SECOND SECTION

CASE OF GÃœLER AND UÄžUR v. TURKEY

( Applications nos. 31706/10 and 33088/10 )

JUDGMENT

[Extracts]

STRASBOURG

2 December 2014

FINAL

02/03/2015

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Güler and Uğur v. Turkey ,

The European Court of Human Rights ( Second Section ), sitting as a Chamber composed of:

Guido Raimondi, President, Işıl Karakaş , András Sajó , Helen Keller, Paul Lemmens, Robert Spano , Jon Fridrik Kjølbro , judges, and Abel Campos , Deputy Section Registrar ,

Having deliberated in private on 4 November 2014 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

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, t he 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 .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . Mr İhsan Güler and Mr Sinan Uğur were born in 1964 and 1947 respectively and live in Ankar a a nd İ zmir 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 M r 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 K oran 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 M r 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 applicant s 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 .

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THE LAW

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I I . ALLEGED VIOLATION OF ARTICLE 9 OF THE CONVENTION

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 A rticle 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.

A. Admissibility

28 . The Government contended that A rticle 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 applicabilit y of A rticle 9 of the Convention concern s 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.

B. Merits

1. Th e parties ’ arguments

32 . The Government stated that the applicants had been convicted on account of their propagand a 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 alle gations.

2. The Court ’ s assessment

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 . Sa n Marin o [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 A rticle 9 and , if so , whether that interference was “prescribed by law”, pursued a legitimate aim an d was “necessary in a democratic society” within the meaning of A rticle 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 paragraph s 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 organis ed on the premises of a political party in which symbol s of a terrorist organisation were displayed did not deprive the participants of the protection guaranteed by A rticle 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 the ir freedom to manifest their religion.

44 . Such interference is incompatible with A rticle 9, unless it is “prescribed by law” , pursues one or more of the legitimate aims referred to in paragraph 2 of that A rticle 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” .

( b) “Prescribed by law”

45 . The Cour t note s that, according to the Government , the interference at issue in the present case wa s 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” .

49 . In the present case the Court observe s 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 propagand a in favour of a terrorist organisation shall be sentenced to a term of imprisonment of between one and five years” .

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 reason s 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 propagand a 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 group s 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 inci tement 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 . Tur key , no. 12606/11 , § 51, 17 December 2013).

53 . Moreover , the Court would emphasise the importance of the G uidelines for legislative reviews o f laws affecting religion or belief , adopted by the Venice Commission , which state that laws against terrorism should not be used as a pretext to limi t 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 applicabilit y of A rticle 9 of the Convention and to find that there has been violation of that A rticle.

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FOR THESE REASONS, THE COURT

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2 . Decides , by a majority, to join to the merits the Government ’ s objection as to the applicability of Article 9 of the Convention and dismisses it ;

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4 . Holds , by five votes to two, that there has been a violation of Article 9 of the Convention;

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Done in French , and notified in writing on 2 December 2014 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Guido Raimondi Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Sajó and Keller is annexed to the present judgment.

G.R.A.

A.C.

JOINT PARTLY DISSENTING OPINION OF JUDGES SAJÓ AND KELLER

(Translation)

1. We fully share the position of the majority that there has in the present case been a violation of the Convention on account of the fact that the applicants ’ conviction was not sufficiently foreseeable, having regard to the wording of section 7 ( 2 ) of Law no. 3713 and the manner in which the Ankara Assize Court and the Court of Cassation interpreted that provision (see paragraph 55 of the judgment ). It is for that reason that we voted under operative paragraph 6 for the award of just satisfaction to the applicants . However, we are of the opinion that the Cour t should have examined the applicants ’ complaints – primarily – under A rticle 11 of the Convention and not, as it did, under A rticle 9.

2. Having regard to the wording and content of the applicants ’ complaints, the Court decided to examine them solely under A rticle 9 of the Convention ( see paragraph 26). In the Court ’ s view , the sentencing of the applicants to a term of imprisonment, pursuant to section 7( 2 ) of Law no. 3713, could be regarded as an interference with the ir freedom to manifest their religion ( see paragraph 43).

