, § 26, 9 July 2019; see also, conversely, Otegi Mondragon v. Spain, No. 2034/07, § 60, ECHR 2011).

b) justification of interference 

Such interventions violate Article 10, unless “prescribed by law”, serve one or more of the legitimate purposes referred to in paragraph 2 and are “necessary in a democratic society” to achieve them.

As to whether the interference complained of was justified, the Court considers it appropriate to consider separately and successively the question of the justification of the applicant’s conviction that he committed offenses on behalf of an unlawful organization without being a member of a criminal conviction. terrorist organization on the other.

The criminal conviction of the applicant for committing offenses on behalf of an illegal organization without being a member of the

The Court noted that it was not disputed between the parties that the criminal conviction of the applicant for committing offenses on behalf of an illegal organization without being a member is provided by law, in particular Articles 220 § 6 and 314 §§ 2 and 3 of the Penal Code.

In that regard, it points out that it has already had the opportunity to emphasize in a similar case concerning a conviction imposed on the applicants pursuant to the aforementioned criminal provisions that Article 220 § 6 of the Penal Code was not foreseeable on the ground that it did not provide the applicants with a credible guarantee arbitrary prosecution, in particular because of the scope of the cases covered by it, and that its practical application does not appear to remedy this inadequacy. In this case, the ECtHR sees no reason to deviate from the approach taken.

Consequently, the Court considers that the intervention in question was not “in accordance with the law” within the meaning of Article 10 2 2 of the Convention. In view of this conclusion, it considers that it is not necessary to ascertain whether the other conditions required by this paragraph – namely the existence of a legitimate aim and the need to intervene in a democratic society – are respected in this case.

The Court therefore finds that there has been a violation of Article 10 of the Convention.

The criminal conviction of the applicant for propaganda in favor of a terrorist organization

In view of the above finding of a breach, the Court considers it unnecessary to consider the justification of the applicant’s criminal conviction for propaganda in favor of a terrorist organization.

Concerning possible infringements of Articles 6 §§ 1 and 3 of the Convention and Article 3 of the First Protocol in conjunction with Article 14 of the Convention

Relying on Article 6 § 1 of the Convention, the applicant argued that the evidence constituting the offenses for which he had been convicted was not foreseeable.

According to the same provision, he complains that the opinion of the Advocate General in the Court of Cassation was not communicated to him during the proceedings before that court.

Pursuant to Article 6 §§ 1 and 3 (d) of the Convention, he alleges that he was unable to examine witnesses of the prosecution and to examine defense witnesses during the hearing before the Criminal Court.

Relying on Article 3 of the First Additional Protocol in conjunction with Article 14 of the Convention, he complains that he was deprived of the right to vote and to stand as a candidate after his criminal conviction.

In view of the finding of a violation of Article 10 of the Convention which it has reached, the Court considers that it is no longer necessary to decide separately on the admissibility or merits of the complaints submitted under Articles 6 §§ 1 and 3 of the Convention and the Article 3 of the First Protocol.

Just Satisfaction: 5.000 euros for non material damage  and  1.500 euros for costs and expenses  (echrcaselaw.com).


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