PROCEDURE

The case originated in an application (no. 16637/07) against the Federal Republic of Germany 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, Ms Aysel Aydin (“the applicant”), on 16 April 2007.

The applicant was represented by Mr S. Hilbrans, a lawyer practising in Berlin. The German Government (“the Government”) were represented by their Agent, Mrs A. Wittling-Vogel, of the Federal Ministry of Justice.

The applicant alleged, in particular, that her criminal conviction violated her right to freedom of expression.

On 30 November 2009 the President of the Fifth Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). Having been informed of the case by a letter of 3 December 2010, the Turkish Government did not express any wish to intervene under Article 36 § 1 of the Convention.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1972 and lives in Wuppertal. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background to the case

On 22 November 1993 the German Interior Ministry issued a decision by which it imposed a ban on the activities of the Workers' Party of Kurdistan (“the PKK”), under Article 18, second sentence, of the Law on Associations (Vereinsgesetz, see Relevant domestic law, below).

Relevant parts of the decision read as follows: “1. The activities pursued by the “Workers' Party of Kurdistan” (PKK)...run contrary to provisions of the criminal law, are directed against the concept of international understanding, endanger inner security and other important interests of the Federal Republic of Germany.

The “Workers' Party of Kurdistan” (PKK)...is not allowed to pursue its activities within the territorial ambit of the Law on Associations.”

As the PKK as such did not challenge the imposition of the ban before the German courts, the decision became final on 26 March 1994.

Following the arrest of its leader, Abdullah Öcalan, in 1999, the PKK's executives changed their strategy and declared an end to the armed battle against Turkish army entities. Following a “peace initiative” declared by the party's seventh congress on 17 January 2000, the PKK did not organise any further demonstrations or violent acts in Germany.

In 2001 the PKK's presidential counsel decided to launch a large-scale campaign, during which their supporters should address themselves to the German authorities, should acknowledge their support for the PKK and should demand that the ban on the PKK's activities be lifted.

The supporters signed a declaration. The declarations were then collected and handed over in large numbers to parliaments, administrative bodies and courts. The content of the largely identical declarations was as follows: “Self declaration (Selbsterklärung) “I also am a follower of the PKK” (“Auch ich bin ein PKK'ler”) As the Kurdish people has been denied its basic right to life, it has had no choice but to take up arms. After twenty years of war, our national leader, Abdullah Öcalan, has initiated a strategic change. For two years the PKK has been using exclusively political means to fight for a peaceful and democratic solution to the Kurdish question. On the basis of this new strategy the Workers' Party of Kurdistan (PKK) is undergoing a global reformation. Strongly determined to find a solution, it has developed its political activities against all resistance without leaving the framework of legality. Although the Kurdish question emerged geographically in the Middle East, having regard to its historical, political and international connections it is a European problem waiting for a solution. Europe played a major role in the setting of Middle Eastern boundaries. That is why Europe is now confronted with the task of playing a role in the solution of the problems. Just as it failed to offer a prospect of a solution when our leader was abducted in the framework of an international conspiracy, Europe fails today to make use of the opportunities offered by the PKK. While the majority of the European Member States make Turkey's accession to the European Union dependent on the Copenhagen criteria, they deny the national and political status of the Kurds living in Europe. Germany and England, in particular, insist on a policy of bans. With this destructive attitude Europe puts itself within the context of the policy of destruction and negation which is directed against the Kurdish people. Today as in the past Europe continues its negative tradition. This is nothing but a policy of double moral standards.

On this basis I, as a member of the Kurdish people, declare that I share the PKK's new policy, which, for two years, has been leading its political fight on a legal basis. I further declare that I belong to the PKK.

I challenge the European Member States to apply the same standards to themselves they apply to non-member States. I furthermore request these States to comply themselves with the express criteria for accession to the European Union with regard to the Kurds living in Europe. I therefore demand the full recognition of the rights granted to other peoples for the Kurdish people.

I further demand the official recognition of the cultural and political values created by the Kurdish people in the course of their great struggle. In this context I demand respect for my people's national and political identity.