3. Where , as in the present case , A rticle 9 of the Convention is relied up on jointly with A rticle 11, the Court often proceeds with its examination under the second of those provisions alone. Thus, in most of the relevant cases, the Court has taken the view that the facts relied upon by the applicant fell more specifically within the scope of A rticle 11 and it has therefore examined the complaints only under that provision ( see , for example , Chassagnou and Others v . France [GC], nos. 25088/94, 28331/95 and 28443/95, § 125, ECHR 1999-III , and Sidiropoulos and Others v. Greece , 10 July 1998, § 52, Reports of Judgments and Decisions 1998 ‑ IV; as an exception, see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 65 , ECHR 2000 ‑ XI ). In the case of Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 137 , ECHR 2003 ‑ II ), for example , the Grand Chamber analysed the dissolution of a political party in Turkey under Article 11 and took the view that it was not necessary to examine separately the allegation of a violation of A rticles 9, 10, 14, 17 and 18 of the Convention because the complaints in question concerned the same facts as those considered under A rticle 11 ( see also Freedom and Democracy Party ( ÖZDEP ) v. Turkey [GC], no. 23885/94, § 49 , ECHR 1999 ‑ VIII ). That case-law was developed by the former European Commission of Human Rights , which stated, for example, in the case of Rai, Allmond and “ Negotiate Now ” v . the United Kingdom ( no. 25522/94, 6 Ap ril 1995, Decisions and Reports 8I-B, p. 151) : “ The problems of freedom of thought and belief and freedom of expression cannot in this case be separated from that of freedom of assembly. The Commission therefore considers that Article 11 takes precedence as the lex specialis for assemblies and will in its examination under this provision have regard to Articles 9 and 10 in interpreting Article 11 ” . We do not see any reason for the Court to depart from that approach in the present case .

4. It is not in dispute that mevlût is a rite commonly observed by Muslims in Turkey and that it is therefore, per se , a form of religious manifestation protected by the freedom of religion guaranteed by A rticle 9 ( see paragraph 35 of the judgment ; see also , mutatis mutandis , Cha ’ are Shalom Ve Tsedek v . France [GC], no. 27417/95, § 73, ECHR 2000 ‑ VII).

5. What is in dispute, however, is the general nature of the impugned gathering . In our opinion, it was clearly more than just a religious event . As noted by the majority, the ceremony did not take place in a mosque but on the premises of a political party ( the DTP) in which could be seen symbols of the PKK. It was held in memory of members of the PKK who had been killed by the security forces . It is not in fact apparent from the case file whether or not an imam o r a hoca , who would normally be present at such a ceremony, took part in the mevlût . Whilst the exact number of participants in the mevlût has not been made known, the public prosecutor brought criminal proceedings against seventeen individuals, including the applicant s . Furthermore, the political dimension of the service can also be seen from the following speech, given by the DTP ’ s r e gional representative at the ceremony:

“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.”

Lastly, shortly after their conviction on 11 December 2009, the Constitutional Court ordered the dissolution of the political party DTP of which the applicant s were members .

6. I t should be borne in mind that the Government , taking account of the circumstances surrounding the ceremony , argued that the applicant s ’ purpose had been political rather than religious ( see paragraph 39). By analog y with the prudence shown by the Court as to the question whether or not a body of beliefs and related practices may be considered a “religion” within the meaning of Article 9 of the Convention , we take the view that in the present case the Court should also have rel ied on the position of the domestic authorities in th at matter in order to determine the applicability of Article 9 to the complaints ( see Kimlya and Others v. Russi a , nos. 76836/01 and 32782/03, § 79, ECHR 2009).

7. Where a gathering takes on a “hybrid” character as in the present case, it is often difficult to distinguish between political goals, on the one hand, and religious goals, on the other. There is also a risk that such confusion might be deliberate, to enable those who foster it to rely improperly on a fundamental right.

8. Accordingly, taking into account the political context of the ceremony, and having regard to the assessment of the situation by the national authorities , we are of the opinion that it would have been better to examine the case under A rticle 11 of the Convention alone .

9. That being said, whether examined under A rticle 11 or under A rticle 9, among others , any interference must be “prescribed by law” (paragraph 2 of those Article s ). The gathering attended by the applicant s was one of a peaceful nature, without the slightest external repercussion. We thus subscribe to the majority ’ s position as regards section 7 ( 2 ) of Law no. 3713 , to the effect that it was not possible to foresee that mere participation in the impugned gathering could be characterised as propagand a and fall within the scope of that provision of the Law on the prevention of terrorism ( see paragraph 55 of the judgment ; see also Yavuz and Yaylalı v. Tur key , no. 12606/11, 17 December 2013).

10. For those reasons we are of the opinion that there has been, in the present case, a violation of A rticle 11 of the Convention. We consider, however, that it was not necessary to examine the case under A rticle 9 of the Convention.

[1] . Mevlût is a common religious ceremony of Muslims in Turkey . It consists mainly in the reading of poetry concerning the birth of the Prophet.