European Court of Human Rights

 

 

SECOND SECTION

CASE OF AVCI v. TURKEY

(Application no. 18377/11)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

27 April 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Avcı v. Turkey,

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

          Aleš Pejchal, President,
          Egidijus Kūris,
          Carlo Ranzoni, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 18377/11) 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 a Turkish national, Mr Murat Avcı (“the applicant”), on 21 February 2011;

the decision to give notice to the Turkish Government (“the Government”) of the complaint concerning the applicant’s right to freedom of expression and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 30 March 2021,

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

INTRODUCTION

1.  The case mainly concerns the conviction of the applicant for referring to the imprisoned leader of a terrorist organisation, namely the PKK (the Workers’ Party of Kurdistan), as “sayın”, meaning esteemed. In this respect, he relied on Article 10 of the Convention.

THE FACTS

2.  The applicant was born in 1979 and lives in Siirt. He was represented by Mr M. Beştaş, a lawyer practising in Diyarbakır.

3.  The Government were represented by their Agent.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  At the material time, the applicant was the chairman of the Siirt Branch of the DTP (Party for a Democratic Society).

6.  On 19 March 2006 the applicant made a speech in which he allegedly praised a terrorist organisation. Subsequently, on 15 May 2006 criminal proceedings were initiated against the applicant, and on 21 February 2008 he was found guilty of committing offences on behalf of a terrorist organisation without being its member pursuant to Articles 220 § 6 and 314 of the Criminal Code. On 11 October 2010 the Court of Cassation quashed the applicant’s conviction in this regard. Subsequently, the criminal proceedings resumed before the Siirt Assize Court and on 18 September 2017 the applicant was acquitted of the charges against him. This decision became final on 26 September 2017.

7.  In the meantime, on 2 December 2006 the applicant made a press declaration, in which he referred to the imprisoned leader of the PKK as “sayın”, meaning esteemed. By an indictment dated 17 January 2007 the public prosecutor initiated criminal proceedings against the applicant for praising an offence and offender, proscribed by Article 215 of the Criminal Code. On 6 February 2007 this set of proceedings was joined with the those described in paragraph 6 above. On 21 February 2008 the Diyarbakır Assize Court found the applicant guilty as charged and sentenced him to five months’ imprisonment. On 11 October 2010 the Court of Cassation upheld the applicant’s conviction in this regard. Subsequently, on 7 November 2012 the Diyarbakır Assize Court decided to suspend the execution of the applicant’s sentence pursuant to Law no. 6352, which entered into force on 5 July 2012.

RELEVANT LEGAL FRAMEWORK

8.  A full description of the relevant domestic law may be found in Yalçınkaya and others v. Turkey (nos. 25764/09 and 18 others, §§ 12‑13, 1 October 2013).

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

9.  The applicant complained that his conviction had constituted 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.”

A.    As to the first set of criminal proceedings (indictment dated 15 May 2006)

10.  The Government maintained that the applicant had not exhausted domestic remedies, as he should have applied to the Constitutional Court.

11.  The applicant did not reply to this comment.

12.  Having examined the main aspects of the remedy before the Turkish Constitutional Court, the Court has found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and declared it as a remedy to be used (see Uzun v. Turkey, (dec.), no. 10755/13, §§ 68-71, 30 April 2013).

13.  The Court further notes that the Constitutional Court’s jurisdiction ratione temporis had begun on 23 September 2012 and it was clear from the judgments already delivered that it accepted an extension of its jurisdiction ratione temporis to situations involving a continuing violation which had commenced before the introduction of the right of individual application and had carried on after that date.

14.  In the present case, the criminal case against the applicant ended on 18 September 2017 with the acquittal decision delivered by the Siirt Assize Court. Accordingly, this part of the application fell within the Constitutional Court’s temporal jurisdiction (see Gürbüz and Bayar v. Turkey [Committee], no.71777/11, §§ 17-19, 24 March 2020).

15.  As a result, taking into account the Government’s preliminary objection, the Court concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.

B.    As to the second set of criminal proceedings (indictment dated 17 January 2007)

1.     Admissibility

16.  The Government argued that this part of the application should be dismissed under Article 35 § 1 of the Convention because the domestic court had revised its judgment pursuant to Law no. 6352 and suspended the execution of the applicant’s sentence on 7 November 2012. In this regard, the Government stated that the applicant should have applied to the Constitutional Court, as the new judgment had been delivered after 23 September 2012.

17.  The Court recalls that it has already examined and dismissed an identical objection regarding the rule of exhaustion of domestic remedies by the respondent Government (see Öner and Türk v. Turkey, no. 51962/12, §§ 14-18, 31 March 2015). The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence. The Court accordingly rejects the Government’s objection.

18.  The Court further notes that this part of the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

2.     Merits

19.  As to the merits of the case, the Court reiterates that it has already examined a similar complaint in the case of Yalçınkaya and others v. Turkey (nos. 25764/09 and 18 others, §§ 26-38, 1 October 2013) and found a violation of Article 10 of the Convention. It has also examined the present case and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment.

20.  In view of the foregoing, the Court holds that there has been a violation of Article 10 of the Convention.

II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

21.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

22.  The applicant claimed 50,000 Turkish liras (TRY) (approximately 5,500 euros (EUR)) in respect of non-pecuniary damage and TRY 12,000 (approximately EUR 1,300) for costs and expenses.

23.  The Government contested the claims.

24.  Ruling on an equitable basis, the Court awards the applicant EUR 2,000 euros in respect of non-pecuniary damage. As to costs and expenses, according to the Court’s case‑law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court observes that the applicant has not provided any documents to justify his costs and expenses. It therefore rejects in this regard.

25.  The Court further 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.      Declares the complaint raised under Article 10 of the Convention concerning the second set of criminal proceedings admissible and the remainder of the application inadmissible;

2.      Holds that there has been a violation of Article 10 of the Convention in respect of the second set of the criminal proceedings;

3.      Holds

(a)   that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros) 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;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 27 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                        Aleš Pejchal
Deputy Registrar                                                                       President