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- Year: 2010
- Language: English
- Document Type: International Court Case
- Topic: Assembly and Protest,Defending Civil Society
CASE OF GÜL AND OTHERS v. TURKEY
(Application no. 4870/02)
8 June 2010
This judgment has become final under Article 44 § 2 of the Convention. It
may be subject to editorial revision.
GÜL AND OTHERS v. TURKEY JUDGMENT 1
In the case of Gül and Others v. Turkey ,
The European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Françoise Tulkens , President,
Ireneu Cabral Barreto ,
Danutė Jočienė ,
Dragoljub Popović ,
András Sajó ,
Nona Tsotsoria ,
Işıl Karakaş , judges,
and Sally Dollé , Section Registrar ,
Having deliberated in private on 4 May 2010 ,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 4870/02) 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 four Turkish nationals, Mr Ercan Gül , Mr Deniz
Kahraman, Ms Zehra Delikurt and Mr Erkan Arslanbenzer (“the
applicant s”), on 5 Novemb er 2001.
2. The applicants were represented by Ms F. Kalayc ı, a lawyer practising
in A nkara . The Turkish Government (“the Government”) were represented
by th eir Agent.
3. On 11 December 2007 the Court declared the application partly
inadmissible and decided to communicate to the Government the complaint s
concerning the lack of legal assistance to the applicants during their police
custody and the interference with their right to freedom of ex pression and
assembly . It also decided to examine the merits of the application at the
same time as its admissibility (Article 29 § 3).
4. The applicants were born in 1966 , 1977, 1979 and 1965 respectively.
5. On 30 November 1999 the applicants were arrested by police officers
from the Anti -Terrorist Branch of the Ankara Police Headquarters. On the
same day the applicants ‘ representatives applied to the principal public
prosecutor ‘s office at the A nkara State Security Court seeking information
about the applicants ‘ arrest and the duration of their custody , as well as
authorisation to provide them with legal assistance during their questioning
by the police. The principal public prosecutor informed t hem that , under
2 GÜL AND OTHERS v. TURKEY JUDGMENT
section 16 of Law no. 2845 and sections 30 and 31 of Law no. 3842, the
applicants were not entitled to receive legal assistance during their police
6. On 3 December 1999 the applicants were brought before a public
prosecutor at the Ankara State Security Court and questioned about their
alleged affiliation with the Turkish Communist Party /Marxist -Leninist –
Turkish Workers and Peasants ‘ Liberation Army – Marxist -Leninist Yo uth
Union of Turkey (“the TKP/ML -TIKKO -TMLGB”), an armed , illegal
organisation. Before the public prosecutor, Mr Ercan Gül stated that he was
not a member of the organisation in question. He maintained that the
periodicals found in his apartment were legal publications and that the
poster allegedly found there did not belong to him. He had therefore refused
to sign the arrest and search report. The applicant further stated that he was
one of the founders and directors of the Tüm Maliye -Sen ( Tüm Maliye
Çalış anları Sendikası – the Financial Sector Trade Union ) and that,
consequently, as a member of this trade union, he had participated in several
demonstrations, such as the one on May Day and demonstrations to
commemorate the 1993 Sivas M assacre . Mr Ercan Gül lastly contended that
he had never shouted slogans in support of the TKP/ML -TIKKO -TMLGB.
7. Mr Erkan Aslanbenzer stated before the public prosecutor that he was
not a member of the organisation in question. He maintained that the
periodicals found in his apartment were legal publications and not
propaganda tool s for the TKP/ML -TIKKO -TMLGB. He further contended
that he was a member of the Confederation of Public Employees ‘ Trade
Unions (“KESK”) and that he had participated in several demonstrations.
When the applicant was shown a photograph, allegedly of him at a
demonstration behind a banner bearing the name Partizan , a periodical, he
maintained that the person in the photograph could not have been him.
Lastly, he stated that he did not remember whether on 2 July 1998 he had
participated in the demonstration to commemorate the 1993 Sivas Massacre.
8. Mr Deniz Kahraman maintained that he had no affiliation with the
TKP/ML. He said that he had taken part in the May Day Workers
demonstration in 1997 and in the demonstration of 2 July 1998. When the
applicant was shown a photograph allegedly of him at a demonstration
behind a Partizan banner, he maintained that the person in the photog raph
was not him.
