CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 12 janvier 2021

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TURKEY (Application no. 40884/07)           JUDGMENT                   STRASBOURG 12 January 2021   This judgment is final but it may be subject to editorial revision. In the case of Kılınç v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Valeriu Griţco, President,   Branko Lubarda,   Pauliine Koskelo, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to: the application (no.   40884/07) 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 Mehmet Kılınç (“the applicant”), on 3 September 2007; the decision to give notice to the Turkish Government (“the Government”) of the complaints under Article 6 §§1 and 3 and Article   10 and to declare inadmissible; the parties’ observations; Having deliberated in private on 1 December 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the applicant’s criminal conviction for 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, and the alleged unfairness of the criminal proceedings against him, mainly due to the failure of the authorities to inform him of the accusations against him and the deprivation of his right to benefit from a lawyer’s assistance when making his initial statements to the police. THE FACTS 2.     The applicant was born in 1982 and was serving a prison sentence in İzmir at the time of the lodging of the application. He was represented by Ms N. Paşa, lawyer practising in İzmir. 3.     The Government were represented by their Agent. 4.     On 10 April 2010 the applicant Mehmet Kılınç died while serving his prison sentence. On 5 July 2011 the applicant’s lawyer notified the Court that the applicant’s legal heirs intended to pursue the case. 5.     The facts of the case, as submitted by the parties, may be summarised as follows. 6.     On 2 March 2006 the applicant was arrested on suspicion of acting on behalf of the PKK (Workers’ Party of Kurdistan, an illegal armed organisation). 7.     According to a pre-printed form in the case file that bore the applicant’s signature, he was   reminded   by the police of his rights and obligations in the context of his arrest, including his right to remain silent and to have access to a lawyer. 8.     A record ( tutanak ) drawn by the police on 2 March 2006 indicated that the applicant’s statements were taken upon the İzmir public prosecutor’s instructions following information obtained regarding him within the context of criminal charges brought against a certain H.B. on suspicion of membership of the PKK. It further appears from this record that on 2 March 2006 the police conducted a pre-interview ( ön mülakat ) with the applicant, without the assistance of a lawyer, where he stated that he knew H.B. through the People’s Democratic Party (DEHAP), and gave information regarding two meetings that he had had with H.B. The applicant also admitted in this pre ‑ interview that he had given H.B. some money. 9.     In his “pre-interview” the applicant also told the police that in accordance with the decisions taken by the PKK/KONGRA-GEL, he had organised a petition campaign concerning the political leadership of Abdullah Öcalan in the Kurdish community, and that he had kept the signatures obtained from some 500 individuals in his apartment to eventually transmit them to the Democratic Society Party (DTP). 10.     On 2 March 2006 the Uşak Magistrates’ Court issued an order for the search of the applicant’s apartment. According to the search record prepared on the same date at 5.45 p.m., the police discovered a 44-page long document hidden inside a hole on one of the walls of the apartment. This document consisted of a letter addressed to the Secretary Generals of the United Nations and the Council of Europe, as well as to the President and the Prime Minister and the General Assembly of the Republic of Turkey, together with a list of signatures obtained from 432 individuals. The letter read as: “As a person from Kurdistan, I consider and accept Mr/Esteemed Abdullah   Öcalan of Kurdistan as a political actor [1] .” 11.     According to a record issued on 2 March 2006 at 8 p.m., the applicant met with his lawyer in private, and agreed to give statements to the police in his presence. Before the police, he mainly repeated his previous statements regarding his affiliation with H.B. He also confirmed that he had organised the petition campaign in question and that he had kept the relevant list of signatures at his apartment. 12.     On 3 and 4 March 2006 the applicant had two further meetings with his lawyer. 13.     On 5 March 2006 the applicant gave evidence before the public prosecutor in the presence of his lawyer, where he mainly reiterated his police statements. He confirmed that he had recently met with H.B., but claimed that they had never discussed matters concerning the PKK. The applicant further admitted that he had organised the petition campaign at issue. 14.     On the same date, the applicant was brought before the Uşak   Magistrates’ Court. In his statements given in the presence of a lawyer, the applicant repeated his previous statements before the prosecutor. The Magistrates’ Court decided to place him in detention on remand. 15.     On 20 March 2006 the İzmir public prosecutor filed an indictment with the İzmir Assize Court against the applicant and five other individuals. The applicant was charged with membership of the PKK under Article   314   § 2 of the Criminal Code. 16.     On 1 June 2006 İzmir Assize Court held its first hearing. In his defence statements made before that court, the applicant denied any allegations of membership of the PKK. He rejected his previous statements and told that those statements had not been recorded accurately. The applicant further denied having met with H.B. and claimed that he had given him no money. He also admitted that he had been in charge of the signature campaign in question – for one day only –, which he had been assured was a lawful act. The applicant finally claimed, for the first time, that he was illiterate. 