CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 10 juillet 2018

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TURKEY   (Application no. 46713/10)                 JUDGMENT     STRASBOURG   10 July 2018     FINAL   03/12/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Bakır and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Robert Spano, President,   Ledi Bianku,   Işıl Karakaş,   Nebojša Vučinić,   Valeriu Griţco,   Jon Fridrik Kjølbro,   Stéphanie Mourou-Vikström, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 19 June 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 46713/10) 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 twelve Turkish nationals, Mr Deniz Bakır, Mr   Alihan Alhan, Mr Levent Çakır, Ms Necla Çomak, Mr Uğur Güdük, Ms   Latife Canan Kaplan, Mr Serdar Kır, Mr Metin Kürekçi, Mr Selçuk Mart, Mr   Mehmet Ali Tosun, Ms Filiz Uluçelebi and Mr Mesut Açıkalın (“the applicants”), on 23 June 2010. 2.     The applicants, whose names, dates of birth and places of residence are set out in the attached table, were represented by Ms R. Aytaç Sala, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.     On 5 June 2013 the applicants’ complaints concerning the alleged violation of their right to freedom of expression and to freedom of assembly were communicated to the Government and the application was declared partly inadmissible. 4.     On 3 January 2014 the President of the Section decided, in accordance with Rule 34 § 3 of the Rules of Court, to grant the applicants leave to use the Turkish language in the written proceedings before the Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     On 6 March 2006 the applicants were taken into police custody on suspicion of aiding and abetting the MLKP (Marxist-Leninist Communist Party), an illegal armed organisation. 6.     On 7 March 2006 the applicants were brought before a judge at the Ankara Assize Court. They were mainly questioned about their participation in a number of demonstrations and about various CDs, documents, books and periodicals that had allegedly been found by the police in their homes. The applicants denied the veracity of the allegations that they had acted in support of an illegal organisation. In particular, although they all accepted that they had participated in legally organised demonstrations, they denied having chanted illegal slogans or slogans in favour of an illegal organisation. They also claimed that the material found in their homes had not been illegal. In particular, Necla Çomak claimed that the documents found in her home were related to a legal association, namely the Working Women’s Association ( Emekçi Kadınlar Derneği ). 7.     On the same day the Ankara Assize Court ordered the detention of Levent Çakır, Deniz Bakır, Alihan Alhan, Necla Çomak, Metin Kürekçi, Latife Canan Kaplan and Uğur Güdük. The other applicants were released. 8.     On 22 March 2006 the Ankara public prosecutor filed an indictment with the Ankara Assize Court against the applicants. In the indictment, the public prosecutor noted that the applicants had participated in two demonstrations organised by trade unions and non-governmental organisations held on 17 December 2005 and 19 February 2006 with the authorisation of the governor’s office. He further noted, on the basis of video footage provided by the police, that the applicants had carried banners on behalf of the ESP (the Socialist Platform of the Oppressed) and the SGD (Socialist Youth Association), which, according to information on the Internet, were connected to the MLKP. The applicants were charged with membership of an illegal organisation under Article 220 § 7 and Article   314 of the Criminal Code. 9.     On 18 May 2006 the Ankara Assize Court held the first hearing in the case. The applicants conceded before the court that they had participated in the demonstrations of 17 December 2005 and 19 February 2006 but stressed that those demonstrations had been legal. As to the documents, periodicals, books and CDs found in their homes, the applicants maintained that none of the material they had had was illegal, and that they did not accept the content of the search-and-seizure reports prepared after the searches conducted in their homes, as those reports had not been drafted in their presence. 10.     During the hearing held on 22 June 2006, Latife Canan Kaplan, Uğur Güdük and Levent Çakır were released pending trial. 11.     Between 18 May 2006 and 17 January 2007 the Ankara Assize Court held nine hearings. 12.     On 17 January 2007 the Assize Court convicted Deniz Bakır, Metin Kürekçi, Necla Çomak and Alihan Alhan of membership of a terrorist organisation under Article 314 § 2 of the Criminal Code, on the basis of Articles   220 § 7 and 314 § 3 of the same Code. Metin Kürekçi, Necla Çomak and Alihan Alhan were sentenced to six years and three months’ imprisonment. Deniz Bakır was sentenced to seven years and six months’ imprisonment. The rest of the applicants were convicted of disseminating propaganda in favour of a terrorist organisation under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and sentenced to one year and eight months’ imprisonment each. 13.     