By: Jacob Samoray
Journal of Global Rights and Organizations Associate Article Editor
STRASBOURG, France – In reviewing the sentencing of two Turkish nationals, the European Court of Human Rights (ECHR) found that the convictions violated their Article 10 right to freedom of expression. Baran Durukan and İlknur Birol were sentenced by a domestic court for their prior social media posts. Mirroring the Turkish Constitutional Court’s holding, the ECHR also found that the practice of suspension of the pronouncement of the judgement (SPJ) was unconstitutional, striking it from Section 231 of the Turkish Constitution.
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Durukan was sentenced in 2018 to over a year of imprisonment for a series of posts deemed to be “propaganda in favor of a terrorist organization.” The posts included pictures and statements supporting the Kurdistan Worker’s Party and the People’s Protection Units, both listed by the government as terrorist organizations. Birol was sentenced to a ten-month internment in 2019 for an offensive tweet made in 2015 referring to the Turkish president as a “filthy thief.” Following both proceedings, the domestic court offered to suspend Durukan and Birol’s judgements under Article 231 of the Turkish Code of Criminal Procedure, which would reduce their convictions to three and five years of probation, respectively.
The ECHR, in reviewing the domestic and Constitutional Court’s findings, found that both the sentences and suspension would likely cause a “chilling effect” upon future expression, and so held that they constituted a violation of each applicant’s freedom of expression. Findings by both courts showed a lack of adequate reasoning by lower courts for suspension of judgements, as well as improper consideration of defendants’ arguments. Requests by defendants for the gathering and examination of evidence were also regularly set aside on irrelevant grounds. In addition, the ECHR noted the common practice of asking defendants to consider SPJ at the outset of litigation, likely as a means of pressuring defendants to accept the suspension to avoid a harsher conviction, while encouraging them to implicitly accept guilt for their charges.
The procedure for objecting to SPJ, the only available remedy, was also found to be ineffective, with both the Constitutional Court and the ECHR finding that sentencing courts rarely relied upon sufficient reasoning in upholding suspensions. The Constitutional Court found that neither Article 231 nor any other applicable legal provision could adequately remedy the chilling effect of SPJ, and so struck the offending language of Article 231 as unconstitutional and ordered the legislature to amend the article to eliminate the issue. The Turkish legislature, in following this order, amended the article to require that any reviewing first instance court must review SPJ decisions on the merits of the case. This amendment has been in effect since April 5, 2023.
As part of its judgement, the ECHR has also required the Turkish government to compensate each applicant €2,600 in non-pecuniary damages.
For further information, please see:
ECHR – AFFAIRE DURUKAN ET BİROL c. TÜRKİYE – 03 Oct. 2023
