BAYAR v. TURKEY - 24548/10 (Judgment : Article 10 - Freedom of expression-{general} : Second Section Committee) [2018] ECHR 522 (19 June 2018)

In the case of Bayar v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 29 May 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 24548/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Turkish national, Mr Hasan Bayar ("the applicant"), on 6 April 2010.

2. The applicant was represented by Mr İ. Akmeşe, a lawyer practising in Istanbul. The Turkish Government ("the Government") were represented by their Agent.

3. The applicant complained under Article 10 of the Convention that his conviction under section 7(2) of Law no. 3713 had constituted a breach of his right to freedom of expression. He further complained that the length of the proceedings was incompatible with the "reasonable time" requirement laid down in Article 6 § 1 of the Convention. The applicant lastly complained under Article 13 of the Convention that there was no effective remedy under domestic law whereby he could have contested the length of the proceedings brought against him.

4. On 12 January 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1982 and lives in Bern, Switzerland. At the time of the events giving rise to the present application, he was the editor-�in-chief of Ülkede Özgür Gündem, a daily newspaper published in Turkey.

6. On 6 July 2004 an article written by Mr B.G. entitled "Analysing the Kurdish dynamic correctly" was published in Ülkede Özgür Gündem. In his article, Mr B.G. stated his views on the role of Abdullah Öcalan, the leader of the PKK (an illegal armed organisation), a number of organisations associated with the PKK in regional and international politics and political developments in Turkey. Next to the article a photograph of Abdullah Öcalan shaking hands with a group of armed men was published.

7. On 8 July 2004 the public prosecutor at the Istanbul Assize Court filed a bill of indictment, charging the applicant with disseminating propaganda in favour of the KONGRA-GEL [1] under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) on account of the article published on 6 July 2004. In the indictment, the public prosecutor quoted the following passage from the article:

"... Abdullah Öcalan, who has contributed to the essential dynamic of the Kurdish movement and the HPG [2], the PJA [3] and the KONGRA-GEL, organisations which have acted as military, political and ideological leaders and which have represented his leadership,... [must be well understood]".

The public prosecutor stated that a photograph of Abdullah Öcalan in which he was standing in a rural area holding a weapon had been published in the newspaper, next to the article. The public prosecutor considered as a result that the applicant had disseminated propaganda in favour of a terrorist organisation inciting others to violence or other methods of terrorism. Subsequently, criminal proceedings were launched against the applicant before the Istanbul Assize Court.

8. During the proceedings the applicant maintained that the article in question had been a news article and had not contained propaganda inciting to violence.

9. On 24 May 2005 the Istanbul Assize Court convicted the applicant of disseminating propaganda in favour of the PKK/KONGRA-GEL under section 7(2) of Law no. 3713 and sentenced him to six months' imprisonment and a fine. In its judgment, the Istanbul Assize Court held that the content of the article and the publication of Abdullah Öcalan's photograph amounted to dissemination of propaganda in favour of the PKK/KONGRA-GEL.

10. The applicant appealed. In his appeal petition, referring to a number of the Court's judgments, the applicant claimed that he had not had the intention of disseminating propaganda in favour of a terrorist organisation and that his criminal conviction had been in breach of Articles 6 and 10 of the Convention as he had been exercising his right to impart information. He also noted that the first-instance court had failed to examine the article in its entirety.

11. On 16 May 2006 the principal public prosecutor at the Court of Cassation returned the case file to the first-instance court and requested that the latter revise its judgment in the light of the recent legislative amendments.

12. On 28 September 2006 the Istanbul Assize Court once again convicted the applicant under section 7(2) of Law no. 3713, with the same reasoning that it had adopted on 24 May 2005. The court sentenced the applicant to a fine of 1,802 Turkish liras (TRY).

13. The applicant appealed.

14. On 18 November 2009 the Court of Cassation upheld the judgment of 28 September 2006.

15. According to a document dated 15 January 2010, signed by the President of the Istanbul Assize Court and the Istanbul public prosecutor, the applicant was required to pay the fine of TRY 1,802.

II. RELEVANT DOMESTIC LAW

16. The relevant domestic law applicable at the material time can be found in Belge v. Turkey (no. 50171/09, § 19, 6 December 2016).

17. In particular, at the time of the events giving rise to the present application, section 7(2) of Law no. 3713 read as follows:

"Any person who assists members of [terrorist organisations] or who disseminates propaganda inciting others to violence or other methods of terrorism shall be liable to [serve] a term of imprisonment of one to five years and [receive] a judicial fine of five million liras to one billion liras ..."

