CASE OF GÜLER AND UĞUR v. TURKEY [Extracts]

1. The case originated in two applications (nos. 31706/10 and 33088/10 ) 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 two Turkish nationals, Mr İhsan Güler and Mr Sinan Uğur (“the applicants”), on 5 May 2010 and 13 May 2010 respectively.
2. The applicants were represented by Mr C. Kayhan, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
3. Before the Court, the applicants alleged, in particular, that their conviction for propaganda in favour of a terrorist organisation, which had been based, in their view, on their participation in a commemorative religious ceremony, had entailed a violation of Article 9 of the Convention.
4. On 21 November 2011 notice of the applications was given to the Government.
I. THE CIRCUMSTANCES OF THE CASE
5. Mr İhsan Güler and Mr Sinan Uğur were born in 1964 and 1947 respectively and live in Ankara and İzmir respectively.
6. At the relevant time they were active members and regional leaders of the Party for a Democratic Society ( Demokratik Toplum Partisi (DTP)), which was subsequently dissolved by the Constitutional Court. The applicant Mr Güler, former mayor of the district of Başkale (Van), was at the relevant time the chairman of an association called KÜRT-DER ( Kürt Demokrasi Kültür ve Dayanışma Derneği – association for Kurdish culture, democracy and solidarity ).
7. On 21 August 2006 the applicants took part in a religious ceremony ( mevlût ) [1] on the premises of the DTP in Altındağ (Ankara), in which they paid tribute to three members of the PKK who had been killed by the security forces.
8. The participants read out passages from the Koran and said prayers, and showed a film about the lives of the deceased. The DTP ’ s regional representative gave a short speech, which can be summarised as follows :
“Our fears and worries continue. People are still being killed. In such a context, we would like this mevlût to be a moment of peace and fraternity. ”
9. On 3 October 2006 the Muş public prosecutor ’ s office received an anonymous letter of denunciation, together with a CD containing a recording of the ceremony in question. The writer, who said that he had been a participant himself but had subsequently regretted it, explained that the ceremony had been held in memory of “the martyrs of the PKK ”.
10. Following an investigation by the public prosecutor ’ s office, the applicant Mr Güler was arrested and taken into police custody on 28 December 2006. He was released the next day.
11. Both applicants were committed to stand trial before the Ankara Assize Court. In their defence they stated that they had taken part in the ceremony for the observance of their religious duties.
12. In a judgment of 24 September 2008 the Ankara Assize Court, relying on section 7 ( 2 ) of Law no. 3713 on the prevention of terrorism, sentenced the two applicants to ten months ’ imprisonment.
13. In its judgment, the Assize Court observed, firstly, that the persons in whose memory the ceremony had been held were members of a terrorist organisation and that they had been killed by the security forces during an operation against that organisation. It also took the view that the choice of venue for the ceremony – the premises of a political party –, and the fact that the PKK flag had been spread over the tables and photos of members of the organisation had been displayed, contributed to raising serious doubts as to the actual reasons for the gathering that had been given by the applicants in their defence.
14. Further to an appeal on points of law by the applicants, their conviction was upheld by a final judgment of the Court of Cassation on 8 March 2010. The applicants were imprisoned for the duration of their sentence.
II. ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION
26. Relying on Articles 7, 9 and 11 of the Convention, the applicants alleged that their conviction had been based on their participation in a religious ceremony, which had consisted of a mere public manifestation of their religious observance. They further argued that their conviction had not been sufficiently foreseeable in the light of the wording of section 7 ( 2 ) of Law no. 3713, which had been applied to their detriment.
The Court finds that the situation in issue concerns questions that can be examined under various Convention provisions including those relied upon by the applicants. Having regard, however, to the wording and content of the applicants ’ complaints, it takes the view that the principal question raised by the present case lies in their conviction for participating in a religious ceremony. In those circumstances the Court considers that the complaints should be examined solely under Article 9 of the Convention. That provision reads as follows:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
27. The Government contested the applicants ’ argument.
28. The Government contended that Article 9 of the Convention was not applicable in the present case. In their view, the fact that the premises of a political party had been chosen for a ceremony held following the death of members of a terrorist organisation and the decision to display symbols of that organisation clearly showed that the participants were pursuing a political and not a religious aim.
