CASE OF SEMİR GÜZEL v. TURKEY

1. The case originated in an application (no. 29483/09) 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 Semir Güzel (“the applicant”), on 6 May 2009.
2. The applicant was represented by Mr M. Beştaş and Ms M. Danış Beştaş, lawyers practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.
3. On 7 January 2014 the complaint concerning alleged interference with the applicant ’ s right to freedom of expression and of assembly was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1968 and lives in Diyarbakır.
5. At the time of the events in question the applicant was the vice ‑ president of HAK-PAR ( Hak ve Özgürlükler Partisi – the Rights and Freedoms Party).
6. On 4 January 2004 the party held its first ordinary congress at a restaurant in Ankara, where the applicant was elected by the delegates to act as the meeting ’ s chairman.
7. On 28 February 2005 a public prosecutor at the Ankara public prosecutor ’ s office filed an indictment with the Ankara Criminal Court of First Instance against thirteen members of HAK-PAR, including the applicant, for acting in violation of section 81 (c) of Law no. 2820 during the congress on the grounds, inter alia, that there had been banners in Kurdish and that most of the speeches given by the delegates had been in Kurdish.
8. The applicant acknowledged before the first-instance court that he had not intervened as the chairman when certain delegates had spoken in Kurdish. In this connection, he submitted that, as a founder member of HAK ‑ PAR, he believed that Kurdish should be used in all areas of life; that those who spoke Kurdish were speaking in their mother tongue; and that he believed that it was neither legal nor ethical for him to intervene to force people to speak in a language other than their mother tongue. He maintained that such speeches could not have constituted an offence, when taking into account laws that had been enacted in compliance with the conditions for membership of the European Union, and the provisions of the European Convention on Human Rights. In this connection, the applicant also submitted that the relevant provisions of Law no. 2820 were contrary to the Constitution.
9. On 7 December 2005 the first-instance court dismissed an application from the defendants to suspend the proceedings and transfer the case to the Constitutional Court for examination of the compatibility of the relevant provisions with the Constitution.
10. On 14 February 2007 the Ankara Criminal Court of First Instance convicted the applicant of the charges. In particular, the court considered that the applicant had, despite warnings from a government superintendent present at the congress, continued to allow certain delegates to give their speeches in Kurdish, in breach of section 81 (c) of Law no. 2820. The applicant was sentenced to one year ’ s imprisonment.
11. On 23 March 2011 the Court of Cassation quashed the judgment of the first-instance court on the ground that the latter had failed to give any consideration to whether the conditions for suspending the delivery of the judgment against the defendants, pursuant to Article 231 of the Code of Criminal Procedure, had been met.
12. On 6 December 2011 the Ankara Criminal Court of First Instance ordered that the criminal proceedings against the applicant and the other defendants be terminated, on the ground that the statutory time-limit prescribed under domestic law had expired.
II. RELEVANT DOMESTIC LAW AND PRACTICE
13. Section 81 (c) of Law no. 2820 on the regulation of political parties ( published in the Official Gazette of 24 April 1983) reads as follows:
Prevention of the creation of minorities
(c) cannot use a language other than Turkish when writing and printing party constitutions or programmes, at their congresses and open-air or indoor meetings, and while engaged in propaganda activities; they cannot use or distribute placards, phonograph recordings, audio and video tapes, brochures and statements written in a language other than Turkish; they cannot remain indifferent to such actions and acts when committed by others. However, it is possible to translate party statutes and programmes into foreign languages other than those forbidden by law.”
14. At the material time, section 117 of Law no. 2820 provided for a minimum of six months ’ imprisonment for those who committed acts prohibited by Chapter IV of Law no. 2820.
