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

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TURKEY (No. 2)   (Application no. 57316/10)                   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 İmret v. Turkey (no. 2), 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. 57316/10) 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 a Turkish national, Mr Abdulcelil İmret (“the applicant”), on 7 September 2010. 2.     The applicant was represented by Mr E. Şenses and Mr T. İmret, lawyers practising in Batman. The Turkish Government (“the Government”) were represented by their Agent. 3.     On 10 January 2012 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1958 and lives in Batman. At the time of the events giving rise to the present application, he was the head of the Batman branch of the People’s Democratic Party (DEHAP) and subsequently the Party for a Democratic Society (DTP). 5.     On unspecified dates in 2005 and 2006 the Batman public prosecutor’s office initiated at least four criminal investigations against the applicant. On 18 October 2005, 6 December 2005, 1 February 2006 and 23   March 2006 the applicant made statements before the Batman public prosecutor in relation to his attendance at a number of public meetings. 6.     In particular, when he was questioned on 18 October 2005 the applicant was asked about his participation in an event commemorating a number of deceased members of the PKK (Kurdish Workers’ Party, an illegal armed organisation) held on 22 August 2005. The applicant responded that he had become aware of that event when demonstrators had started to march to the cemetery where the deceased were buried. As he was the head of the Batman branch of DEHAP, he had attended the march in order to keep the demonstrators under control and to prevent any possible disturbances in the town. 7.     When questioned on 6 December 2005, the applicant stated that on 17   August 2005 he had been the head of the DEHAP branch in Batman and that he had not praised the leader of the PKK in his speech. The applicant added that although Abdullah Öcalan, the leader of the PKK, was in prison, he was regarded as a political actor by the local population. The applicant’s intention had been to express that social fact and he was against any kind of violence. When the public prosecutor reminded him of the violent acts of the PKK, the applicant once again stated that he was against violence regardless of whom it emanated from. 8.     On 1 February 2006 the Batman public prosecutor asked the applicant why he had referred to the PKK leader as “Esteemed/Mr ( Sayın ) Öcalan” during one of his speeches. The applicant responded that he had used the word “ Sayın ” as a matter of courtesy. He stated that he had not intended to disseminate propaganda in favour of the PKK or to praise a criminal. 9.     Lastly, on 23 March 2006 the applicant was questioned by the Batman public prosecutor in the context of a criminal investigation opened against him on suspicion of membership of the PKK. He stated that he had participated in several demonstrations and readings of press statements in his capacity as the head of the Batman branch of DEHAP and the DTP, and that he had not committed any offence during those events. He denied the veracity of the allegation that those public meetings had been organised in accordance with the instructions of the PKK. When he was asked about a sentence condemning both the death of Turkish soldiers and PKK members which he had uttered during a speech, the applicant stated that he would utter that sentence again without hesitation. He also stated that the petition campaign entitled “I accept Abdullah Öcalan as a political actor” had not been started upon the instructions of the PKK. He accepted that he had demanded an end to the solitary confinement of Abdullah Öcalan and addressed the latter as “Esteemed/Mr ( Sayın ) Öcalan”. However, he denied the allegation that he had had the intention of disseminating propaganda in favour the PKK. The applicant contended that he had attended the demonstrations and meetings in question in order to control the crowds and to prevent any possible disturbances. Lastly, he claimed that his aim was to contribute to peace and democracy. 10.     On 23 March 2006 the applicant was brought before the Batman Magistrates’ Court and questioned in respect of his involvement in a demonstration held on 16 February 2006 in Batman. He submitted that he had attended the demonstration with a view to preventing violence, since he was the head of the DTP at the material time. The court ordered the applicant’s remand in custody. 11.     On 24 March 2006 the Batman public prosecutor decided to transfer the investigation to the Diyarbakır public prosecutor’s office, holding that the offence which the applicant had committed, namely membership of a terrorist organisation and carrying out membership activities, was not within his office’s jurisdiction. 12 .     On 26 April 2006 the Diyarbakır public prosecutor filed an indictment with the Diyarbakır Assize Court, charging the applicant and a certain M.G., under Article   220 §   8 of the Criminal Code, with disseminating propaganda in favour of the PKK on ten occasions. In the indictment the public prosecutor listed a total of ten marches and demonstrations which the applicant had attended. He noted that during those marches and demonstrations, demonstrators had chanted slogans and carried banners praising the PKK and its leader, Abdullah Öcalan, and that the applicant had made speeches in Kurdish at nine of those ten assemblies. 13.     