CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 8 octobre 2024

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TÜRKİYE (Applications nos. 61243/19 and 3 others)             JUDGMENT   STRASBOURG 8 October 2024           This judgment is final but it may be subject to editorial revision. In the case of Erdoğan and Others v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Jovan Ilievski , President ,   Diana Sârcu,   Gediminas Sagatys , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the applications against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”) on the various dates indicated therein; the decision to give notice of the complaints under Article 10 of the Convention to the Turkish Government (“the Government”) represented by their then Agent, Mr Hacı Ali Açıkgül, former Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare the remainder of the applications nos. 61243/19 and 47140/20 inadmissible; the parties’ observations; the decision of the German Government not to exercise their right to intervene in the proceedings (Article 36 § 1 of the Convention) in application no.   14483/21; the decision to dismiss the Government’s objection to the examination of the applications by a Committee; Having deliberated in private on 17 September 2024, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The present applications concern the criminal convictions of the applicants, under Article 299 of the Turkish Criminal Code, on the charge of insulting the President of the Republic, and the order for the suspension of the pronouncement of the judgment. The applicants complained that there had been a violation of their rights under Article 10 of the Convention. APPLICATION No. 61243/19 2.     By an indictment dated 16 November 2017, the İzmir public prosecutor charged the applicant with insulting the President of the Republic on account of certain posts that he had made on his Facebook account. 3.     From 20 October to 20 November 2017, the applicant was held in pre ‑ trial detention on charges of insulting the President of the Republic. 4.     On 25 September 2018 the İzmir 25th Criminal Court of First Instance convicted the applicant and sentenced him to ten months’ imprisonment on the charge of insulting the President of the Republic, under Article 299 of the Criminal Code, on account of a comment that he had posted on Facebook on 11   December   2016, reading “You and your damned presidency, that’s enough!”. The Criminal Court of First Instance decided, however, to order a suspension of the pronouncement of the judgment, under Article   231   §   5 of the Code of Criminal Procedure (see for the text of this provision Durukan and Birol v. Türkiye , nos. 14879/20 and 13440/21, §   23, 3   October 2023), and to apply a five-year supervisory period. 5.     On 7 December 2018 the İzmir 5th Assize Court dismissed an objection lodged by the applicant, stating that the impugned judgment had been in accordance with both the procedural and substantial law. 6.     On 11 January 2019 the applicant lodged an individual application with the Constitutional Court. He complained, under Article 10 of the Convention, about his conviction. He further complained under Article 6 of the Convention that the court examining his objection to his conviction did not consider his substantive arguments. 7.     On 10 October 2019 the Constitutional Court declared the applicant’s individual application inadmissible as being manifestly ill-founded. It stated, in particular, regarding his complaints under Article 6, that the measure of the suspension of the pronouncement of the judgment was applied with the agreement of the applicant and thus the latter forfeited his right to appeal. APPLICATION no. 33231/20 8.     By an indictment dated 21 February 2019, the Bakırköy public prosecutor charged the applicant with insulting the President of the Republic, on account of certain comments she had made during an altercation with police officers. 9.     On 3 April 2019 the Bakırköy 12th Criminal Court of First Instance convicted the applicant and sentenced her to ten months’ imprisonment on the charge of insulting the President of the Republic under Article 299 of the Criminal Code, on account of the following expression used during an altercation with the police: “You [your] dishonourable Tayyip (şerefsiz) can’t do anything to me, Tayyip’s soldiers killed my brother in the mountains, I’m going to retaliate” and “You bastards of dishonourable Tayyip (şerefsiz)” . The Criminal Court of First Instance decided, however, to order a suspension of the pronouncement of the judgment, under Article   231 §   5 of the Code of Criminal Procedure, and to apply a five-year supervisory period. 10.     On 10 July 2019 the Bakırköy 4th Assize Court dismissed an objection lodged by the applicant, stating that the impugned judgment had been in accordance with both the procedural and substantial law. 11.     On 5 September 2019 the applicant lodged an individual application with the Constitutional Court, requesting a review of the impugned judgment, including its legality within the meaning of Article 10 of the Convention. 12.     On 23 June 2020 the Constitutional Court declared the individual application by the applicant inadmissible as being manifestly ill-founded. APPLICATION No. 47140/20 13.     By an indictment dated 30 October 2018, the Istanbul Anadolu public prosecutor charged the applicant with insulting the President of the Republic and overtly insulting a public official on account of certain posts that he had made on his Facebook and Twitter accounts. 14.     