SECOND SECTION
CASE OF KAPLAN v. TÜRKİYE
(Application no. 11343/16)
JUDGMENT
STRASBOURG
13 June 2023
This judgment is final but it may be subject to editorial revision.
In the case of Kaplan 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. 11343/16) 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 28 January 2016 by a Turkish national, Mr Kasım Kaplan (“the applicant”), who was born in 1962 and lives in Ağrı and who was represented by Mr A. Artuk, a lawyer practising in Ağrı;
the decision to give notice of the complaint concerning an alleged breach of the right to a fair trial owing to a lack of sufficient reasoning 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, and to declare inadmissible the remainder of the application;
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 unfairness of criminal proceedings against the applicant owing to the domestic courts’ alleged failure to give sufficient reasons for his conviction under Article 220 § 6 of the Criminal Code (“the CC”) taken in conjunction with Article 314 § 2 of the CC (for the text of these provisions see Gülcü v. Turkey, no. 17526/10, §§ 43‑44, 19 January 2016) for committing an offence on behalf of an armed terrorist organisation, namely the PKK (the Workers’ Party of Kurdistan).
2. On 21 June 2012 the Erzurum Assize Court (hereinafter “the trial court”) found it established that the applicant had taken part in the funeral of a person by the name of Ahmet Özkan following calls made by Roj TV and that he had thrown stones at the police and certain buildings. On that basis, the trial court convicted the applicant of the following offences and sentenced him as follows:
(i) seven years and six months’ imprisonment for committing an offence on behalf of an armed terrorist organisation of which he was not a member, under Article 220 § 6 of the CC (according to that provision, anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation);
(ii) two years and three months’ imprisonment for attempting to damage property belonging to public institutions; and
(iii) one year and twenty-four months’ imprisonment for obstructing a public officer in the execution of his duty by violent means, specifically by throwing stones, under Article 265 § 1 of the CC.
3. On 21 November 2012 the Court of Cassation upheld the trial court’s judgment in respect of (ii) and (iii) above but quashed it in respect of (i), holding that the legal situation of the applicant should be reviewed in the light of the changes introduced to Article 220 § 6 of the CC by Law no. 6352 (see for this change Gülcü, cited above, § 43).
4. On 11 April 2013 the trial court convicted the applicant under Article 220 § 6 of the CC (taken in conjunction with Article 314 § 2 thereof) of having committed an offence on behalf of the PKK without being a member of it, and sentenced him to seven years and six months’ imprisonment. The part of the trial court’s reasoned judgment entitled “Examination of the evidence and reasoning” reads as follows:
“... in the news article which was published on WWW.FIRATNEWS.COM (ANF) and WWW.ROJACİVAN.COM, the websites under the instructions of the PKK, and was entitled ‘People’s initiative invited [the people] to call [the Government] to account for Öcalan’ (‘Halk inisiyatifi Öcalan için hesap sormaya çağırdı’) in which a statement dated 19 October 2008 was quoted, a call for action was made on the grounds that the leader of the PKK had allegedly been subjected to torture for eleven years and that he had been isolated [in prison]; in that regard, a person named Ahmet Özkan had lost his life as a result of a firearm injury [sustained] during illegal actions carried out on 20 October 2008 between 10 a.m. and 5 p.m.; in line with calls made on Roj TV, the media outlet of the terrorist organisation, regarding the funeral ceremony of that person, the crowd gathered in front of the building of the DTP [Demokratik Toplum Partisi – Party for a Democratic Society] district branch on 22 October 2008 at around 8 a.m. and marched towards Koçkıran Cemetery with the dead body, while chanting slogans such as ‘A tooth for a tooth, blood for blood, we’re with you Öcalan’ (‘Dişe diş kana kan seninleyiz Öcalan’), ‘Kurdistan will be the grave of the Republic of Türkiye’ (‘Kürdistan T.C. ‘ye mezar olacak’), ‘Long live leader Apo’ (‘Biji Serok Apo’), ‘PKK is the people, the people are here’ (‘PKK halktır halk burada’); they attacked the security forces who had taken up a position in front of the hospital at İsmail Beşikçi street with stones; after the burial was over, they again threw stones at the security forces, put up resistance against them and caused damage to public vehicles and to public and private buildings and workplaces in the surrounding area; and according to the crime scene witness statements and other fact-finding reports, official vehicles with the number plates ... were damaged;
The accused did not accept the charge, but according to the fact-finding report provided on a compact disc, the expert report dated 17 March 2010, and especially the gendarmerie criminal report, which was prepared in great detail, the person in the footage who attacked the police vehicles and security forces with stones was the accused, Kasım Kaplan; he was standing in front of people who were throwing stones and he threw the stone that was in his hand, and later he threw another stone he had in his hand, pointing his finger towards the police; afterwards, he picked up a stone from the ground and threw it at the building in front of which he was standing.
