PARTLY DISSENTING OPINION OF JUDGE TURKOVIĆ

1. I respectfully disagree with the majority that Yılmaz Yavuz ’ s arrest and subsequent detention cannot be viewed in terms of interference with the Article 10 right to freedom of speech.

2. His premises were searched and he was arrested and detained for four days under suspicion of writing a petition requesting the provision of education in Kurdish and thus aiding and abetting an illegal organisation – just like the other applicants. In the present case the authorities abused or misused the wording of Article 169 of the Criminal Code prescribing the punishment of “(a)ny person who ... facilitates [the] operations [of an illegal organisation] in any manner whatsoever ...” (see paragraph 30 of the judgment). This was apt to have the effect of harassing and intimidating individuals of Kurdish origin suspected of expressing their legitimate demands, which was nothing more than peaceful speech. The vague and/or overbroad language of the law was specifically misused to target the Kurdish minority in order to silence their minority voices.

3. Such a law, coupled with such a practice, is liable to have a severely dissuasive effect on the members of the Kurdish minority in expressing their specific concerns, opinions and demands (compare Dilipak v. Turkey , no. 29680/05 , §§ 46, 47 and 50, 15 September 2015, and Altuğ Taner Akçam v. Turkey , no. 27520/07 , §§ 70-75, 25 October 2011 ). In this context, the fact that the applicant in question claimed that he had never submitted a petition to the authorities (compare Müdür Duman v. Turkey , no. 15450/03, § 30, 6 October 2015) and the fact that the public prosecutor at the Istanbul State Security Court decided later not to prosecute him because of a lack of evidence (compare Altuğ Taner Akçam , cited above, §§ 70-75), did not diminish the chilling effect of the Government ’ s actions against him (search, arrest and detention) based on Article 169, and the chilling effect of that law itself.

4. I could not agree more with the former UN Special Rapporteur on freedom of expression, Frank La Rue, that “(a)rbitrary use of criminal law to sanction legitimate expression constitutes one of the gravest forms of restriction to the right of free speech, as it not only creates a ‘ chilling effect ’ , but also leads to other human rights violations ... ” [2] . This is true even if along the way the person is not convicted due to a lack of evidence.

5. Thus, in the case of Yılmaz Yavuz it is important to emphasise that the arbitrary use of criminal law to sanction legitimate expression, coupled with an intrusive investigation, not only led to human rights violations under Article 5 of the Convention (as the majority held), but above all created a “chilling effect” (which the majority omitted to acknowledge because of his claim that he never submitted the petition to the authorities). Indeed, the actions which the authorities took against the applicant in question cannot be regarded as solely comprising purely hypothetical risks of limitation of freedom of expression (see Dilipak , cited above, § 50). On the contrary, such actions are perfectly capable of creating fears leading the applicant and other members of the Kurdish minority – even those of ordinary firmness and certainly those who are risk averse – to engage in self-censorship. This is true even where, as in the present case, the applicant claims that he never submitted the petition and despite the fact that he was never prosecuted due to a lack of evidence.

6. In the case of the applicant Yılmaz Yavuz the investigation crossed the line from permissible information-gathering to having a chilling effect: the investigation was conducted in retaliation for a petition containing legitimate demands, it resulted in actual harm (arrest and detention), it implied very serious punishment and it was conducted together with a number of other investigations concerning the very same “protected speech”. The fact that in the applicant ’ s case the investigation was dropped due to a lack of evidence, and that he himself claimed that he never wrote the petition, did not diminish its intrusive character and its abusiveness as an informal system of prior restraint. The latter in itself raises an issue under the Convention. The two issues are not mutually exclusive. Hence, unlike the majority I do not find that it was appropriate to reject Yılmaz Yavuz ’ s application concerning the violation of his freedom of speech as being manifestly ill-founded.

7. Finally, given that fears of arbitrary actions, combined with uncertainty as to how the vague and/or overbroad laws will be applied, lead to self-censorship, with the result that the protection of minority rights is weakened, dissent dries up and democracy loses its essence, I find it unfortunate that in the present case the Court avoided examining the case from the perspective of the quality of the relevant law (see paragraph 94 of the judgment) [3] , even more so since the applicants complained originally under Article 7 of the Convention (see paragraph 78 of the judgment).

[1] . I do not express an opinion on whether the Article 7 complaint c ould be declared applicable in the present case (there was no declaration of guilt, nor an imposition of a penalty), and even less on whether Article 7 was violated or not.

[2] . UN Human Rights Council, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, May 2011, A/HRC/17/27.

[3] . Although the law has been repealed in the meantime (see paragraph 30 of the judgment), something for which Turkish Government should be commended, I believe that such an exercise would still be useful.