BELGE v. TURKEY - 50171/09 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2016] ECHR 1071 (06 December 2016)

In the case of Belge v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Julia Laffranque, President,
          Işıl Karakaş,
          Nebojša Vučinić,
          Valeriu Griţco,
          Ksenija Turković,
          Jon Fridrik Kjølbro,
          Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 15 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 50171/09) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr İzzet Belge (“the applicant”), on 10 September 2009.

2. The applicant was represented by Mr Mesut Beştaş and Mrs M. Danış Beştaş, lawyers practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicant alleged that there had been an unjustified interference with his right to freedom of expression.

4. On 7 July 2014 the complaint concerning the applicant’s right to freedom of expression was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1982 and lives in Şırnak.

6. On 3 September 2005 a demonstration was held in the Gemlik district of the city of Bursa by the Association for the Solidarity of Prisoners’ and Convicts’ Relatives (Tutuklu ve Hükümlü Yakınları Yardımlaşma ve Dayanışma Derneği - “Tuhay-Der”) in order to protest about the conditions of detention in prisons, and in particular those of Abdullah Öcalan, the leader of the PKK (the Workers’ Party of Kurdistan), an illegal armed organisation.

7. On 5 September 2005 a group who had attended the demonstration in Gemlik returned to Cizre, a district of Şırnak, and a gathering was held in front of the building of the Cizre branch of the People’s Democratic Party (Demokratik Halk Partisi - “DEHAP”). The applicant, as president of the Şırnak branch of the DEHAP, made a speech during that gathering.

8. On 6 October 2005 the Cizre public prosecutor filed a bill of indictment with the Cizre Criminal Court against the applicant and four others. The applicant was charged with disseminating propaganda in favour of a criminal organisation and its goals, proscribed by Article 220 § 8 of the Criminal Code, on account of his speech on 5 September 2005. The public prosecutor submitted that the following passages in the speech constituted propaganda in favour of an illegal organisation:

“... We want peace in this country. Those who wish for war prevent us from having peace. As you know, Mr Abdullah Öcalan, the leader of the Kurdish people, called for a ceasefire six years ago. The Government have failed to take a proper view of that six-year unilateral ceasefire and therefore the war has re-started. We have once again started to receive the bodies of guerrillas and soldiers. We want an end to the crying of the mothers of guerrillas and soldiers. We want peace. Mr Abdullah Öcalan has not been able to meet his lawyers or members of his family for the last three months. We believe that that sanction is harmful to the peace process.”

9. On 7 October 2005 the Cizre Criminal Court accepted the bill of indictment.

10. On 24 July 2006 upon the request of the Cizre Criminal Court, the Şırnak Criminal Court obtained the applicant’s defence statements. The applicant contended that he had not praised an illegal organisation in his speech and that he had not intended to disseminate propaganda. He noted that he had only thanked those who had made an effort to bring about peace. The applicant finally stated that the slogans chanted by the crowd during his speech had promoted peace.

11. The Cizre Criminal Court held nine hearings on the merits of the case and obtained a report by an expert on the video-recordings of the gathering of 5 September 2005, which stated that the applicant had made a speech to a crowd. Subsequently, on 22 December 2006, the Cizre Criminal Court issued a decision that it lacked jurisdiction as it considered that the acts of the accused should be examined under the Prevention of Terrorism Act (Law no. 3713). The case was transferred to the Diyarbakır Assize Court.

12. On 7 April 2007 the Diyarbakır Assize Court ordered an expert to examine the video-recordings of the gathering of 5 September 2005.

13. On 8 May 2007 the applicant made a statement to the Diyarbakır Assize Court. He contended that he had not disseminated propaganda during his speech but had only thanked those who had worked for peace and had also condemned Abdullah Öcalan’s solitary confinement. The applicant denied the allegation that he had referred to Abdullah Öcalan as the leader of the Kurdish people. He further noted that there had been no violent incidents during or after his speech. Following his speech the demonstrators had dispersed quietly and the slogans that had been chanted while he spoke had been peaceful.

