I correctly predicted that there was a violation of human rights in AVCI v. TURKEY.

Information

  • Judgment date: 2021-04-27
  • Communication date: 2013-08-26
  • Application number(s): 18377/11
  • Country:   TUR
  • Relevant ECHR article(s): 10
  • Conclusion:
    Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
  • Result: Violation
    • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.780537
  • Prediction: Violation

  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Mr Murat Avcı, is a Turkish national, who was born in 1979 and lives in Siirt.
He is represented before the Court by Mr M. Beştaş and Ms M.D.
Beştaş, lawyers practising in Diyarbakır.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
At the time of the events giving rise to the present application, the applicant was the chief of the Siirt branch of DTP (Party for a Democratic Society).
On 19 March 2006 the applicant attended a Newroz celebration.
The celebration was organised with the permission of the Siirt governor’s office.
The applicant made the following speech during the meeting: “The mentality trying to ban ROJ TV from broadcasting is the same militaristic mentality that intends to ban the national clothes of the Kurdish people.
My fellow people, we, as members of the community and a political movement, have always declared that the ongoing wars in this country must end and it must end through contacting the interlocutors.
Today, the State authorities claim that they do not know who the interlocutors are and ask who they are?
They may try to create new interlocutors.
I hereby ask you, who is the interlocutor of the Kurdish problem?
I hope and I wish that the State authorities and the world will see your statements that “Öcalan is my political will”.
They have to see it.
It is an obvious reality that Abdullah Öcalan is a political authority in this country.
Everybody, in particular the Turkish State authorities, must see this fact and position themselves accordingly.
I believe that they have to criticise themselves vis-à-vis “Sayın ” Öcalan and that everybody has to accept the political role of “Sayın” Öcalan in the solution of the Kurdish problem through peaceful means, behave accordingly and produce realistic solutions.
We believe that the freedom line of “Sayın” Öcalan is the true line for solution.
Therefore, I salute and respect the campaign that you have launched, “Öcalan is my political will”.
On 15 May 2006, the Siirt public prosecutor opened a criminal investigation in respect of the applicant on account of the content of this speech.
On 7 April 2006 the applicant made statements before the Siirt public prosecutor.
He stated that his speech had aimed at contributing to the peace within the country and to the further development of democracy.
He further alleged that his speech had been a declaration of his personal views and that he had shared them in order to solve the problem through democratic and peaceful means.
He therefore claimed that he had used his freedom of expression.
On 3 May 2006 the Siirt public prosecutor transferred the investigation file to the Diyarbakır public prosecutor as the case concerned offences proscribed by Article 250 of the Criminal Code, thus falling outside the scope of its jurisdiction.
On 15 May 2006 the Diyarbakır public prosecutor instituted criminal proceedings against the applicant before the Diyarbakır Assize Court under Articles 314 § 2 and 215 § 1 of the Criminal Code.
The applicant was charged with membership of an illegal armed organisation and with praising an offence or an offender, on account of his speech of 19 March 2006.
On 2 December 2006, the applicant made a press statement about stopping the armed struggle, to restore peace and the role of Öcalan in this process.
The content of this statement was mainly as follows: “The DTP (Democratic Society Party) pursued an effective policy in an effort to put an end to the armed conflict which stems from the deadlock in the Kurdish problem continuing for twenty two years and to open a way towards social dialogue and permanent peace.
On many occasions, the DTP called on the PKK to stop the armed struggle and the Government to start a new solution process to be run within a framework of a democratic program.
As a result of these efforts, the PKK declared a ceasefire complying with the request of “Sayın” Öcalan.
Regard being had to the reasonable statements made about the solution process and the role of the PKK and Öcalan, it might be construed that society considers this process as a new opportunity to be seized.
Despite the creation of the proper conditions to ensure the continuation of the efforts towards peace of “Sayın” Öcalan, who proved with his statements and ideas that he favors putting an end to the war and ensuring permanent peace, the severe isolation conditions, which create tension within the Kurdish society, have still been maintained, and visits from his family and lawyers were frequently banned.” Upon these statements, on 17 January 2007 Diyarbakır public prosecutor instituted other criminal proceedings due to the content of this press statement.
On 21 February 2008 the 6th Chamber of the Diyarbakır Assize Court merged these two cases and convicted the applicant as charged and sentenced him to six years and three months of imprisonment on account of committing a crime on behalf of a terrorist organisation and five months imprisonment for praising an offence or the offender.
The Assize Court considered that the applicant provoked the attendants of the meeting with his speech and led them to shout illegal slogans under the poster of Öcalan and he had praised an offender, namely Abdullah Öcalan, who was the leader of the PKK.
According to the court, the applicant had committed the offence in question by way of putting the word “Sayın” before the name of Abdullah Öcalan, praising him with the use of concepts such as “peace” and “ceasefire” and defining Abdullah Öcalan’s conditions of detention as “isolation”.
The Assize Court dismissed the applicant’s defense that he had used the term “Sayın” just as a form of address rather than a sign of respect.
On 11 October 2010 the Court of Cassation upheld only the conviction for praising Abdullah Öcalan and quashed the remaining part of the judgment.
B.
Relevant domestic law At the material time Article 215 of the Criminal Code provided: Praising an offence or an offender ARTICLE 215 (1) Any person who openly praises an offence or a person committing an offence shall be punished with imprisonment of up to two years.
COMPLAINT The applicant complains under Article 10 of the Convention that his conviction constituted a violation of his right to freedom of expression.
ITMarkFactsComplaintsEND

Judgment

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
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.”
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. 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. 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. 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,
(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;
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 PejchalDeputy Registrar President

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
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.”
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. 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. 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. 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,
(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;
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 PejchalDeputy Registrar President