9. Finally, Ms Zehra Delikurt stated that she was not a member of the
TKP/ML -TIKKO -TMLGB. She denied the allegation that she had written
slogans in favour of the TKP/ML -TIKKO on the walls of schools in
Ankara. Whe n she was shown a photograph in which she was allegedly
carrying a picture of the general secretary of the TKP/ML -TIKKO,
Ms Zehra Delikurt contended that she had participated in the demonstration
of 2 July 1998 and that she did not know the person in the p icture.
10 . On the same day the applicants were brought before a single judge at
the Ankara State Security Court , where they repeated their statements made
GÜL AND OTHERS v. TURKEY JUDGMENT 3
to the public prosecutor. The judge ordered Ms Delikurt ‘s detention and the
other applicants ‘ release.
11 . On 21 December 1999 the public prosecutor at the Ankara State
Security Court filed a bill of indictment against ten persons, including the
applicants. The public prosecutor charged Ms Zehra Delikurt with
membership of an illegal organisation and the other applicants with aiding
and abetting members of an illegal organisation , under Articles 168 and 169
of the former Criminal Code respectively. The public prosecutor alleged
that Ms Zehra Delikurt had s houted slogans in support of the TKP/ML –
TIKKO during the May Day demonstrations in 1997 and 1999 as well as the
demonstration of 2 July 1998 , where she had been behind the Partizan
banner and carried a poster of the general secretary of the TKP/ML -TIKKO.
It was alleged that during the said demonstrations Ms Delikurt had shouted:
“Biz işçinin, köylünün yiğit sesiyiz, namluya sürülmüş halk mermisiyiz
(We are the brave voice of the workers and peasants ; we are the public ‘s
bullet lodged in the b arrel of a gu n)”; “ Marks, Lenin, Mao, Önderimiz IBO,
Savaşıyor Tikko (Marx, Lenin, Mao, our leader is Ibo ; TIKKO is fighting )”.
It was also alleged that s he had written TKP/ML -TIKKO slogans on
school walls in Ankara , such as “TKP -ML TIKKO”, “ IBO yaşıyor, TIKKO
savaşıyo r (IBO is alive, TIKKO is fighting )”; “ Yaşasın partimiz TKP -ML
TIKKO (Long live our party TKP -ML, TIKKO)”; “ Gerillalar ölmez,
yaşasın halk savaşı (Guerrillas don ‘t die ; long live the people ‘s war )”; “ Parti
ve devrim şehitleri ölümsüzdür (the martyrs of the party and revolution are
immortal )”; “ TKP -ML TIKKO işçi köylü elele demokratik devrime (TKP –
ML, TIKKO, workers and peasants hand in hand, towards democratic
revolution)” . The applicant was also alleged to have participated in seminars
held in cultural cen tres and in the headquarters of a left -wing political party
and a trade union. Furthermore, t he applicant was suspected of having sold
the periodical Özgür Gelecek .
12 . As regards Mr Ercan Gül, the public prosecutor noted that he had
participated in the May Day demonstration of 1997 , where slogans in
support of the TKP/ML -TIKKO had been shouted , such as “ Liderimiz
Ibrahim Kaypakkaya (Our leader is Ibrahim Kaypakkaya)” ; “Yaşasın Halkın
Adaleti (Long live the people ‘s justice) ”; “Yaş asın parimiz TKP -ML (Long
live our party TKP -ML) ”; “ İktidar namlunun ucundadır (Political power
grows out of the barrel of the gun)”; “ Marks Lenin Mao önderimiz Ibo,
Savaşıyor TIKKO (Marx, Lenin, Mao, Our leader is IBO ; TIKKO is
fighting)”; “ Biz işçinin, k öylünün yiğit sesiyiz, namluya sürülmüş halk
mermisiyiz (We are the brave voice of the workers and peasants ; we are the
public ‘s bullet lodged in the barrel of a gun)”; “ Liderimiz İbrahim
Kaypakkaya, işçi, köylü, gençlik halk savaşında birleştik (Our leade r is
İbrahim Kaypakkaya ; workers, peasants and youth, we are all united in the
people ‘s war )”. The public prosecutor alleged that Mr Ercan Gül had also
shouted illegal slogans in the demonstration of 1999. Furthermore, it was
noted that some periodicals, a picture of a member of the TKP/ML -TIKKO
and a book had been found in his apartment.
