I incorrectly predicted that there's no violation of human rights in M.A.K. v. TURKEY.

Information

  • Judgment date: 2022-10-13
  • Communication date: 2013-09-23
  • Application number(s): 74018/11
  • Country:   TUR
  • Relevant ECHR article(s): 6, 6-1, 11, 11-1
  • Conclusion:
    Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
    Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)
    Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)
  • Result: Violation
  • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.672338
  • Prediction: No violation
  • Inconsistent


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 M.A.K., is a Turkish national, who was born in 1973 and is serving a prison sentence in Diyarbakır prison.
He is represented before the Court by Mr S. Akbaş, a lawyer practising in Diyarbakır.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
On 20 April 2010 the applicant attended the reading out of a press statement in front of the court building in Diyarbakır.
He was subsequently taken into police custody.
According to the arrest report, he was apprehended as the police officers recognised him from photographs taken during a meeting which had taken place in Diyarbakır on 28 March 2006.
In the case file, there are three photographs: in one photograph, a man is seen with a paving stone in his hand; in the second photograph, a man is standing on the street together with four other men; in the third photograph, a man is seen standing with seven other men.
On the same day the applicant’s statement was taken at the Diyarbakır police headquarters.
The applicant was asked whether he was a member of a political party or a non-governmental organisation and whether he had participated in two demonstrations held on 6 February 2005 and 28 March 2006 in Diyarbakır and whether he had thrown stones at the security forces.
The applicant maintained that he was a member of the BDP (Party for Peace and Democracy) and that he had not participated in the demonstrations held on the aforementioned dates.
On 21 April 2010 the applicant was questioned by the Diyarbakır public prosecutor.
He submitted that he was the man in the second photograph and that he had not participated in any violence.
He also maintained that he was the person in the first photograph.
He noted, however, that this photograph had not been taken during a demonstration and that he had not thrown stones at the police.
On the same day the applicant was detained on remand.
On 22 April 2010 the Diyarbakır public prosecutor filed an indictment against the applicant, charging him with membership of the PKK under Articles 220(6) and 314 of the Criminal Code and violating the Meetings and Demonstration Marches Act (Law No.
2911).
The public prosecutor alleged, on the basis of a video recording and photographs taken from that recording, that the applicant had participated in the demonstration on 28 March 2006 upon the instructions of the PKK and thrown stones at the police.
On 15 June 2010 the Diyarbakır Assize Court held the first hearing in the case.
The applicant maintained before the court that he had not participated in the demonstration held on 28 March 2006 in Diyarbakır.
He further submitted that although the person in the photographs in the case file resembled him, it was not known whether those photographs had been taken on that date and during the demonstration at issue.
The public prosecutor alleged once again that according to photographs taken from video recordings, the applicant was seen throwing stones at the police on 28 March 2006.
On 26 October 2010 the Diyarbakır Assize Court convicted the applicant under Articles 220(6) and 314(3) and (4) of the Criminal Code and Articles 28(1), 32 and 33 of the Meetings and Demonstration Marches Act (Law No.
2911).
The court sentenced the applicant to a total of eight years and four months’ imprisonment.
The first-instance court based its judgment on an expert report dated 22 April 2010 regarding the police force’s video recording, the arrest report, the incident report and the report on the photographs.
In its judgment, the court found it established that the demonstration of 28 March 2006 had been organised upon the call of the PKK; that the applicant had participated in this demonstration as an organiser; that he had failed to leave despite the police warnings to disperse and that he had thrown stones at the police.
The first‐instance court made reference to a decision of the Court of Cassation (decision no.
2008/44), in which it had held: “When the organisation (the PKK) makes a public call for participation in a demonstration, that call does not have to target a specific person.
These acts (demonstrations) are realised on behalf of the organisation within its knowledge and in line with its will.
Therefore, the acts of the accused who participate in these demonstrations will constitute the offence...proscribed in Article 314 (2) of the Criminal Code.” In the judgment, the court further noted that according to the expert report dated 22 April 2010, there were images showing the applicant smashing paving stones and waiting with other people to throw stones on the day of the demonstration.
On 5 December 2010 the applicant appealed against the judgment of 26 October 2010.
In his petition, the applicant maintained that the photograph in which he was seen with a stone in his hand had not been taken during a demonstration and that this photograph was the only evidence for his conviction.
On 30 May 2011 the Court of Cassation upheld the judgment of the first-instance court in so far as it concerned the applicant’s conviction of membership of the PKK under Articles 220(6) and 314 of the Criminal Code and his conviction under Articles 32 and 33 of Law No.
2911) for not leaving the demonstration and throwing stones at the police.
The high court on the other hand quashed the judgment in so far as it concerned the conviction under Article 28(1) of Law no.
2911 as it was not found established that the applicant had been one of the organisers of the demonstration of 28 March 2006.
B.
Relevant domestic law Article 220(6) of the Criminal Code read, at the time of the events, as follows: “...Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation.” Article 314(2) of the Criminal Code reads as follows: “Anyone who becomes a member of an (illegal) organisation mentioned in the first paragraph of this Article shall be sentenced to a term of imprisonment of from five to ten years.” COMPLAINTS The applicant maintains under Article 6 §§ 1 and 3 (d) of the Convention that the dates on which the photographs which constituted the basis for his conviction had been taken were unknown and that the national court had failed to take into consideration his submissions and to render a judgment containing sufficient reasoning.
The applicant complains under Article 6 § 1 of the Convention that the first-instance court took only digital evidence into consideration despite the fact that digital evidence had to be supported by concrete evidence.
The applicant further complains under Article 6 § 1 of the Convention that there was no evidence in the case-file demonstrating that he had participated in a demonstration upon an instruction of the PKK but that he was nevertheless convicted of membership of the PKK.
The applicant complains that his rights under Articles 5, 10 and 11 of the Convention were violated, as his conviction by the Diyarbakır Assize Court was neither prescribed by law nor proportionate.

