Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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In June 2000, a number of trade unions held a demonstration in Istanbul, Turkey with some protesters carrying signs and chanting slogans in support of Abdullah Öcalan, the leader of Kurdistan Workers’ Party (PKK), which has been designated as an illegal armed organization in Turkey. Subsequently, the police searched offices of the People’s Democracy Party for incriminating evidence concerning the PKK. The search of Eminönü district branch of the party led to the discovery of flags and symbols of the PKK with pictures, articles, and books pertaining to Öcalan. The district branch’s director, Müdür Duman, was then taken to the Istanbul police headquarters for questioning. Subsequently, the Istanbul public prosecutor indicted Duman with praising and condoning acts punishable by law under Article 312 § 1 of the former Criminal Code. The Istanbul Criminal Court convicted Duman in absentia and sentenced him to six months imprisonment and a fine of 91,260,000 old Turkish liras.
In January 2003, Duman brought an application in the European Court of Human Rights against Turkey. Among other grounds, he alleged that his conviction and imprisonment violated his right to freedom of expression under Article 10 of the European Convention on Human Rights. The Court found that Duman’s mere possession of the materials pertaining to the PKK could not reasonably amount to the offense of praising and condoning under Article 312 § 1 of the former Criminal Code. It also found that the domestic courts of Turkey failed to assess the proportionality the criminal conviction and imprisonment to the nature of his conduct and to balance the interference with his right to freedom of expression.
On June 24, 2000, during a demonstration organized by trade unions in Istanbul, some members the People’s Democracy Party carried signs and chanted slogans in support of Abdullah Öcalan, the leader of the PKK, a designated illegal armed group.
On June 26, 2000, Istanbul police searched Eminönü district office of People’s Democracy Party, directed by Müdür Duman. The police found illegal publications, flags and symbols of the PKK, as well as pictures, articles, and books retaining to Öcalan.
During his interrogation at the Istanbul police headquarters, Duman stated, inter alia, that he had not been aware of the materials in the office. He also denied any knowledge of the publications and books which, according to him, had been brought in by publishers and others visitors. He insisted that he had consistently requested his staff to remove any material pertaining to the PKK.
On June 30, 2000, the Istanbul public prosecutor indicted Duman for praising and condoning acts punishable by law under Article 312 § 1 of the former Criminal Code. On June 15, 2001, the Istanbul Criminal Court convicted Duman in absentia and sentenced him to a six months imprisonment and a fine amounting of 91,260,000 old Turkish Liras.
He then appealed the judgment to the Court of Cassation, arguing that he was not informed of his right to legal counsel during the interrogation and that his conviction should be dismissed because he was not present at the trial to properly defend himself. Duman argued that he missed the hearing as he was delayed in traffic. On June 5, 2002, the Court of Cessation dismissed the fine, but upheld the prison sentence. After serving more than two months, Duman was released on parole on April 13, 2003.
He then brought an application in the European Court of Human Rights against the Turkey. Among other grounds, he alleged that his criminal conviction and sentence violated his right to freedom of expression protected under Article 10 of the European Convention on Human Rights.
With respect to the alleged violation of Article 10 of the Convention, Turkey argued that its interference with Duman’s right to freedom of expression was justified pursuant to the legitimate aim of maintaining public order and preventing crimes as part of the fight against terrorism as the materials found in Duman’s office indicated the “existence of a link between [him] and the terrorist organisation PKK.”
On the other hand, Duman argued that the government lacked any legitimate interest because the materials at issue did not contain any remarks capable of inciting to violence or rebellion against the government. He further contended that even if the government had a legitimate objective, its interference in the form of imprisonment was not proportional in achieving its aim.
The Court first noted that Article 10 of the Convention “protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed.” [para. 29] It then assessed whether there had been an interference with the exercise of Duman’s right to freedom of expression as he had denied any knowledge of publications and other materials found in the party’s office. The Court answered this question in the affirmative, stating that his criminal conviction “indisputably directed at activities falling within the scope of freedom of expression,” as he denied any knowledge of the materials. [para. 30]
As to whether the interference was “necessary in a democratic society,” the Court noted similar cases where it had ruled that criminal convictions “for praising and condoning acts punishable by law, pertaining to the PKK, went beyond any notion of ‘necessary’ restraint in a democratic society.” Feridun Yazar v. Turkey, App. No. 42713/98 (2004). It further observed that Duman was convicted only on the account of possessing the materials pertaining to the PKK, which led the Turkish domestic courts to conclude that mere possession amounted to the offence of praising and condoning under Article 312 § 1 of the former Criminal Code. The Court ruled that Duman’s conduct could not be construed as supporting the PKK because there was no “indication that the material in question advocated violence, armed resistance or an uprising.” [para. 33] Moreover, the Court found that the domestic courts failed to assess the proportionality of the interference and to balance it against Duman’s right to freedom of expression. In this respect, it noted that his sentence to six months imprisonment was severe.
Accordingly, the Court concluded that the criminal conviction and imprisonment of Duman were not necessary under Article 10 of the Convention and therefore, Turkey was in violation of the Convention.
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