SECOND SECTION
CASE OF FESİH ÇOBAN v. TÜRKİYE
(Application no. 50239/11)
JUDGMENT
STRASBOURG
13 June 2023
This judgment is final but it may be subject to editorial revision.
In the case of Fesih Çoban v. Türkiye,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Pauliine Koskelo, President, Lorraine Schembri Orland, Davor Derenčinović, judges,and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 50239/11) 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”) on 31 May 2011 by a Turkish national, Mr Fesih Çoban (“the applicant”), who was born in 1958 and lives in Muş and who had been granted legal aid and was represented by Mr Ü. Avcı, a lawyer practising in Van;
the decision to give notice of the application, concerning an alleged breach of the right to a fair trial, the right to freedom of expression and the right to freedom of assembly, to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye;
the parties’ observations;
the decision to reject the Government’s objection to the examination of the application by a Committee;
Having deliberated in private on 23 May 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The application concerns the alleged violation of Articles 10 and 11 of the Convention on account of the applicant’s conviction for disseminating propaganda in favour of the PKK (the Workers’ Party of Kurdistan) through his participation in actions carried out during a demonstration organised by a political party. It further pertains to the alleged unfairness of criminal proceedings against the applicant on account of the domestic courts’ failure to deliver a reasoned judgment in respect of his convictions which were based on his having participated the demonstration in question and incited other people to throw stones at the police. The application further pertains on a similar basis to an alleged breach of the principle of equality of arms owing to the allegedly deficient manner in which evidence was admitted and assessed during the trial.
2. On 15 December 2009 a local branch of the Party for a Democratic Society (Demokratik Toplum Partisi – “the DTP”) organised a demonstration in Muş to protest about the dissolution of the party by the Constitutional Court. After a group of people had gathered near a building of the district branch of the DTP, a person started firing into the crowd, resulting in the deaths of two people and injuries to several others. Thereafter, the gathering became violent and demonstrators started throwing Molotov cocktails and stones at buildings, police officers and police vehicles.
3. A police report dated 18 December 2009 indicated that video footage recorded by police officers showed that the applicant had been one of the demonstrators and had directed a group of people with his hand, inciting them to throw stones at the police. In his statements to the police, the applicant denied the accusations against him, saying that he was a local council officer and that he had gone out of the council building to see what was going on and had raised his arm to tell the group not to throw stones.
4. An expert report concerning the video footage indicated that the applicant had been in the group throwing stones, had raised his right hand, and had pointed his index finger at the police officers who had been recording videos; however, he had not thrown stones or chanted any slogans.
5. Throughout the criminal proceedings, the applicant admitted that the person in the video footage had been him, while at the same time stating that he had raised his hand as a reaction to those throwing stones, since he had felt nervous, and that he had tried to help the security forces. He further stated that he had run away because the demonstrators had been throwing stones and that he had returned to his workplace following the dispersal of the demonstrators by the police. On multiple occasions the applicant had in vain asked the trial court to hear three witnesses, including a police officer, in support of his defence.
6. On 17 September 2010 the trial court sentenced the applicant to (i) six years and three months’ imprisonment for committing an offence on behalf of an armed terrorist organisation without being a member of the organisation, contrary to Article 220 § 6 taken in conjunction with Article 314 § 2 of the Criminal Code (“the CC”; for the text of these provisions see Gülcü v. Turkey, no. 17526/10, §§ 43-44, 19 January 2016), on the grounds that he had taken part in a demonstration in response to general calls issued by the PKK; (ii) ten months’ imprisonment for disseminating propaganda in support of the PKK, contrary to section 7(2) of the Prevention of Terrorism Act (Law no. 3713; for the text of this provision see Gülcü, cited above, § 51); and (iii) ten months’ imprisonment for using force to obstruct a public officer in the execution of his duties, contrary to Article 265 of the CC (for the text of this provision see Gülcü, cited above, § 46).