15. On 12 January 2012 the Constitutional Court declared section 117 unconstitutional and abrogated it (merits no: 2011/62, decision no: 2012/2). In its decision, the Constitutional Court held, inter alia, that the ban laid down in sections 78-96 of the law in question applied to political parties, which were legal entities. However, those provisions, by virtue of the application of section 117, were found to be also applicable to individuals. The court considered that the prosecution of individuals for acts prohibited for political parties was in violation of the principle of legal certainty relating to crimes and penalties, as set forth in Article 38 of the Constitution. In particular, it considered that it was unclear which of the prohibitions laid out in Chapter IV of the Law could be applicable to individuals. It noted that the sanction to be applied was indiscriminate in that no distinction was made as to the status or position of a person within a political party. The Court therefore held that such provisions, which left a wide range of people engaging in political activities facing the threat of a criminal penalty, without differentiating between them, were not sufficiently foreseeable for individuals.
16. The aforementioned decision was published in the Official Gazette on 5 July 2012 and took effect on 5 January 2013.
I. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION
17. The applicant complained that he had been tried and convicted because he had failed to prevent some of the delegates at a meeting of a political party which he was chairing from speaking Kurdish, their mother tongue, instead of Turkish. He alleged that this was a breach of his rights under Articles 10 and 11 of the Convention,
18. The Court deems it appropriate to examine the complaint solely from the standpoint of Article 10 of the Convention, which reads as follows:
“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 ....”
19. The Government argued that the applicant was not a victim within the meaning of Article 34 of the Convention because the criminal proceedings initiated against him had subsequently been discontinued on the ground that they had become time-barred. Accordingly, they requested that the Court declare the application incompatible ratione personae with the provisions of the Convention and reject the application.
20. The applicant did not specifically address this point in his observations.
21. The Court considers that the Government ’ s objection concerning the applicant ’ s victim status is inextricably linked to its examination of the question whether there has been an interference with the applicant ’ s right to freedom of expression under Article 10, and therefore to the merits of the case. Accordingly, the Court joins this question to the merits (see, for example, Altuğ Taner Akçam v. Turkey, no. 27520/07, § 51, 25 October 2011, and Dilipak v. Turkey, no. 29680/05, § 38, 15 September 2015).
22. The Court notes that the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.
23. The applicant maintained his allegations. In his observations, he observed, in particular, that the object of section 81 (c) of Law no. 2820 was to prevent the creation of minorities, and that therefore it did not cover the language of an existing minority, the Kurds. He further submitted that the mere fact that certain delegates at the party meeting spoke in Kurdish could not be construed as having served the aim of creating a minority. The applicant insisted that the relevant provisions of Law no. 2820 were incompatible with the Constitution and the Treaty of Lausanne. He maintained that the content of the speeches had been within the scope of freedom of expression and that the mere fact that the party delegates had chosen to speak in a language which had been better understood by most of the participants at the meeting was not in breach of the Constitution or international treaties. In this connection, the applicant emphasised that HAK ‑ PAR was a party representing Kurds. He was of the view that the interference with his rights and freedoms resulted from a desire to prevent Kurds from using their own language and, thus, to diminish Kurdish culture and language.
24. The Government drew the Court ’ s attention to the Constitutional Court decision of 12 January 2012 (see paragraph 1 5 above). They submitted that a breach of section 81 (c) of Law no. 2820 no longer constituted an offence. In support of their argument they submitted copies of two Court of Cassation judgments.
25. As to the merits, the Government submitted that section 117 of Law no. 2820 constituted the legal basis for the initial sentence imposed on the applicant and that this interference pursued “legitimate aims”, such as the protection of national security, territorial integrity or public safety, or the prevention of disorder or crime, within the meaning of Article 10 § 2 of the Convention. The Government relied on cases such as Zana v. Turkey (25 November 1997, § 50, Reports of Judgments and Decisions 1997 ‑ VII); Karataş v. Turkey ([GC], no. 23168/94, § 44, ECHR 1999 ‑ IV); and Sürek v. Turkey (no. 1) ([GC], no. 26682/95, § 52, ECHR 1999 ‑ IV). The Government left it to the Court to assess whether the interference in question was “necessary in a democratic society”.
(a) Applicability of Article 10 and the existence of an interference
26. The Court reiterates that any question of an alleged interference with an applicant ’ s right to freedom of expression hinges upon the prior establishment of whether the applicant has been directly affected by a measure which renders him a victim of a violation of his rights under Article 10 of the Convention (see Altuğ Taner Akçam, cited above, § 65).