On 30 May 2006 the Diyarbakır Assize Court held the first hearing on the merits of the case. During the hearing, the applicant contended that he was the head of the Batman branch of the DTP. Although he had participated in the public meetings indicated in the indictment, he had not chanted any slogans or carried banners containing illegal expressions. He further submitted that he had not directed demonstrators to commit any illegal acts. The applicant stressed that in general he attended such public meetings at the request of the security forces, since the latter asked him to be present in order to prevent any possible clashes between themselves and the demonstrators. 14.     During the second hearing held on 18 July 2006 the public prosecutor submitted his observations on the merits of the case. The public prosecutor contended that the applicant had attended various illegal public meetings between 19 February 2005 and 16 February 2006 and that he had made speeches in which he had praised the PKK and its leader. The public prosecutor alleged that those events had been organised either in line with the policies of the PKK or under its instructions with a view to supporting that organisation. Taking into account the intensity, variety and continuity of the applicant’s activities, the public prosecutor considered that the applicant’s acts constituted knowingly and willingly aiding the PKK. He then asked the Assize Court to convict the applicant under Articles 220 §   7 and 314 § 2 of the Criminal Code of membership of the PKK. 15 .     On 26 September 2006 the Diyarbakır Assize Court held the fourth and the last hearing in the case and convicted the applicant and his co ‑ accused of membership of an illegal organisation under Article 314 §   2 of the Criminal Code on the basis of Articles 220 § 7 and 314 § 3 of the same Code, finding it established that the applicant had knowingly and willingly aided the PKK. The applicant was sentenced to six years and three months’ imprisonment. The judgment of the Assize Court, insofar as relevant, reads as follows: “In the indictment dated 26 April 2006 it was alleged that Abdulcelil İmret had committed the following acts: 1.     Attendance at the reading out of a press statement and an illegal march held on 19 February 2005 in the Mem-u Zin Park in Batman during which the demonstrators chanted slogans in favour of the PKK and Abdullah Öcalan; 2.     Attendance at the event commemorating a deceased PKK member held in the Batman cemetery on 31 March 2005, making a speech in Kurdish and making participants say prayers in Kurdish; 3.     Attendance at the reading out of a press statement at the Batman branch of DEHAP on 16 August 2005 regarding the petition campaign entitled “I accept Abdullah Öcalan as a political actor”; 4.     Attendance at the illegal demonstration held on 22 August 2005 to commemorate seven members of the PKK killed by the security forces in an armed clash which had occurred in Batman; 5.     Attendance at the demonstration organised by DEHAP and held on 9   November 2005, during which the demonstrators chanted illegal slogans, and making a speech in Kurdish addressed to the press and the demonstrators; 6.     Attendance at the demonstration held on 16 November 2005 during which the demonstrators chanted slogans in favour of the PKK and Abdullah Öcalan and carried banners, and making a speech in Kurdish addressed to the press and the demonstrators; 7.     Attendance at the demonstration held on 30 November 2005 protesting against the attempts to close down ROJ TV, the alleged solitary confinement of Abdullah Öcalan and the statement by Deniz Baykal, the leader of the CHP (People’s Republican Party) regarding the events that had occurred in Yüksekova during which the demonstrators chanted slogans in favour of Abdullah Öcalan, and making a speech in Kurdish addressed to the press and the demonstrators; 8.     Attendance at the reading out of a press statement and at a march held on 21   December 2005 protesting against the solitary confinement of Abdullah Öcalan, during which the demonstrators chanted illegal slogans and carried banners, and making a speech in Kurdish addressed to the press and the demonstrators; 9.     Attendance at the march and the reading out of a press statement held on 8   February 2006 in Batman, during which illegal slogans were chanted, and making a speech in Kurdish; 10.   Attendance at the illegal demonstration and the reading out of a press statement held on 16 February 2006 close to the DTP Batman branch, during which illegal slogans were chanted and banners were carried, and making a speech in Kurdish; ... In his defence submissions Abdulcelil İmret stated that he had participated in the demonstrations and the reading out of press statements mentioned in the indictment but that he had neither chanted slogans nor carried banners. He stated that he had not directed demonstrators to chant slogans or to carry banners. Abdulcelil İmret submitted that he had attended those meetings at the request of the security forces and that the latter had asked him to warn the crowds not to resist them and to work with them with a view to preventing possible disturbances. ... The file contains police reports, photographs and video recordings of the events which the accused attended and the speeches he made. On the basis of the evidence in the file, it has been understood that during all the demonstrations and marches held in Batman which Abdulcelil İmret attended, slogans in favour Abdullah Öcalan were chanted and the demonstrators carried banners. It has also been understood that the speeches made by the accused praised Abdullah Öcalan. It is established that the accused attended the