14. According to the report, dated 21 May 2007, on the examination of the police video-recordings of the gathering of 5 September 2005 submitted by the expert to the first-instance court, the applicant had made the following speech:

“... Friends, I would like to say a few words about how grateful we are to you. First of all, as you already know, we left Şırnak to go to the peace meeting, Gemlik meeting which was organised by Tuhay-Der. As a result of the arbitrary security measures taken by the security forces and the fact that we were forced to wait two and a half hours at each checkpoint for identity checks, we were not able to travel as fast as we wanted. For us, those who conducted themselves in such a manner are the people who do not want peace in this country (his speech is interrupted by applause and ululations). Subsequently, we were taken into police custody because of our democratic reaction to the search order. We were kept in police custody for one night and then taken before a court. The court released us. However, it took a decision to place me under judicial control. I have to go to give my signature every Monday and I am banned from travelling abroad (His speech is interrupted by boos and the slogan ‘Barışa uzanan eller kırılsın’ (‘May those hands which aim to damage peace be broken’). We condemn with contempt the mentality which obstructed the meeting in Gemlik; we condemn with contempt the fact that Mr Abdullah Gül, the Minister of Foreign Affairs, called us ‘provocateurs’ as well as the mentality which prevented the peace meeting from taking place and which blocked and attacked the crowds. Two vehicles were burned. A person lost his life and hundreds were injured. We condemn with contempt the mentality which is against your and the Kurdish people’s sensibility, your wish for peace and the meeting on peace. We want peace in this country. We want harmony. Those who are against unity and solidarity in this country and those who do not want this country to reach modernity, that is to say, who obtain an unjustified gain out of this war, prevent us from having peace ... As you know, Mr Abdullah Öcalan, the leader of the Kurdish people (His speech is interrupted by the slogan ‘Biji Serok Apo’ (‘Long live President Öcalan’) called for a ceasefire six years ago. The Government have failed to take a proper view of that six-year unilateral ceasefire and therefore the war has re-started. We have once again started to receive the bodies of guerrillas and soldiers. We want an end to the crying of the mothers of guerrillas and soldiers in this country. We want peace in this country. We will continue our struggle for peace. The demonstration organised by Tuhay-Der will contribute to peace because a one-month ceasefire has been declared. Mr Abdullah Öcalan has not been able to meet his lawyers or members of his family for the last three and a half months. We believe that that sanction is harmful to the peace process. That is why we participated in the peace march that was organised by Tuhay-Der. We thank those who attended that demonstration for their wish for peace and for their determination, despite injustice and obstructions. We hope that our friends who were injured will recover soon. We condemn with contempt those who obstructed the peace march. We want peace and we will continue to struggle for peace. I thank you all. You can disperse now in silence ...”

15. According to the report, the demonstrators waved yellow, red and green pieces of cloth and carried photographs of Abdullah Öcalan. Some of the applicant’s co-accused were seen chanting slogans or carrying photographs of Abdullah Öcalan. In particular, one of them chanted the slogans “Biji Serok Apo” (“Long live President Öcalan”) and “Dişe diş kana kan, seninleyiz Öcalan” (“A tooth for a tooth, blood for blood, we are with you Öcalan”) for periods of thirty-seven and ten seconds respectively. Another accused was seen chanting the slogans “Dısa dısa serhildan serokeme Öcalan” (“Rise up again and again, our president is Öcalan”), “Baskılar bizi yıldıramaz” (“We will not be defeated by oppression”), “PKK halktır. Halk burada.” (“The PKK is the people. The people are here.”), “Şırnak ovası PKK’nin yuvası” (“Şırnak is the home of the PKK”) for periods of between six and fifteen seconds while waving a photograph of Abdullah Öcalan. Some other demonstrators also chanted the slogan “Savaşta barışta seninleyiz Öcalan” (“In war and in peace we are with you Öcalan”).

16. On 19 February 2008 the Diyarbakır Assize Court delivered its judgment. The court noted that those who disseminated propaganda in favour of the PKK were expressing their support and approval for the PKK, whose methods were those of terrorism and violence. The court accordingly considered that the dissemination of propaganda in favour of that organisation essentially amounted to incitement to violence and the use of terrorist methods. The first-instance court further noted that it was a well-known fact that during illegal demonstrations and meetings PKK members and supporters disseminated propaganda by way of waving photographs of the leader of the PKK and yellow, red and green pieces of cloth, symbolising the so-called flag of the PKK. The court thus concluded that on 5 September 2005 the accused had disseminated propaganda by acting in support of the PKK’s aims and by their acts in front of the building of the Cizre branch of the DEHAP.