27. It further reiterates that Article 10 of the Convention protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see, among other authorities, Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06, and 28964/06, § 53, ECHR 2011). Indeed, a review of the Court ’ s case-law shows that Article 10 of the Convention has been held to be applicable not only to the more common forms of expression, such as speeches and written texts, but also to other and less obvious media through which people sometimes choose to convey their opinions, messages, ideas and criticisms (see, in particular, Murat Vural v. Turkey, no. 9540/07, § 44, 21 October 2014, and the examples provided therein in §§ 45-51). Moreover, in certain circumstances, the Convention organs have also considered that the right to freedom of expression by implication also guarantees a “negative right” not to be compelled to express oneself ( see, for example, K v. Austria, no. 16002/90, Commission Report of 13 October 1992, § 45; Strohal v. Austria, no. 20871/92, Commission decision of 7 April 1994; and a contrario, Gillberg v. Sweden [GC], no. 41723/06, §§ 86 and 94, 3 April 2012 ). Thus, an assessment of whether an impugned form of conduct falls within the scope of Article 10 of the Convention should not be restrictive, but inclusive (see, Murat Vural, cited above, § 52).
28. In the light of its case-law, the Court considers that, in deciding whether a certain act or form of conduct falls within the ambit of Article 10 of the Convention, an assessment must be made of the nature of the act or conduct in question, in particular of its expressive character seen from an objective point of view, as well as of the purpose or the intention of the person performing the act or engaging in the conduct in question (ibid., § 54).
29. In the instant case, the Court notes that criminal proceedings were initiated against the applicant, the vice-president of a political party and the chairperson of a congress of the party in question, for not preventing some of the delegates from speaking Kurdish, in breach of section 81 (c) of Law no. 2820. The applicant acted in this way despite warnings from a government superintendent, which, from an objective point of view, may be seen as an expressive act of defiance towards an authority representing the State. Furthermore, the Court notes that in the course of the criminal proceedings against him the applicant made it very clear that he had not used his power as chairperson to intervene when certain delegates spoke in Kurdish because of his view that Kurdish should be used in all areas of life; that those who spoke Kurdish were speaking in their mother tongue; and that he believed that it was neither legal nor ethical for him to intervene and to force people to speak in a language other than their mother tongue. In the light of the foregoing, the Court concludes that through his particular conduct the applicant exercised his right to freedom of expression within the meaning of Article 10 of the Convention (see, in the context of Article 11 read in the light of Article 10, Ezelin v. France, 26 April 1991, § 41, Series A no. 202). That provision is thus applicable in the present case.
30. The Court further observes that the applicant was charged under section 117 of Law no. 2820 and sentenced by the first ‑ instance court to one year ’ s imprisonment. The criminal proceedings against the applicant were subsequently terminated on the ground that the statutory time-limit prescribed under domestic law had expired and the conviction therefore no longer stood. However, the applicant, an active politician, continued to face the threat of a criminal sanction, entailing a prison sentence, for nearly seven years during the course of the criminal proceedings. Moreover, during the same lengthy period, he was also left in incertitude as to whether or not he ran the risk of new set of criminal proceedings being instituted against him for similar offences, that is not preventing the use of the Kurdish language in the contexts of meetings of a political party, if he was elected to act as a chairman in political party meetings. In view of the above, the Court considers that the application of the prohibition contained in section 81 (c) of Law no. 2820 at the material time amounted to interference with the right to freedom of expression of such a nature that it directly affected the applicant (see, mutatis mutandis, Dilipak, cited above, § 49).
31. For the above reasons, the Court dismisses the Government ’ s preliminary objection concerning the applicant ’ s alleged lack of victim status.
(b) Whether the interference was justified
32. Such an interference will contravene Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims prescribed by paragraph 2 of Article 10, and is “necessary in a democratic society” for achieving such an aim or aims.
33. The Court reiterates that the expression “prescribed by law”, within the meaning of Article 10 § 2, requires firstly that the impugned measure should have some basis in domestic law; however, it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences, and that it should be compatible with the rule of law (see, among other authorities, Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 114, 14 September 2010).
