Information Note on the Court’s case-law 212

November 2017

Işıkırık v. Turkey - 41226/09

Judgment 14.11.2017 [Section II]

Article 11

Article 11-1

Freedom of peaceful assembly

Unforeseeable conviction of membership of an illegal organisation: violation

Facts – In 2007 the applicant was convicted of “membership” of an illegal armed organisation (the PKK) and sentenced to more than six years’ imprisonment on the basis of Article 220 § 6 of the Criminal Code on the grounds that he had attended the funeral of four PKK militants, had walked in front of one of the coffins during the funeral and made a “V” sign, and that he had applauded while other demonstrators chant ed slogans in support of Abdullah Öcalan during a gathering at his university.

The courts considered that since both the funeral and the demonstration had been held following calls and instructions issued by the PKK, the applicant, who had participated in those events, had to be considered as having acted “on behalf” of that organisation.

According to Article 220 § 6 of the Turkish Criminal Code, anyone who commits a crime “on behalf” of an illegal organisation will be punished as a “member” of that organi sation under Article 314 § 2, without the prosecution having to prove the material elements of actual membership.

Law – Article 11: The applicant’s conviction for membership of an illegal organisation under Articles 220 § 6 and 314 § 2 of the Criminal Code , based on his participation in a funeral and a demonstration, could be considered as an interference with his right to freedom of assembly.

The wording of Article 220 § 6 of the Criminal Code did not itself define the meaning of the expression “on behalf of an illegal organisation”.

The domestic courts had interpreted the notion of “membership” of an illegal organisation under Article 220 § 6 in extensive terms. The mere fact of being present at a demonstration, called for by an illegal organisation, and openly acting in a manner expr essing a positive opinion towards the organisation in question, was found sufficient to be considered acting “on behalf of” the organisation and thus liable to punishment as an actual member.

In contrast, when Article 314 of the Criminal Code was applied alone as regards “membership” of an illegal organisation, the courts had to have regard to the “continuity, diversity and intensity” of the accused’s acts. Similarly, they would also assess whether the accused had committed offences within the “hierarchica l structure” of the organisation, whereas when the same article was applied with reference to Article 220 § 6, the question of acting within a hierarchy became irrelevant.

In sum, the array of acts that potentially constituted a basis for the application of a severe criminal sanction in the form of imprisonment, under Article 220 § 6, was so vast that the wording of the provision, including its extensive interpretation by the domestic courts, did not afford a sufficient measure of protection against arbitr ary interference by the public authorities.

Furthermore, and importantly, on account of his conviction for acts which fell within the scope of Article 11 of the Convention, there remained no distinction between the applicant, a peaceful demonstrator, and a n individual who had committed offences within the structure of the PKK.

Such extensive interpretation of a legal norm could not be justified when it had the effect of equating the mere exercise of fundamental freedoms with membership of an illegal organis ation in the absence of any concrete evidence of such membership.

Article 220 § 6 of the Criminal Code was thus not “foreseeable” in its application since it did not afford the applicant legal protection against arbitrary interference with his right under Article 11 of the Convention. Hence, the interference was not prescribed by law.

Moreover, when demonstrators faced the charge of membership of an illegal armed organisation, they risked an additional sentence of between five and ten years in prison, a sa nction which was strikingly severe and grossly disproportionate to their conduct.

Therefore, Article 220 § 6 of the Criminal Code, as applied in the instant case, would inevitably have a particularly chilling effect on the exercise of the rights to freedom of expression and assembly.

Moreover, the application of the provision at issue was not only likely to deter those who were found criminally liable from re‑exercising their rights under Articles 10 and 11 of the Convention, but also had a great deal of potential to deter other members of the public from attending demonstrations and, m ore generally, from participating in open political debate.

Therefore, the very essence of the right to freedom of peaceful assembly and, thereby, the foundations of a democratic society, was undermined when the applicant was held criminally liable under A rticles 220 § 6 and 314 of the Criminal Code for the mere fact of attending a public meeting and expressing his views thereat.

Conclusion : violation (unanimously).

Article 41: EUR 7,500 in respect of non-pecuniary damage; claim in respect of pecuniary dama ge dismissed.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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