public meetings in question and organised them. Although the accused submitted that their aim had been to prevent clashes between the demonstrators and the security forces and [that they] had not had the intention of disseminating propaganda in favour of the PKK when they had participated in the demonstrations and marches in question, taking into account the content of the case file and their acts during those meetings, their defence submissions have been found to be baseless. As a result of the trial and in the light of the evidence, It has been established that Abdulcelil İmret worked as the head of the Batman branch of DEHAP and that subsequent to the closure of DEHAP he was the head of the Batman branch of the DTP. He attended ten marches and demonstrations held between 19 February 2005 and 16   February 2006, organised by the above-mentioned political parties. Illegal slogans were chanted and illegal banners were carried during those meetings. In some of those meetings, Abdulcelil İmret read press statements containing expressions praising Abdullah Öcalan. All of the marches and demonstrations in question were illegal within the meaning of section 23/b of the Marches and Demonstrations Act (Law no.   2911). ... It has been established that all of those marches and demonstrations were organised in line with the ‘Democratic Political Struggle’ strategy adopted by the PKK recently; that the media broadcasts in line with the PKK’s strategies had announced those marches and demonstrations prior to them, and that the same media organs had used those demonstrations as propaganda materials after they had been held. Abdulcelil İmret and M.G. organised several illegal demonstrations in line with the PKK’s instructions and during those demonstrations they addressed the demonstrators who chanted slogans and carried banners containing expressions in favour of the PKK and Abdullah Öcalan. In their speeches the accused praised the PKK’s leader. Taking into account the continuity and nature of their acts, it is considered that those acts went beyond the offence of dissemination of propaganda in favour of a [terrorist] organisation and amounted to the offence proscribed by Article 220 § 7 of the Criminal Code, that is to say, ‘knowingly and willingly aiding an illegal organisation without being in the hierarchical structure’. Therefore, it has been decided to convict the accused under Article 314 § 2 of the Criminal Code. ...” 16 .     On 13 April 2010 the Court of Cassation upheld the first-instance judgment. 17.     By Law no. 6352, which entered into force on 5 July 2012, paragraph   7 of Article 220 of the Criminal Code was amended. The applicant applied to the Diyarbakır Assize Court requesting it to examine whether the amended version of that provision could be considered to be in his favour and, if so, whether the execution of his sentence could be suspended. He added that he was currently serving his prison sentence. 18.     On 16 August 2012 the Diyarbakır Assize Court decided to reduce the applicant’s sentence to five years, two months and fifteen days’ imprisonment. The court rejected the applicant’s request to have the execution of his sentence suspended. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Criminal Code (Law no. 5237) 19.     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 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.” 20.     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) 21.     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 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) 22 .     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) 23 .     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)) 24.     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 Venice Commission opinion cited above. C.     Non-governmental Organisations’ Reports 1.     Report of Human Rights Watch of 1 November 2010 25.     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 26.     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.     ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 27.     The applicant complained under Articles 10 and 11 of the Convention about his conviction for participating in ten public gatherings and making speeches during those gatherings. 28.     The Court notes that in the circumstances of the present case Article   10 is to be regarded as a lex generalis in relation to Article 11, which is a lex specialis (see Ezelin v. France , 26 April 1991, § 35, Series   A no.   202; Galstyan v. Armenia , no. 26986/03, § 95, 15 November 2007; Kasparov and Others v. Russia , no. 21613/07, § 82, 3 October 2013; and Lütfiye Zengin and Others v. Turkey , no. 36443/06, § 35, 14 April 2015). Accordingly, the Court will examine these complaints from the standpoint of Article 11 of the Convention (see Gülcü v. Turkey , no. 17526/10, §   75, 19   January 2016). 29.     However, 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 , cited above, § 37; Galstyan , cited above, §   96; and Kasparov and Others , cited above, § 83). 30.     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.” 31.     The Government contested the applicant’s allegations. A.     Admissibility 32.     The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicant 33.     The applicant argued that his conviction under Articles 220 §   7 and   314 § 2 of the Criminal Code had constituted an interference with his right to freedom of assembly. He stated that the interference in question had not been prescribed by law, within the meaning of Articles 10 and 11 of the Convention. In that connection, the applicant argued that the domestic courts had interpreted Article 220 § 7