29. The applicants reiterated their allegations.
30. The Court finds that the question of the applicability of Article 9 of the Convention concerns more specifically the existence of an interference with the applicants ’ right to freedom of religion. It will therefore examine this objection together with the merits of the case.
31. The Court notes that this complaint 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.
32. The Government stated that the applicants had been convicted on account of their propaganda in favour of a terrorist organisation and not for a manifestation of their beliefs. They claimed that the interference complained of by the applicants had been reasonable as, in their submission, its aim had been to prevent disorder or crime.
33. The applicants contested the Government ’ s position and reiterated their allegations.
34. The Court reiterates that, as enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. Such freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. That freedom entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion ( see, among other authorities, Buscarini and Others v. San Marino [GC], no. 24645/94, § 34, ECHR 1999 ‑ I).
35. The Court further reiterates that, while religious freedom is primarily a matter of individual conscience, it implies freedom to manifest one ’ s religion not only alone and in private but also in community with others, in public and within the circle of those whose faith one shares. In other words, whether alone or in community with others, in public or in private, everyone is free to manifest his or her beliefs. Article 9 lists a number of forms which manifestation of one ’ s religion or belief may take, namely worship, teaching, practice and observance ( see, mutatis mutandis, Cha ’ are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 73, ECHR 2000 ‑ VII).
36. Article 9 does not, however, protect every act motivated or inspired by a religion or belief and does not always guarantee the right to behave in the public sphere in a manner which is dictated by one ’ s religion or beliefs ( see, among other authorities, S.A.S. v. France [GC], no. 43835/11, § 125, 1 July 2014 ).
37. The Court must therefore ascertain whether there has been an interference with the applicants ’ right under Article 9 and, if so, whether that interference was “prescribed by law”, pursued a legitimate aim and was “necessary in a democratic society” within the meaning of Article 9 § 2 of the Convention.
( a) Whether there has been an interference
38. The Court notes that the applicants were convicted for propaganda in favour of a terrorist organisation on account of their participation in a religious ceremony ( mevlût ) organised on the premises of a political party in memory of three individuals, members of an illegal organisation, who had been killed by the security forces.
39. The Government rejected the justification for the ceremony as claimed by the applicants ( see paragraphs 28 and 32 above ). In their view, the fact that it had been held following the death of members of a terrorist organisation on the premises of a political party, where symbols of that organisation were also on display, showed that the participants, among whom were the applicants, had been pursuing not only a religious aim but also an aim of political propaganda in favour of a terrorist organisation.
40. The Court would observe, firstly, that it is not in dispute between the parties that mevlût is a religious ceremony commonly celebrated by Muslims in Turkey.
41. It further notes that, according to General Comment no. 22 of the United Nations Human Rights Committee ..., the freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, including ceremonies following deaths. The question whether or not the deceased had been members of an illegal organisation is of little significance for the Court.
42. The mere fact that the ceremony in question was organised on the premises of a political party in which symbols of a terrorist organisation were displayed did not deprive the participants of the protection guaranteed by Article 9 of the Convention.
43. In the Court ’ s view, the sentencing of the applicants to a term of imprisonment, pursuant to section 7 ( 2 ) of Law no. 3713, can be regarded as an interference with their freedom to manifest their religion.
44. Such interference is incompatible with Article 9, unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of that Article and is “necessary in a democratic society” in order to achieve the aim or aims concerned. The Court will therefore first examine whether the interference was “prescribed by law”.
45. The Court notes that, according to the Government, the interference at issue in the present case was based on section 7 ( 2 ) of Law no. 3713.
46. It further notes that, in the applicants ’ view, section 7 ( 2 ) of Law no. 3713, as it had allegedly been applied against them, was not sufficiently foreseeable as a criminal- law provision and did not therefore have the quality of “law”.