7. The trial court stated in its reasoning that the demonstrators had gathered around the district branch of the DTP for a press conference organised by the DTP to protest against the Constitutional Court’s decision dissolving the party. However, it also found that that demonstration had been organised in response to general calls issued by the PKK. The relevant part of the trial court’s reasoning reads as follows:
“ASSESSMENT OF EVIDENCE AND THE REASONING
...[F]ollowing intensive calls for action on websites known to carry news reports in favour of the terrorist organisation PKK / KONGRA–GEL, on 15 December 2009 at around 10.30 a.m., in protest against the Constitutional Court’s decision dissolving the Party for a Democratic Society, a press conference was organised in front of the 700. Yıl Mosque in the Bulanık district by the former Bulanık district organisation of the party in question; a group of approximately 1,000 people gathered around the Party for a Democratic Society building and started an illegal march on İnönü Street, Mareşal Fevzi Çakmak Street and Şehit Üsteğmen Suat İshakoğlu Street with stones in their hands and carrying placards depicting Abdullah Öcalan, who is in prison for the offence of committing acts aimed at bringing about the secession of some territories under the sovereignty of the Republic of Türkiye from the State administration, [by unfurling] flags of the so-called KCK (Kürdistan Demokratik Topluluğu – Kurdistan Democratic Community) and the so-called YDGM (Yurtsever Demokratik Gençlik Meclisi ‑‑ Patriotic Democratic Youth Assembly); [by] shouting slogans such as ‘PKK Revenge’ (‘PKK İntikam’), ‘Long Live Leader Apo’ (‘Biji Serok Apo’), ‘A tooth for a tooth, blood for blood, we’re with you Öcalan’ (‘Dişe diş kana kan seninleyiz Öcalan’), ‘Again and again revolt, our leader Öcalan’ (‘Disa Disa Serhildan Serok e me Öcalan’), ‘A thousand greetings to İmralı’ (‘Selam Selam İmralı’ya Bin Selam’), ‘PKK is the people, the people are here’ (‘PKK halktır halk burada’), ‘Bulanık plain, the home of the Apoists’ (‘Bulanık Ovası Apocular Yuvası’), ‘Ki ne em, Apoci ne em’ (‘Who are we, we are Apoists’) (‘Kimiz Biz Apocuyuz Biz’)...; [they] caused damage by throwing stones and setting fire to workplaces, particularly T.C. Ziraat Bank, Halkbank, and a shop called ‘Mardin Manifatura’ which was not closed despite the other workplaces [being closed]; [they] actively resisted by throwing stones and bottles at the security officers who were trying to impede them; five security officers were injured by stones and bottles during those incidents in the district.
[It is understood that] the defendant ... directed the group which had gathered in the centre of the Bulanık district, chanting illegal slogans, damaging public and private vehicles and workplaces, attacking the security forces with stones, sticks and Molotov [cocktails], causing injuries to some security officers, and preventing the passage of vehicles by setting up barricades on the roads, in response to the calls by the terrorist organisation and using as an excuse the Constitutional Court’s decision ... dissolving the Party for a Democratic Society.
...
The defendant said in his police statements that he had not thrown stones at the police [officers] and had not provoked anybody, and that he had not seen who had thrown stones at the security forces and a police panzer, but no one near him had thrown stones at the security forces. However, it has been ascertained from the video footage (a still from which is in the case file) that, standing next to the people who were heading towards the police panzer, the defendant raised his right hand into the air and pointed at the security forces with his index finger, and that the demonstrators threw stones at the security forces, and, in response, gas bombs were thrown and they started to disperse.
As mentioned above, at the very beginning of the video footage in question it is clear beyond doubt that the group which the defendant had directed with his hand threw stones at the police panzer and the security forces. Immediately afterwards, gas bombs were thrown towards the demonstrators from the police side and the demonstrators started to disperse. In these circumstances, it is not possible to find the defendant’s version of events credible.
The defendant stated in his testimony to the public prosecutor that he was ‘raising my arm – I was telling the group, who were throwing stones from in front of Numan Pharmacy on İnönü Street, not to throw stones at us’. In the context of the situation summarised above, taking into account the footage of the incident which clearly shows the defendant’s position, it has been ascertained that the defendant directed the group of demonstrators towards the security forces, and in this respect, his actions have been established.