4 GÜL AND OTHERS v. TURKEY JUDGMENT
13 . The public prosecutor alleged that Mr Erkan Arslanbenzer had
participated in the May Day demonstrations of 1 996 and 1997, the Newro z
celebrations in 1998 and the demonstrations of 1997 and 1998 to
commemorate the Sivas Massacre , where he had shouted slogans in favour
of the TKP/ML -TIKKO , such as “ Yaşasın partimiz TKP/ML (Long live our
party TKP -ML)”; “ Faşizme is yan, halka önder partisan (Revolt against
fascism ; the leader is Partizan) ”; “İktidar namlunun ucundadır (Political
power grows out of the barrel of the gun)”; “ Umudun adı TKP -ML (TKP –
ML is our hope) ”; “Biz işçinin, köylünün yiğit sesiyiz, namluya sürülmüş
halk mermisiyiz (We are the brave voice of the workers and peasants ; we are
the public ‘s bullet lodged in the barrel of a gun)”; “ Kızılordu, TIKKO
TMLGB (Red Army, TIKKO, TMLGB )”; “ Faşist devlet, yıkacağız elbet
(Fascist State will surely be demolished )”; “Bizde hesapları namlular sorar
(It is the barrel of the gun that will call to account )”. He further noted that
periodicals and books in support of that organisation had been found in the
applicant ‘s apartment.
14 . Finally, the public prosecutor stated that Mr Deniz Kahraman had
taken part in the May Day demonstrations of 1997 and 1998 and the
demonstration of 2 July 1998 , where he had shouted TKP/ML -TIKKO
slogans including “ Faşisme isyan, halka önder Partizan (Re volt against
fascism ; the leader is Partizan)”; “ Yaşasın parimiz TKP -ML (Long live our
party TKP -ML)”; “ Biz işçinin, köylünün yiğit sesiyiz, namluya sürülmüş
halk mermisiyiz (We are the brave voice of the workers and peasants ; we are
the public ‘s bullet lo dged in the barrel of a gun)”; “işçi, köylü, gençlik halk
savaşında birleştik (workers, peasants and youth, we are all united in the
people ‘s war)”; “ Bizde hesapları namlular sorar (It is the barrel of the gun
that will call to account )”. The public prosec utor also noted that certain
periodicals had been found in the applicant ‘s apartment.
15 . On 26 January 2000 the Ankara State Security Court held the first
hearing on the merits of the case and heard the accused. The applicants
rei terated their statements made before the public prosecutor and the single
judge on 3 December 1999 and retracted their statements taken by the
police. On the same day, the first -instance court ordered
Ms Zehra Delikurt ‘s release from prison.
16 . The Ankara State Security Court held eight hearings and on
9 August 2000 gave its judgment. The court convicted the applicants under
Article 169 of the former Criminal Code, which read as follows at the
“Any person who, knowin g that such an armed gang or organisation is illegal,
assists it, harbours its members, provides it with food, weapons and ammunition or
clothes or facilitates its operations in any manner whatsoever shall be sentenced to not
less than three and not more t han five years ‘ imprisonment …”
17 . The first -instance court sentenced the applicants to three years and
nine months ‘ imprisonment. It found it established that the applicants had
participated in the demonstrations behind TKP/ML -TIKKO banners and
shouted slogans in support of th at illegal organisation . The court based its
GÜL AND OTHERS v. TURKEY JUDGMENT 5
judgment on the transcriptions of video recordings of demonstrations made
by the Anti -Terrorist Branch of the Ankara Police Headquarters,
photographs taken by th e security forces and the applicants ‘ “evasive”
statements made to the police, the public prosecutor and the single judge at
the Ankara State Security Court , as well as the arrest and search reports ,
according to which periodicals used as propaganda tools for the TKP/ML –
TIKKO had been found in the applicants ‘ apartments. The court also noted
that some of the periodicals were illegal as the distribution of certain issues
had been suspended by court decision s.