17.     Between the first and the second hearings, the applicant’s lawyer submitted a number of petitions to the trial court where he argued, inter alia , that the applicant was illiterate, that his previous statements made before the police ought to be disregarded, and that collecting signatures could not constitute a criminal offence. 18.     On 20 July 2006 the İzmir Assize Court convicted the applicant as a member of an illegal organisation – because he had aided that organization – under   Article 314 § 2 of the Criminal Code, on the basis of Articles   220   §   7 and 314 § 3 of the same Code, and sentenced him to six years and three months’ imprisonment. Relying on the statements that the applicant had made before the police and the prosecutor in the presence of a lawyer, the court deemed it established that the applicant had assisted H.B., a member of the PKK, and had also aided the illegal organization by circulating a petition, which regarded the head of the terrorist organization as a political leader and which also bore the expression “Kurdistan”, reflecting a separatist sentiment. 19.     The applicant appealed against the judgment of the trial court, arguing mainly that since he was illiterate, he had signed the statements that he had made at the pre-trial stage without reading them and that those statements did not accurately reflect what he had said. He further stated that he had not organized the petition campaign in question but that, in any event, that campaign was a manifestation of the right to freedom of expression and did not constitute a criminal offence, noting in particular that it did not in any way incite violence. The applicant lastly argued that Article   220 § 7 of the Criminal Code did not satisfy the requirements of lawfulness or legal certainty because of the ambiguity in the wording of that provision. 20.     On 19 March 2007 the Court of Cassation upheld the trial court’s judgment. RELEVANT LEGAL FRAMEWORK 21.     A description of the relevant domestic law applicable at the material time can be found in Bakır and Others v. Turkey (no. 46713/10, §§   25-26, 10   July 2018). THE LAW PRELIMINARY ISSUE 22.     The Court notes that the applicant, Mr Mehmet Kılınç, died on 10   April 2010 (see paragraph 4 above). 23.     On 5 July 2011 the applicant’s lawyer sent a letter to the Court where she stated that the applicant’s legal heirs, namely his wife Hamdiye   Kılınç and his daughters Asya, Mizgin and Berfin Kılınç, wished to pursue the application before the Court. That letter was accompanied by authority forms signed by the heirs. In the same letter, the lawyer also informed the Court that the applicant’s heirs and four other family members (namely his parents and two brothers) had recently lodged another application to the Court in connection with the applicant’s death. 24.     On 10 September 2018 the case was communicated to the parties. Owing to a clerical error, all eight family members referred to in the preceding paragraph (namely, the applicant’s legal heirs, plus his parents and brothers) were indicated as pursuing the application on the deceased applicant’s behalf. 25.     On 25 February 2019 the Government submitted their observations. As a preliminary issue, they drew the Court’s attention to the fact that only the applicant’s wife and daughters had submitted authority forms in accordance with the Court’s rules to pursue the present application following the applicant’s death. The Government moreover objected to the victim status of the applicant’s wife and daughters, who they argued had failed to demonstrate any legitimate interest to pursue the application. 26.     In their observations dated 13 April 2019, the applicant’s representative confirmed that only the applicant’s wife and daughters intended to pursue the case. 27.     The Court accepts at the outset the Government’s objection concerning the applicant’s parents and brothers whose names had been included inadvertently on the list of the applicant’s heirs in the communication letter, and finds that they are not, and have never been, parties to the present case. 28.     The Court notes, on the other hand, that the official documents submitted by the applicant’s wife and daughters prove their heirship to the applicant. It further reiterates that in a number of cases in which an applicant had died in the course of the proceedings it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings before the Court. In the present case, the Court considers that, apart from explicitly expressing their wish to do so, the widow of the applicant and his children have sufficient legitimate interest in obtaining a ruling that the applicant’s conviction constituted a breach of the right to freedom of expression (see, for instance, Dalban v. Romania [GC], no. 28114/95, § 39, ECHR 1999 ‑ VI). The Court therefore rejects the respondent Government’s objection insofar as it concerns the applicant’s wife Hamdiye Kılınç and his daughters Asya, Mizgin and Berfin Kılınç, and establishes that they have standing to continue the present proceedings in the applicant’s stead. For practical reasons, however, Mehmet Kılınç will continue to be referred to as the applicant. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 29.     The applicant   complained that   his conviction on account of his involvement in a petition campaign had constituted a breach of Article   10 of the Convention, which provides as follows, as relevant:   “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers... 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 30.     The Government contested that argument, and submitted that the alleged   interference with the applicant’s   right to freedom of expression had had a legal basis and had pursued the legitimate aims of prevention of disorder and crime and protection of national security. Moreover, having regard to the content and the purpose of the petition campaign in question, the Government argued that the alleged interference with the applicant’s freedom of expression had stemmed from a pressing social need and was necessary in a democratic society. 