17. As regards the applicant, the Diyarbakır Assize Court also noted that he had referred to Mr Öcalan as “the leader of the Kurdish people” and to members of the PKK who had been killed as “guerrillas”. The court also found it established that the applicant had directed the demonstrators who had chanted slogans in favour of the PKK, waved yellow, red and green pieces of cloth and carried photographs of Abdullah Öcalan. The Diyarbakır Assize Court further noted that section 7(2), as amended by Law no. 5532, which had entered into force on 18 July 2006, was more favourable to the applicant than the previous version of the same provision in force on the date the applicant had committed the acts that constituted the basis for his conviction (see paragraph 19 below). As a result, the first-instance court convicted the applicant of disseminating propaganda in favour of a terrorist organisation under section 7(2) of Law no. 3713, as amended by Law no. 5532, and sentenced him to ten months’ imprisonment. The court also ordered that Article 53 §§ 1, 2 and 3 of the Criminal Code should apply in respect of the applicant (see paragraph 20 below).

18. On 13 July 2010 the Court of Cassation upheld the Diyarbakır Assize Court’s judgment.

II. RELEVANT DOMESTIC LAW

19. Between 7 August 2003 and 18 July 2006, section 7(2) of Law no. 3713 read as follows:

“Any person who assists members of the aforementioned organisations [terrorist organisations] or who disseminates propaganda inciting others to violence or other methods of terrorism shall be liable to a term of imprisonment of one to five years and a judicial fine of five million liras to one billion liras ...”

The first sentence of section 7(2) of Law no. 3713 was amended by Law no. 5532, which entered into force on 18 July 2006, as follows:

“Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of one to five years ...”

The first sentence of section 7(2) of Law no. 3713, amended on 30 April 2013 by Law no. 6459, currently reads as follows:

“Any person who disseminates propaganda in favour of a terrorist organisation by justifying, praising or encouraging the use of methods constituting coercion, violence or threats shall be liable to a term of imprisonment of one to five years ...”

20. At the material time, the relevant parts of Article 53 of the Criminal Code (Law no. 5237) read as follows:

Deprivation of certain rights

(1) As a legal consequence of a criminal conviction which gives rise to a prison sentence on account of the commission of an intentional crime, a person shall be prohibited from:

a) Undertaking permanent or temporary public service; the scope of this includes membership of the Grand National Assembly of Turkey or employment in any public office or service,, by appointment or election, in any department of the State, province, municipality, or employment in any institution or corporation controlled or supervised by those bodies;

b) having the right to vote and be elected and to exercise other political rights;

...

(2) A person may not benefit from the aforementioned rights until the prison sentence has been served in full..

...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

21. The applicant complained under Article 10 of the Convention that his criminal conviction pursuant to section 7(2) of Law no. 3713 had constituted a violation of his right to freedom of expression. Article 10 reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

22. The Government contested that argument.

A. Admissibility

23. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

24. The applicant submitted that his conviction pursuant to section 7(2) of Law no. 3713 had been in breach of Article 10 because his speech had not contained any elements of incitement to violence. He contended that his prosecution and conviction on account of the use of the expressions “the leader of the Kurdish people” and “guerrilla” had not been necessary in a democratic society. The applicant argued that the national courts had failed to review the context of his speech as a whole. He noted that he had made the speech as a politician and it had concerned demands for a peaceful solution to the Kurdish issue and about Abdullah Öcalan’s prison conditions. As regards the slogans chanted during his speech, the applicant noted that they had demonstrated the importance of Abdullah Öcalan to the crowd and that they had not constituted an offence. In that regard, the applicant referred to the Court’s judgment in Bahçeci and Turan v. Turkey (no. 33340/03, 16 June 2009). Lastly, the applicant submitted that his sentence had not been proportionate as he had been sentenced to ten months’ imprisonment and had also been prevented from taking part in political life as a result of that sentence.