18 . On 16 April 2001 the Court of Cassation upheld the judgment of
9 August 2000.
19 . Following the enactment of L aw no. 4963 , which came into force
on 7 August 2003, the phrase “or facilitates its operations in any manner
whatsoever” was removed from the text of Article 169 of the former
20 . Subsequently, the case against the applicants was reopened at the
request of both the applicants ‘ representative and the public prosecutor at the
Ankara State Security Court.
21 . On an unspecified date Ms Zehra Delikurt filed a request with the
Ankara State Security Court to benefit from the Reintegration of Offenders
into Society Act (Law no. 4959) , which came into force o n 6 August 2003.
22 . In the meantime, on 29 April 2004 Ms Zehra Delikurt started serving
her prison sentence.
23 . By Law no. 5190 of 16 June 2004, published in the Official Gazette
on 30 June 2004, State Security Courts wer e abolished. The case against the
applicants was transferred to the Ankara Assize Court.
24 . On 21 July 2004 the Ankara Assize Court delivered its judgment. It
allowed Ms Zehra Delikurt ‘s request and decided not to convict her , in
conformity with section 4 of Law no. 4959. As a result, she was released
from prison. As regards the other applicants, the Assize Court held that ,
following the amendment to Article 169 of the former Criminal Code, the
acts committed by them could not be c onsidered to constitute the offence
defined in that provision. The court nevertheless found Mr Ercan Gül,
Mr Erkan Arslanbenzer and Mr Deniz Kahraman guilty of disseminating
propaganda related to an illegal armed organisation through incitement to
use violent methods , an offence proscribed by section 7 § 2 of the
Prevention of Terrorism Act . It sentenced them to ten months ‘
25 . Mr Ercan Gül and Mr Erkan Arslanbenzer appealed.
26 . On 26 February 2006 the principal public prosecutor at the Court of
Cassation sent the case file back to the Ankara Assize Court for the
reconsider ation of its judgment of 21 July 2004 since , in the meantime , a
new Criminal Code had entered into force (Law no. 5237).
27 . On 15 December 2006 the Ankara Assize Court once again
convicted Mr Ercan Gül and Mr Erkan Arslanbenzer under section 7 § 2 of
the Prevention of Terrorism Act of disseminating the propaganda of an
6 GÜL AND OTHERS v. TURKEY JUDGMENT
illegal armed orga nisation through incitement to use violent methods , and
sentenced them to ten months ‘ imprisonment.
28 . Mr Ercan Gül and Mr Erkan Arslanbenzer appealed. According to
the latest information in the case file, the proceedings are still pending
before the Court of Cassation.
II. RELEVANT DOMESTIC LAW
29 . The relevant provision of the former Criminal Code read s as follows:
“Any person who, knowing that such an armed gang or organisation is ille gal,
assists it, harbours its members, provides it with food, weapons and ammunition or
clothes or facilitates its operations in any manner whatsoever , shall be sentenced to
not less than three and not more than five years ‘ imprisonment …”
30 . Under Section 7 § 2 of the Prevention of Terrorism Act (Law no.
3713 of 12 April 1991), any person who disseminates propaganda in favour
of a terrorist organisation shall be liable to a term of imprisonment of one to
31 . Finally, Law no. 4959 on the R eintegration of Offenders into Society
Act applies to members of terrorist organisations who surrender to the
authorities without armed resistance, either directly, on their own initiative,
or through intermed iaries, those who can be considered to have left a
terrorist organisation, and those who have been arrested . The law also
applies to those who , despite being aware of the aims pursued by the
terrorist organisation, provided shelter, food, weapons, ammuniti on or any
other kind of assistance. An important feature of the rehabilitation law is
that it provides the possibility of reducing the sentences of those who wish
to take advantage of the law by providing relevant information and
documents on the structure and activities of the terrorist organisation.
I. ALLEGED VIOLATION OF ARTICLE S 10 and 11 OF THE
32 . The applicants complained that their conviction and sentence
constituted a breach of Articles 10 and 11 of the Convention since the first –
instance court had convicted them for reading certain periodicals,
participating in demonstratio ns and shouting slogans. Two of the applicants
Mr Ercan Gul and Mr Erkan Arslanbenzer , further submitted in this
GÜL AND OTHERS v. TURKEY JUDGMENT 7
connection under Ar ticle 11 that the Ankara Assize Court had failed to take
into consideration the fact that they had participated in several
demonstrations within the context of their trade union duties.
