EGMR: Criminal conviction of membership in an illegal organisation for participation in public events – based on unforeseeable application of the law

In today’s Chamber judgment in the case of Işıkırık v. Turkey (application no. 41226/09) the European Court of Human Rights held, unanimously, that there had been: a violation of Article 11 (freedom of assembly and association) of the European Convention on Human Rights. The case concerned the applicant’s criminal conviction of membership in an illegal organisation, after having participated in a funeral of four members of the PKK (Kurdish Workers‘ Party, an illegal organisation) and in a demonstration.

The Court found in particular that the relevant provision of the Turkish Criminal Code, as it had been applied in Mr Işıkırık’s case, had not been foreseeable since it had not provided him with legal protection against arbitrary interference with his right to freedom of assembly. The domestic courts had extensively interpreted to his detriment the criteria for a conviction of membership in an illegal organisation. They had made no distinction between him – a peaceful demonstrator – and an individual who had committed offences within the structure of the PKK.

The Court pointed out that when demonstrators, as Mr Işıkırık, faced the risk of a sentence of between five and ten years in prison for membership in an illegal organization – a sanction grossly disproportionate to their conduct – this inevitably had a strong deterrent effect on the exercise of the rights to freedom of expression and assembly.

Principal facts

The applicant, Murat Işıkırık, is a Turkish national who was born in 1984 and lives in Mardin (Turkey).

Mr Işıkırık, who was a student at Dicle University at the time, was arrested in March 2007 and questioned at the anti-terror branch of the Diyarbakır police headquarters in connection with two events: On 28 March 2006 a funeral of four members of the PKK, who had been killed by the security forces, had taken place in Diyarbakır. According to police reports, after the burial ceremony had been completed, about 1,000 people had participated in an illegal demonstration, with demonstrators throwing stones at police officers and causing damage to buildings. On 5 March 2007 a demonstration had been held on the campus of Dicle University. A group of 40 people had entered the university building and had asked students to leave. They had held a press conference and chanted slogans in favour of the PKK and its leader Abdullah Öcalan.

Mr Işıkırık initially denied having taken part in the two events. After he had been shown photographs of himself taken at the events, he stated that he had attended the funeral as a religious duty, as one of the activists who had been killed was a relative of a friend of his, but that he had not attacked the police. He also maintained that he had stood in front of the university on 5 March 2007 but that he had not chanted any slogans. On the day of his questioning he was remanded in custody, and in May 2007 he was charged with membership in an illegal organisation and with disseminating propaganda in support of the PKK.

In November 2007 Mr Işıkırık was convicted of both offences, for which he received a sentence of six years and three months and a sentence of one year and eight months, respectively. The conviction of membership in an illegal organisation, the PKK, was based on Article 314 § 2 of the Criminal Code (relating to membership in armed organisations) in connection with Article 220 § 6, which read, at the time: “Anyone who commits a crime on behalf of an (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation.”

Mr Işıkırık’s conviction of disseminating propaganda in support of the PKK was subsequently quashed on procedural grounds and the proceedings in respect of that offence were eventually suspended, in December 2012, for three years. He was released from detention in November 2011 after having served four years and eight months of his sentence.

In the meantime, Mr Işıkırık was expelled from university because he had failed to complete his degree within the maximum period of time.

Complaints, procedure and composition of the Court

Relying on Article 10 (freedom of expression) and Article 11 (freedom of assembly and association), Mr Işıkırık complained about his conviction and alleges that the sentences imposed on him were disproportionate. He further relied on Article 5 § 3 (right to liberty and security / entitlement to trial within a reasonable time or to release pending trial) and Article 6 § 1 (right to a fair trial within a reasonable time), complaining that his detention on remand and the criminal proceedings against him had lasted unreasonably long. Finally, he relied on Article 14 (prohibition if discrimination), alleging that he was tried and convicted on account of his Kurdish origin.

The application was lodged with the European Court of Human Rights on 29 July 2009.

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

  • Robert Spano (Iceland), President,
  • Ledi Bianku (Albania),
  • Işıl Karakaş (Turkey),
  • Nebojša Vučinić (Montenegro),
  • Paul Lemmens (Belgium),
  • Valeriu Griţco (the Republic of Moldova),
  • Stéphanie Mourou-Vikström (Monaco),
  • and also Stanley Naismith, Section Registrar.

Decision of the Court

Article 11

The Court found that it was appropriate to examine under Article 11, in the light of Article 10, Mr Işıkırık’s complaint about his convictions for participating in the funeral and the demonstration.

The Court considered that Mr Işıkırık’s conviction of membership in an illegal organisation, on account of his participation in the funeral and the demonstration, had constituted an interference with his right to freedom of assembly.

As to the question of whether that interference constituted a breach of Article 11, the Court focused on examining whether the legal provisions on which Mr Işıkırık’s conviction had been based were sufficiently foreseeable within the meaning of the Court’s case-law. It came to the conclusion that Article 220 § 6 of the Turkish Criminal Code, as it had been applied in his case, had not been foreseeable since it had not provided him with legal protection against arbitrary interference with his right to freedom of assembly.

In arriving at that conclusion, the Court observed in particular that Mr Işıkırık had been convicted of membership in an illegal organisation merely on account of having attended two public meetings, which, according to the first-instance court, had been held in line with the instructions by the PKK, and his acts during the events, such as making a “V” sign during the funeral – as shown on the photographs taken of him – and applauding during the demonstration. The Court therefore found that, applied in connection with Article 220 § 6, the criteria for a conviction under Article 314 § 2 of the Criminal Code had been extensively interpreted to his detriment.

Mr Işıkırık’s case demonstrated that there was a vast array of acts that potentially constituted a basis for the application of a severe criminal sanction in the form of imprisonment under Article 220 § 6. Therefore the wording of that provision, combined with the extensive interpretation by the domestic courts, did not afford sufficient protection against arbitrary interferences by the authorities. His conviction, for acts which fell within the scope of Article 11 of the Convention, had made no distinction between Mr Işıkırık – a peaceful demonstrator – and an individual who had committed offences within the structure of the PKK.

The Court noted that when demonstrators, as Mr Işıkırık, faced the charge of membership of an illegal armed organisation, they risked a sentence of between five and ten years in prison, a sanction which was strikingly severe and grossly disproportionate to their conduct. The application of Article 220 § 6, as in his case, inevitably had a strong deterrent effect on the exercise of the rights to freedom of expression and assembly.

The interference with Mr Işıkırık’s rights resulting from the application of Article 220 § 6 had therefore not been prescribed by law within the meaning of Article 11. There had accordingly been a violation of Article 11.

Other articles

The Court declared inadmissible Mr Işıkırık’s remaining complaints. It found: that the complaint under Article 5 § 3 had been lodged out of time; that he had not exhausted the domestic remedies in respect of his complaint under Article 6 § 1; and that he had not substantiated his complaint under Article 14, which was therefore manifestly ill-founded.

Just satisfaction (Article 41)

The Court held that Turkey was to pay Mr Işıkırık € 7,500 in respect of non-pecuniary damage and a total of € 8,500 in respect of costs and expenses.

Separate opinions

Judges Lemmens and Griţco expressed a joint concurring opinion, which is annexed to the judgment.

Press release ECHR 342 (2017) 14/11/2017

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