JOINT CONCURRING OPINION OF JUDGES LEMMENS AND GRIÈšCO

1. We agree with all the conclusions of the judgment.

However, as far as the finding of a violation of Article 11 of the Convention is concerned, we have some reservations as regards the reasoning adopted by the majority.

2. The majority find that the interference resulting from the application of Article 220 § 6 of the Criminal Code in the applicant ’ s case was not “prescribed by law” since that provision did not afford the applicant the required legal protection against arbitrary interference with his right to freedom of assembly (see paragraph 70 of the judgment).

We agree with the majority that the provision of domestic law that forms the legal basis for an interference with an applicant ’ s fundamental rights must be accessible to the person concerned, foreseeable as to its effects and moreover compatible with the rule of law (see paragraph 56 of the judgment).

3. The majority consider that a rule is foreseeable when it “affords a measure of protection against arbitrary interferences by the public authorities and against the extensive application of a restriction to any party ’ s detriment” (see paragraphs 58 and 64 of the judgment). We find that this statement needs to be qualified.

Where the Court has spoken of the need for domestic law to offer a measure of protection against arbitrary interferences with an individual ’ s human rights, in the context of the requirement of foreseeability of the law, it has generally been in situations where the domestic law under review granted discretion to an administrative or other authority. The discretion granted could be wide or narrow. In order for the individual to be able to foresee the consequences of his or her conduct, the Court has held that “it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power” (see Malone v. the United Kingdom , § 68, 2 August 1984, Series A no. 82; see also, in the more recent case-law of the Grand Chamber, Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 82, 14 September 2010, and Roman Zakharov v. Russia [GC], no. 47143/06, § 230, ECHR 2015). The link between the foreseeability requirement and the more general objective of protection against arbitrary interferences is thus clearly established via the need to circumscribe the discretion granted to the authorities entrusted with the application of the law: “[T]he law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference” (see Malone , cited above, § 68; see also, among many other authorities, Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98 and 3 others, § 57, ECHR 2003 ‑ II; Ahmet Yıldırım v. Turkey , no. 3111/10, § 59, ECHR 2012 (cited in paragraph 70 of the present judgment); and Roman Zakharov , cited above, § 230).

The case of Centro Europa 7 S.r.l. and Di Stefano v. Italy , to which the majority refer in paragraph 58, broke this link between foreseeability, discretionary power and protection against arbitrary interferences. In that case the Court held that a rule is foreseeable “when it affords a measure of protection against arbitrary interferences by the public authorities (see Tourancheau and July v. France , no. 53886/00, § 54, 24 November 2005), and against the extensive application of a restriction to any party ’ s detriment (see, mutatis mutandis , BaÅŸkaya and OkçuoÄŸlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 36, ECHR 1999 ‑ IV)” (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 143, ECHR 2012 and, to the same effect, Mesut Yurtsever and Others v. Turkey , nos. 14946/08 and 11 others, § 103, 20 January 2015; see also Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 97, 25 October 2012). There is no longer any reference to the scope of discretion granted to an administrative or other authority. The foreseeability of the law is directly translated into a requirement of protection against arbitrary interference.

We would like to observe that it is one thing to hold (as in Malone ) that a law granting discretion to an administrative or other authority must circumscribe that discretion in order to ensure the foreseeability of the law in its application , and quite another to hold (as in Centro Europa 7 S.r.l. and Di Stefano and in the present judgment) that a law, whether or not it grants discretion to an authority, must in any event afford protection against arbitrary interferences. In our opinion, the second requirement has little to do with the foreseeability of the law.

4. In the present case, we consider that the law is quite clear. As interpreted by the Court of Cassation in its judgments of 21 February 2007 and 4 March 2008, Article 220 § 6 of the Criminal Code, which states that “anyone who commits a crime on behalf of an (illegal) organisation” (emphasis added) shall be punished as if he or she were a member of the organisation, applies to anyone who participates in an unauthorised demonstration held after appeals by an illegal organisation. Moreover, it follows from Article 314 § 3 of the Code that if the organisation in question is an armed organisation, the sanction shall be the one provided for by Article 314 § 2 of the Code (see paragraphs 30, 31 and 33 of the judgment).

Anyone participating in a demonstration called for by the PKK, and organised after 21 February 2007 [1] , should have known that he or she could be convicted as a member of an armed organisation.

For us, the problem with Articles 220 § 6 and 314 § 2 of the Criminal Code lies with the very content of these provisions, not with the fact that they are drafted in such a way that they could give rise to arbitrary applications (as well as to perhaps justifiable applications).

5. This brings us to what, in our opinion, is the main issue in this case: whether the interference with the applicant ’ s right to freedom of assembly was necessary in a democratic society.

As indicated above, Article 220 § 6 of the Criminal Code makes it a crime to participate in a demonstration held after appeals by an illegal organisation. If that organisation is an armed organisation, it follows from the combination of Articles 220 § 6 and 314 § 2 that the crime is punishable by a prison sentence of between five and ten years. These provisions were applied in the applicant ’ s case. Thus, because of his participation in two demonstrations called by the PKK, he was found guilty of the offence of committing a crime on behalf of an armed organisation and sentenced to six years and three months ’ imprisonment, of which he actually served four years and eight months.

The majority state that the sanction provided for by Article 220 § 6 in combination with Article 314 § 2 “is strikingly severe and grossly disproportionate” to the conduct declared illegal, and that the application of Article 220 § 6 in the applicant ’ s case was likely to have a chilling effect on the applicant and others (see paragraph 69 of the judgment). We fully agree. In our opinion, the conclusion to be drawn from this assessment is that the interference with the applicant ’ s rights did not respond to a pressing social need, and was in any event disproportionate to the aims pursued. In sum, it was not necessary in a democratic society.

6. We note that in Gülcü v. Turkey (no. 17526/10, §§ 103-117, 19 January 2016), the Court did not find it necessary to examine whether the applicant ’ s conviction under Articles 220 § 6 and 314 § 2 of the Criminal Code had been foreseeable. Instead, it found that his conviction, in part because of his participation in a march called by the PKK, had not been necessary in a democratic society. We see no reason why the same approach should not have been followed in the present case. The mere fact that the applicant in Gülcü was a minor while the applicant in the present case is an adult does not, in our opinion, justify a difference in approach (compare paragraph 59 of the judgment).

We would have preferred a clear message that a law such as the one applied in the present case cannot be deemed compatible with the principles of a democratic society. To hold that the law is not “foreseeable” does not in our opinion convey a message of such strength.

[1] . We could accept that domestic law was not sufficiently foreseeable before 21 February 2007, and that therefore the applicant’s conviction was not “prescribed by law” in so far as it was based on his participation in the demonstration of 28 March 2006. However, we believe that even for that part of the conviction it would be preferable to go further and to examine the “necessity” of the interference. Besides, we note that the majority state that they do not distinguish between the periods before and after 4 March 2008 (paragraph 65 of the judgment).