33 . The Government maintained that the applic ants were not tried and
convicted for having expressed their opinions or for having participated in a
meeting, but for having aid ed and abett ed an illegal organisation, pursuant
to Article 169 of the Criminal Code.
34 . The Court co nsiders that the applicants ‘ complaints should be
examined solely under Article 10 of the Convention (see, Karademirci and
Others v. Turkey , nos. 37096/97 and 37101/97, § 26, ECHR 2005 -I). It
notes that this complaint is not manifestly ill -founded within t he meaning of
Article 35 § 3 of the Convention . Nor is it inadmissible on any other
grounds. It must therefore be declared admissible.
35 . Turning to the particular circumstances of the case, the Court notes
that criminal proceedings were initiated against the applicants based on the
fact that they had shouted slogans in support of an armed , illegal
organisation. Although all four of the a pplicants were convicted as charged
and each was sentenced to three years and six months ‘ imprisonment,
following recent amendments in the criminal law system the proceedings
were reopened and are still pending in respect of two of the applicants,
Mr Ercan Gül and Mr Erkan Arslanbenzer. As a result, although there is no
final conviction in respect of two of the applicants, having regard to the fact
that all of the applicants were found guilty under Article 169 of the former
Criminal Code and that the crimin al proceedings which were initially
commenced in 1999 have not yet been terminated, there has been an
interference with the applicants ‘ right to freedom of expression. The Court
further notes that the interference was prescribed by law, namely Article
169 of the former Criminal Code and Section 7 § 2 of the Prevention of
Terrorism Act on disseminating the propaganda of an illegal , armed
organisation through incitement to use violent methods. As to the legitimacy
of the aims pursued, the Court observes that the authorities sought to protect
national security and public order. It therefore remains to be determined
whether the interference complained of was “necessary in a democratic
36 . The Court has frequently held that “nec essary” implies the existence
of a “pressing social need” and that the Contracting States have a certain
margin of appreciation in assessing whether such a need exists, but that this
goes hand in hand with a European supervision (see Zana v. Turkey ,
25 Nov ember 1997, § 51 , Reports of Judgments and Decisions 1997 -VII ).
37 . In exercising its supervisory jurisdiction, the Court must look at the
impugned interference in the light of the case as a whole . In particular, it
must determine whether the interference in question was “proportionate to
the legitimate aims pursued” and whether the reasons adduced by the
national authorities to justify it are “relevant and sufficient” (see, among
other authorities, Fressoz and Roire v. France [GC], no. 29183/95, ECHR
1999 -I). Furthermore, the nature and severity of the penalties imposed are
8 GÜL AND OTHERS v. TURKEY JUDGMENT
also factors to be taken into account when assessing the proportionality of
the interference (see, Yarar v. Turkey , no. 57258/00, § 41, 19 Decemb er
38 . The Court considers that the above -mentioned principles also apply
to measures taken by domestic authorities to maintain national security and
public safety as part of the fight against terrorism. In this connection, it
must, with due regard to the circums tances of each case and the State ‘s
margin of appreciation, ascertain whether a fair balance has been struck
between the individual ‘s fundamental right to freedom of expression and a
democratic society ‘s legitimate right to protect itself against the activ ities of
terrorist organisations (see Zana , cited above, § 55).
39 . At this point, the Court recalls that it has examined complaints
relating to similar issues to those in the present case and found a violation of
Article 10 of the Convention (see, Yılmaz and Kılıç v. Turkey , no. 68514/01,
§§ 48 -69 , 17 July 2008 ; Bahçeci and Turan v. Turkey , no. 33340/03, §§ 24 –
34, 1 6 June 2009 ; Kızılyaprak v. Turkey , n o. 27528/95, § 43, 2 O ctob er
2003 ; Feridun Yazar v. Turkey , n o. 42713/98, §§ 23 -29, 23 Septemb er
40 . In the instant case, there is no dispute between the parties that the
applicants shouted the slogans in question during lawful demonstrations that
were held on May Day 1997 and 1998 , and on 2 July 199 8 in
commemoration of the Sivas massacre. There is also no indication in the
case file that these demonstrations were not peaceful or that the
demonstrators engaged in acts of violence.