In view of the fact that it was established that the accused had engaged in the act of committing an offence on behalf of an organisation without being part of the hierarchical structure of that organisation by resisting, and by causing harm and damage to police officers and public vehicles by throwing stones at them in the course of the funeral ceremony of a person named Ahmet Özkan who had lost his life during an illegal demonstration following calls for action made by the media outlets of an armed terrorist organisation in line with its aims and strategies, it was decided to sentence the accused. ... Regard being had to the fact that the accused was in front of the crowd when he was carrying out his actions and that he was an active participant, and considering the manner in which the offence with which he was charged was committed, the place and time of the offence and the accused’s intention, it was held that there was no need to apply any discretionary mitigation in respect of his sentence under Article 220 § 6 of the CC ...”
5. At the appeal stage, on 2 May 2013 the applicant submitted a petition to the Court of Cassation using the following terms:
“... the trial court was completely unable to establish membership of an armed terrorist organisation. Above all, the [relevant] criteria for membership of an [armed terrorist] organisation which the Court of Cassation emphasises in its case-law should have been set out and the applicant’s membership of an organisation should have been assessed in the light of the criteria which will be set out.”
6. On 22 January 2014 the Court of Cassation upheld the trial court’s judgment.
7. On 21 April 2014 the applicant lodged an individual application with the Constitutional Court whereby he complained of, among other things, a breach of his right to a fair trial in the following terms:
“...the trial court was completely unable to establish the [offence of] membership [of an armed terrorist organisation]. Above all, the [relevant] criteria for membership of an [armed terrorist] organisation should have been set out and [the applicant’s] membership of an organisation should have been assessed in the light of the criteria which will be set out [sic].
...
... when the content of and the reasons for the [domestic court’s] judgments are examined, it will be understood that ... a fair trial was not conducted.
The honourable court’s [the trial court’s] reasoned judgment in no way [suggests] any evidence of membership of an armed terrorist organisation. The domestic court did not state the evidence, which should have been specific and indisputable. It chose to convict the applicant without laying out a legal basis for a causal link between the applicant’s so-called actions and certain print-outs from the Internet [the calls issued by the PKK].”
8. On 30 June 2015 the Constitutional Court declared the applicant’s complaints concerning the alleged unfairness of the criminal proceedings inadmissible in so far as they concerned his conviction for committing an offence on behalf of an armed terrorist organisation without being a member of it, considering them manifestly ill-founded. It found, in particular, that the applicant’s complaints were aimed essentially at contesting the outcome of the criminal proceedings, had therefore been in the nature of an appeal and that the trial court’s judgment had not been arbitrary or manifestly unreasonable. The relevant part of its reasoning read as follows:
“... However, in its reasoned judgment the trial court delivered its judgment by adequately assessing the evidence before it and that judgment was upheld by the Court of Cassation. When the trial court’s reasoning and the applicant’s allegations are examined, it is observed that the essence of the applicant’s complaints concerned the assessment and interpretation of evidence by the trial court, and thus, the outcome of the criminal proceedings.”
THE COURT’S ASSESSMENT
9. The Government submitted that the applicant had failed to exhaust domestic remedies, arguing that at no point had he raised his complaint concerning the right to a reasoned judgment in the domestic courts.
10. The applicant did not comment on this issue.
11. The Court observes that the applicant argued in his appeal that the trial court had not established his alleged membership of the PKK in its reasoned judgment. Furthermore, in his individual application to the Constitutional Court, the applicant explicitly stated that he had been convicted without there being any evidence against him and that in its judgment the trial court had failed to establish a link between his acts and the offence attributed to him, or to indicate the criteria set out in the case-law of the Court of Cassation for the offence of membership of an armed terrorist organisation. While it is true that the Constitutional Court interpreted the applicant’s complaint as being aimed at challenging the outcome of the criminal proceedings against him, the Court cannot but note that the Constitutional Court did not reject the applicant’s complaint for non-exhaustion of legal remedies. Instead, it held that the trial court had carried out a sufficient assessment of the evidence in its reasoned judgment and concluded that the applicant’s claims were in the nature of an appeal.