Judgment

THIRD SECTION
CASE OF CHERNOZUB v. RUSSIA
(Application no.
8777/12)

JUDGMENT
STRASBOURG
13 October 2022

This judgment is final but it may be subject to editorial revision.
In the case of Chernozub v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Andreas Zünd,
Frédéric Krenc, judges,and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 15 September 2022,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.
The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 December 2011. 2. The applicant was represented by Mr I. Sharapov, a lawyer practising in Moscow. 3. The Russian Government (“the Government”) were given notice of the application. THE FACTS
4.
The applicant’s details and information relevant to the application are set out in the appended table. 5. The applicant complained of the unlawful detention (deprivation of liberty). He also raised other complaints under the provisions of the Convention. THE LAW
6.
The applicant complained of the unlawful detention (deprivation of liberty). He relied on Article 5 § 1 of the Convention, which reads, in so far as relevant, as follows:
“1.
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so[.
]”
7.
In the leading cases of Korneyeva v. Russia, no. 72051/17, §§ 34-36, 8 October 2019, the Court already found a violation in respect of issues similar to those in the present case. 8. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicant’s detention at the police station after the preparation of the administrative offence record was not justified and was in contravention of the relevant provisions of the Russian law. 9. These complaints are therefore admissible and disclose a breach of Article 5 § 1 of the Convention. 10. The applicant submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its well‐established case-law (see Frumkin v. Russia, no. 74568/12, 5 January 2016, concerning disproportionate measures taken by the authorities against organisers and participants of public assemblies; and Novikova and Others v. Russia, nos. 25501/07 and 4 others, 26 April 2016, concerning disproportionate measures taken by the authorities against participants of solo manifestations). 11. 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.”
12.
Regard being had to the documents in its possession and to its case‐law (see, in particular, Saidov v. Russia [Committee], no. 31872/19, § 23, 26 July 2022), the Court considers it reasonable to award the sum indicated in the appended table. 13. 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, the amount indicated in the appended table, 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 13 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Viktoriya Maradudina Darian Pavli Acting Deputy Registrar President

APPENDIX
Application raising complaints under Article 5 § 1 of the Convention
(unlawful detention (deprivation of liberty))
Application no.
Date of introduction
Applicant’s name
Year of birth

Representative’s name and location
Start date of unauthorised detention
End date of unauthorised detention
Specific defects
Other complaints under well‐established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
(in euros)[1]
8777/12
29/12/2011
Vsevolod Innokentyevich CHERNOZUB
1986
Ilnur Ilgizovich Sharapov
Moscow
05/12/2011
06/12/2011
Detention as an administrative suspect: the applicant remained in detention after the offence record had been compiled
Art.
10 (1) - disproportionate measures against solo demonstrators - Picket
Moscow, Novopushkinskiy skver
16/06/2012
Article 20.2 § 2 of CAO,
fine RUB 15,000
Tverskoy District Court of Moscow
07/08/2012;