41 . The Court observes that , taken literally, some of the s logans shouted
(such as “Political power grows out of the barrel of the gun”, “It is the barrel
of the gun that will call into account”) had a violent tone (see paragraphs
11 -14 above). Nevertheless, having regard to the fact that these are w ell –
known, stereotyped leftist slogans and that they were shouted during l awful
demonstrations – which limited their potential impact on “national security”
and “public order” – they cannot be interpreted as a call for violence or an
uprising. The Court stresses, however, that whilst this assessment should not
be taken as an approv al of the tone of the se slogans , it must be recalled that
Article 10 protects not only the substance of the ideas and information
expressed , but also the form in which the y are conveyed (see, Karataş v.
Turkey [GC], no. 23168/94, § 49 , ECHR 19 99 -IV) . The Court also reiterates
that , according to its well -established case -law, paragraph 2 of Article 10, is
applicable not only to “information” or “ideas” which are favourably
received or regarded as inoffensive or as a matter of indifference, but also to
those that offend, shock or disturb. Such are the demands of pluralism,
tolerance and broadmindedness , without which there is no “democratic
society” (see, Sürek and Özdemir v. Turkey [GC], nos. 23927/94 and
24277/94, § 57, 8 July 1999) .
42 . The Court observes that , by shouting these slogans, the applicants
did not advocate violence, injury or harm to any person. Furthermore,
neither in the domestic court decisions nor in the observations of the
GÜL AND OTHERS v. TURKEY JUDGMENT 9
Government is there any indication that there was a clear and imminent
danger which required an interference such a s the lengthy criminal
prosecution faced by the applicants.
43 . The Court further notes that the present application is distinguishable
on its facts and context from the case of Taşdemir v . Turkey ((dec.),
38841/07, 23 February 2010). In th e latter case, the slogan shouted by the
applicant had clearly amounted to an apology f or terrorism and ,
furthermore , at the end of the proceedings , he was sentenced to twenty -five
days ‘ imprisonment. In that connection, the Court reiterates that the nature
and severity of the penalties imposed are also factors to be taken into
account when assessing the proportionality of an interference with freedom
of expression (see Yarar v. Turkey , no. 57258/00, § 41, 19 December 2006 ).
In the instant case the Court notes that although , following recent
amendments in domestic legislation , the criminal proceedings against the
applicants were re -opened, initially all of the applicants had been sentenced
to three years and nine months ‘ imprisonment . However, the Court finds that
this sentence and the lengthy criminal proceedings were dis proportionate
(see, mutatis mutandis, Koç and Tambaş v. Turkey , no. 50934/99, § 39 , 21
M arch 2006).
44 . In view of the above findings , the Court is of the view that the
applicants ‘ conduct cannot be considered to have had an impact on “national
security ” or “public order ” by way of encourag ing the use of violence or
incit ing others to armed resistance or rebellion, which are essential element s
to be taken into account (see, a contrario, Sürek v. Turkey (no. 1) [GC], no.
26682/95, § 62 , ECHR 1999 -IV ).
45 . Having regard to the above considerations, the Court con cludes that ,
in the circumstances of the present case, the interference in question was not
“necessary in a democratic society”. Accordingly, there has been a violation
of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
46 . The applicants alleged under Article 6 of the Convention that they
were deprived of legal assistance during their police custody.
47 . The Government argued that , in respect of Mr Deniz Kahraman , this
co mplaint should be rejected for non -exhaustion of domestic remedies as he
had failed to file an appeal against the decision of the Ankara Assize Court
dated 21 July 2004. The Government further maintained that Ms Zehra
Delikurt could not be considered as a victim since she ha d benefit ed from
Law no. 4959.
48 . The Court observes that it is not required to decide on the
preliminary objections of the Government for the reason s set out below. It
also notes that these complaint s are linke d to th at examined above and must
therefore , likewise , be declared admissible.
