SECOND SECTION
CASE OF DÜNDAR AND AYDINKAYA v. TURKEY
(Application no. 37091/11)
JUDGMENT
STRASBOURG
10 July 2018
This judgment is final but it may be subject to editorial revision.
In the case of Dündar and Aydınkaya 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 19 June 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 37091/11) 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 two Turkish nationals, Mr İrfan Dündar and Mr Fırat Aydınkaya ("the applicants"), on 17 March 2011.
2. The applicants were represented by Mr Ö. Kılıç, a lawyer practising in Istanbul. The Turkish Government ("the Government") were represented by their Agent.
3. On 16 September 2016 the complaint concerning the alleged breach of the applicants' right to freedom of expression was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
4. On 5 December 2017 the Government were informed that the Court intended to assign the application to a Committee. In a letter dated 3 January 2018 the Government objected to the proposed examination of the application by a Committee. After having considered the Government's objection, the Court rejects it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants, Mr İrfan Dündar and Mr Fırat Aydınkaya, were born in 1972 and 1979 respectively and live in Istanbul. At the material time, the applicants were the legal representatives of Abdullah Öcalan, the leader of the PKK, an illegal armed organisation.
6. On 29 and 30 April 2004 the newspaper Ülkede Özgür Gündem published two interviews with the applicants. The interviews contained the applicants' statements following meetings with their client, Abdullah Öcalan, in prison. The first interview was included in two articles in the issue of 29 April 2004 entitled "Lawyers convey Abdullah Öcalan's opinions concerning developments within the KONGRA-GEL[1]" and "The pain of change". The second interview published on 30 April 2004 was entitled "Abdullah Öcalan is an opportunity for Turkey" and "Abdullah Öcalan's opinions are important for an enduring peace".
7. In their interviews published on 29 April 2004 in the two articles cited above, the applicants commented on the following issues: the difficulties they encountered in getting to İmralı island, where Abdullah Öcalan was detained, their need to have a meeting with their client prior to the hearing to be held before the European Court of Human Rights on 9 June 2004, their client's state of health , the alleged fake news published in some newspapers regarding the applicants' meetings with their client, their client's opinions regarding the current state of politics in Turkey, in particular his view that democrats in Turkey should form a coalition with a view to establishing social peace and enabling Turkey's access in European Union, Abdullah Öcalan's views on the conflicts occurring within the KONGRA-�GEL, and in particular, his views that democratisation of the "Kurdish organisations" would allow the State of Turkey to be more democratic, his opinions on the pro-Kurdish legal political parties, and his view that individuals should liberate themselves before trying to liberate others.
8. In the interview published the following day, 30 April 2004, the applicants made statements on the following issues: Abdullah Öcalan's criticism of the failure of the pro-Kurdish political groups during the municipal elections held on 28 March 2004, the view of Abdullah Öcalan and his lawyers that "the Kurdish movement" had failed to take into account Abdullah Öcalan's opinions and projects, the criminal and disciplinary investigations and the criminal proceedings instituted against the applicants for disseminating their client's views, Abdullah Öcalan's criticism of "Kurdish organisations", problems between Abdullah Öcalan and the leaders of the "Kurdish movement", the applicants' role both as legal and political representatives of Abdullah Öcalan and their meetings with individuals close to the State of Turkey as well as representatives of foreign States on behalf of their client, and the applicants' view that Abdullah Öcalan's opinions offered an opportunity for resolving the Kurdish issue in a democratic/political manner and that his opinions had transformed the State of Turkey.
9. On 30 April 2004 the public prosecutor at the now defunct Istanbul State Security Court filed a bill of indictment under section 7(2) of the Prevention of Terrorism Act (Law no. 3713), charging the applicants with disseminating propaganda in favour of the PKK/KONGRA-GEL on account of the interview published on 29 April 2004. In the indictment, the applicants were accused of acting on Öcalan's instructions and conveying messages from him about the PKK's strategy. Subsequently, criminal proceedings were launched against the applicants before the Istanbul Assize Court.
10. On 7 May 2004 the Istanbul public prosecutor filed a second bill of indictment against the applicants, again charging them with disseminating propaganda in favour of the PKK under section 7(2) of Law no. 3713 on account of the interview published in the 30 April 2004 issue of the newspaper.
11. On 24 August 2004 the Istanbul Assize Court decided to join the two sets of criminal proceedings against the applicants owing to the factual and legal similarities between them.
12. During the proceedings the applicants maintained that they had made the statements with a view to providing information to the press, since the case against Abdullah Öcalan had attracted media interest, but that they had been misquoted to a certain extent in the newspaper. They stressed that they had not acted with the intention of disseminating propaganda in favour of any illegal organisation.
13. On 18 February 2010 the Istanbul Assize Court convicted the applicants of disseminating propaganda in favour of the PKK/KONGRA-�GEL under section 7(2) of Law no. 3713. It sentenced them to ten months' imprisonment each, but decided to suspend pronouncement of their convictions on condition that they did not commit another intentional offence for a period of five years, in accordance with Article 231 of the Code of Criminal Procedure.
