Information Note on the Court’s case-law 205

March 2017

Döner and Others v. Turkey - 29994/02

Judgment 7.3.2017 [Section II]

Article 10

Article 10-1

Freedom of expression

Arrest and prosecution of parents petitioning for right for children to receive education in Kurdish: violation

Facts – In December 2001 the applicants filed petitions with the education directorates requesting that their children be provided wi th education in the Kurdish language in the public elementary schools they attended. The applicants’ houses were subsequently searched on suspicion that their action had been instigated by an illegal armed organisation (the PKK). Although no incriminating materials were found, the applicants were arrested and detained – all of them for four days and some were remanded in custody for almost one month. All but one of the applicants were charged and tried before a State Security Court with aiding and abetting an illegal armed organisation. They were eventually acquitted.

In the Convention proceedings, the applicants complained, inter alia , that they had been subjected to criminal proceedings for using their constitutional right to file a petition, despite the a bsence of any provisions in domestic law criminalising such conduct. They alleged a violation of Article 7 of the Convention.

Law – Article 10: As the master of characterisation to be given in law to the facts of the case the Court considered that the Arti cle 7 complaint fell to be examined under Article 10. It declared inadmissible as manifestly ill-founded the complaint of the applicant who was not prosecuted, as he had not in fact submitted a petition requesting education in Kurdish and could not therefo re be considered to have been exercising his right to freedom of expression.

As regards the remaining applicants, the string of measures they had faced – notably their arrest and deprivation of liberty – for merely petitioning the State authorities on a ma tter of “public interest” had amounted to an interference with the exercise of their right to freedom of expression. The fact that they were ultimately acquitted did not deprive them of their victim status as the State Security Court had neither acknowledg ed nor afforded redress for the alleged breach of their right.

It was unnecessary to determine whether the interference was prescribed by law or pursued a legitimate aim as, in any event, it had not been necessary in a democratic society. It was apparent f rom the arguments put forward by the public prosecutor and the Government that the applicants had faced the measures not on account of the substance of their requests, but because they had allegedly submitted them as part of a collective action instigated by an illegal armed organisation. While the Court did not underestimate the difficulties to which the fight against terrorism gave rise, that fact alone did not absolve the national authorities from their obligations under Article 10 of the Convention. Acc ordingly, although freedom of expression could be legitimately curtailed in the interests of national security, territorial integrity and public safety, those restrictions still had to be justified by relevant and sufficient reasons and respond to a pressi ng social need in a proportionate manner.

In the instant case, however, the relevant State authorities had failed to use as a basis for the measures an acceptable assessment of the relevant facts and to apply standards that were in conformity with the principles embodied in Article 10. In so findi ng, the Court noted (i) that the petitions requesting education in Kurdish in elementary schools were submitted amidst a public debate in Turkey regarding the social and cultural rights of Turkish citizens of Kurdish ethnic origin, and thus concerned a mat ter of “public interest”; (ii) the State authorities had not displayed the requisite restraint in resorting to criminal proceedings where a debate on a question of public interest was concerned, but had instead used the legal arsenal available to them in a n almost repressive manner; (iii) neither the views expressed in the petitions nor the form in which they were conveyed raised doubts regarding the peaceful nature of the applicants’ request and the fact that it may have coincided with the aims or instruct ions of an illegal armed organisation did not remove the request from the scope of protection of Article 10; and (iv) while the applicants were still on trial, the Foreign Language Education and Teaching Act (Law no. 2923) was in fact amended to provide fo r such education, at least on a private basis initially.

Conclusion : violation (unanimously).

The Court also found, unanimously, a violation of Article 5 §§ 3, 4 and 5 of the Convention in respect of the applicants’ detention.

Article 41: EUR 6,500 to the applicant whose complaint under Article 10 was declared inadmissible and EUR 10,000 to each of the other applicants in respect of non-pecuniary damage.

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

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