31.     The applicant maintained his allegations. 32.     The Court considers at the outset that the applicant’s complaint under this head is not manifestly ill ‑ founded within the meaning of Article   35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 33.     As to the merits, the Court notes that the applicant’s conviction for having aided an illegal organisation on account, partly, of his involvement in a petition campaign amounted to an “interference” with the exercise of his freedom of expression. An interference will constitute a breach of Article   10 unless it was “prescribed by law”, pursued one or more of the legitimate aims set out in paragraph 2 of that provision and was “necessary in a democratic society” for the achievement of those aims. 34.     The Court considers at the outset that it is uncontested between the parties that the applicant’s conviction had a basis in domestic law, namely Articles   220 § 7 and 314 §§ 2 and 3 of the Criminal Code, and that those provisions were accessible. However, the Court has ruled in a number of cases concerning Articles 10 and 11 of the Convention (see, for instance, Bakır and Others , cited above, §§ 58 - 69; and İmret v. Turkey (no.   2) , no.   57316/10, §§ 56-58, 10   July 2018) that Article 220 § 7 of the Criminal Code lacked foreseeability, since it did not afford legal protection against arbitrary interference with the rights protected under the aforementioned provisions, by reason of the broad scope of the expressions it contained and the extensive judicial interpretation of those ambiguous expressions.   35.     The Court sees no reason to deviate from its findings in those previous cases. It considers accordingly that the interference at issue was not “prescribed by law” within the meaning of Article 10 § 2 of the Convention. Having regard to that conclusion, it considers that it is not necessary to verify whether the other conditions required by that paragraph – namely the existence of a legitimate aim and the necessity of the interference in a democratic society – were complied with in this case. 36.     The Court therefore finds that there has been a violation of Article   10 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 37.     The applicant complained that his rights under Article 6 §§ 1 and 3   (a) and (c) of the Convention had been violated as he had not been duly and promptly informed of (i) the accusations against him, and (ii) his basic rights such as the right to remain silent and the right to a lawyer before his “preliminary interview” by the police. 38.     The Government pleaded non-exhaustion of domestic remedies contending that the applicant had not raised those complaints before the domestic courts, in particular at the appeal stage. 39.     The applicant maintained his allegations but did not respond to the Government’s argument as to his alleged failure to exhaust the available domestic remedies. 40.     The Court observes that in the appeal that he submitted to the Court of Cassation, the applicant did not raise the complaints that he subsequently brought before the Court under Article 6 of the Convention (see paragraph   37 above). Nor has he provided an explanation as to why he would be absolved from the obligation from doing so. Having regard to the general principles developed in its case-law regarding the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention (see, for instance, Sargsyan v. Azerbaijan [GC], no. 40167/06, §§   115-16, ECHR   2015), and on the basis of the documents in its possession, the Court therefore concludes that this part of the application must be rejected under Article   35   §   1 of the Convention for non ‑ exhaustion of domestic remedies as argued by the Government. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41.     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.” 42.     The applicant claimed 500,000 euros (EUR) in respect of pecuniary damage and EUR 500,000 in respect of non-pecuniary damage. He also claimed EUR 5,000 for his expenses – including transportation, translation and postal expenses –, and EUR 10,000 for lawyer’s fees. He did not submit any documents in support of his claims in respect of his alleged pecuniary damage and costs and expenses. 43.     The Government invited the Court to dismiss the applicant’s claims under pecuniary damage, costs and expenses and lawyer’s fees due to his failure to submit any documents to support those claims. They further contended that those claims were excessive. 44.     Having regard to the applicant’s failure to submit to the Court any document in support of his claims in respect of pecuniary damage and costs and expenses, the Court rejects those claims. On the other hand, ruling on an equitable basis, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Holds that the applicant’s legal heirs, namely his wife Hamdiye Kılınç and his daughters Asya, Mizgin and Berfin Kılınç, have standing to continue the present proceedings in the applicant’s stead; Declares the complaint under Article 10 of the Convention admissible; Holds that there has been a violation of Article 10 of the Convention; Declares the remainder of the application inadmissible; Holds (a)   that the respondent State is to pay the applicant’s heirs, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non ‑ pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the claim for just satisfaction. { Done in English, and notified in writing on 12 January 2021, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Hasan Bakırcı   Valeriu Griţco Deputy Registrar   President [1] In Turkish: “Ben   bir   Kürdistanlı   olarak   Kürdistanlı   Sayın   Abdullah   Öcalan’ı   bir   siyasi   irade   olarak   gö-rüyor   ve   kabul   ediyorum.”