ECHR found violations of the requirements of paragraphs 3 to 5 of Article 5 and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: ECHR found violations of the requirements of paragraphs 3 to 5 of Article 5 and Article 10 of the Convention Сведения: 2018-08-03 09:06:26

The ECHR judgment of 7 March 2017 in the case of "Doner and Others" v. Turkey (application No. 29994/02).

In 2002, the applicants were assisted in the preparation of the application. Subsequently, the application was communicated to Turkey.

The case successfully examined a complaint of detention and harassment of parents who asked for their children's right to receive education in Kurdish. The case involved violation of the requirements of paragraphs 3 to 5 of Article 5 and Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.



In December 2001, the applicants filed motions with the education authorities, asking that their children receive education in Kurdish in the public primary schools they attended. The applicants 'homes were subsequently searched on suspicion that their actions were committed at the instigation of an illegal armed organization (the Kurdish Workers' Party). Although no incriminating material was found, the applicants were detained and detained, all for four days, and some remained in custody for almost a month. All but one of the applicants were charged and convicted in the State Security Court for complicity with an illegal armed organization. All of them were, in the final analysis, justified.

In the conventional proceedings, the applicants complained, in particular, that they had been prosecuted for using the constitutional right to appeal to state bodies, despite the absence of provisions in the legislation of the country that would criminalize such acts. They complained of a violation of Article 7 of the Convention.


Concerning compliance with Article 10 of the Convention. Having the right to give its own legal qualification to the facts of the case, the Court concluded that the complaint under Article 7 of the Convention was to be considered in accordance with Article 10 of the Convention. He declared that the applicant's complaint, which was not prosecuted, was not inadmissible as being manifestly unfounded, since in reality he did not apply for an education in the Kursk language and could not therefore be considered a person who exercised his right to freedom of expression.

As for the remaining applicants, a number of measures to which they were subjected, namely their detention and deprivation of liberty, just for appealing to public authorities on the issue of "general interest", constituted an interference with the exercise of their right to freedom of expression. The fact that they were eventually justified did not deprive them of their victim status, since the State Security Court did not recognize the alleged violation of their rights and did not provide compensation in connection with it.

There was no need to determine whether the interference was prescribed by law or whether it pursued a legitimate aim, since in any case it was not necessary in a democratic society. From the arguments put forward by the prosecutor and the respondent State, it was evident that the applicants had been taken measures not because of the content of their petitions, but because they had allegedly submitted them as part of a collective action to incite an illegal armed organization. Although the Court does not underestimate the complexity of the fight against terrorism, this fact alone does not absolve the authorities of the obligation under article 10 of the Convention. Thus, despite the fact that freedom of expression may legitimately be restricted in the interests of national security, territorial integrity or public order, such restrictions must still be justified by relevant and sufficient reasons and to answer a pressing social need proportionately.

However, in the present case, the competent authorities of the state are not used as a basis for measures reasonable estimate of relevant facts and did not apply standards that are compatible with the principles embodied in Article 10 of the Convention. In making its conclusion, the Court observes (i) that requests for education in the Kurdish language in primary schools were filed during the public debate in Turkey concerning the social and cultural rights of Turkish citizens of Kurdish origin, and therefore referred to a matter of "public interest" ", (ii) the state authorities did not demonstrate the necessary restraint when referring to the criminal procedure in a case concerning the debate on a matter of public interest, but instead used the available and m legal arsenal almost oppressive manner, (iii) any opinions contained in the petitions or the form in which they were expressed, does not raise doubts about the peaceful nature of the treatment of applicants, and the fact that they can match the goals or instructions of an illegal armed organization , did not eliminate motions from the scope of protection of Article 10 of the Convention, and (iv) while the applicants were still being prosecuted, the Law on Education and Teaching in a Foreign Language (Law No. 2923) would.


In the case there was a violation of the requirements of Article 10 of the Convention (unanimously adopted).

The Court also ruled unanimously that there had been a violation of Article 5 §§ 3-5 of the Convention, as regards the detention of the applicants.



In the application of Article 41 of the Convention. The Court awarded EUR 6,500 in respect of non-pecuniary damage to the applicant, whose complaint under Article 10 of the Convention was declared inadmissible for examination on the merits and EUR 10,000 for each of the remaining applicants.


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