JOINT PARTLY DISSENTING OPINION OF JUDGES SAJÓ AND KELLER

(Translation)

1. We fully share the position of the majority that there has in the present case been a violation of the Convention on account of the fact that the applicants ’ conviction was not sufficiently foreseeable, having regard to the wording of section 7 ( 2 ) of Law no. 3713 and the manner in which the Ankara Assize Court and the Court of Cassation interpreted that provision (see paragraph 55 of the judgment ). It is for that reason that we voted under operative paragraph 6 for the award of just satisfaction to the applicants . However, we are of the opinion that the Cour t should have examined the applicants ’ complaints – primarily – under A rticle 11 of the Convention and not, as it did, under A rticle 9.

2. Having regard to the wording and content of the applicants ’ complaints, the Court decided to examine them solely under A rticle 9 of the Convention ( see paragraph 26). In the Court ’ s view , the sentencing of the applicants to a term of imprisonment, pursuant to section 7( 2 ) of Law no. 3713, could be regarded as an interference with the ir freedom to manifest their religion ( see paragraph 43).

3. Where , as in the present case , A rticle 9 of the Convention is relied up on jointly with A rticle 11, the Court often proceeds with its examination under the second of those provisions alone. Thus, in most of the relevant cases, the Court has taken the view that the facts relied upon by the applicant fell more specifically within the scope of A rticle 11 and it has therefore examined the complaints only under that provision ( see , for example , Chassagnou and Others v . France [GC], nos. 25088/94, 28331/95 and 28443/95, § 125, ECHR 1999-III , and Sidiropoulos and Others v. Greece , 10 July 1998, § 52, Reports of Judgments and Decisions 1998 ‑ IV; as an exception, see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 65 , ECHR 2000 ‑ XI ). In the case of Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 137 , ECHR 2003 ‑ II ), for example , the Grand Chamber analysed the dissolution of a political party in Turkey under Article 11 and took the view that it was not necessary to examine separately the allegation of a violation of A rticles 9, 10, 14, 17 and 18 of the Convention because the complaints in question concerned the same facts as those considered under A rticle 11 ( see also Freedom and Democracy Party ( ÖZDEP ) v. Turkey [GC], no. 23885/94, § 49 , ECHR 1999 ‑ VIII ). That case-law was developed by the former European Commission of Human Rights , which stated, for example, in the case of Rai, Allmond and “ Negotiate Now ” v . the United Kingdom ( no. 25522/94, 6 Ap ril 1995, Decisions and Reports 8I-B, p. 151) : “ The problems of freedom of thought and belief and freedom of expression cannot in this case be separated from that of freedom of assembly. The Commission therefore considers that Article 11 takes precedence as the lex specialis for assemblies and will in its examination under this provision have regard to Articles 9 and 10 in interpreting Article 11 ” . We do not see any reason for the Court to depart from that approach in the present case .

4. It is not in dispute that mevlût is a rite commonly observed by Muslims in Turkey and that it is therefore, per se , a form of religious manifestation protected by the freedom of religion guaranteed by A rticle 9 ( see paragraph 35 of the judgment ; see also , mutatis mutandis , Cha ’ are Shalom Ve Tsedek v . France [GC], no. 27417/95, § 73, ECHR 2000 ‑ VII).

5. What is in dispute, however, is the general nature of the impugned gathering . In our opinion, it was clearly more than just a religious event . As noted by the majority, the ceremony did not take place in a mosque but on the premises of a political party ( the DTP) in which could be seen symbols of the PKK. It was held in memory of members of the PKK who had been killed by the security forces . It is not in fact apparent from the case file whether or not an imam o r a hoca , who would normally be present at such a ceremony, took part in the mevlût . Whilst the exact number of participants in the mevlût has not been made known, the public prosecutor brought criminal proceedings against seventeen individuals, including the applicant s . Furthermore, the political dimension of the service can also be seen from the following speech, given by the DTP ’ s r e gional representative at the ceremony:

“Our fears and worries continue. People are still being killed. In such a context, we would like this mevlût to be a moment of peace and fraternity.”

Lastly, shortly after their conviction on 11 December 2009, the Constitutional Court ordered the dissolution of the political party DTP of which the applicant s were members .

6. I t should be borne in mind that the Government , taking account of the circumstances surrounding the ceremony , argued that the applicant s ’ purpose had been political rather than religious ( see paragraph 39). By analog y with the prudence shown by the Court as to the question whether or not a body of beliefs and related practices may be considered a “religion” within the meaning of Article 9 of the Convention , we take the view that in the present case the Court should also have rel ied on the position of the domestic authorities in th at matter in order to determine the applicability of Article 9 to the complaints ( see Kimlya and Others v. Russi a , nos. 76836/01 and 32782/03, § 79, ECHR 2009).

7. Where a gathering takes on a “hybrid” character as in the present case, it is often difficult to distinguish between political goals, on the one hand, and religious goals, on the other. There is also a risk that such confusion might be deliberate, to enable those who foster it to rely improperly on a fundamental right.

8. Accordingly, taking into account the political context of the ceremony, and having regard to the assessment of the situation by the national authorities , we are of the opinion that it would have been better to examine the case under A rticle 11 of the Convention alone .

9. That being said, whether examined under A rticle 11 or under A rticle 9, among others , any interference must be “prescribed by law” (paragraph 2 of those Article s ). The gathering attended by the applicant s was one of a peaceful nature, without the slightest external repercussion. We thus subscribe to the majority ’ s position as regards section 7 ( 2 ) of Law no. 3713 , to the effect that it was not possible to foresee that mere participation in the impugned gathering could be characterised as propagand a and fall within the scope of that provision of the Law on the prevention of terrorism ( see paragraph 55 of the judgment ; see also Yavuz and Yaylalı v. Tur key , no. 12606/11, 17 December 2013).

10. For those reasons we are of the opinion that there has been, in the present case, a violation of A rticle 11 of the Convention. We consider, however, that it was not necessary to examine the case under A rticle 9 of the Convention.

[1] . Mevlût is a common religious ceremony of Muslims in Turkey . It consists mainly in the reading of poetry concerning the birth of the Prophet.