(b) The Government

25. The Government submitted that the interference with the applicant’s right to freedom of expression had been prescribed by law. They noted that the applicant’s conviction had been based on section 7(2) of Law no. 3713. The Government further contended that the interference in question had pursued the aims of protecting national security, territorial integrity and public safety as well as the prevention of disorder or crime.

26. As to the question of the necessity of the interference in a democratic society, the Government contended that the applicant had been an active leader of the group of demonstrators who had chanted the following slogans, which had aimed at inciting violence: “A tooth for a tooth, blood for blood, we are with you Öcalan”; “We are the bodyguards of Apo”; “Apo is the President”; “Say hit, we will hit; say die, we will die”; “We all stand by Apo”; and “Şırnak is the home of the PKK”. The demonstrators had carried posters of Abdullah Öcalan and PKK symbols. In addition, the applicant had referred in his speech to Abdullah Öcalan as the “leader of the Kurdish people” and members of the PKK who had been killed as “guerrillas”. In that regard, the Government noted that the PKK had been included on the list of terrorist organisations by the United States of America, NATO, the United Nations and the European Union. The Government argued that the applicant’s conviction had been necessary in a democratic society owing to the context in which the applicant had made his speech, the slogans that had been chanted, the yellow, red and green pieces of cloth symbolising the flag of the PKK, the Abdullah Öcalan posters carried by the demonstrators and the fact that the PKK had previously carried out numerous terrorist attacks on civilians and soldiers in Cizre.

2. The Court’s assessment

(a) Whether there was interference

27. The Court notes that it has not been disputed between the parties that the applicant’s criminal conviction under section 7(2) of Law no. 3713 amounted to an “interference” with the exercise of his freedom of expression, within the meaning of Article 10 of the Convention. The Court shares the same view as the parties.

(b) Whether the interference was prescribed by law

28. The Court reiterates that the expression “prescribed by law”, within the meaning of Article 10 § 2, requires, firstly, that the impugned measure should have some basis in domestic law. However, it also refers to the quality of the law, which requires that legal norms should be accessible to the person concerned, their consequences foreseeable and that their compatibility with the rule of law be ensured (see, among others, Association Ekin v. France, no. 39288/98, § 44, ECHR 2001-VIII; Ürper and Others v. Turkey, nos. 14526/07, 14747/07, 15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07 and 54637/07, § 28, 20 October 2009; and Cumhuriyet Vakfı and Others v. Turkey, no. 28255/07, § 50, 8 October 2013).

29. In the present case, it is not disputed that the applicant’s criminal conviction was based on section 7(2) of Law no. 3713. There remains the question of the latter’s accessibility and the foreseeability of its effects, as well as its compatibility with the rule of law. In this connection, the Court observes that there appears to be no issue regarding the accessibility of the legislation in question (see Faruk Temel v. Turkey, no. 16853/05, § 49, 1 February 2011). As to the question of foreseeability and the compatibility with the rule of law of the interference, the Court notes that the first-instance court convicted the applicant pursuant to the amended version of section 7(2), which had entered into force on 18 July 2006, finding that the new version was more favourable to him (see paragraphs 17 and 19 above). The Court finds that the offence proscribed by section 7(2) after 18 July 2006, that is “disseminating propaganda in favour of a terrorist organisation”, and its interpretation by the Diyarbakır Assize Court do not appear to be entirely clear. Nevertheless, having regard to its conclusion regarding the necessity of the interference (see paragraph 38 below), the Court considers that it is not required to conduct an examination of the “lawfulness” of the interference on the basis of section 7(2) of Law no. 3713, as amended in 2006 by Law no. 5532 (see, mutatis mutandis, Ürper and Others, cited above, § 29; Gözel and Özer v. Turkey, nos. 43453/04 and 31098/05, § 44, 6 July 2010; Menteş v. Turkey (no. 2), no. 33347/04, § 43, 25 January 2011; and Faruk Temel, cited above, § 49).

30. The Court is prepared to accept that, in the present case, the national authorities may be considered to have pursued the legitimate aims of protecting national security and preventing disorder and crime (see Faruk Temel, cited above, § 52).

