Piroğlu and Karakaya v. Turkey (36370/02)

Date	20080318
Article	6(1), 10, 11
Decision	violation

CHAMBER JUDGMENT PİROĞLU AND KARAKAYA v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Piroğlu and Karakaya v. Turkey (application nos. 36370/02 and 37581/02).

The Court held unanimously that there had been:

· a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights in respect of both applicants, on account of the unfairness of criminal proceedings against them concerning their refusal to annul memberships of their Human Rights Association;

· a violation of Article 11 (freedom of expression and association) of the Convention in respect of Ms Karakaya concerning the above proceedings; and,

· a violation of Article 10 (freedom of expression) in respect of Ms Karakaya on account of her conviction for having been involved in a press declaration to protest against the deployment of American troops in Afghanistan.

Under Article 41 (just satisfaction), the Court held unanimously that the finding of a violation constituted in itself sufficient just satisfaction for any non-pecuniary damage sustained by Mr Piroğlu and awarded Ms Karakaya 1,000 euros (EUR) in respect of non-pecuniary damage. (The judgment is available only in English.)

1. Principal facts

The applicants, Ecevit Piroğlu and Mihriban Karakaya, are Turkish nationals who were born in 1974 and 1962, respectively, and live in Izmir (Turkey). They were both members of the executive board of the Izmir Branch of the Human Rights Association at the relevant time.

The case concerned the applicants’ complaints about their conviction for having failed to comply with a request by the Governor of Izmir to annul memberships of their Association. Mihriban Karakaya further complained about a second criminal conviction for having been involved in a press declaration to protest against the deployment of American troops in Afghanistan.

On 10 July 2001 the Governor of Izmir sent a letter to the Association requesting that 13 members, including Mihriban Karakaya, have their membership annulled on account of their alleged involvement in illegal activities. That letter also mentioned that Ms Karakaya had been taken into police custody in April 1999, but had subsequently been released as it had not been established that she had any connection with the illegal TKP/ML-TIKKO (the Turkish Communist Party / Marxist-Leninist–Turkish Workers' and Peasants' Liberation Army).

The Association replied that they would not comply with the request, alleging that none of the 13 people had prior convictions which would ban them from founding or becoming a member of an association in accordance with Turkish law. Criminal proceedings were subsequently brought against the applicants. In December 2001, Izmir Magistrates’ Court convicted the applicants without holding a hearing. The applicants lodged an objection against their conviction, which was dismissed by Izmir Criminal Court. During those proceedings, none of the defendants were given the opportunity to make submissions to the court.

In October 2001 the Association and several local non-governmental organisations (NGOs) took part in a movement called the “Platform of Conscientious Objectors to War” and made a collective press declaration to protest against the deployment of American troops in Afghanistan. A second set of criminal proceedings were brought against Ms Karakaya under Section 34 of the Associations Act for her involvement with that movement as the prosecutor considered that it was an organisation without any lawful status in Turkey. Ms Karakaya was ultimately found guilty in December 2001. She lodged an objection against her conviction, arguing in particular that “a collective press declaration” could not be classified as contributing to the establishment of an unlawful organisation. In February 2002 the criminal court dismissed her objection.

2. Procedure and composition of the Court The applications were lodged with the European Court of Human Rights on 17 and 18 August 2002.

Judgment was given by a Chamber of seven judges, composed as follows:

Françoise Tulkens (Belgian), President,
Ireneu Cabral Barreto (Portuguese),
Rıza Türmen (Turkish),
Vladimiro Zagrebelsky (Italian),
Antonella Mularoni (San Marinese),
Danutė Jočienė (Lithuanian),
Dragoljub Popović (Serbian), judges,

and also Sally Dollé, Section Registrar.

3. Summary of the judgment2

Complaints

Relying on Article 6 § 1, both applicants complained about the unfairness of the criminal proceedings brought against them for having failed to comply with the Governor’s request. Ms Karakaya further complained, under Article 11, about her conviction in those proceedings and, under Article 10, about her conviction for having been involved in the press declaration.

Article 6 § 1

The Court observed that, in accordance with the relevant domestic law prevailing at the time, no public hearing had been held during the applicants’ prosecution. It also noted that the local courts had taken their decisions on the basis of the documents in the case files and that the applicants had not been given the opportunity to defend themselves in person or through a lawyer before the courts. The Court therefore concluded that the criminal proceedings had been unfair, in violation of Article 6 § 1.

Article 11

The Court observed that Mihriban Karakaya contended that there had been no reason to terminate the membership of the 13 people, including her own. She maintained that, although she had been taken into custody in 1999, she had been released and no criminal proceedings had been brought against her at that time. The Court was persuaded by that claim in the light of the Governor of Izmir's letter of 10 July 2001. It therefore considered that the Turkish Government had not demonstrated why the public authorities could have legitimately required the annulment of the applicant’s membership.

The Court concluded that Ms Karakaya had been deprived of proper legal protection against arbitrary interference with her right to freedom of association, in violation of Article 11.

Article 10

The Court observed that Ms Karakaya had been convicted under Section 34 of the Associations Act and noted that the present case differed from other cases concerning freedom of expression against Turkey that have come before it.

The Court considered that the applicant’s conviction for having taken part in a movement whose aim had been to draw attention to a topical issue had constituted an interference with her freedom of expression. It decided to examine whether Section 34 of the Associations Act relied on by the Turkish Government had been sufficiently accessible and foreseeable.

As regards accessibility, the Court noted that the provision satisfied that condition, as the Associations Act had been published in the Official Gazette in October 1983. On the issue of foreseeability, the Court observed that Section 34 stipulated that associations could only form federations and confederations. However, that wording was not sufficiently clear to enable the members of the Association to have realised that rallying to a movement or “platform” would lead to a criminal sanction. The Court therefore considered that the local courts had extended the scope of Section 34 beyond what could have been reasonably foreseen.

The Court concluded that the interference with the Ms Karakaya's freedom of expression had not been prescribed by law, in violation of Article 10.