34. One of the requirements flowing from the expression “prescribed by law” is foreseeability. Thus, a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable citizens to regulate their conduct; they must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 141, ECHR 2012, and Delfi AS v. Estonia [GC], no. 64569/09, § 121, ECHR 2015 ). Such consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable (see Perinçek v. Switzerland [GC], no. 27510/08, § 131, 15 October 2015) .Whilst certainty is highly desirable, it may bring in its train excessive rigidity, and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, for example, Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 41, ECHR 2007 ‑ IV).
35. As regards accessibility, the Court notes that the provisions in question satisfied this condition, as Law no. 2820 on the regulation of political parties had been published in the Official Gazette of 24 April 1983.
36. On the issue of foreseeability, the Court observes that the wording of section 81 (c) of Law no. 2820 created a blanket prohibition on the use by political parties of any language other than Turkish for their constitutions or programmes, at congresses and meetings and whilst engaging in propaganda activities. It further held that “they cannot remain indifferent to such actions and acts when committed by others”. Section 117 of Law no. 2820 provided for a minimum six-month prison sentence for anyone who performed acts prohibited by section 81 (c) of Law no. 2820.
37. The Court observes that the Constitutional Court subsequently declared section 117 unconstitutional and abrogated it. The Constitutional Court found that the prosecution of individuals for carrying out acts prohibited for political parties was in violation of the principle that crimes and punishments should be prescribed by law, as laid out in Article 38 of the Constitution.
38. Although requested by the Court to do so, the Government have failed to submit any examples of domestic judicial cases showing how the provisions applicable at the material time were interpreted.
39. In view of the above, the Court finds section 81 (c) of Law no. 2820 to be far from precise as to what type of inaction could form a basis for criminal prosecution and to whom it would apply. Accordingly, it considers that the wording of section 81 of Law no. 2820 was not clear enough to have enabled the applicant to foresee that he would face criminal proceedings, pursuant to section 117 of Law no. 2820, owing to his failure to intervene when certain delegates gave speeches in Kurdish when he was acting as the chairman of the general congress of his political party.
40. Accordingly, the interference with the applicant ’ s freedom of expression was not prescribed by law. That being so, the Court is not required to determine whether this interference pursued a legitimate aim or whether it was proportionate to the aim pursued.
41. The Court concludes, therefore, that there has been a violation of Article 10 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
42. 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.”
43. The applicant claimed an award in respect of pecuniary damage, the amount of which he left to the discretion of the Court, as a result of the lengthy criminal proceedings initiated against him. He further claimed 60,000 Turkish liras (TRY) (approximately 20,800 euros (EUR)) in respect of non-pecuniary damage incurred as a result of breaches of Articles 6, 10 and 11 of the Convention and Article 3 of Protocol No.1.
44. The Government invited the Court not to make an award in respect of pecuniary damage because they considered that the applicant had not made any claims for a determined amount. They left it to the Court ’ s discretion whether to make an award to the applicant in respect of non-pecuniary damage.
45. The Court, in the absence of any further elaboration by the applicant, does not discern any causal link between the violation found and any pecuniary damage and therefore does not make any award for pecuniary damage.
46. It finds, however, that he must have suffered pain and distress which cannot be compensated for solely by the Court ’ s finding of a violation. Having regard to the nature of the violation found, the Court finds it appropriate to award him EUR 7,500 in respect of non-pecuniary damage.
47. The applicant claimed TRY 12,000 (approximately EUR 4,166) for costs and expenses incurred before the domestic courts and the Court, including lawyers ’ fees. In support of his claims, the applicant submitted a breakdown of the hours spent by his lawyers in representing him before the domestic courts and the Court. The sums were calculated in accordance with the fee scales recommended by the Diyarbakır Bar Association.
48. The Government contested these claims, submitting that the requested amounts were unsubstantiated.
49. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the applicant has not demonstrated that he has actually incurred these costs and expenses before the domestic courts. It therefore rejects his claims under this head.
50. As to the costs and expenses incurred before the Court, regard being had to the detailed schedule of costs prepared by his lawyer and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000.