European Court of Human Rights

 

 

 

SECOND SECTION

CASE OF ÖCALAN v. TÜRKİYE

(Application no. 24872/12)

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

13 June 2023

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

In the case of Öcalan v. Türkiye,

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

          Jovan Ilievski, President,
          Lorraine Schembri Orland,
          Diana Sârcu, judges
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 24872/12) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 13 March 2012 by a Turkish national, Mr Behçet Öcalan, born in 1945 and living in Şanlıurfa (“the applicant”) who was represented by Mr M. Yavuz, a lawyer practising in Şanlıurfa;

the decision to give notice of the complaint concerning the applicant’s criminal conviction for organising and participating in an unlawful demonstration to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare inadmissible the remainder of the application;

the parties’ observations;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated in private on 23 May 2023,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the criminal conviction of the applicant for organising and participating in an unlawful demonstration.

2.  On 25 March 2011 a group of about seventy people gathered in front of the Viranşehir (district of Şanlıurfa) branch of the Peace and Democracy Party (“the BDP”, a pro‑Kurdish political party) and held a march. The applicant, who was the Vice-President of the Şanlıurfa branch of the BDP, delivered a speech to the demonstrators at the end of the march, saying, in particular, the following:

“ ... We request that the persecutions happening in this country be ended, that our friends arrested in relation to the KCK [Koma Civakên Kurdistan - “Kurdistan Communities Union”] incident be released, that the electoral thresholds be lowered and that the teaching of our mother tongue [and] education in our mother tongue be guaranteed under the Constitution. We will continue this protest until our requests are granted. We will never kneel down...”

3.  On 6 April 2011 the Viranşehir Chief Public Prosecutors’s Office indicted the applicant in the Viranşehir Criminal Court of First Instance (“the Criminal Court”) under section 28(1) of the Meetings and Demonstrations Act (Law no. 2911) for organising and participating in an unlawful demonstration. The bill of indictment referred, inter alia, to the applicant’s speech delivered during the demonstration of 25 March 2011 and the slogans chanted by the demonstrators such as “Biji Serok Apo” (“Long live President Apo”) and “Şehit namırın” (“Martyrs are immortal”).

4.  At the hearing of 11 October 2011 the applicant and his lawyer argued that the applicant had expressed his opinions in the speech at issue, which had not contained any criminal elements. The applicant further maintained that he had not led the demonstrators and that the police had neither ordered them to disperse nor warned them that the demonstration had been unlawful. At the hearing of 17 November 2011 his lawyer also argued that the demonstration in question had not been unlawful.

5.  On 17 November 2011 the Criminal Court convicted the applicant as charged. It sentenced him to one year and three months’ imprisonment but suspended the pronouncement of the judgment for a probationary period of five years, pursuant to Article 231 of the Code of Criminal Procedure. The Criminal Court noted that the demonstration had been held without the requisite prior notification and in contravention of the conditions provided for by the law. It further held that the applicant had taken part in the organisation of the demonstration at issue, bearing in mind that he had been the Vice‑President of the Şanlıurfa branch of the BDP and that he had had influence over the crowd. The Criminal Court referred also to the applicant’s speech in its reasoning.

6.  On 2 March 2012 the Şanlıurfa Assize Court dismissed an objection lodged by the applicant against the decision to suspend the pronouncement of the judgment.

7.  The applicant complained that his criminal conviction had breached Articles 10 and 11 of the Convention.

THE COURT’S ASSESSMENT

8.  The applicant complained, under Articles 10 and 11 of the Convention, that his criminal conviction had been in breach of his rights to freedom of expression and freedom of assembly.

9.  Being master of the characterisation to be given in law to the facts of the case, the Court finds that the application falls to be examined under Article 11 of the Convention only (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018, and Zülküf Murat Kahraman v. Turkey, no. 65808/10, § 33, 16 July 2019).

10.  The Government contested the applicant’s victim status, pointing out that the pronouncement of the judgment convicting him had been suspended. They also submitted that he had failed to exhaust domestic remedies, because he had not raised his grievance under Article 11 before the domestic authorities.

11.  As regards the first objection concerning the applicant’s victim status, the Court has already rejected such objections (see, for instance, Ergündoğan v. Turkey, no. 48979/10, § 17, 17 April 2018, and Dickinson v. Turkey, no. 25200/11, § 25, 2 February 2021) and sees no reason to hold otherwise in the present case.