On 25 June 2019 the Istanbul Anadolu 44th Criminal Court of First   Instance convicted the applicant and sentenced him to one year, two   months and seventeen days’ imprisonment on the charge of insulting the President of the Republic under Article 299 of the Criminal Code, on account of comments that he published on Facebook and Twitter between 4 June 2013 and 27 December 2015, such as “sick teyyip”, “donkey-foal, you fed terrorists and cannibals in Syria for two years” and “why are you busting your ass”, as well as several others implying that the President was connected to terrorist groups. The Criminal Court of First Instance decided, however, to order a suspension of the pronouncement of the judgment, under Article   231   §   5 of the Code of Criminal Procedure, and to apply a five-year supervisory period. 15.     On 5 July 2019 the Istanbul Anadolu 12th Assize Court dismissed an objection lodged by the applicant, stating that the impugned judgment had been in accordance with both the procedural and substantial law. 16.     On 30 June 2020 the Constitutional Court declared an individual application by the applicant inadmissible as being manifestly ill-founded. It stated, in particular, regarding his complaints under Article 6 of the Convention, that the measure of the suspension of the pronouncement of the judgment was applied with the agreement of the applicant and thus the latter forfeited his right to appeal. APPLICATION No. 14483/21 17.     By an indictment dated 9 April 2019, the Edirne public prosecutor charged the applicant with insulting the President of the Republic on account of certain posts that she had made on her Facebook account. 18 .     On 16 September 2019 the Edirne 6th Criminal Court of First Instance convicted the applicant and sentenced her to one year, five months and fifteen   days’ imprisonment on the charge of insulting the President of the Republic, under Article 299 of the Criminal Code, on account of an article that the applicant had shared on Facebook stating that the President of the Republic had provoked attacks on the Kurds and caused their massacre. The article also contained an image of the President of the Republic with a bomb ‑ shaped turban on his head and a sword in his hand. The Criminal Court of First Instance decided, however, to order a suspension of the pronouncement of the judgment, under Article 231 § 5 of the Code of Criminal Procedure, and to apply a five-year supervisory period. 19.     On 15 October 2019 the applicant lodged an objection with the Edirne 1st   Assize Court, which was dismissed. 20.     On 4 February 2020 the applicant lodged an individual application with the Constitutional Court, complaining about the lack of an appeal because of the application of the measure of the suspension of the pronouncement of the judgment. 21.     On 16 September 2020 the Constitutional Court declared the applicant’s individual application inadmissible as being manifestly ill ‑ founded. It stated, in particular, in respect of her complaints under Article   6 of the Convention, that the measure of the suspension of the pronouncement of the judgment was applied with the agreement of the applicant and thus the latter forfeited her right to appeal. complaint 22.     The applicants complained under Article 10 of the Convention that they had been convicted for expressing critical opinions. They challenged, in particular, the measure of the suspension of the pronouncement of the judgments entailing their convictions. THE COURT’S ASSESSMENT JOINDER OF THE APPLICATIONS 23.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION Admissibility 24.     The Government raised several preliminary objections. They first challenged the applicants’ status as victims, asserting that the suspended sentences had not imposed any obligations or restrictions on the applicants and that therefore the applications were incompatible ratione personae with the provisions of the Convention. 25.     The Government also submitted that the applicants had not exhausted domestic remedies. In that connection, they argued that once the suspension periods had expired, the convictions would be erased along with any associated consequences. In the event that the applicants committed an offence during the supervisory period, the judgment would be pronounced and the applicants would be entitled to lodge an appeal. 26.     The Government further submitted that the applications were manifestly ill-founded, since the applicants had had the opportunity to raise their complaints and arguments before the national judicial authorities, which had duly examined them in compliance with procedural rules, and there was no reason to call into question their findings. 27.     In application no. 14483/21, the Government additionally alleged that the expressions used by the applicant had clearly amounted to defamation and ran counter to Article 17 of the Convention. They therefore contended that this applicant’s complaint was incompatible ratione materiae with the provisions of the Convention. They also argued that the same application should be declared inadmissible owing to a lack of a significant disadvantage, asserting that the suspended sentence had not imposed any obligations or restrictions on the applicant and arguing that the conviction would be erased along with any associated consequences once the suspended sentence expired. 28.     The Court reiterates that it has already examined and dismissed similar objections regarding victim status and significant disadvantage in Durukan and Birol v. Türkiye (nos. 14879/20 and 13440/21, §§   43-44, 3   October 2023). It therefore dismisses these objections on the same grounds. 29.     As for the objection of non-exhaustion of domestic remedies, the Court notes that it has already examined and dismissed similar objections (see Vedat Şorli v.Turkey , no. 42048/19, § 29, 19 October 2021). Therefore, this objection must be dismissed on the same grounds. 30.     