ASSESSMENT OF THE DEFENDANT’S ACT OF COMMITTING AN OFFENCE ON BEHALF OF AN [ARMED TERRORIST] ORGANISATION OF WHICH HE WAS NOT A MEMBER
In the present case, a general call by the organisation [the PKK] was consolidated through material published and calls issued by the organisation’s media outlets, and such a call does not need to be made to a specific person. It has been established that these demonstrations, which took place with the knowledge of and at the request of the organisation, were carried out on behalf of the organisation. In this context, it has been established that by taking part in an unauthorised demonstration (korsan gösteri) which started following calls on Internet sites affiliated to the organisation, the defendant participated in demonstrations which were carried out on behalf of the organisation; as this constitutes a violation of Article 314 § 2 taken in conjunction with Article 314 § 3 and Article 220 § 6 of the Turkish Criminal Code (no. 5237), it is necessary to take the decision to punish him for that offence, among others, in accordance with the aforementioned Article.
ASSESSMENT OF THE DEFENDANT’S ACT OF DISSEMINATING PROPAGANDA
Consistently with the decision of the 9th Criminal Division of the Court of Cassation dated 28 February 2008 and numbered E.2007/13527 K.2008/1265, and also with many similar precedents, ‘the defendant’s actions in participating in the illegal demonstration on the date of the incident, and in being part of the group which was shouting slogans in favour of the leader of the armed organisation and was attacking the security forces and their vehicles with stones and Molotov cocktails, constitute disseminating propaganda in favour of a terrorist organisation in such a way as to encourage the use of violence or other terrorist methods, under section 7(2) of the Prevention of Terrorism Act (Law no. 3713), which was in force at the date of the offence.
ASSESSMENT OF THE DEFENDANT’S ACT OF ACTIVELY OBSTRUCTING A PUBLIC OFFICIAL
It has been found necessary to punish the defendant pursuant to Article 265 § 1 of Law no. 5237 [the Criminal Code], which corresponds to his actions, since it has been understood that the defendant, together with the group in which he had been involved, attacked the security forces who were intervening in the incidents, in order to prevent their intervention and to obstruct them in carrying out their duties.
...”
8. On 7 March 2011 the Court of Cassation upheld the judgment.
9. On 5 July 2012 Law no. 6352 entered into force, amending various laws with a view to reducing and suspending sentences given in relation to several offences including the ones of which the applicant was convicted.
10. Following the entry into force of Law no. 6352, the trial court (i) suspended the pronouncement of the judgment in so far as it concerned the offence of obstructing the police officers, (ii) suspended the execution of the applicant’s sentence for disseminating propaganda, and (iii) reduced his sentence to three years, one month and fifteen days’ imprisonment for committing an offence on behalf of an armed terrorist organisation of which he was not a member. The judgment became final on 22 December 2015.
THE COURT’S ASSESSMENT
11. The applicant alleged that Articles 10 and 11 of the Convention had been violated as a result of his conviction for disseminating propaganda in support of the PKK. He further alleged under Article 6 of the Convention that he had not had a fair trial in that the trial court had convicted him in the absence of any evidence, without adducing adequate reasons, and in breach of the principle of equality of arms owing to its failure to hear defence witnesses and its decision to rely exclusively on the video footage of the demonstration provided by the police.
12. The Government raised a plea of non-exhaustion of domestic remedies arguing that the applicant had failed to apply to the Constitutional Court despite the fact that his conviction had been reviewed pursuant to Law no. 6352, had become final in 2015, and had thus fallen within the Constitutional Court’s jurisdiction ratione temporis.
13. The Court notes that it has examined and dismissed an identical objection by the respondent Government in previous cases (see Bakır and Others v. Turkey, no. 46713/10, § 40, 10 July 2018, and Öner and Türk v. Turkey, no. 51962/12, §§ 14-18, 31 March 2015). The Court finds no particular circumstances in the present case which would require it to depart from the position taken in those cases, since the trial court’s review in its decision reducing the applicant’s sentence was not a substantive review of the case but was solely a review of the length of the sentences pursuant to Law no. 6352 (compare also Öner and Türk, cited above, § 17). The Court accordingly dismisses the Government’s objection.