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

18. The applicant complained that his conviction under section 7(2) of Law no. 3713 had amounted to a breach of Article 10 of the Convention, which reads as follows:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

19. The Government contested his argument. They submitted that the interference with the applicant's freedom of expression had been prescribed by law, and had pursued the legitimate aims of maintaining national security and territorial integrity and prevention of disorder. The Government further contended that the interference had been necessary in a democratic society. They noted that in the article in question Abdullah Öcalan was referred to as "the ideological and political leader of the Kurdish movement" and the HPG, the PJA and the KONGRA-GEL were described as "facilitators of the military, political and ideological development formed under the leadership of Abdullah Öcalan". According to the Government, the publication of a photograph of Abdullah Öcalan holding a weapon demonstrated that the purpose of the publication of the article was to advocate and propagate terrorism. The Government lastly noted that the PKK was considered to be a terrorist organisation by a number of states and international organisations, such as the United Nations, NATO and the United States of America, and thus represented a serious threat not only to the internal security of Turkey but also to the international public order.

20. The Court notes that this part of the application is not manifestly ill-�founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

21. As to the merits of the applicant's complaint under Article 10, the Court considers that the interference was based on section 7(2) of Law no. 3713. In the light of its findings regarding the necessity of the interference (see paragraph 24 below) the Court considers that it is not required to conduct an examination of the "lawfulness" of the interference. The Court is also prepared to accept that, in the present case, the national authorities may be considered to have pursued the legitimate aims of protecting national security and preventing disorder and crime (see Faruk Temel v. Turkey, no. 16853/05, § 52, 1 February 2011).

22. As regards the necessity of the interference in a democratic society, the Court notes that it has already examined similar grievances in a number of other cases and found violations of Article 10 of the Convention (see, for example, Sürek v. Turkey (no. 4) [GC], no. 24762/94, §§ 54-61, 8 July 1999; Erdoğdu v. Turkey, no. 25723/94, §§ 60-73, ECHR 2000-�VI; Demirel and Ateş v. Turkey (no. 3), no. 11976/03, §§ 19-�30, 9 December 2008; and Fatih Taş (No.2), cited above, §§ 12-19). The Court has examined the present case and considers that the Government have not put forward any argument which would require it to reach a different conclusion.

23. In this connection, the Court notes that the applicant published an article written by Mr B.G. in Ülkede Özgür Gündem. The article in question contained the author's opinions on developments as regards the Kurdish issue in Turkey and in the international arena up until 2004. In particular, the author stated his views on the role of Abdullah Öcalan and a number of organisations associated with the PKK in regional and international politics and political developments in Turkey. The Court has examined the passage cited in the indictment, the article in its entirety, and the photograph published in the newspaper. It considers that neither the article nor the photograph can be construed as encouraging violence, armed resistance or an uprising, or as being capable of incitement to violence by instilling a deep-seated and irrational hatred against identifiable persons, which are essential elements to be taken into account. The Istanbul Assize Court, however, does not appear to have given consideration to any of the above. In sum, the Court considers that the interference with the applicant's right to freedom of expression was not justified by "relevant and sufficient" reasons for the purposes of Article 10 of the Convention.

24. The foregoing considerations are sufficient to enable the Court to conclude that the interference in question was not "necessary in a democratic society".

Accordingly, there has been a violation of Article 10 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

25. The applicant complained that the length of the proceedings was incompatible with the "reasonable time" requirement laid down in Article 6 § 1 of the Convention, which, in so far as relevant, provides:

"In the determination of ... any criminal charge against him, everyone is entitled to a ...hearing within a reasonable time by [a] ... tribunal ..."

26. The Government contested that claim. They submitted that the length of the proceedings could not be considered unreasonable.

27. The Court observes at the outset that a new domestic remedy has been established in Turkey since the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court observes that it declared a new application inadmissible in its decision in the case of Turgut and Others v. Turkey (no. 4860/09, 26 March 2013) on the grounds that the applicants had failed to exhaust the domestic remedies, specifically the new remedy established under Law no. 6384. In so doing, the Court considered in particular that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.