I support the line of the PKK's democratic struggle, as has been confirmed by its seventh congress. Having regard to the fact that the PKK has not committed one single violent act for two years, I demand the lifting of all bans which are applied on the PKK.

I further declare that the liberty of our leader, Abdullah Öcalan, and the possibility of his political activity are the only guarantee for an enduring solution. I therefore demand: “Freedom for Abdullah Öcalan – Peace in Kurdistan”. I hereby declare that I most severely condemn the prohibition issued against the PKK and the criminal prosecution of PKK membership and of active sympathy for the PKK. I further declare that I do not acknowledge this prohibition and that I assume all responsibility arising therefrom.”

2. Criminal proceedings against the applicant

With others, the applicant organised and coordinated a collection of signatures of the declaration in Berlin. She also signed a declaration herself. On 16 July 2001 the applicant, with two others, handed two folders containing 467 signed declarations to the Berlin public prosecutor. On 24 September 2001 the applicant handed over one further folder containing declarations. Furthermore, the applicant donated certain sums of money to a sub-organisation of the PKK, which was also subject to the ban.

Within the framework of the campaign, more than 4,000 declarations were handed to the authorities in Berlin; approximately 100,000 declarations were submitted to German administration as a whole.

On 17 July 2003 the Berlin Regional Court (Landgericht) convicted the applicant of contravening a ban imposed on an association's activity (section 20 § 1 no. 4 in conjunction with section 18, second sentence, of the Law on Associations) and sentenced her to 150 daily fines of eight euros each. During the hearing before that court, the applicant submitted a declaration that she had not intended to breach the criminal law, but to express her opinion and to further the understanding between the German and the Kurdish people. The Regional Court considered that the applicant, by signing the declaration, taking part in the campaign and giving donations, had flouted the ban on pursuing the PKK's activities.

The Regional Court considered that the declaration's content, seen in the context of the accompanying campaign, was likely to have a positive effect on the association's unlawful activities. The Regional Court considered, in particular, that the declaration “not (to) acknowledge this ban and (to) assume all responsibility arising therefrom” had a twofold effect: Firstly, the applicant expressed her commitment not to abide by the ban in the future and thus to provide the PKK with security for planning further unlawful activities. Secondly, it was likely to strengthen solidarity with other potential supporters.

According to the Regional Court, the declaration signed by the applicant was not covered by her right to freedom of expression, as the applicant did not confine herself to claiming freedom and self-determination for the Kurdish people, to demand the lifting of the ban on the PKK and most severely to condemn its continuation, which would fall within the ambit of the applicant's freedom of expression. Seen in the context of the aims of the overall campaign, the declaration also contained the statement that the applicant would continue to support the PKK even if the ban imposed on its activities was not lifted. This was already implied in the concluding statement, that the applicant would “assume all responsibility arising therefrom”, that is to say from any flouting of the ban. The Regional Court also considered that the campaign had the further aim of overburdening the public prosecution service with such a large number of criminal proceedings that they would not be able to cope.

The Regional Court considered as mitigating factors, inter alia, the importance of the right to freedom of expression.

On 15 January 2004 the Federal Court of Justice (Bundesgerichtshof), referring to its own pilot judgment given on 27 March 2003 (see relevant domestic law and practice, below), dismissed the applicant's appeal on points of law. According to that court, the Regional Court's interpretation of the applicant's statement and the evaluation of her behaviour were compatible with the right to freedom of expression as enshrined in Article 5 of the Basic Law. Having regard to the context and the circumstances of the case, the Regional Court had comprehensively and coherently refuted the applicant's allegations that she had not participated in a campaign which had been organised by the PKK with the aim to hamper the criminal prosecution of breaches of the ban by provoking a massive quantity of criminal investigations, but that she had merely intended to express her opinion on the ban. This was demonstrated by the fact that the applicant and the other campaigners did not address themselves to the Federal Interior Ministry, which would have been competent for lifting the ban, but addressed a massive quantity of collected individually signed declarations to the public prosecutor's office. The applicant's unwillingness to abide by the ban was further demonstrated by the fact that she had been previously convicted of a similar offence and that she had flouted the ban in another, separate way by financially supporting a sub-organisation of the PKK.