Art.
11 (2) - disproportionate measures against organisers and participants of public assemblies - Administrative detention for 15 days for a manifestation following the elections to the State Duma in Moscow on 05/12/2011; final decision of Meshchanskiy District Court of Moscow of 17/12/2011. 3,900

[1] Plus any tax that may be chargeable to the applicant.
THIRD SECTION
CASE OF CHERNOZUB v. RUSSIA
(Application no.
8777/12)

JUDGMENT
STRASBOURG
13 October 2022

This judgment is final but it may be subject to editorial revision.
In the case of Chernozub v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Andreas Zünd,
Frédéric Krenc, judges,and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 15 September 2022,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.
The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 December 2011. 2. The applicant was represented by Mr I. Sharapov, a lawyer practising in Moscow. 3. The Russian Government (“the Government”) were given notice of the application. THE FACTS
4.
The applicant’s details and information relevant to the application are set out in the appended table. 5. The applicant complained of the unlawful detention (deprivation of liberty). He also raised other complaints under the provisions of the Convention. THE LAW
6.
The applicant complained of the unlawful detention (deprivation of liberty). He relied on Article 5 § 1 of the Convention, which reads, in so far as relevant, as follows:
“1.
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so[.
]”
7.
In the leading cases of Korneyeva v. Russia, no. 72051/17, §§ 34-36, 8 October 2019, the Court already found a violation in respect of issues similar to those in the present case. 8. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the applicant’s detention at the police station after the preparation of the administrative offence record was not justified and was in contravention of the relevant provisions of the Russian law. 9. These complaints are therefore admissible and disclose a breach of Article 5 § 1 of the Convention. 10. The applicant submitted other complaints which also raised issues under the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its well‐established case-law (see Frumkin v. Russia, no. 74568/12, 5 January 2016, concerning disproportionate measures taken by the authorities against organisers and participants of public assemblies; and Novikova and Others v. Russia, nos. 25501/07 and 4 others, 26 April 2016, concerning disproportionate measures taken by the authorities against participants of solo manifestations). 11. 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.”
12.
Regard being had to the documents in its possession and to its case‐law (see, in particular, Saidov v. Russia [Committee], no. 31872/19, § 23, 26 July 2022), the Court considers it reasonable to award the sum indicated in the appended table. 13. 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, the amount indicated in the appended table, 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 13 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Viktoriya Maradudina Darian Pavli Acting Deputy Registrar President

APPENDIX
Application raising complaints under Article 5 § 1 of the Convention
(unlawful detention (deprivation of liberty))
Application no.
Date of introduction
Applicant’s name
Year of birth

Representative’s name and location
Start date of unauthorised detention
End date of unauthorised detention
Specific defects
Other complaints under well‐established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
(in euros)[1]
8777/12
29/12/2011
Vsevolod Innokentyevich CHERNOZUB
1986
Ilnur Ilgizovich Sharapov
Moscow
05/12/2011
06/12/2011
Detention as an administrative suspect: the applicant remained in detention after the offence record had been compiled
Art.
10 (1) - disproportionate measures against solo demonstrators - Picket
Moscow, Novopushkinskiy skver
16/06/2012
Article 20.2 § 2 of CAO,
fine RUB 15,000
Tverskoy District Court of Moscow
07/08/2012;

Art.
11 (2) - disproportionate measures against organisers and participants of public assemblies - Administrative detention for 15 days for a manifestation following the elections to the State Duma in Moscow on 05/12/2011; final decision of Meshchanskiy District Court of Moscow of 17/12/2011. 3,900

Application no.
Date of introduction
Applicant’s name
Year of birth

Representative’s name and location
Start date of unauthorised detention
End date of unauthorised detention
Specific defects
Other complaints under well‐established case-law
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
(in euros)[1]
8777/12
29/12/2011
Vsevolod Innokentyevich CHERNOZUB
1986
Ilnur Ilgizovich Sharapov
Moscow
05/12/2011
06/12/2011
Detention as an administrative suspect: the applicant remained in detention after the offence record had been compiled
Art.
10 (1) - disproportionate measures against solo demonstrators - Picket
Moscow, Novopushkinskiy skver
16/06/2012
Article 20.2 § 2 of CAO,
fine RUB 15,000
Tverskoy District Court of Moscow
07/08/2012;

Art.
11 (2) - disproportionate measures against organisers and participants of public assemblies - Administrative detention for 15 days for a manifestation following the elections to the State Duma in Moscow on 05/12/2011; final decision of Meshchanskiy District Court of Moscow of 17/12/2011. 3,900
[1] Plus any tax that may be chargeable to the applicant.