On 27 September 2007 the Court of Cassation quashed the judgment, holding that the applicants had not had an opportunity to submit their defence submissions in relation to the classification by the Assize Court of their acts under section 7(2) of Law no. 3713. 14.     Between 6 February and 22 October 2008 the Ankara Assize Court held seven more hearings. On 22 October 2008 the court issued a judgment containing the same conclusions and sentences as in its judgment of 17   January 2007. It also ordered the release of Metin Kürekçi, Necla Çomak and Alihan Alhan, taking into account the period of time that they had spent in detention and the length of the sentences imposed on them. 15     In its judgment, the Assize Court noted that although the ESP and the SGD were legal entities, their activities were in line with those of the MLKP. The court observed that members of the ESP and SGD regarded members of the MLKP who had been killed by the security forces or during hunger strikes as “martyrs” and that they had organised commemorative ceremonies for them. The court further observed that the declarations issued by the MLKP on the Internet were consistent with the aims of the ESP and the SGD. The court hence considered that the ESP and the SGD appeared in the legal domain on behalf of the MLKP and had an organic relationship with it. The court found it established, on the basis of the conduct of members of the ESP and the SGD and having regard to the documents found in the accused’s homes, that ESP and SGD members were carrying out activities in line with the strategies of the MLKP and had been holding legally authorised demonstrations in favour of that organisation on the pretext of exercising their democratic rights. 16 .     In convicting the applicants, the Ankara Assize Court noted that all the applicants except Selçuk Mart had participated in the demonstration of 17   December 2005. As regards Selçuk Mart, the court observed that he had attended the demonstration of 19 February 2006. The court found it established that the applicants had chanted the following slogans during the demonstration held on 17 December 2005: “ M-L-K-P ”, “ Yaşasın partimiz MLKP ” (“Long live our Party, MLKP”), “ Devrimin zaferi, biji MLKP ” (“Victory to the revolution, long live the MLKP”), “ İşçiler partiye, MLKP’ye ” (“Workers join the party, join the MLKP”). The court further found it established that Necla Çomak and Uğur Güdük had chanted the slogan “ Yaşasın 1. Kürdistan konferansı” (“Long live the first Conference of Kurdistan”). Lastly, the court noted that Selçuk Mart had chanted the slogan “Dısa dısa serhildan MLKP Kürdistan” (“Rise up again and again, MLKP Kurdistan”) during the demonstration of 19 February 2006. 17 .     The Assize Court further noted that Metin Kürekçi and Mehmet Ali Tosun had been wearing clothes and carrying pennants with “ESP” on them during the demonstration of 17 December 2005, and that Uğur Güdük and Selçuk Mart had been wearing clothes and hats with “SGD” on them. The first ‑ instance court also noted that Serdar Kır and Necla Çomak had had red ribbons attached to their arms and that the latter had incited the crowd to chant slogans. The court further found it established that Levent Çakır had given a clenched-fist salute during the demonstration. 18.     The Assize Court also noted that Metin Kürekçi, Alihan Alhan and Deniz Bakır had been taken into police custody in the past on account of their participation in various public meetings. There were also several police records in respect of Necla Çomak. Alihan Alhan and Deniz Bakır had also previously been remanded in custody. The court further noted that books which had previously been the subject of seizure orders had been found in the homes of Metin Kürekçi, Necla Çomak, Filiz Uluçelebi and Mehmet Ali Tosun. Metin Kürekçi had also had written material regarding the ESP and SGD. Necla Çomak had been in possession of notes on the illegal organisation and leaflets which belonged to the ESP. 19 .     The Assize Court concluded that Metin Kürekçi, Necla Çomak, Alihan Alhan and Deniz Bakır should be convicted as members of the MLKP because they had aided that illegal organisation. The court found it established that those applicants had directed the crowds, incited people to chant slogans in favour of the MLKP, carried banners, prepared organisational documents and been previously involved in activities in favour of the MLKP. The court considered that those applicants’ acts represented continuity and diversity, and that they had an organic relationship with the MLKP. The court held that the applicants had aided the MLKP by acting and directing other people to act “in a manner planned by” that organisation. It convicted them under Articles 220 § 7 and 314 §§   2 and 3 of the Criminal Code. 20 .     As regards Levent Çakır, Uğur Güdük, Latife Canan Kaplan, Serdar Kır, Selçuk Mart, Mehmet Ali Tosun, Filiz Uluçelebi and Mesut Açıkalın, the Assize Court noted that they had chanted slogans and carried banners and flags in favour of the MLKP during the demonstrations of 17   December 2005 or 19 February 2006 and had been in possession of banned books and documents in favour of that organisation. The court found that those applicants’ acts had constituted propaganda in favour of the MLKP and thereby propaganda inciting people to commit violence or other methods of terrorism. They were therefore convicted pursuant to section 7(2) of Law   no.   3713. 