Information Note on the Court’s case-law 192

January 2016

Gülcü v. Turkey - 17526/10

Judgment 19.1.2016 [Section II]

Article 11

Article 11-1

Freedom of peaceful assembly

Imposition of lengthy prison sentence on a minor for taking part in and throwing stones at a demonstration: violation

Facts – In 2008 the applicant, who was then fifteen years old, was convicted by an assize court of membership of an illegal arme d organisation (the PKK), of disseminating terrorist propaganda on account of his participation in a demonstration and for throwing stones at police officers during the demonstration. He was detained pending trial for almost four months, at the end of whic h he was convicted of the offences charged and sentenced to a total of seven years and six months’ imprisonment. He served part of his prison sentence before he was released and his case was re-assessed in 2012 by a juvenile court as a result of legislativ e amendments made in favour of minors committing offences during demonstrations.

Law – Article 11: In a number of cases where demonstrators had engaged in acts of violence, the Court had held that the protests in question fell within the scope of Article 1 1 of the Convention but that the interference with the right guaranteed by that Article had been justified in order to prevent disorder or crime or to protect the rights and freedoms of others. In the present case, however, nothing in the case file suggest ed that the demonstration attended by the applicant was not intended to be peaceful or that the organisers or the applicant himself had violent intentions. In addition, the charges against the applicant did not concern the infliction of any bodily harm.

A s to the applicant’s “victim status”, the Court noted that the juvenile court’s judgment was more favourable to the applicant than the assize court’s judgment. However, the applicant had been deprived of his liberty for more than two years, while the juven ile court had not conducted a new examination of the facts, provided reasoning for the applicant’s re-conviction or acknowledged or afforded redress for the alleged breach of his freedom of assembly caused by his original convictions. The fact that the app licant’s convictions and sentences had been reassessed did not, therefore, deprive him of victim status.

The judgments of the assize court and the juvenile court and the applicant’s detention constituted interference with his right to freedom of assembly.

As to whether the interference was necessary in a democratic society, the Court first noted that the assize court’s judgment convicting the applicant of membership of the PKK and of disseminating propaganda in support of a terrorist organisation did not contain relevant and sufficient reasons. Even assuming that the applicant had taken part in the demonstration in response to the PKK’s call, the Court agreed with the Council of Europe’s Commissioner for Human Rights that the conviction of a person for mem bership of an illegal organisation or an act or statement which may be deemed to coincide with the aims or instructions of an illegal organisation was a matter of concern. There was nothing in the case file to substantiate the domestic courts’ finding that the applicant had in fact made propaganda in support of an illegal organisation. The failure of the domestic courts to provide “relevant” and “sufficient” reasons had thus deprived the applicant of the procedural protection to which he was entitled under Article 11.

As to proportionality, the applicant was a minor at the relevant time. In this context, Article 37 of the United Nations Convention on the Rights of the Child and General Comment No. 10 (2007) of the UN Committee on the Rights of the Child stated that the arrest, detention or imprisonment of a child could be used only as a measure of last resort and for the shortest period of time. The Committee of Ministers and the Parliamentary Assembly of the Council of Europe also shared that view. Despite this, nothing in the applicant’s case file showed that the national courts had sufficiently taken his age into consideration. The Court noted the extreme severity of the penalties imposed and the fact that the applicant was detained pending trial for almost four months . No alternative measures had been considered, nor had the applicant’s detention been used only as a measure of last resort.

As to the applicant’s conviction for throwing stones at police officers, the Court observed that, while the State authorities enjoy ed a wider margin of appreciation when examining the need for interference with freedom of assembly in cases involving acts of violence, it could not overlook the harshness of the sentence (two years and nine months’ imprisonment) imposed on a minor or the lengthy period of pre-trial detention. The punishment had thus been disproportionate.

In the light of the foregoing, the applicant’s criminal convictions for membership of the PKK, dissemination of propaganda in support of the PKK and resistance to the po lice, and the imposition upon him of prison sentences and his detention between 2008 and 2010, had not been “necessary in a democratic society”.

Conclusion : violation (unanimously).

(See also Osmani and Others v. the former Yugoslav Republic of Macedonia ( dec.), 50841/99, 11 October 2001, Information Note 35 ; Taranenko v. Russia , 19554/05, 15 May 2014, Information Note 174 ; and the Factsheet on Children’s rights )

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

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