With regard to the preliminary objection that the applicants’ complaints were manifestly ill-founded, the Court considers that the arguments put forward by the Government in that connection raise issues that require an examination of the merits (see Durukan and Birol , cited above, §   45 and Vedat Şorli , cited above, § 30). 31.     When it comes to the objection regarding the Court’s ratione materiae jurisdiction in application no. 14483/21, the Court considers that the image and comments shared by the applicant on Facebook (see paragraph 18 above) do not reveal an intent to undermine Convention rights despite their controversial nature (see Durukan and Birol , cited above, §§ 46-47). The Court concludes that the application is not an abuse of rights under Article   17 and dismisses this preliminary objection. 32.     The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. Merits The parties’ submissions 33.     The applicants submitted that the written or verbal comments that had been the subject of the criminal proceedings brought against them and had resulted in their suspended sentences had not been intended to insult the President of the Republic, but to express critical opinions. They alleged therefore that there had been a violation of their freedom of expression under Article   10. 34.     The Government contended that there had been no interference with the applicants’ freedom of expression, emphasising that no convictions had been added to their criminal records because of the suspension of the pronouncement of the judgments. They accordingly argued that no negative legal consequences or deterrent effects had been caused by the criminal proceedings brought against the applicants or their convictions. 35.     If the Court were to find that there had been interference, the Government submitted that the interference in question had been provided for by Article 299 of the Criminal Code in a manner meeting the criteria of clarity, accessibility and foreseeability. The Court’s assessment 36 .     The Court considers that the criminal convictions of the applicants with a suspension of the pronouncement of the judgments, including a five ‑ year supervisory period, amounted to an interference with the exercise of their right to freedom of expression in view of the deterrent effect that these measures may have had (see Üçdağ v. Turkey , no. 23314/19, §   75, 31   August 2021; Vedat Şorli , cited above, § 41; and Durukan and Birol , cited above, §   56). 37.     In the present case, the Court notes, firstly, that it was not disputed between the parties that the applicants’ criminal convictions had had a legal basis, namely Article 299 of the Criminal Code. It also observes that Article   231 of the Code of Criminal Procedure provided the legal basis for suspension of the pronouncement of the judgments imposed on the applicants, which constituted an interference in the present case (see paragraph   36 above). 38.     In Durukan and Birol (cited above, §§ 63-69) the Court stated that Article   231 of the Code of Criminal Procedure, which provides for the suspension of pronouncement of judgments entailing convictions, did not offer the required protection against arbitrary infringement by the public authorities of the rights guaranteed by the Convention. 39.     The present applications do not present any special features justifying a departure from that conclusion. The interference with the applicants’ right to freedom of expression by the suspension of the pronouncement of their judgments was thus not “prescribed by law” for the purposes of Article   10 §   2 of the Convention. 40.     There has accordingly been a violation of Article   10 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41.     The applicants claimed respectively 8,000 euros (EUR), EUR 20,000, EUR   25,000 and EUR 50,000 in respect of non-pecuniary damage. In respect of costs and expenses, the applicants in applications nos.   61243/19 and   33231/20 claimed EUR 350 and EUR 13,098 respectively. The applicant in application no. 47140/20 did not submit a claim under that head and the applicant in application no. 14483/21 did not claim any specific amount in that respect. The applicants did not present any documents in support of their claims for costs and expenses. 42.     The Government contested the applicants’ claims as unsubstantiated and excessive. 43.     Having regard to the circumstances of the case, the Court awards the applicant in application no. 61243/19 EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. It further awards each of the remaining applicants EUR 2,600 under this head, plus any tax that may be chargeable. 44.     The Court dismisses the remainder of the applicants’ claims in respect of costs and expenses as the applicants did not provide the Court with any documents in support of their claims. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the applications admissible; Holds that there has been a violation of Article 10 of the Convention; Holds (a)   that the respondent State is to pay, within three months, the applicant in application no. 61243/19 EUR 5,000 (five thousand euros) and each of the remaining applicants EUR 2,600 (two thousand six hundred 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 applicants’ claims for just satisfaction. Done in English, and notified in writing on 8 October 2024, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Dorothee von Arnim   Jovan Ilievski   Deputy Registrar   President   APPENDIX List of cases: No. Application no. Case name Lodged on Applicant Year of birth Place of residence Nationality Represented by 1. 61243/19 Erdoğan v.   Türkiye 13/11/2019 Binali Erdoğan 1965 İzmir Turkish Meltem Salman 2. 33231/20 Şorli v.   Türkiye 17/07/2020 Mihriban Şorli 1988 Istanbul Turkish İnan Akmeşe 3. 47140/20 Kurnaz v.   Türkiye 08/10/2020 Tugay Kurnaz 1975 Istanbul Turkish Abdullah Bilici 4. 14483/21 Inaç v.   Türkiye 12/03/2021 Saide İnaç 1963 Cologne German Veysel Ok