28. The Court further points out that, in its judgment in the case of Ümmühan Kaplan (cited above, § 77), it stressed that it could nevertheless pursue the examination of such applications under the normal procedure in cases which had already been communicated to the Government prior to the entry into force of the new remedy. It further notes that, in the present case, the Government did not raise an objection in respect of the new domestic remedy. In view of the above, the Court decides to pursue the examination of the present complaint (see Rifat Demir v. Turkey, no. 24267/07, §§ 34-�36, 4 June 2013).

29. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

30. The Court observes that the period to be taken into consideration began on 8 July 2004 with the Istanbul public prosecutor's indictment and ended on 18 November 2009, when the Court of Cassation upheld the judgment of 28 September 2006. It thus lasted for over five years and four months over two levels of jurisdiction. The Court notes that the case was not particularly complex. Furthermore, there were no delays which could be attributed to the applicant. As to the conduct of the authorities, the Court observes that, following the second judgment given by the first-instance court on 28 September 2006, the Court of Cassation's examination of the appeal lasted more than three years.

31. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having taken into account its case-law on the subject, the Court considers that, in the instant case, the length of the proceedings was excessive and failed to meet the "reasonable time" requirement (Daneshpayeh v. Turkey, no. 21086/04, § 28, 16 July 2009, and Yavuz and Yaylalı v. Turkey, no. 12606/11, §§ 62-67, 17 December 2013).

32. There has accordingly been a breach of Article 6 § 1 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

33. The applicant complained under Article 13 of the Convention that there was no effective remedy under domestic law whereby he could have contested the length of the proceedings brought against him. Article 13 reads:

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

34. The Government did not make any submissions under this head.

35. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

36. As to the merits, the Court notes that it has examined similar issues in previous applications and has found violations of Article 13 of the Convention in respect of the lack of an effective remedy under Turkish law whereby the applicants could have contested the length of the proceedings at issue (see Daneshpayeh, cited above, §§ 35-38; Ümmühan Kaplan, cited above, §§ 56-58; and Gürbüz and Özçelik v. Turkey, no. 11/05, §§ 29 and 30, 2 February 2016). It finds no reason to depart from that conclusion in the present case.

37. The Court accordingly concludes that there has been a violation of Article 13 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

38. The applicant claimed TRY 1,802 (approximately 816 euros (EUR)) -� namely the amount of the fine -� in respect of pecuniary damage, noting that he would be obliged to pay that amount since the fine was ordered by a court. He also claimed EUR 30,000 in respect of non-pecuniary damage. The applicant lastly claimed TRY 5,048 (approximately EUR 2,287) for his lawyer's fees and costs and expenses incurred before the Court. In support of his claims, the applicant submitted a receipt showing that he had paid TRY 4,248 (approximately EUR 1,924) to his lawyer for his representation before the Court.

39. The Government contested the applicant's claims. In particular, they submitted that there was no causal link between the alleged violations of the Convention and the pecuniary and non-pecuniary damage alleged and that the claim for costs and expenses was unsubstantiated.

40. The Court notes that the fine imposed on the applicant by the judgment of 28 September 2006 was a direct consequence of the infringement of Article 10 of the Convention. The Court therefore awards the applicant EUR 816 in respect of pecuniary damage. Ruling on an equitable basis, the Court further awards the applicant EUR 3,250 in respect of non-pecuniary damage. Lastly, the Court awards the applicant EUR 1,924 for costs and expenses incurred in the proceedings before the Court.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 10 of the Convention;

3. Holds that there has been a violation of Article 6 § 1 of the Convention;

4. Holds that there has been a violation of Article 13 of the Convention;

5. Holds

(a) that the respondent State is to pay the applicant within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 816 (eight hundred and sixteen euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 3,250 (three thousand two hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 1,924 (one thousand nine hundred and twenty-four euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 19 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident

[1]. Kongra Gelê Kurdistan (People's Congress of Kurdistan), an organisation associated with the PKK.

[2]. Hêzên Parastina Gel (People's Defence Forces), the armed wing of the PKK.

[3]. Partiya Jina Azad (Party of Free Women), an organisation associated with the PKK.

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You are here: BAILII >> Databases >> European Court of Human Rights >> BAYAR v. TURKEY - 24548/10 (Judgment : Article 10 - Freedom of expression-{general} : Second Section Committee) [2018] ECHR 522 (19 June 2018) URL: http://www.bailii.org/eu/cases/ECHR/2018/522.html Cite as: CE:ECHR:2018:0619JUD002454810, [2018] ECHR 522, ECLI:CE:ECHR:2018:0619JUD002454810