ECHR Article 10-1
Freedom of expression
Thirteen years’ imprisonment for pouring paint over statues of Ataturk: violation
Facts – The applicant was sentenced to thirteen years’ imprisonment in 2007 after being found guilty of an offence under the Law on Offences Committed against Ataturk (Law no. 5816) for having poured paint on statues of Kemal Ataturk. In accordance with domestic legislation, between the date on which his conviction became final and the official end date of his prison term, the applicant was unable to vote or be a candidate in elections. He was conditionally released from prison in 2013.
Law – Article 10: The action which led to the applicant’s conviction had constituted an expressive act. In the course of the criminal proceedings and before the Court the applicant maintained that his aim had been to express his ‘lack of affection’ for Ataturk and his dissatisfaction with Kemalist ideology and its followers. The domestic courts had not found him guilty of vandalism, but of having insulted the memory of Ataturk. Therefore, through his actions the applicant had exercised his right to freedom of expression, and his conviction, imprisonment and disenfranchisement as a result of that conviction constituted interference with his Article 10 rights. That interference was prescribed by law and pursued the legitimate aim of protecting the reputation or rights of others.
As to whether it had been ‘necessary in a democratic society’, the Court first recalled that Kemal Ataturk had been an iconic figure in Turkey and that the Turkish Parliament had chosen to criminalise certain conduct which it considered insulting to his memory and damaging to the sentiments of Turkish society. However, the Court was struck by the extreme severity of the penalty laid down by domestic law and imposed on the applicant, which was grossly disproportionate to the legitimate aim pursued and therefore not necessary in a democratic society.
Conclusion: violation (unanimously).
Article 3 of Protocol No. 1: As a consequence of his conviction, the applicant had been prevented from voting for a period of over eleven years and so was directly affected by the statutory measure, which had already prevented him from voting on two occasions in parliamentary elections. The Court recalled than in previous cases it had found that the application of disenfranchisement in Turkey was automatic and indiscriminate and thus did not fall within any acceptable margin of appreciation. There was no reason to reach a different conclusion in the applicant’s case.
Conclusion: violation (unanimously).
Article 41: EUR 26,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Soyler v. Turkey, 29411/07, 17 September 2013, Information Note 166; Tatar and Faber v. Hungary, 26005/08 and 26160/08, 12 June 2012, Information Note 153; Hirst v. the United Kingdom (no. 2) [GC], 74025/01, 6 October 2005, Information Note 79; Baskaya and Okcuoglu v. Turkey, 23536/94 and 24408/94, 8 July 1999)
9540/07 – Legal Summary, [2014] ECHR 1283
Bailii
European Convention on Human Rights
Human Rights
Updated: 23 December 2021; Ref: scu.538930