(d) Whether the interference was necessary in a democratic society

31. The Court reiterates at the outset the general principles summarised in Stoll v. Switzerland ([GC], no. 69698/01, § 101, ECHR 2007-V), and set out again more recently in Morice v. France [GC] (no. 29369/10, § 124, ECHR 2015), for assessing the necessity of an interference with the exercise of freedom of expression. The Court further emphasises that there is little scope under Article 10 § 2 of the Convention for restrictions on freedom of expression in the area of political speech or debate, where that freedom is of the utmost importance. While precious to all, freedom of expression is particularly important for political parties and their active members. They represent their electorate, draw attention to their preoccupations and defend their interests. Accordingly, interferences with the freedom of expression of a politician who is a member of an opposition party, like the applicant, call for the closest scrutiny by the Court (see Incal v. Turkey, 9 June 1998, § 46, Reports of Judgments and Decisions 1998-IV; Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV; and Faruk Temel, cited above, § 55).

32. In this context, and having regard to the circumstances of the present case, the Court considers that the above-mentioned principles also apply to measures taken by domestic authorities to maintain national security and public order as part of the fight against terrorism (see Gül and Others v. Turkey, no. 4870/02, § 38, 8 June 2010; Faruk Temel, cited above, § 58; and Yavuz and Yaylalı v. Turkey, no. 12606/11, § 45, 17 December 2013).

33. The Court observes that the applicant’s speech on 5 September 2005 consisted of a critical assessment of Government policies concerning the Kurdish issue. The applicant expressed discontent with respect to his own arrest and detention, the practices of the security forces, certain policies of the Government and the conditions of detention of Abdullah Öcalan, whereas the domestic courts considered that the impugned speech contained propaganda in favour of the PKK. In convicting the applicant, the first-instance court noted that the applicant had referred to Abdullah Öcalan as “the leader of the Kurdish people” and to deceased PKK members as “guerrillas” and that he had directed the demonstrators who had chanted slogans in favour of the PKK, waved yellow, red and green pieces of cloth and carried photographs of Abdullah Öcalan.

34. The Court considers that the expressions “the leader of the Kurdish people” and “guerrilla” by themselves do not incite to violence (see Erdoğdu and İnce v. Turkey [GC], nos. 25067/94 and 25068/94, § 52, ECHR 1999-IV, in which the Court considered that an interview published in a monthly review in which the members of the PKK had been referred as “guerrilla” had not constituted incitement to violence and could not be construed as liable to incite to violence; Gerger v. Turkey [GC], no. 24919/94, § 50, 8 July 1999, in which the Court held that the applicant’s speech, which referred to the members of the PKK as “guerrilla”, had constituted political criticism of the Turkish authorities and not an incitement to violence, armed resistance or an uprising; Bahçeci and Turan, cited above, § 30 and Savgın v. Turkey, no. 13304/03, § 45, 2 February 2010, in which the Court considered that text messages and slogans which referred to Abdullah Öcalan as the president had not incited to violence; Faruk Temel, cited above, § 62, in which the Court found that referring to Abdullah Öcalan as “esteemed” (sayın) during a speech did not incite to violence; and Öner and Türk v. Turkey, no. 51962/12, § 24, 31 March 2015, in which the Court held that the applicant’s speech, in which he described Abdullah Öcalan as the “Kurdish leader” did not constitute incitement to violence). Besides, the Diyarbakır Assize Court did not conduct an assessment of the applicant’s speech as a whole. It focused on the use of those two expressions and found that they constituted propaganda in favour of a terrorist organisation, without providing an explanation for the reasons for its conclusion. In the Court’s view, the applicant’s speech as whole cannot be construed as encouraging violence, armed resistance or an uprising (see Demirel and Ateş v. Turkey (no. 3), no. 11976/03, § 26, 9 December 2008). On the contrary, during his speech, the applicant reiterated several times that he was in favour of peace in Turkey and of finding a peaceful solution to the Kurdish issue (see paragraph 14 above). The Court further observes that the first-instance court failed to examine whether the applicant’s speech had had any adverse impact on public order. In this connection, the Court notes that there is no indication in the case file that the gathering in front of the DEHAP building was not peaceful or that the people who had attended the demonstration engaged in acts of violence after listening to the applicant’s speech (see Kılıç and Eren v. Turkey, no. 43807/07, § 27, 29 November 2011). The first-instance court therefore appears to have failed to take into account the context in which the speech was made and the conduct of the demonstrators (see Faruk Temel, cited above, § 61).