The Federal Court of Justice finally considered that the Regional Court had sufficiently weighted the importance of the right to freedom of expression when assessing the sentence.

On 20 March 2004 the applicant lodged a constitutional complaint in which she complained that her right to freedom of expression and her right to petition had been violated.

On 26 September 2006 the Federal Constitutional (Bundesverfassungsgericht), in a reasoned decision of 21 pages, refused to accept the applicant's complaint for adjudication as being unfounded.

The Federal Constitutional Court held that the applicant's statements fell within the ambit of her right to freedom of expression under Article 5 of the Basic Law. It considered, however, that her conviction was justified under paragraph 2 of that same Article as being based on a general law. The Federal Constitutional Court considered, at the outset, that the activities of an association could only be banned if it generally and continuously pursued dangerous aims, which was established by the enforceable ban issued by the Interior Ministry. Section 20 § 1 no. 4 of the Law on Association was not directed against the expression of an opinion as such, but only against the purposeful support it lent to the association's activity which had been prohibited in the interest of protecting the democratic state based on the rule of law. An individual person who pursued his own political aims was not concerned; he was merely prevented from doing so by supporting the activities of a prohibited association.

It followed that only such behaviour was subject to criminal liability, which was relevant with regard to the purpose of the banning order. Furthermore, the behaviour had to be related to the association's activity. Art. 5 § 1 of the Basic Law had not to cede already where someone advocated the same opinions as the organisation affected by the ban; it did have to cede, however, if an unbiased observer gained the impression that this was an action which was directly related to the association. The necessary relation to the purpose of the banning order was lacking where statements of opinions worked towards a lift of a ban of activities, which was protected by the right to freedom of expression in the interest of the openness of the democratic process.

In the context of the criminal courts' examination of whether the constituent elements of an offence exist, freedom of opinion took second place without a weighing being required in the individual case, notwithstanding individual weighing that was necessary on other levels, for instance as regarded the fixing of the fine. The only decisive question was whether the above-mentioned criteria had been met.

With regard to the application of these principles in the instant case, the Federal Constitutional Court found as follows: (a) The courts answered the question of whether the self-declarations bore sufficient relation to the association's activity in the affirmative. According to the facts established by the lower courts, which are constitutionally unobjectionable, the declarations were made in the context of a mass campaign initiated and steered by the PKK leadership, which was carried out Germany-wide and attracted considerable public attention. The campaign was preceded by large-scale advertising, the content of the declaration was discussed among Kurdish compatriots, and the letters were collected and submitted, sometimes in the course of demonstrations. The headline and the text of the declaration itself (“I am also a follower of the PKK”, “I further declare that I belong to the PKK”) also made it possible for the courts to infer, in a constitutionally unobjectionable manner, a sufficient relation precisely to the PKK as the organisation affected from the ban on activities. (b) The courts observed the principles established by the Federal Court of Justice in its judgment dated 27 March 2003, that the self declarations would nevertheless have been exempt from criminal liability as expressions of the right to freedom of expression if they had restricted themselves to demanding freedom and self-determination for the Kurdish people, to calling for a lift of the ban on the PKK's activities and severely condemning the maintenance of that ban. The right to freedom of expression includes the right to assert one's opinion as effectively as possible. The effect of a strengthening of solidarity that goes along with a support of the lift of the ban is to be tolerated in the interest of the free expression of opinion even if it is at the same time an expression of sympathy for the banned association. The courts, however, assumed in a constitutionally unobjectionable manner that the self-declarations in favour of the PKK transgressed the boundaries, thus determined, of declarations of solidarity and sympathy in favour of an association affected by a ban on activities to the extent that they had to be understood as a commitment made by those signing it not to respect the ban on activities in the future and not to be deterred from contravening the ban even by the threat of criminal sanctions. The courts could assume without misjudging freedom of opinion that such a declaration of willingness to break the law that was made in the context of a mass campaign complied with the constituent element of the offence in question.”

The Federal Constitutional Court further considered that the criminal conviction did not violate the applicant's right to petition as enshrined in the Basic Law.

This decision was served on the applicant's counsel on 16 October 2006.