14. The applicant alleged that Articles 10 and 11 of the Convention had been violated as a result of his conviction for disseminating propaganda in support of the PKK. This complaint falls to be examined under Article 11 of the Convention (see Lütfiye Zengin and Others v. Turkey, no. 36443/06, § 35, 14 April 2015, and Çiçek and Others v. Türkiye, nos. 48694/10 and 4 others, §§ 121-22, 22 November 2022). Since the applicant’s complaint is limited to the above-mentioned conviction, the Court will not carry out any further assessment under this heading in respect of the remainder of his conviction.
15. The Government submitted that the applicant could no longer claim to be a victim of a breach of Article 11 in respect of his conviction under section 7(2) of Law no. 3713, because the execution of the sentence imposed thereunder had been suspended.
16. The Court dismisses the Government’s above-mentioned objection holding that in suspending the execution of the prison sentence, the domestic courts neither acknowledged nor afforded redress for the alleged breach of Article 11 (compare Zülküf Murat Kahraman v. Turkey, no. 65808/10, § 39, 16 July 2019).
17. The Government further raised a plea of non-exhaustion of domestic remedies, arguing that the applicant had failed to raise his complaint under Article 10 of the Convention before the domestic authorities.
18. The Court dismisses this objection, since it will examine the impugned complaint from the standpoint of Article 11 of the Convention in respect of which the Government did not raise any preliminary objections.
19. The Court notes that the 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.
20. The applicant submitted that he had been convicted for disseminating propaganda in favour of the PKK due to his activities falling within the scope of Article 11.
21. The Government argued that the sentence imposed on the applicant, who had carried out violent acts and incited the group to throw stones at the police, corresponded to a pressing social need, and that it was proportionate, given the subsequent suspension of its execution.
22. The general principles with regard to restrictions on the right to freedom of assembly may be found in Gülcü (cited above, §§ 91, 103-104 and 110-111, with further references).
23. The Court considers that the applicant’s conviction amounted to an “interference” with the exercise of his right to freedom of assembly (see also Gülcü, cited above, §§ 93-97 and 102). It is further prepared to assume that the interference was prescribed by law and the national authorities have pursued the legitimate aims of protecting national security and preventing disorder and crime (compare also Faruk Temel v. Turkey, no. 16853/05, § 52, 1 February 2011).
24. As regards the question whether the interference was necessary in a democratic society, the Court observes that the sole ground for the applicant’s conviction under section 7(2) of Law no. 3713 for disseminating propaganda in support of the PKK was his participation in the demonstration in question and his alleged incitement of the group who was shouting slogans and threw stones at the police. However, the trial court did not demonstrate any connection or relevance between those actions and the scope and purpose of the offence of disseminating propaganda under section 7(2) of Law no. 3713. Therefore, and bearing in mind that in their reasoned judgments the domestic courts failed to indicate any other actions which could be regarded as disseminating propaganda in support of the PKK, the Court concludes that the domestic courts did not give relevant and sufficient reasons for the conviction of the applicant under that provision and thus failed to afford him an important procedural safeguard arising from Article 11 of the Convention (compare also Gülcü, cited above, §§ 113-14).
25. As regards the proportionality of the interference, the Court notes that, in the light of the foregoing, the imposition of a prison sentence amounted to a disproportionate interference with the applicant’s right to freedom of assembly.
26. There has therefore been a violation of Article 11 of the Convention.
27. These findings make it unnecessary to separately examine the applicant’s complaint under Article 6 of the Convention in respect of the same conviction.
28. The complaint concerning the lack of reasoning in respect of the applicant’s conviction under Article 220 § 6 taken in conjunction with Article 314 § 2 of the CC is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
29. The applicant alleged that he had not had a fair trial in that the trial court had convicted him in the absence of any evidence and without adducing adequate reasons.