47. The expression “prescribed by law” requires, firstly, that the impugned measure should have some basis in domestic law. Secondly, it 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 for him, and compatible with the rule of law. The phrase thus implies, inter alia, that domestic law must be sufficiently foreseeable in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention ( see Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014).
48. For domestic law to meet these requirements it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion to be granted in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion and the manner of its exercise (see, among many other authorities, Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 82, ECHR 2010).
49. In the present case the Court observes that it is not in dispute that the legal basis of the applicants ’ conviction was section 7 ( 2 ) of Law no. 3713. Under that provision, “[a] nyone who engages in propaganda in favour of a terrorist organisation shall be sentenced to a term of imprisonment of between one and five years”.
50. The Court reiterates that the requirement of “foreseeability” is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts ’ interpretation thereof, what acts and omissions will engage his responsibility ( see, mutatis mutandis, S.W. v. the United Kingdom, 22 November 1995, § 35, Series A no. 335 ‑ B).
51. Turning back to the present case, the Court notes that the applicants were found guilty of propaganda in favour of a terrorist organisation. In so finding the domestic courts relied on the fact that the persons in whose memory the ceremony in question had been held were members of a terrorist organisation and had been killed during an operation against that organisation. They additionally included in their reasons for the conviction the fact that the premises of a political party, in which symbols of that organisation were displayed, had been chosen as the venue for the ceremony.
52. In this connection the Court reiterates its finding in a previous case that the term propaganda is often understood as the deliberate dissemination of information in one direction to influence the public perception of events, persons or issues. The single-direction nature of the information is not per se a reason to limit freedoms. A limitation may be prescribed, inter alia, to prevent the terrorist indoctrination of individuals and/or groups who are easily influenced, the aim of the indoctrination being to make them act and think in a particular manner. The Court thus accepts that certain forms of identification with a terrorist organisation, and especially apologia for such an organisation, may be regarded as a manifestation of support for terrorism and an incitement to violence and hatred. Similarly, the Court accepts that to disseminate messages praising the perpetrator of an attack, to denigrate the victims of an attack, to raise money for terrorist organisations, or to engage in other similar conduct, may constitute acts of incitement to terrorist violence ( see Yavuz and Yaylalı v. Turkey, no. 12606/11, § 51, 17 December 2013).
53. Moreover, the Court would emphasise the importance of the Guidelines for legislative reviews of laws affecting religion or belief, adopted by the Venice Commission, which state that laws against terrorism should not be used as a pretext to limit legitimate religious activity ...
54. The Court would add that for an act to be characterised as a criminal offence, the perpetrator of the offence in question must carry out an act that is capable of external manifestation.
55. In the present case it notes that neither the reasoning of the national courts nor the Government ’ s observations showed that the applicants had played a role in choosing the venue for the religious service or had been responsible for the presence of the symbols of an illegal organisation on the premises where the ceremony was held. Moreover, the criminal act of which the applicants were convicted was merely their participation in the service, which had been organised following the death of members of an illegal organisation. Having regard to the wording of section 7(2) of the above-mentioned Law and to its interpretation by the Ankara Assize Court and the Court of Cassation when convicting the applicants of the offence of propaganda, the Court takes the view that the interference with the applicants ’ freedom of religion was not “prescribed by law” in the sense that it did not meet the requirements of clarity and foreseeability, since it had not been possible to foresee that mere participation in a religious service would fall within the scope of section 7(2) of the Law on the prevention of terrorism.
56. Having regard to the foregoing, the Court finds that it does not need to pursue the examination of the applicants ’ complaints in order to ascertain whether the interference pursued a “legitimate aim” and was “necessary in a democratic society”. Such an examination is necessary only where the aim of the interference is clearly defined by domestic law.
57. Accordingly, it is appropriate to dismiss the Government ’ s objection as to the applicability of Article 9 of the Convention and to find that there has been violation of that Article.