21 .     On 24 December 2009 the Court of Cassation upheld the judgment of 22 October 2008. 22.     On various dates between 10 March 2009 and 12 July 2012 all the applicants except Necla Çomak served the prison sentences imposed on them. 23.     On 5 July 2012 Law no. 6352 entered into force. 24 .     On 2 November 2012 the Ankara Assize Court revised its judgment of 22 October 2008 pursuant to Law no. 6352, which had entered into force on 5 July 2012, in respect of Metin Kürekçi, Alihan Alhan, Deniz Bakır, Necla   Çomak, Levent Çakır, Serdar Kır, Selçuk Mart and Filiz Uluçelebi. The court decided to reduce the sentences imposed on Metin Kürekçi, Alihan Alhan, Deniz Bakır and Necla Çomak pursuant to Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 7 and 314 § 3 of the same Code, to two years and one month’s imprisonment. As regards Levent Çakır, Serdar Kır, Selçuk Mart and Filiz Uluçelebi, the Assize Court decided to suspend the execution of the sentences imposed on them under section   7(2) of Law no. 3713, in accordance with provisional section 1 of Law no. 6352. The suspension was for a period of three years, on condition that they did not commit an offence when expressing ideas and opinions through the medium of the press or other media, or by any other means. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Criminal Code (Law no. 5237) 25.     On 1 April 2005 Law no. 5237 entered into force. At the material time, Article 220 of the Criminal Code read as follows: Establishing an organisation for the purpose of criminal activity “(1)     Anyone who establishes or directs an organisation for the purpose of criminal activity shall be liable to a term of imprisonment of between two and six years, provided that the structure of the organisation, the number of members and the quantity of equipment and supplies are sufficient to commit the intended crimes. (2)     Anyone who becomes a member of an organisation established for the purpose of criminal activity shall be liable to a term of imprisonment of between one and three years. (3)     If the organisation is armed, the sentences stated above shall be increased by between one quarter and one half. (4)     Any crime committed within the framework of the organisation’s activities shall be punished separately. (5)     The heads of such an organisation shall also be sentenced as perpetrators of all crimes committed within the framework of the organisation’s activities. (6)     Anyone who commits a crime on behalf of an (illegal) organisation, even if he is not a member of that organisation, shall also be punished for being a member of the organisation. (7)     Anyone who aids an (illegal) organisation knowingly and willingly, even if he does not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation. (8)     Anyone who spreads propaganda for the organisation or its objectives shall be punished by a term of imprisonment of between one and three years. If the said crime is committed through the press or other media, the sentence shall be increased by one half.” Paragraphs 6 and 7 of Article 220 were amended by Law no.   6352, which entered into force on 2 July 2012, as follows: “(6)     Anyone who commits a crime on behalf of an (illegal) organisation, even if he is not a member of that organisation, shall also be punished for being a member of the organisation. The penalty to be imposed for membership may be reduced by up to half. (7)     Anyone who aids an (illegal) organisation knowingly and willingly, even if he does not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation. The penalty to be imposed for membership may be reduced by up to two thirds, depending on the nature of the assistance.” 26.     Article 314 of the Criminal Code reads as follows: Armed organisations “(1)     Anyone who forms an armed organisation to commit the crimes listed in the fourth and fifth sections of this chapter, or commands such an organisation, shall be liable to a term of imprisonment of between ten and fifteen years. (2)     Anyone who becomes a member of an (armed) organisation mentioned in the first paragraph of this Article shall be liable to a term of imprisonment of between five and ten years. (3)     Other provisions relating to the crime of establishing an organisation for the purpose of criminal activity are also applicable to this crime.” B.     Prevention of Terrorism Act (Law no. 3713) 27.     Between 7 August 2003 and 18 July 2006, section 7(2) of Law   no.   3713 read as follows: “Any person who assists members of the aforementioned organisations [terrorist organisations] or who disseminates propaganda inciting others to violence or other methods of terrorism shall be liable to a term of imprisonment of one to five years and a judicial fine of five million liras to one billion liras ...” The first sentence of section 7(2) of Law no. 3713 was amended by Law   no.   5532, which entered into force on 18 July 2006, as follows: “Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of one to five years ...” The first sentence of section 7(2) of Law no. 3713, as amended on 30   April 2013 by Law no. 6459, currently reads as follows: “Any person who disseminates propaganda in favour of a terrorist organisation by justifying, praising or encouraging the use of methods constituting coercion, violence or threats shall be liable to a term of imprisonment of one to five years ...” III.     