14. In its judgment, the Istanbul court held that the applicants had overstepped the limits of the lawyer-client relationship and made statements in a manner that induced and promoted the adoption, dissemination and enrootment of Abdullah Öcalan's opinions in society. The first-instance court considered that in the light of the applicants' role, the readers they targeted, the aim of the publication, and the manner in which their applicants' interviews were perceived by the readership, the interviews could not be deemed to be protected by the right to freedom of expression or the privilege of the lawyer-client relationship. The court further considered that the right to freedom of expression carried with it duties and responsibilities and could be restricted for the purpose of protecting national security and territorial integrity in a democratic society. The Istanbul Assize Court concluded that the reported interviews were aimed at disseminating propaganda in favour of the PKK/KONGRA-GEL and found the applicants guilty.
15. On 20 September 2010 the applicants' objection to the assize court's judgment was dismissed by the same court.
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 the above-mentioned organisations [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 between one and five years and [receive] a judicial fine of between five million liras and one billion liras ..."
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
18. The applicants complained under Article 10 of the Convention that the criminal proceedings brought against them under section 7(2) of Law no. 3713 had constituted a breach of their right to freedom of expression. Article 10 of the Convention 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 their argument. They claimed at the outset that the applicants did not have victim status, within the meaning of Article 34 of the Convention, given that the pronouncement of their conviction had been suspended. They further submitted that the interference with the applicants' freedom of expression had been prescribed by law, and had pursued the legitimate aims of maintaining national security and public safety as well as the prevention of disorder and crime. The Government claimed that the interference with the applicants' freedom of expression had been necessary in a democratic society. According to the Government, by referring to Abdullah Öcalan as a "leading figure" and an interlocutor for the State of Turkey, the applicants had conveyed to the public the idea that their client was still active. Moreover, their statements contained expressions referring to the strategy of a terrorist organisation. Noting that the applicants had not been imprisoned or subjected to any other restrictions, the Government contended that the interference in question had therefore not been disproportionate to the legitimate aims pursued.
20. The Court considers that the Government's objection regarding the lack of the applicants' "victim status" is closely linked to the merits of the complaints under this head. It therefore joins this issue to the merits. The Court further 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, the Court notes at the outset that it has already held, in cases concerning Articles 10 and 11 of the Convention where the pronouncement of the applicants' convictions had been suspended, that there was nonetheless an interference with their rights guaranteed under the aforementioned Articles (see Şükran Aydın and Others v. Turkey, nos. 49197/06 and 4 others, § 44, 22 January 2013; Gülcü v. Turkey, no. 17526/10, §§ 98-102, 19 January 2016; and Fatih Taş v. Turkey (no. 2), no. 6813/09, § 15, 10 October 2017). The Court finds no reason to depart from its findings in the above-mentioned cases, particularly in view of the fact that the applicants faced the threat of a penalty for five years. In the Court's opinion, that condition entailed a real and effective restraint and had a deterrent effect on the exercise of the applicants' right to freedom of expression. The Court hence finds that the criminal proceedings brought against the applicants and the judgment of 18 February 2010 amounted to an "interference" with the exercise of their freedom of expression and that they therefore do have "victim status" under Article 10. The Court accordingly rejects the Government's objection.
22. The Court furthermore 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 25 below), the Court considers that it is not required to conduct a further examination of the "lawfulness" of the interference. It 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).
23. 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 persuade it to reach a different conclusion.
24. In this connection, the Court observes that the interviews published in the issues of Ülkede Özgür Gündem of 29 and 30 April 2004 contained comments by the applicants concerning Abdullah Öcalan's views on various issues, in particular on the state of politics in Turkey and the applicants' experience as Abdullah Öcalan's lawyers. The Court has examined the interviews in their entirety and, in its view, their content as a whole cannot be construed as encouraging violence, armed resistance or an uprising, or as being capable of inciting 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 the above. The assize court considered that the interviews constituted propaganda in favour of the PKK merely because the applicants conveyed the opinions of Abdullah Öcalan, without making an assessment of those interviews in the light of the principles embodied in Article 10. In sum, the Court considers that the interference with the applicants' right to freedom of expression was not justified by "relevant and sufficient" reasons for the purposes of Article 10 of the Convention.
25. 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION
26. The applicants claimed 20,000 euros (EUR)) each in respect of non-�pecuniary damage. They also claimed EUR 10,000 each in respect of pecuniary damage. Lastly, they claimed EUR 2,500 for their lawyer's fees. However, they did not submit any documentation in support of their claim for legal fees.
27. The Government contested those claims.
28. Having regard to the applicants' failure to submit to the Court any documentation in support of their claims for pecuniary damage and costs and expenses, the Court rejects those claims. On the other hand, ruling on an equitable basis, the Court awards the applicants EUR 2,500 each in respect of non-pecuniary damage.
29. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Joins to the merits the Government's objection regarding the applicant's lack of victim status under Article 10 of the Convention and dismisses it;
2. Declares the complaint under Article 10 of the Convention admissible;
3. Holds that there has been a violation of Article 10 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicants, within three months, EUR 2,500 (two thousand five hundred euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing on 10 July 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).