49 . However, ha ving regard to the facts of the case, the submissions of
the parties and its finding of a violation of Article 10 of the Convention
10 GÜL AND OTHERS v. TURKEY JUDGMENT
above (paragraph s 40 -45), the Court considers that it has examined the main
legal question raised in the present application . It concludes that , in the
special circumstances of the present case , there is no need to make a
separate ruling on the applicants ‘ remaining complaints under this provision
(see, Böke and Kandemir v. Turkey , nos. 71912/01, 26968/02 and 36397/03,
§ 73 , 10 March 2009 ; Yalçın Küçük v. Turkey (no. 3), no. 71353/01, § 40,
22 April 2008).
III . APPLICATION OF ARTICLE 41 OF THE CONVENTION
50 . The applicants claimed the following sums in respect of pecuniary
and non -pecuniary compensation:
– Mr Ercan Gül : 37,000 euros (EUR) for pecuniary damage and
EUR 20,000 for non -pecuniary damage ;
– Mr Deniz Kahraman: EUR 10,0 00 for pecuniary damage and
EUR 20,000 for non -pecuniary damage ;
– Ms Zehra Delikurt: EUR 10,000 for non -pecuniary damage ;
– Mr Erkan Arslanbenzer: EUR 20,000 for pecuniary damage and
EUR 20,000 for non -pecuniary damage.
They further requested a total of E UR 3,600 in respect of costs and
expenses , without submitting any pertinent documentation in support of this
51 . The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it the refore rejects th is claim.
However, ruling on an equitable basis, it awards the applicants EUR 3,000
each in respect of non -pecuniary damage.
52 . As regards costs and expenses, a ccording to the Court ‘s case -law an
applicant is ent itled 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, the
applicant s have not established that they actually incurr ed the costs claimed.
Accordingly, the Court makes no award under this head.
53 . The Court considers it appropriate that the default interest 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
1. Declares by a majority the application in respect of Mr Deniz Kahraman
2. Declares unanimously the remainder of the application admissible;
GÜL AND OTHERS v. TURKEY JUDGMENT 11
3. Holds by 5 votes to 2 that there h as been a violation of Article 10 of the
4. Holds unanimously that there is no need to examine separately the
complaint under Article 6 of the Convention;
5. Holds by 5 votes to 2
(a) that the respondent State is to pay each o f the applicants, within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 3,000 (three
thousand euros ), plus any tax that may be chargeable, in respect of non –
pecuniary damage, to be co nverted into Turkish liras at the rate
applicable at the date of settlement;
(b) that from the expiry of the above -mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;
6. Dismisses unanimously the remainder of the applicants ‘ claim for just
Done in English, and notified in writing on 8 June 2010 , pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise T ulkens
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of Court, the separate opinion of Judge s A. Sajó and N. Tsotsoria
is annexed to this judgment .
12 GÜL AND OTHERS v. TURKEY JUDGMENT – SEPARATE OPINION
DISSENTING OPINION OF JUDGES SAJÓ AND
We agree with the majority that in cases where violence, injury or harm
to any person is advocated, the danger of such consequences has to be clear
and imminent (see paragraph 42 of the judgment). However, the issue in
this case cannot be limited to the simple advocacy of violence. The
applicants were found guilty of disseminat ing propaganda for an illegal,
armed organisation, by way of incitement to use violent methods.
Specifically, during a lawful demonstration commemorating the Sivas
Massacre, they shouted slogans in favour of an armed, illegal organisation,
adding that “It is the barrel of the gun that will call to account!”, “Political
power grows out of the barrel of the gun” and “We are the public ‘s bullet
lodged in the barrel of a gun”) . Such sentences, printed in a pamphlet would
not amount, per se , to a clear and imminent danger, as they are unspecific.
However, supporting an illegal, armed organization at a mass demonstration
with slogans which have “a violent tone” (see paragraph 41 of the judgment)
is a different matter and may amount to support for the violence used by
such organisations. In terms of clear and imminent danger, the risk of that
danger materialising is significantly increased, given the ongoing terrorist
activity. In this context it is irrelevant, in our view, that the demonstrati on
commemorating the massacres was lawful: unlawful acts may be committed
at a lawfully convened demonstration too. Vice versa, support of an illegal,
armed organisation at an illegal meeting may be protected (see Yılmaz and
Kılıç v. Turkey , no. 68514/01, 17 July 2008 ).