RELEVANT INTERNATIONAL MATERIAL A.     European Commission for Democracy through Law (the Venice Commission) 28 .     At its 106 th plenary session, held on 11 and 12 March 2016, the Venice Commission adopted an Opinion on Articles 216, 299, 301 and 314 of the Penal Code of Turkey (CDL-AD(2016)002)). The relevant parts of the Opinion read as follows: “ 1.     Membership of an armed organisation (art. 314) 98.     The Penal Code does not contain a definition of an armed organisation or an armed group. In its judgment E. 2006/10-253 K. 2007/80 of 3 April 2007, the General Criminal Board of the Court of Cassation listed the main criteria that a criminal organisation – for the purposes of Article 220 of the Penal Code – should display. The group has to have at least three members; there should be a tight or loose hierarchical connection between the members of the group and an “abstract link” between the members is not sufficient; the members should have a common intention to commit crimes (even though no crime has yet been committed); the group has to present continuity in time; and the structure of the group, the number of its members, tools and equipment at the disposal of the group should be sufficient/appropriate for the commission of the envisaged crimes. ... 100.     There is a rich case-law of the Court of Cassation in which the high court developed the criterion of ‘membership’ in an armed organisation. The Court of Cassation examined different acts of the suspect concerned, taking account of their ‘continuity, diversity and intensity’ in order to see whether those acts prove that the suspect has any ‘organic relationship’ with the organisation or whether his or her acts may be considered as committed knowingly and wilfully within the ‘hierarchical structure’ of the organisation ... 101.     If this ‘organic relationship’ with the organisation cannot be proven on the basis of acts attributed to the defendant, which do not present any ‘continuity, diversity or intensity’, the paragraphs on ‘aiding and abetting an armed organisation’ or ‘committing crime on behalf of an armed organisation’ under Article 220 may be applied (see below). ... 102.     According to non-governmental sources, in the application of Article 314, the domestic courts, in many cases, decide on the membership of a person in an armed organisation on the basis of very weak evidence, which would raise questions as to the ‘foreseeability’ of the application of Article 314 ... Amnesty International, in its 2013 Report on Turkey, considered that conduct, which is not in itself criminal, as for instance an activity related to the exercise of the rights to freedom of assembly, association and expression, is considered as evidence of membership of the defendants in an armed organisation. The reason for this approach, according to the Report, is that the prosecution services perceive those activities as having the same overall objective as a terrorist group and as a result, ‘ individuals have been prosecuted for membership of terrorist organisation on charges relating solely to their engagement in peaceful and, in themselves, lawful pro-Kurdish activities ’. The examples of concrete cases provided by Amnesty International in which the evidence was considered to link the defendants to a terrorist organisation included, attendance at six different demonstrations allegedly organised by a terrorist organisation and a speech made at one of those demonstrations, or, in another case, the participation of the defendant in the ‘Political Academy’ organised by the Peace and Democracy Party (BDP – a recognised Pro-Kurdish political party) and his diverse activities in the framework of this Academy. ... 104.     ... in the case of Yılmaz and Kılıç v. Turkey (68514/01), the ECtHR considered (although in the context of Article 169 of the former Penal Code – concerning aiding and abetting a terrorist organisation) that where the only evidence which led to the criminal conviction of the applicants under Article 169 was forms of expression (statements by the applicants, content of the slogans they shouted during a public demonstration etc.), it should be concluded that there was an interference with the applicants’ right to freedom of expression (para. 58 of the judgment). Subsequently, the Court examined whether this interference was justified as being necessary in a democratic society. The Court applied the same principle in the case of Gül and others v. Turkey (4870/02) and held that the criminal conviction of the applicants on the basis of Article 169 of the former Penal Code constituted an interference with their right to freedom of expression, since the only evidence used against them was the content of the slogans they shouted during a public demonstration. 105.     ... the Commission reiterates that conviction on the basis of weak evidence in the application of Article 314 may create problems in the field of Article 7 ECHR since this provision embodies, inter alia , the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. In the cases where the only evidence which led the domestic courts to convict the defendant for being a member of an armed organisation, are forms of expression, as for instance in the above-mentioned Yılmaz and Kılıç case, reliance on weak evidence may also give rise to problems concerning the ‘foreseeability’ of the interference into the right to freedom of expression of the defendant ... For the Venice Commission ... any allegation of membership to an armed organisation must be established with convincing evidence and beyond any reasonable doubt. 