12. In view of the applicant’s said submissions before the domestic courts, the Court takes the view that the applicant sufficiently raised the substance of his complaint relating to the lack of reasoning before them. Accordingly, the Court dismisses the Government’s preliminary objection based on non-exhaustion of domestic remedies.
13. The Government further contended that the application should be rejected as being manifestly ill‑founded, submitting that the applicant’s complaint had essentially been aimed at challenging the assessment of the evidence.
14. The Court, having regard also to its findings above (see paragraphs 11‑12), considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. Given that there is no other ground for declaring the application inadmissible, it must therefore be declared admissible.
15. The applicant complained that the domestic courts had not explained the causal link between his actions and the calls made by Roj TV for people to attend the funeral, which had formed the basis for their conclusion that he had acted on behalf of the PKK and on the basis of those calls.
16. The Government submitted that (i) the trial court had assessed all evidence in the case file and had given sufficient reasons in its judgment; (ii) the applicant had complained of the outcome of the criminal proceedings; (iii) no significant argument made by the applicant had been left unanswered by the domestic courts; and (iv) the applicant had actively participated in violent actions during the funeral.
17. 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), Bochan v. Ukraine (no. 2) ([GC], no. 22251/08, § 61, ECHR 2015), and Ayetullah Ay v. Turkey (nos. 29084/07 and 1191/08, § 128, 27 October 2020).
18. In determining whether the domestic courts discharged their duty under Article 6 § 1 of the Convention to state the grounds for their decision to convict the applicant under Article 220 § 6 of the CC (taken in conjunction with Article 314 § 2) of having committed an offence on behalf of the PKK without being a member of it, the Court is aware that the applicant’s actions involved an element of violence, namely throwing stones at the police and certain buildings. That being said, the trial court had already convicted him, on the basis of his throwing stones, of damaging property belonging to public institutions and of obstructing a public officer in the execution of his duty using force and had sentenced him to a total of three years and twenty-seven months’ imprisonment. More importantly, those convictions became final with the decision of the Court of Cassation dated 21 November 2012 and they therefore do not form part of the Court’s examination in the present case (see paragraphs 2‑3 above). The Court will thus seek to establish whether the domestic courts’ finding that the applicant acted “on behalf of the PKK” was supported by reasons that are commensurate with the guarantees of Article 6 § 1 of the Convention.
19. In that connection, the Court observes that the trial court based its judgment on the finding that the applicant had thrown stones during the funeral held following calls made through Roj TV, a media organisation allegedly controlled by the PKK. However, the Court notes that the domestic courts failed to demonstrate that the television news concerning the funeral had contained a call for any violent acts. Neither did the trial court establish whether the applicant had been aware of such a call for violence or had acted in accordance with any specific instructions given by the PKK (compare also Gülcü v. Turkey, no. 17526/10, § 112, 19 January 2016). That being so, the trial court failed to discharge its duty to deliver a reasoned judgment in respect of its finding that the applicant had acted on behalf of a terrorist organisation. The higher courts also failed to remedy that shortcoming.
20. In view of the above, the Court finds that when convicting the applicant of committing an offence on behalf of the PKK without being a member of it, the trial court did not give sufficient reasons commensurate with the seriousness and the importance of the offence in question, which resulted in the applicant being sentenced to seven years and six months’ 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 (compare, albeit in the context of Article 11 of the Convention, Gülcü, cited above, § 114).
21. There has accordingly been a violation of Article 6 § 1 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
22. The applicant claimed 100,000 euros (EUR) in respect of pecuniary damage, EUR 100,000 in respect of non-pecuniary damage and EUR 7,800 in respect of costs and expenses incurred before the domestic courts and the Court. In support of his claims for costs and expenses the applicant submitted a time-sheet prepared by his lawyer.
23. The Government contested the applicant’s claims.
24. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant EUR 7,800 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant. Notwithstanding that conclusion, 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 Soytemiz v. Turkey, no. 57837/09, §§ 63-64, 27 November 2018).
25. As regards costs and expenses, having regard to the documents in its possession the Court considers it reasonable to award EUR 850 covering costs under all heads, plus any tax that may be chargeable to the applicant.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 7,800 (seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 850 (eight hundred fifty euros), 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 amounts 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 Pauline Koskelo Deputy Registrar President