35. As to the Diyarbakır Assize Court’s finding that the applicant had directed the demonstrators who had chanted slogans in favour of the PKK, waved yellow, red and green pieces of cloth and carried Abdullah Öcalan’s photographs, the Court first observes that the slogans chanted during the applicant’s speech, that is to say, “May those hands which aim to damage peace be broken” and “Long live Öcalan” did not contain any elements of violence or incitement to violence (see Bahçeci and Turan, cited above, § 30). The Court recalls that in its judgment in the case of Yılmaz and Kılıç v. Turkey (no. 68514/01, § 66, 17 July 2008), it found that the slogan “A tooth for a tooth, blood for blood, we are with you Öcalan” had a particularly violent connotation. Likewise, in its judgment in the case of Kılıç and Eren (cited above, § 28), the Court found that the slogan “Rise up again and again, our president is Öcalan”, taken literally, might be construed as having a violent tone. The Court does not find any reason to depart from these considerations in the present case. Nevertheless, those slogans were shouted during a peaceful gathering, which limited their potential impact on “national security” and “public order”, and thus they were not a call to violence (ibid.) or apology of terrorism (compare Taşdemir v. Turkey (dec.), no. 38841/07, 23 February 2010). In any case, there is no evidence in the case file showing that the applicant was the source of the slogans chanted by the demonstrators (see Bülent Kaya v Turkey, no. 52056/08, § 42, 22 October 2013). Nor is it established that he encouraged or instructed the demonstrators to chant slogans (see paragraph 14 above).

36. Having regard to the above, the Court considers that the reasons adduced by the national courts to justify the applicant’s criminal conviction pursuant to section 7(2) of Law no. 3713 were not “relevant and sufficient” for the purposes of Article 10 of the Convention.

37. Lastly, the Court reiterates that the nature and severity of the penalty imposed are also factors to be taken into account when assessing the proportionality of the interference (see Karataş v. Turkey [GC], no. 23168/94, § 53, ECHR 1999-IV). The Court notes the severity of the penalty imposed on the applicant, which was ten months’ imprisonment. The Court is also mindful of the fact that as a result of his conviction the applicant, a politician, lost the right to stand for elections and other political rights, albeit for a limited period of time (see paragraph 20 above) (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV).

38. In the light of the foregoing, and having regard to the interpretation of section 7(2) of Law no. 3713 by the national courts, the Court concludes that the interference in question was not “necessary in a democratic society” (see Faruk Temel, cited above, § 64).

There has accordingly been a violation of Article 10 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

39. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

40. The applicant claimed 50,000 Turkish liras (TRY) (approximately 17,830 euros (EUR)) in respect of non-pecuniary damage. He also claimed pecuniary damage without specifying an amount.

41. The Government contested the applicant’s claims as excessive and undocumented.

42. The Court rejects the applicant’s unsubstantiated claim for pecuniary damages. On the other hand, it awards the applicant EUR 5,000 in respect of non-pecuniary damage.

B. Costs and expenses

43. The applicant also claimed TRY 4,000 (approximately EUR 1,425) for lawyers’ fees incurred before the domestic courts, TRY 7,500 (approximately EUR 2,675) for those incurred before the Court and TRY 1,500 (approximately EUR 535) for expenses such as photocopying, telephone, fax and postage incurred before the Court. In support of his claim, the applicant submitted a document showing that his legal representatives had carried out thirteen hours and thirty minutes’ legal work on the application to the Court.

44. The Government contested the applicant’s claims, submitting that the amounts requested were unsubstantiated and not supported by adequate documentary evidence.

45. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 1,000 for the proceedings before the Court.

C. Default interest

46. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 10 of the Convention;

3. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 6 December 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Julia Laffranque
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> BELGE v. TURKEY - 50171/09 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2016] ECHR 1071 (06 December 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/1071.html Cite as: ECLI:CE:ECHR:2016:1206JUD005017109, CE:ECHR:2016:1206JUD005017109, [2016] ECHR 1071