106.     ... the Venice Commission recommends, first, that the established criteria in the case law of the Court of Cassation that acts attributed to a defendant should show ‘in their continuity, diversity and intensity’, his/her ‘organic relationship’ to an organisation or they should prove that he/she acted knowingly and willingly within the ‘hierarchical structure’ of the organisation, should be applied strictly. The loose application of these criteria may give rise to issues concerning in particular the principle of legality within the meaning of Article 7 ECHR. 107.     Second, the expression of an opinion in its different forms should not be the only evidence before the domestic courts to decide on the membership of the defendant in an armed organisation. Where the only evidence consists of forms of expression, the conviction for being a member of an armed organisation, would constitute an interference with the right of the defendants to freedom of expression, and that the necessity of this interference on the basis of the criteria as set forth in the case-law of the ECtHR, in particular the criteria of ‘incitement to violence’, should be examined in the concrete circumstances of each case. 2.     Application of Article 314 in conjunction with Article 220 108.     Paragraph (3) of Article 314 provides that ‘All other provisions related to the crime of establishing an organization to commit a crime will be applied in conjunction with this provision.’ Article 220 of the Criminal Code is of particular importance, since in many recent judgments of the Court of Cassation, Article 314 was applied in conjunction with paragraphs (6) and (7) of Article 220, on the basis of the reference made in Article 314(3) to ‘other provisions’ related to forming a criminal organisation. According to paragraphs (6) and (7) of Article 220, any person who commits an offence on behalf of an organisation (para. 6) or aids and abets an organisation knowingly and willingly (para. 7), shall also be sentenced for the offence of being a member of that organisation (art. 314), although he/she is not a member of that organisation. 109.     In a judgment of 4 March 2008 the General Criminal Board of the Court of Cassation held that acts such as participating in a public demonstration following a general call from pro-PKK media outlets, making a victory sign and shouting slogans to support and in favour of the leader of a terrorist organisation, and clashing with the security forces, are considered crimes committed on behalf of the terrorist organisation. In this case, although the membership in an armed organisation was not established, the defendant was convicted as a member of a criminal organisation, according to paragraph 6 of Article 220 applied in conjunction with Article 314. By this judgment, the Court of Cassation annulled the decision of the Diyarbakır Assize Court, which had considered that, in order for a court to conclude that a crime was committed on behalf of an organisation, “ the latter must have called for action not to an undefined collective, but rather to an individual person who is capable of directly committing that act ”. 110.     In a judgment of 24 March 2011, the 9 th Chamber of the Court of Cassation also held that participation in an illegal public demonstration following a general call of the armed organisation on its Internet site, covering one’s face during a demonstration in order to hide his/her identity, and shouting slogans in support of the armed organisation were considered as committing crimes on behalf of an armed organisation and the defendant, although his membership was not proven, was convicted also as a member of an armed organisation (Article 220(6) in conjunction with Article 314). 111.     Article 220(7), concerning aiding and abetting an organisation knowingly and willingly, was also applied to cases involving freedom of expression. In the Nedim   Şener case, the applicant was prosecuted under Article 314(3) in conjunction with Article 220(7) (aiding and abetting an armed organisation) for having contributed, at the request of the suspected members of a criminal organisation, to the preparation of books criticising the actions of the government. In a judgment of 4   June 2012 of the Court of Cassation, the fact that the defendants, in the framework of a campaign instigated by the terrorist organisation on its internet sites, have prepared a declaration which states ‘ If it is a crime to refer to Öcalan as Mr. Öcalan, I hereby commit this crime [by referring to Öcalan as Mr. Öcalan] and I denounce myself [to the authorities]’ and have collected signatures for this declaration, was considered as ‘knowingly and willingly aiding the criminal organisation’. 112.     Consequently, although the ‘organic relationship’ of the defendant with an armed organisation cannot be proven on the basis of the established criterion developed by the Court of Cassation in its case-law related to Article 314 (paras.   