Information Note on the Court’s case-law 189

October 2015

Müdür Duman v. Turkey - 15450/03

Judgment 6.10.2015 [Section II]

Article 10

Article 10-1

Freedom of expression

Applicant’s denial of responsibility for materials which led to his prosecution and conviction: violation

Facts – The applicant was the director of a district branch of a political party. In 2000, in the aftermath of a public demonstration, the police conducted a search of the branch premises and found various items related to the PKK (Kurdistan Workers’ Party) and its leader, Mr Öcalan. As a consequence, the applicant was prosecuted, and subsequently convicted to six months’ imprisonment for pra ising and condoning acts proscribed by law.

Law – Article 10: The Court first had to determine whether there had been an interference with the applicant’s exercise of his right to freedom of expression, since in the domestic proceedings he had denied any k nowledge of the material found in his office and had distanced himself from it. The Court observed that the offence the applicant had been convicted for was indisputably directed at activities falling within the scope of freedom of expression and he had be en sanctioned for engaging in such activities, despite his denial of any knowledge of the materials. In such circumstances, his conviction constituted an interference with his right to freedom of expression. To hold otherwise would be tantamount to requiri ng him to acknowledge the acts of which he had stood accused, thus running counter to the right not to incriminate oneself, which is a crucial aspect of the right to a fair trial protected by Article 6 of the Convention. Moreover, not accepting that a crim inal conviction constituted an interference, on the grounds that an applicant had denied any involvement in the acts at issue, would lock him in a vicious circle that would deprive him of the protection of the Convention.

As to the necessity of the interfe rence, the applicant had been prosecuted and convicted merely for keeping illegal material in the party’s office, an act interpreted by the domestic courts as an indication of support for and approval of an illegal organisation and its leader. However, nei ther in the domestic court decisions nor in the Government’s submissions was there any indication that the material in question advocated violence, armed resistance or an uprising. The applicant’s conduct could not therefore be construed as support for or approval of unlawful acts committed by Mr Öcalan and the PKK. Moreover, the domestic courts’ reasoning failed to indicate whether they had examined the proportionality of the interference and the balancing of rights taking into account freedom of expressio n. Accordingly, the reasons given by the domestic courts for convicting and sentencing the applicant could not be considered relevant and sufficient to justify the interference with his right to freedom of expression. Finally, the Court noted the severity of the penalty imposed on the applicant. In these circumstances, his conviction had been disproportionate to the aims pursued and accordingly was not “necessary in a democratic society”.

Conclusion : violation (unanimously).

Article 41: EUR 12,500 in respec t of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Feridun Yazar and Others v. Turkey , 42713/98 , 23 September 2004; Bahçeci and Turan v. Turkey , 33340/03 , 16 June 2009; and Bülent Kaya v. Turkey , 52056/08 , 22 October 2013)

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

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