30. The Government submitted that the trial court had delivered its judgment relying on incident reports, the video footage, expert reports and the applicant’s statements. The trial court duly established that the applicant had attended the illegal demonstration held following the calls made by the PKK, and that he had incited the demonstrators to throw stones at the police.
31. The general principles concerning the right to a reasoned judgment under Article 6 § 1 of the Convention may be found in Moreira Ferreira v. Portugal (no. 2) ([GC], no. 19867/12, §§ 83-84, 11 July 2017) and Bochan v. Ukraine (no. 2) ([GC], no. 22251/08, § 61, ECHR 2015).
32. The Court notes at the outset that at the beginning of its reasoned judgment the trial court found it established that the applicant had incited a certain group of people to throw stones at the police officers by directing them to do so with his hand. It went on to examine specific acts imputed to the applicant under separate subheadings referring to the offences attributed to him. In the subheading concerning the act of committing an offence on behalf of an armed terrorist organisation without being a member of the organisation under Article 220 § 6 taken in conjunction with Article 314 § 2 of the CC, the trial court appears to have based its reasoning on the applicant’s participation in the unlawful demonstration, which it regarded as having been held as a result of calls made by the PKK. In fact, there was no explicit reference to the applicant’s alleged act of incitement in this part of the judgment. This view is further reinforced by the fact that under the subheading concerning the offence of resisting police officers, the trial court expressly indicated that the applicant had attacked the police officers, which constituted actions proscribed by Article 265 of the CC. In view of the above, the Court concludes that the applicant’s conviction under Article 220 § 6 taken in conjunction with Article 314 § 2 of the CC hinged upon his participation in the demonstration in question.
33. The Court further notes that while the trial court appears to have accepted that it was the DTP that had organised the demonstration in order to protest against the Constitutional Court’s decision ordering its dissolution, in convicting the applicant under Article 220 § 6 taken in conjunction with Article 314 § 2 of the CC, it found that the demonstration in question had been held following calls made by the PKK. More importantly, the trial court did not establish whether the PKK had issued a specific call for that demonstration, and, if so, whether the applicant had been aware of such a call or acted in accordance with instructions given by the PKK (compare also Gülcü v. Turkey, no. 17526/10, § 112, 19 January 2016). The trial court therefore failed to provide a sufficient explanation as to how it related the applicant’s actions, namely his participation in a demonstration held by a political party, to the offence of committing an offence on behalf of the PKK without being a member of it.
34. In view of the above, the Court finds that when convicting the applicant for committing an offence on behalf of the PKK without being a member of it, the trial court did not adduce reasons commensurate with the seriousness and the importance of the offence in question, which resulted in the applicant being sentenced to six years and three months’ imprisonment, subsequently reduced to three years, one month and fifteen days’ imprisonment. Accordingly, the Court concludes that the trial court failed to discharge its duty under Article 6 § 1 of the Convention to deliver a reasoned judgment in so far as the applicant’s conviction in question is concerned (compare also ibid., § 114).
35. There has therefore been a violation of Article 6 § 1 of the Convention.
36. These findings make it unnecessary to examine the admissibility and merits of the remainder of the applicant’s complaints under Article 6 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
37. The applicant claimed 100,000 euros (EUR) in respect of pecuniary damage and 20,000 Turkish liras (TRY – approximately EUR 2,920 on the basis of the exchange rate at the time) in respect of costs and expenses incurred before the domestic courts. He submitted a legal fee agreement drawn up in respect of the proceedings before the domestic courts.
38. The Government contested those claims.
39. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim.
40. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 2,920 for costs and expenses in the domestic proceedings, plus any tax that may be chargeable to the applicant.
41. Lastly, the Court reiterates that the most appropriate form of redress would be a retrial in accordance with the requirements of Article 6 of the Convention, should the applicant so request (see Süleyman v. Turkey, no. 59453/10, § 110, 17 November 2020).
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 2,920 (two thousand nine hundred and twenty euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;
Done in English, and notified in writing on 13 June 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Dorothee von Arnim Pauliine Koskelo Deputy Registrar President