100 and 101), the defendants who are considered to have committed crimes on behalf of an armed organisation (para. 6 of Article 220) or have aided and abetted an armed organisation knowingly and willingly (para. 7 of Article 220) are also sentenced for the offence of being a member of that organisation under Article 314. ... 114.     ... a new paragraph has been added to Article 7 of the Anti-Terror Law no.   3713 by an amendment of 11 April 2013. According to this new paragraph, those who committed the crime indicated in the second paragraph of Article 7 (propaganda in support of a terrorist organisation); the crime indicated in the second paragraph of Article   6 (printing and disseminating declarations made by terrorist organisations which legitimise or praise the violent or threatening methods of terrorist organisations or encourage the use of such methods); the crime indicated in the first paragraph of Article   28 of the Public Demonstrations Law no. 2911 (participating to an unlawful demonstration), shall not be sentenced separately under Article 220(6) of the Penal Code. The authorities indicated that with this amendment, the scope of the freedom of expression was broadened in the application of anti-terror legislation. 115.     The Venice Commission welcomes the amendment introduced to Article 7 of the Anti-Terror Law, which excluded the above-mentioned crimes from the scope of application of Article 220(6). With this amendment, the suspects accused of having committed such crimes shall not be punished separately as members of an armed organisation under Article 314. 116.     Nevertheless, the Venice Commission considers that the scope of this amendment is rather limited and does not provide for sufficient protection to the exercise of freedom of expression and assembly in particular. First, the amendment to Article 7 of the Anti-Terror Law excluded the above-mentioned crimes only from the scope of application of Article 220(6). However, some forms of expression, as indicated in the judgments of the Court of Cassation cited in paragraph 111, may also fall under the scope of Article 220(7) (aiding and abetting an organisation). This may lead to abusive application in practice, since a form of expression considered as being in support of an organisation, may be sanctioned under Article 220(7), instead of Article 220(6), in order to sentence the defendants as if they were members of an armed organisation under Article 314, although their organic relationship with an armed organisation is not established. ... 120.     In conclusion, the Venice Commission recommends that the sentence ‘although he is not a member of that organisation, shall also be sentenced for the offence of being a member of that organisation.’ in paragraphs 6 and 7 of Article   220 be repealed. In this case, those who commit the crimes indicated in paragraphs 6 and   7 of Article 220 would not be sanctioned as members of an armed organisation under Article 314, but by other, separate sanctions. 121.     Should this sentence in paragraph 6 and 7 be maintained, the Turkish authorities should consider limiting the application of Article 220 in conjunction with Article   314, to cases which do not involve the exercise of the rights to freedom of expression and assembly.” B.     Commissioner for Human Rights of the Council of Europe 1.     Report of 10 January 2012 (CommDH(2012)2) 29 .     In a report published on 10 January 2012 following a visit to Turkey between 10 and 14 October 2011, Mr   Thomas Hammarberg, the former Commissioner for Human Rights of the Council of Europe, stated the following: “68.     The Commissioner is fully aware of the severe threat posed to Turkish society by terrorism and terrorist organisations, as well as of the obligation of the Turkish state to combat it with effective measures, including effective investigations and fair proceedings. He wishes to underline, however, that a major lesson learned in the fight against terrorism in Europe has been the importance of public confidence in the justice system. This means that any allegation of terrorist activity must be established with convincing evidence and beyond any reasonable doubt. Experience has shown time and time again that any deviation from established human rights principles in the fight against terrorism, including in the functioning of the judiciary, ultimately serves the interests of terrorist organisations. 69.     In this connection, it is crucial to bear in mind that violence or the threat to use violence is an essential component of an act of terrorism, and that restrictions of human rights in the fight against terrorism ‘must be defined as precisely as possible and be necessary and proportionate to the aim pursued’. 70.     The Commissioner considers that the provisions contained in the Turkish anti-terror legislation and Article 220 TCC allow for a very wide margin of appreciation, in particular in cases where membership in a terrorist organisation has not been proven and when an act or statement may be deemed to coincide with the aims or instructions of a terrorist organisation. The Commissioner encourages the Turkish authorities to reflect on and address these concerns through legislative measures and/or case-law.” 2.     