The long-term ban on leaving the country has more serious consequences than that on a sitizen and violated the right to privacy. Extensive interpretation of criminal law and non-application of a more specific provision infringed Article 7 of the ECHR
JUDGMENT
Parmak and Bakir v. Turkey 3.12.2019 (no. 22429/07 and 25195/07)
SUMMARY
Legislative gap, broad interpretation of criminal law and proportionality principle.
The applicants were charged with being involved with a terrorist organization and were banned from leaving the country only after their sentence had been imposed. Due to a legislative gap in the Turkish law, they were convicted by the domestic courts for distributing brochures, illegal magazines and a manifesto, which they described as strictly enforcing existing laws, as ethical coercion and incitement to terrorism. They also failed to take into account the more lenient amendment of the Law on Terrorism and the obligation to apply it retroactively.
The Court reiterates that the guarantee guaranteed by Article 7 is an essential element of the rule of law and observes that at the material time of the act, Law 3713 did not contain a separate definition of a terrorist organization and the legislative amendments in July 2003 limited it. definition of ‘terrorism’ and ‘terrorist organization’.
The domestic courts have convicted the applicants of being members of a terrorist organization because of the political ideas and ambitions expressed in certain documents, being aware of the absence of a universally accepted definition of terrorism in the law and without even applying the law retrospectively. They therefore breached the reasonable limits of an acceptable judicial interpretation, unjustifiably extended the scope of the criminal law, contrary to the guarantees of Article 7 of the Convention.
With regard to the prohibition on the second applicant to leave the country of conviction, the Court held that the prolonged maintenance of the measure infringed the right to privacy since the decisions of the national courts contained no observations on the status of non-resident the profound consequences of the ban on leaving his private and professional life.
PROVISIONS
Article 7,
Article 8
PRINCIPAL FACTS
The applicants, Şerafettin Parmak and Mehmet Bakır, are Turkish nationals who were born in 1955
and 1963 respectively and live in Denizli (Turkey) and Berlin (Germany).
The case essentially concerned domestic legislation on terrorism and its interpretation by the
domestic courts.
The applicants were taken into police custody in 2002 following an investigation into flyers
distributed in Izmir by the Bolshevik Party of North Kurdistan/Turkey (“the BPKK/T”), a pro-Kurdish
organisation which was subsequently designated as a terrorist organisation in proceedings against
the applicants.
During the proceedings the applicants denied any involvement in the BPKK/T, and stated that in any
event there was nothing in the case file to suggest that the organisation was involved in violence and
was therefore terrorist. They submitted that the flyers had not made any incriminating statements,
and had been nothing more than the legitimate exercise of freedom of thought and expression.
The domestic courts ultimately convicted the applicants of membership of an illegal organisation in
2006 and sentenced them to two years and six months’ imprisonment. They based their findings on
a note by the General Security Directorate which classified the BPKK/T as a terrorist organisation
whose ultimate aim was to bring about an armed revolution in Turkey. They also relied on an identification parade, BPKK/T flyers and periodicals seized during a search of Mr Parmak’s apartment and the organisation’s manifesto discovered in a co-accused’s apartment.
In convicting the applicants, the courts relied on the relevant domestic legislation as amended in
2003 to define terrorism as acts that were “committed using violence and coercion”. In the
applicants’ case, the court found that even though the members of the organisation had not
resorted to physical violence, they had used “moral coercion” or intimidation in their confiscated
documents which constituted a form of violence.
The applicants had in the meantime – in January 2003 – been released and had had a travel ban
imposed on them. Mr Bakır made seven applications to the courts for the ban to be lifted, explaining
each time that he resided in Germany and that the ban had a profound impact on both his
professional and private life. The courts either rejected his requests, referring to the ongoing
proceedings, or did not reply at all. The ban was eventually lifted in June 2009 when he had served
his sentence.
Relying in particular on Article 7 (no punishment without law), the applicants complained that their
conviction had been based on too broad an interpretation of the definition of terrorism, notably that
violence, which is a component of a terrorist offence, could be taken to include moral coercion.
Mr Bakır also complained that the ban on him travelling while the criminal proceedings had been
ongoing had not been justified, in breach of Article 8 (right to respect for private life).
THE DECISION OF THE COURT
The guarantee enshrined in Article 7, which is an essential element of the rule of law, occupies a prominent place in the Convention system of protection, as is underlined by the fact that no derogation from it is permissible under Article 15 of the Convention in time of war or other public emergency.
The Court notes that the main question in the present case concerns an element of novel judicial interpretation, namely whether the applicants’ conviction for membership of a terrorist organisation on the grounds that their acts constituted moral coercion was consistent with the essence of that offence and could reasonably have been foreseen by the applicants at the time of their participation in the events of 2002. In that connection, the parties disagree as to whether moral coercion – a concept which does not exist in the text of the applicable law – can nevertheless be regarded as subsumed by the requirement of “violence and force”, which is a constituent element of a terrorist offence under the amended versions of sections 1 and 7 of Law no. 3713.
