Religion – Weltanschauung – Recht [ RWR ]

In today’s Chamber judgment in the case of Güler and Uğur v. Turkey (applications nos. 31706/10 and 33088/10) the European Court of Human Rights held, by a majority, that there had been a violation of Article 9 (right to freedom of thought, conscience and religion) of the European Convention on Human Rights. The case concerned the applicants’ conviction for propaganda promoting a terrorist organization on account of their participation in a religious service organized on the premises of a political party in memory of three members of an illegal organization (the PKK) who had been killed by security forces. The Court found that the interference with the applicants’ freedom of religion on account of that conviction had not been “prescribed by law” in so far as the domestic-law provision on which it had been based had not met the requirements of clarity and foreseeability.

Principal facts

The applicants, İhsan Güler and Sinan Uğur, are two Turkish nationals who were born in 1964 and 1947 respectively and live in Ankara and İzmir (Turkey).

On 21 August 2006 the applicants took part in a religious service on the premises of the Party for a Democratic Society (DTP), of which they were active members and regional leaders, in Altındağ (Ankara), in memory of three members of the PKK (Workers’ Party of Kurdistan, an illegal armed organization) who had been killed by the security forces.

Following an investigation carried out by the prosecuting authorities, the applicants were prosecuted in the Ankara Assize Court for terrorist propaganda. They pleaded before the Court that they had taken part in the service in order to comply with their religious obligations.

In a judgment of 24 September 2008 the Assize Court sentenced the two applicants to ten months’ imprisonment under section 7 (2) of the Anti-Terrorism Act (Law no. 3713). It found, in particular, that the persons in memory of whom the service had been organized were members of a terrorist organization, that they had been killed by the security forces in the course of actions conducted by that organization and that there existed serious doubts as to the real motives for the gathering in view of the choice of venue, namely the premises of a political party in which the symbols of the illegal organization had been displayed.

That judgment was upheld by a final judgment of the Court of Cassation on 8 March 2010 and the applicants were placed in detention to serve their sentence.

Complaints, procedure and composition of the Court

Relying on Articles 7 (no punishment without law), 9 (right to freedom of thought, conscience and religion) and 11 (freedom of assembly and association), the applicants alleged that their conviction had been based on their participation in a religious service which had consisted in a simple public manifestation of their religious practice. They also submitted that their conviction had not been sufficiently foreseeable, having regard to the wording of the Anti-Terrorism Act. Under Article 14 (prohibition of discrimination) taken together with Articles 9 and 11, the applicants also alleged that their conviction had amounted to discrimination against them on the basis of their Kurdish ethnic origin and their political opinions.

The application was lodged with the European Court of Human Rights on 5 May 2010.

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

Guido Raimondi (Italy), President,

Işıl Karakaş (Turkey),
András Sajó (Hungary),
Helen Keller (Switzerland),
Paul Lemmens (Belgium),
Robert Spano (Iceland),
Jon Fridrik Kjølbro (Denmark),

and also Abel Campos, Deputy Section Registrar.

Decision of the Court

Article 9

As the main issue in this case concerned a conviction for taking part in a religious service, the Court examined under Article 9 alone the applicants’ complaints based on Articles 7, 9 and 11.

It considered first of all that the prison sentence imposed on the applicants amounted to an interference with their right to freedom to manifest their religion, irrespective of the fact that the persons in memory of whom the service had been held had been members of an illegal organization or that the service had been held on the premises of a political party where symbols of the illegal organization had been displayed.

As regards whether the interference had been “prescribed by law”, the Court observed that the legal basis for the sentence had been section 7 (2) of the Anti-Terrorism Act (Law no. 3713).

It pointed out, however, that in the present case neither the reasoning of the national courts nor the Government’s observations showed that the applicants had had a role in in choosing the venue for the religious service or been responsible for the presence of the symbols of an illegal organization. Moreover, the criminal act of which the applicants had been convicted had merely been their participation in the service.

In the Court’s view, it was not possible to foresee that merely taking part in a religious service would fall within the scope of application of section 7 (2) of the Anti-Terrorism Act. Having regard to the wording of that section and its interpretation by the Turkish courts when convicting the applicants of propaganda, the Court considered that the interference in the applicants’ freedom of religion had not been “prescribed by law” because it had not met the requirements of clarity and foreseeability laid down by the European Convention on Human Rights.

Accordingly, the Court held that there had been a violation of Article 9.

Article 14 taken in conjunction with Articles 9 and 11

Having regard to its conclusions under Article 9, the Court held that it was not necessary to examine separately the complaint under Article 14.

Just satisfaction (Article 41)

The Court held that Turkey was to pay the applicants € 7,500 each in respect of non-pecuniary damage.

Separate opinion

Judges Sajó and Keller expressed a joint partly dissenting opinion, the text of which is annexed to the judgment.

Press release ECHR 354 (2014) 02/12/2014