12.  As to the second objection, the Court refers to the applicant’s submissions before the Criminal Court (see paragraph 4 above), in which he raised in substance his complaint under Article 11, and notes that it has already examined similar objections and dismissed them (see Zülküf Murat Kahraman, cited above, §§ 36-37, with further references). Again, the Court therefore sees no reason to hold otherwise in the present case.

13.  In view of the foregoing, the Court rejects the preliminary objections of the Government in their entirety.

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

15.  The general principles concerning the right to freedom of assembly have been summarised in Navalnyy v. Russia ([GC], nos. 29580/12 and 4 others, §§ 98‑103, 114-115, 120-122, and 128, 15 November 2018).

16.  The applicant’s criminal conviction for having organised and participated in an unlawful demonstration amounted to an interference with the exercise of his right to freedom of assembly, even though the pronouncement of the judgment was suspended (see, mutatis mutandis, in terms of interference with the right to freedom of assembly, Gün and Others v. Turkey, no. 8029/07, § 54, 18 June 2013, and Kemal Çetin v. Turkey, no. 3704/13, § 39, 26 May 2020; see also, concerning the suspension of the pronouncement of the judgment, Ergündoğan, cited above, § 26, and Vedat Şorli v. Turkey, no. 42048/19, § 41, 19 October 2021). That interference was prescribed by section 28(1) of Law no. 2911 and pursued at least one of the legitimate aims set out in Article 11 § 2 of the Convention, namely the prevention of disorder.

17.  As to the proportionality of the interference, the Court observes that the applicant was convicted on account of his involvement in the demonstration during which he delivered a speech. The demonstration was considered unlawful under the domestic law mainly due to the absence of the requisite prior notice. However, an unlawful situation does not in itself justify such an interference (see Oya Ataman v. Turkey, no. 74552/01, § 39, ECHR 2006‑XIV).

18.  There is no indication in the case file that the demonstration was not peaceful or that the demonstrators, including the applicant, engaged in acts of violence or presented a danger to public order beyond the level of minor disturbance.

19.  In so far as the Government referred to the slogans chanted by the demonstrators, the Court notes that it has already examined similar slogans and concluded that they did not constitute an incitement to violence (see, among others, Belge v. Turkey, no. 50171/09, § 35, 6 December 2016, and Arslan and Others v. Turkey [Committee], no. 3752/11, § 29, 10 July 2018). In any event, there is nothing to suggest that these slogans had originated from the applicant himself, nor could the applicant’s speech be construed as encouraging any violent behaviour (see paragraph 2 above).

20.  Although, as the Government stressed, the pronouncement of the judgment convicting the applicant was suspended, the Court notes that he was nevertheless faced with the threat of a sanction of one year and three months’ imprisonment on account of his involvement in a peaceful demonstration (see, mutatis mutandis, Kemal Çetin, § 54, and Vedat Şorli, § 45, both cited above).

21.  In view of the above, the Court considers that the domestic courts failed to strike a fair balance between the legitimate aim in question and the requirements of freedom of assembly (compare also Yılmaz Yıldız and Others v. Turkey, no. 4524/06, §§ 47-48, 14 October 2014; Özbent and Others v. Turkey, nos. 56395/08 and 58241/08, §§ 47 and 50, 9 June 2015; and Kemal Çetin, cited above, § 52).

22.  Accordingly, the interference in the present case was not “necessary in a democratic society”, which is why there has been a violation of Article 11 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

23.  The applicant claimed 50,000 United States dollars in respect of non‑pecuniary damage. He also claimed, under the head of pecuniary damage, 1,200 Turkish liras, consisting of the lawyer’s fees incurred before the domestic courts.

24.  The Government contested these claims.

25.  The Court, ruling on an equitable basis and having regard to the circumstances of the case, awards the applicant 2,600 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. As to the applicant’s claim in respect of pecuniary damage, which properly falls to be examined under the head of costs and expenses (see Dimitrov and Others v. Bulgaria, no. 77938/11, § 180, 1 July 2014), the Court rejects it in the absence of any supporting documentation.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 11 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 2,600 (two thousand six hundred 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 13 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

       Dorothee von Arnim                                                Jovan Ilievski
          Deputy Registrar                                                      President