The applicants were convicted under the original version of section 7(1) of Law no. 3713 of membership of a terrorist organisation. The Court observes that at the relevant time Law no. 3713 did not contain a separate definition of a terrorist organisation. Rather, the definitions of terrorism and terrorist organisation were intertwined as formulated in section 1 of the same law. In its original version, terrorism was described as any act committed by means of pressure, force and violence, terror, intimidation, oppression or threat, with one or more of the political or ideological aims listed under that section, while an organisation was simply defined as any type of association of two or more people to pursue a common goal. In the amended 2003 version of section 1, it appears that the term “using force and violence” is referred separately from the methods of terrorism. The emphasis is put on the commission of an act through the use of force and violence and a further element – namely the impugned acts committed by members of such an organisation being criminal in nature – has been introduced. Moreover, it is no longer possible to call an association of two or more people a terrorist organisation unless their purpose of coming together is to pursue the commission of a terrorist offence.
In that regard, the Court notes that the applicants were convicted of participating in a terrorist organization on the ground that they had met to distribute leaflets, to have legal and illegal magazines and a manifesto – the content of which was judged by the court to be ethical coercion ( of the public). It is also undisputed that there was no evidence that the organization in question was involved in violent acts or that it intended to achieve its objectives by means of coercion and violence or other terrorist methods.
The Court notes that the national courts had to determine first and foremost whether that organization possessed all the characteristics of a terrorist organization as defined by Law 3713.
On the basis of the facts established by the national courts, the Court observes that the cumulative elements of the offense of accession to a terrorist organization, as interpreted by the Supreme Court, have not been proved by the national courts to be the case of the applicants. In this respect, although the national courts held that the agency in question had not been involved in armed attacks, they did not consider whether it had adopted an action plan or similar operational measures to that effect. In this context, the Court notes that there is no indication in the case-file that that body, in addition to merely declaring certain purposes, had adopted specific preparatory steps or any form of action to commit violent acts. Nor could the information provided by the Directorate of Security to the national courts be considered relevant in this respect, since the acts attributed to the agency in that note consisted solely of the distribution of leaflets and texts and the possession of books by them. suspect.
It is therefore clear that the domestic courts have convicted the applicants for membership of a terrorist organization because of the political ideas and ambitions expressed in some of the documents found as the product of the organization.
The Court notes that the domestic courts did not explain how the concept of moral coercion relates to the constituent elements of the offense, including the degree of coercion and seriousness it must reach to justify the conclusion that it is terrorism.
Accordingly, the national courts have chosen to exercise their discretion, adopting an interpretation that is incompatible with both existing national case law and the substance of the offense as defined by national law. Accordingly, they have, in the circumstances of the present case, breached the reasonable limits of an acceptable judicial interpretation, contrary to the guarantees of Article 7 of the Convention.
The Court is also aware of the absence of a universally accepted definition of terrorism. However, this does not mean that the fundamental safeguards enshrined in Article 7 of the Convention, which include reasonable limits for new or extended judicial interpretations in the field of criminal law, cease to apply when it comes to the prosecution and punishment of terrorist offenses. National courts must exercise particular care to clarify the details of an offense in terms that make it predictable and compatible with its substance.
In the circumstances of the present case, the national courts unjustifiably extended the scope of the criminal law to the applicants, in breach of the guarantees of Article 7 of the Convention.
The ECtHR found a breach of Article 7 in respect of Mr Parmak and Mr Bakir.
Article 8
The second applicant complained that the ban on leaving the country imposed on him during the criminal proceedings was unjustified and that the subsequent interference with his privacy was disproportionate.
The Court considers that the prohibition on the second applicant to leave the country imposed by the criminal court amounts to interference with the exercise of his right to respect for his private life. The applicant had sufficiently close personal and professional links with his country to risk being seriously injured by the measure in question.
As to the proportionality of the measure at issue, the Court does not disregard the fact that the second applicant was prosecuted. In this respect, the Court recalls that it is not in itself questionable for the State to apply various preventive measures restricting the freedom of the accused in order to ensure the effective conduct of the criminal proceedings. These measures may include deprivation of liberty. In principle, a ban on leaving the country is a minimal interventionist measure that entails a restriction on one’s freedom. However, it is evident that the exit ban imposed on a non-resident of the country where the procedure is carried out has more serious consequences for the effective exercise of the right to respect for private and family life than that imposed on a resident. Consequently, the domestic authorities reviewing the measure must take into account all the factors involved through periodic and individual evaluation.
Since the decisions of the national courts contain no observations on the status of the non-resident and the profound consequences of the prohibition on leaving his private and professional life, the interests at stake cannot be said to be weighed.
In this respect, the Court recalls that, even where the restriction of a person’s free movement is initially justified, maintaining it automatically for a long period of time can be a disproportionate measure, in breach of the individual’s rights. In the present case, the domestic courts have failed to re-examine the legality of the exit ban at issue despite repeated requests by the second applicant and to automatically amend the measure at issue.
The ECtHR found a breach of Article 8 in respect of Bakir
Just satisfaction: The Court of Justice has awarded EUR 760 to Mr Bakır, EUR 7,500 to Mr Parmak and EUR 9,750 to Mr Bakır for non-material damage and EUR 831 to Mr Parmak for costs and expenses.
