The ECHR judgment of 14 November 2017 in the case of Isikırık (Isikirik) v. Turkey (application No. 41226/09).
In 2009, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Turkey.
In the case, the complaint on the applicant's conviction for membership in the activities of an illegal organization was successfully considered. The case involved a violation of the requirements of Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
In 2007 the applicant was convicted of "membership" in the illegal armed organization "Kurdistan Workers Party" (hereinafter - the PKK) and sentenced to more than six years in prison on the basis of paragraph 6 of Article 220 of the Criminal Code, because he attended the funeral of the four fighters PKK walked in front of one of the coffins during a funeral and showed a "V" sign, applauded when other demonstrators shouted slogans in support of Abdullah Ocalan during a meeting at his university.
The Turkish courts decided that, since the funeral and demonstration were conducted according to the appeals and instructions of the PKK, the applicant who participated in these events should be considered acting on behalf of this organization.
Pursuant to Part 6 of Article 220 of the Turkish Penal Code, a person who commits an offense "on behalf" of an illegal organization is punished as a "member" of this organization in accordance with Part 2 of Article 314 in the absence of the obligation to prove the material signs of actual membership.
ISSUES OF LAW
Concerning compliance with Article 11 of the Convention. The conviction of the applicant for membership in an illegal organization on the basis of part 6 of article 220 and part 2 of article 314 of the Turkish Penal Code, based on his participation in funerals and demonstrations, could be considered an interference with his right to freedom of assembly.
The wording of part 6 of article 220 of the Penal Code did not in itself determine the meaning of the expression "on behalf of an illegal organization". The courts of the respondent state broadly interpreted the concept of "membership" in an illegal organization in accordance with Part 6 of Article 220 of the Criminal Code. The mere presence of an illegal organization at the demonstration and the open expression of a positive attitude towards this organization was recognized as sufficient to recognize the action "on behalf" of the organization and, consequently, the application of punishment to the applicant as a real member.
On the contrary, when Article 314 of the Criminal Code was applied separately in the part of "membership" in an illegal organization, the courts had to take into account the "continuity, variety and intensity" of the actions of the accused. Similarly, they had to assess whether the accused committed the crimes within the "hierarchical structure" of the organization, since if the same article was applied with reference to Part 6 of Article 220 of the Penal Code, the issue of the operation in the hierarchy lost its significance. As a result, a set of actions, potentially who gave the basis for the application of stricter criminal sanctions in the form of deprivation of liberty in accordance with Paragraph 6 of Article 220 of the Criminal Code, was so extensive that the formulation of standards, including its broad interpretation by the courts of Turkey, is not a sufficient measure of protection against arbitrary interference from public authorities.
Moreover, and this is especially important in connection with the applicant's conviction for acts that fall within the scope of Article 11 of the Convention, there was no difference between him, a peaceful demonstrator, and a person who committed crimes in the structure of the PKK. Such a broad interpretation of the legal norm can not be justified if it has the effect of equating the simple exercise of fundamental freedoms with membership in an illegal organization in the absence of specific data on such membership.
Consequently, Part 6 of Article 220 of the Penal Code was not "predictable" in its application, since it did not provide the applicant with legal protection against arbitrary interference with his right under Article 11 of the Convention, that is, the interference was not provided by law. In addition, when demonstrators clashed with charges of membership of an illegal armed organization, they face additional punishment ranging from five to ten years in prison, the sanction is strikingly austere and extremely disproportionate to their behavior. Taking into account the above, Part 6 of Article 220 of the Criminal Code, applied in the present case, would inevitably exert a particularly restraining influence on the exercise of their rights to freedom of expression and freedom of assembly.
In addition, the application of this rule can not only deter those who have been prosecuted for re-exercising their rights under articles 10 and 11 of the Convention, but also had a great potential to deter other members of the public from attending demonstrations and, in general, from participating in an open political debate.
Based on the above would impair the very essence of the right to freedom of peaceful assembly and, therefore, the foundations of a democratic society, where the applicant was found guilty in accordance with Paragraph 6 of Article 220 and part 2 of article 314 of the Penal Code only for visiting a public meeting and express their views on it.
The violation of the requirements of Article 11 of the Convention (unanimously) was committed in the case.
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 7,500 in respect of non-pecuniary damage.