The majority are of the view that the case can be distinguished from
Tasdemir v. Turkey ((dec.), no. 38841/07, 23 February 2010). According to
the present judgment the slogan shouted in Tasdemir “had clearly amounted
to an apology for terrorism” (see paragraph 43 of the judgment) and, a
contrario , it does not in the present case. The majorit y does not explain the
difference and we cannot see it. In both cases the slogan uttered at a
demonstration was in support of a terrorist group and the language is clearly
similar (“to the front line in retaliation” compared to “the barrel of the gun
… will call to account.”). Of course, the impact of such statements is
contextual and the domestic courts are in a better situation to evaluate them
in the given circumstances. In both cases the original conviction was serious
(the domestic courts took into c onsideration other factors of culpability too).
In the present case, however, the original conviction was reduced to ten
months ‘ imprisonment and the appeal is still pending. With the exception of
Ms Zehra Delikurt, none of the applicants was imprisoned. M s Zehra
Delikurt chose to benefit from the Reintegration of Offenders into Society
GÜL AND OTHERS v. TURKEY JUDGMENT – SEPARATE OPINION 13
Act, after serving nearly three months in prison (see paragraphs 21 -24
The second reason given for distinguishing this case is that in Tasdemir
the applicant was se ntenced to twenty five days ‘ imprisonment, commuted
to a fine of TRY 500. In the present case, however, according to the
majority, the applicants were sentenced to three years and nine months ‘
We accept that the length of the criminal proced ure in itself might be
disproportionate to the goal of the limitations authorised by Article 10.
However, the proportionality of the sanctions applied is to be considered in
the light of the actual impact which the expression has on the protected
interest. In the present case the slogans supported the continued use of
violence by an armed, illegal organisation. The applicants identified
themselves with the violent means used by that organisation. Such
identification may amount to the glorification of violen t destruction and an
expression of moral support ( Leroy v. France , no. 36109/03, § 43,
2 October 2008). Without taking a position on the specific application of the
above consideration in other cases, we do not believe that moral support for
terrorism per se deprives an expression of the protection of Article 10. It is
possible, for example, that someone agrees with certain terrorists about an
alleged injustice, which the terrorists claim to be the reason of their fight.
Such agreement on matters of injusti ce is indirect support only, and does not
amount, per se , to the support of terrorist methods. However, in the present
case the moral support is expressly and without ambiguity related to the
violent means of the illegal movement in a situation where the p eople
present may not have had the benefit of an ulterior exchange of ideas.
Moreover the impact of such support given to the illegal, armed group has
to be seen in the context of the tensions of the late nineties in Turkey when
the likelihood of violent r eactions was considerable (for the relevance of
local circumstances see Falakaoglou and Sayagli v. Turkey , nos. 22147/02
and 24972/03, 23 January 2007; Leroy , cited above, § 45.)
In view of the nature of the speech, the legitimate interests of the
prevent ion of terrorist crime and the protection of public security, we are of
the opinion that the limitation of the right resulting from the lengthy
criminal procedure was not manifestly disproportionate in the circumstances
of the present case. For the above r easons we respectfully dissent.
Finally, as to the applicant Mr Deniz Kahraman, we find his application
inadmissible. According to the Government he never appealed agai nst the
Ankara Assize Court judgment. The applicant ‘s lawyer conceded this fact,
whilst acknowledging that his client, fearing imprisonment, had left Turkey
and the lawyer no longer had contact with him. However, his lawyer
continued to have his power of a ttorne y but failed to pursue domestic
14 GÜL AND OTHERS v. TURKEY JUDGMENT – SEPARATE OPINION
remedies on his client ‘s behalf. The majority is silent on the matter except
that, in regard to the alleged violation of Article 6, it is stated that the Court
is not required to decide on the preliminary objections of the Government
because the main legal question in the case had been examined under
Article 10 of the Convention (paragraphs 45 -46 of the judgment). However,
we note that the Government ‘s preliminary objection had also been made in
the context of Article 1 0 and, in our opinion, it necessitated a favourable