Memorandum of 15 February 2017 ((CommDH(2017)5)) 30.     In a memorandum on freedom of expression and media freedom in Turkey, published on 15 February 2017 following a visit to Turkey between 6   and 14 April 2016 (CommDH(2017)5), Mr Nils Muižnieks, the Commissioner for Human Rights of the Council of Europe, stressed the need for a complete overhaul of the Turkish Criminal Code, including Article   220 §§ 6 and 7 and Article 314. He considered that the overhaul should take full account of the Court’s case-law and the opinion of the Venice Commission cited above. C.     Non-governmental organisations’ reports 1.     Report of Human Rights Watch of 1 November 2010 31.     On 1 November 2010 Human Rights Watch published a report entitled “Protesting as a Terrorist Offence / The Arbitrary Use of Terrorism Laws to Prosecute and Incarcerate Demonstrators in Turkey”. The seventy ‑ five-page report mainly concerned trials and convictions of demonstrators in Turkey under Laws nos. 5237, 2911 and 3713. The report, in so far as relevant, reads as follows: “In Turkey, many hundreds of people currently face prosecution, or are serving substantial sentences for terrorism convictions. Their ‘crime’ was to engage in peaceful protest, or to throw stones or burn a tire at a protest. Legal amendments since 2005, along with case law since 2008, have allowed courts in Turkey to convict demonstrators under the harshest terrorism laws, by invoking two articles of the Turkish Penal Code in combination with the Anti-Terror Law. The 2005 Penal Code introduced Article 220, entitled, ‘Forming Organized Groups with the Intention of Committing Crime’ ... This article has been most commonly used to punish criminal gangs, as a separate article, discussed below, criminalizes membership in armed political organizations. However, courts have also applied Article 220 to those deemed to be associated with armed political organizations. This article also introduced a provision allowing individuals to be treated as if they are members of an armed organization even if they are not. ... Article 220/7 states: A person who aids and abets the organization knowingly and willingly, although he or she does not belong to the hierarchical structure of the organization, shall be punished as though a member of the organization. While Article 220/7 has not recently been applied to pro-Kurdish demonstrators, it has in some cases been applied to leftist demonstrators who have been punished as ‘members’ of armed organizations for ‘knowingly and willingly aiding’ them without providing any material assistance. This undefined and vague charge currently in use against leftist demonstrators deserves a separate study. ... Turkish Penal Code Articles 220/6 and 220/7 (‘committing a crime on behalf of an organization’ and ‘knowingly and willingly aiding and abetting an organization’) are striking examples of legal provisions that are so vaguely worded and lacking in clarity about what is prohibited as to offer an individual no indication of how to regulate or limit conduct. ... X.     Recommendations To the Turkish Government: Urgently amend Turkish Penal Code Article 220 (‘forming criminal organizations’), and repeal 220/6 (‘committing a crime on behalf of an organization’) and   220/7 (‘aiding and abetting an organization knowingly and willingly’), which are vague, lack legal clarity and specificity, and are therefore subject to arbitrary application. ... Set up a review board to examine all cases concluded under these articles for compliance with international human rights law obligations, with a view to quashing sentences under Turkish Penal Code Articles 314/2 and 314/3 in connection with Articles   220/6 and 220/7.” 2.     Report of Amnesty International of 27 March 2013 32.     On 27 March 2013 Amnesty International published a report entitled “Turkey: Decriminalize Dissent / Time to deliver on the Right to Freedom of Expression”. The relevant passages of the report read as follows: ARTICLE 220/7: ASSISTING A TERRORIST ORGANIZATION “Article 220/7 of the Turkish Penal Code criminalises assisting a terrorist organisation. Unlike Article 220/6, it is a self-standing offence that does not require the commission of a further criminal act. Like Article 220/6, however, it allows for the sentencing of those convicted under it as though they were members of the organisation they are found to have assisted. In full the article reads: ‘A person who knowingly and willingly assists the organization but is not within the hierarchical structure of the organization is punished as a member of the organization. The punishment given for membership can be reduced by one third, depending on the nature of the assistance given.’ As with Article 220/6, this Article is often used to prosecute conduct protected by the rights to freedom of expression, association and assembly. Indeed, the choice of prosecutors to prosecute under 220/6 or 220/7 often appears arbitrary, with similar behaviour sometimes prosecuted under one, sometimes under the other – and sometimes under Article 314 (criminalizing membership of a terrorist organization) directly. As with prosecutions under 220/6, when prosecutors seek to convict a person under Article 220/7 they often do not provide evidence demonstrating a link to a terrorist organization, nor do they attempt to prove that the accused was engaged in any criminal offence, or in aiding and abetting, other than supposedly assisting the proscribed organization. It is incumbent on the Turkish authorities to ensure that Article 220/7 is not used to bring prosecutions that violate the rights to freedom of expression, association and assembly or other human rights. To this end, the government should issue and publish guidelines for prosecutors that set out clear criteria for when assisting an armed group can be criminalized, including the requirement that such assistance must either in and of itself be a recognizable criminal offence, or be directly linked to the planning or commission of one. Short of evidence of such acts, no inference should be drawn from someone undertaking a lawful act, such as for example participating in a peaceful demonstration. This is so, even if such acts benefit, through lawful means, goals shared by a terrorist organization. The motive of the individual who is carrying out the lawful acts is irrelevant: anyone carrying out a lawful act which does not aid and abet the planning or commission of a crime should not be criminalized on the sole basis of their political convictions. ... Amnesty International urges the Turkish government to: ... Adopt guidelines for prosecutors on the application of Article 220/7 of the Penal Code that set out clear criteria for when assisting an armed group can be criminalized, including the requirement that such assistance must either in and of itself be a recognizable criminal offence, or be directly linked to the planning or commission of one. ...” THE LAW I.     THE GOVERNMENT’S PRELIMINARY OBJECTION 33.     In their observations dated 27 March 2014, the Government argued that the applicants’ observations had not been submitted in one of the official languages of the Court as required by Rule 34 § 1 of the Rules of Court, and that there was nothing in the case file demonstrating that they had been granted leave to use the Turkish language in the proceedings before the Court. They invited the Court not to take into account the applicants’ observations and claims for just satisfaction. 34.     The Court notes that although by a letter dated 3 January 2014 the applicants were informed that the President of the Section had decided, in accordance with Rule 34 § 3 of the Rules of Court, to grant them leave to use the Turkish language in the written proceedings before the Court (see paragraph   4 above). Due to an administrative oversight at the time, the Government were not informed of that decision. Nonetheless, the Court has already examined and dismissed similar objections by the respondent Government (see Atılgan and Others v. Turkey , nos. 14495/11, 14531/11, 26274/11, 78923/11, 8408/12, 11848/12, 12078/12, 12103/12, 14745/12, 21910/12 and 41087/12, § 12, 27 January 2015, and Şakir Kaçmaz v.   Turkey , no.   8077/08, §   62, 10 November 2015). In the present case, the Court finds no reason to depart from that conclusion. The Government’s arguments on this point should therefore be rejected. II.     ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 35.     The applicants complained that their trial and criminal conviction on the basis of their participation in demonstrations and their acts therein constituted a violation of their rights under Articles 10 and 11 of the Convention. 36.     Having regard to the fact that the applicants’ criminal convictions were mostly based on their participation in demonstrations and their conduct therein, the Court considers that these complaints should be examined from the standpoint of Article 11 of the Convention (see Galstyan v.   Armenia , no. 26986/03, § 95, 15 November 2007; Kasparov and Others v.   Russia , no. 21613/07, § 82, 3 October 2013; Lütfiye Zengin and Others v.   Turkey , no. 36443/06, § 35, 14 April 2015; and Gülcü v. Turkey , no.   17526/10, § 75, 19 January 2016). 37.     The Court notes nonetheless that the applicants were not only convicted for their participation in demonstrations but also for having expressed their opinions during those demonstrations. It further notes that when the execution of some of the applicants’ prison sentences was suspended, they were required not to commit any offence involving expression of ideas and opinions (see paragraphs 16, 17, 19, 20 and 24 above). Therefore, notwithstanding its autonomous role and particular sphere of application, Article 11 must, in the present case, also be considered in the light of Article 10. The protection of personal opinions, secured by Article   10, is one of the objectives of freedom of peaceful assembly enshrined in Article 11 (see Ezelin v. France , 26 April 1991, §   37, Series A no.   202; Galstyan , cited above, § 96; and Kasparov and Others , cited above, §   83). Article 11 of the Convention reads as follows: “ 1.   Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2.     No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” 38.     The Government contested the applicants’ allegations. A.     Admissibility 39.     The Government argued that the applicants had failed to exhaust the domestic remedies available to them, within the meaning of Article 35 §   1 of the Convention. They submitted that on 2 November 2012 the Ankara Assize Court had rev