In Üçdağ v Turkey [2021] ECHR 716 [in French], the applicant, a public official working as an imam at a local mosque in the Sur district of Diyarbakır, had been convicted of disseminating propaganda in favour of a terrorist organisation on the basis of two posts published on his Facebook account, and his appeal to the Constitutional Court had been rejected as out of time [1].
The background
It had been alleged that Mr Üçdağ’s Facebook account carried propaganda for the Kurdistan Workers’ Party (the PKK, an illegal armed organisation) so as to legitimise and encourage support for it [5]. In particular, he had shared a photo of two people, dressed like PKK members with weapons, standing in front of destroyed buildings and another one of a crowd demonstrating in a public street in front of a traffic light, accompanied by the comment “If our brothers and sisters in Sur are not at peace, we cannot be at rest. Everyone should share once to react. If there’s nothing you can do, at least let everyone know, please” [6]. In March 2017, he was convicted of the offence as charged and the 5th Assize Court of Diyarbakır gave him a suspended sentence of one year, six months and 22 days’ imprisonment. His appeal was dismissed by the 6th Assize Court of Diyarbakır and became final on 7 April, but because he had not been notified of that decision, his lawyer only found out when he attended the registry of the 5th Assize Court on 14 February 2018 and was handed a copy of the decision [7-10].
On 26 February 2018, Mr Üçdağ lodged an appeal with the Constitutional Court, explaining that he had only obtained notification of the 7 April 2017 decision on 14 February 2018 and presenting the document from the 5th Assize Court registry certifying that the decision had been handed to his lawyer on the later date [11]. The Constitutional Court declared the application inadmissible as being out of time because it had not been lodged within the 30-day time-limit laid down in Law no. 6216 [12].
The arguments
Before the ECtHR, it was argued for Mr Üçdağ that the 5th Assize Court had failed in its obligation to notify him of the final decision in the criminal proceedings and that under Article 35 of the Code of Criminal Procedure, the courts were required to notify a decision to a person who was not present at a hearing. Further, though the 6th Assize Court had noted that its decision had to be notified by the 5th Assize Court, he had never received any such notification [30]. His lawyer, after having waited for the notification of the final decision in good faith and in accordance with the established procedure, had found out about the decision only by making a special effort: therefore, the thirty-day period for lodging his appeal before the Constitutional Court should have started to run from the date on which his lawyer had actually obtained the final decision, not from the date on which the decision had been finalised [31]. The action had created a disproportionate obstacle to his right of access to court – which was the fault of the system rather than of himself or his lawyer [32].
Further, restrictions on freedom of expression had to have a clear, unequivocal and predictable legal basis, and while goals such as crime prevention and law enforcement were legitimate, care had to be taken to ensure that restrictions did not pursue goals other than those provided for in the Convention and were necessary and proportionate [60]. He argued that impugned content on his Facebook page – which related to what he regarded as disproportionate actions by the security forces that violated human rights – had no violent content: one was a photo of people in front of demolished buildings and the other showed a group of people who had lit fires [61].
The dismissal of his appeal had therefore violated his Convention rights under Article 6 (fair trial) and Article 10 (Freedom of expression).
The Turkish Government maintained that the Constitutional Court had been applying its own case-law on the conditions of admissibility of individual appeals. It was for appellants to exercise diligence in taking the necessary steps to seek information from the relevant authorities about the outcome of appeals when final decisions on criminal proceedings are not communicated to them. Because they had not done so in the present case, the thirty-day period provided for in Law No. 6216 for the lodging of individual appeals would then begin to run from the end of the three-month diligence period, unless the contrary had been established [33&34]. In short, Mr Üçdağ and his lawyer had failed to exercise due diligence as required by the jurisprudence of the Constitutional Court [35&36].
As to the complaint under Article 10, there had been no interference with Mr Üçdağ’s freedom of expression. The criminal proceedings had lasted only nine months, preceded by a preliminary investigation of fifteen days, he had not been subjected to any restrictive measures or inconvenience in his daily life apart from three hearings that he attended on his own volition – and instead of a conviction and a criminal record, the judgment had been suspended and that did not entail any negative legal consequences. In short, the impugned criminal proceedings were not such as to create a dissuasive effect [62].
The judgment
As to Article 6, the right of access to a court was not absolute, in particular as regards the conditions of admissibility of an action, and states parties enjoys a certain margin of appreciation in that regard. But those limitations should not restrict the access open to a litigant in such a way or to such an extent that his or her right of access was infringed in its very substance, they and had to pursue a legitimate and proportionate aim [38]. The right of action or recourse had to be exercised from the moment when the interested parties could learn about the judicial decisions affecting them: otherwise, courts and tribunals could, by delaying the notification of their decisions, substantially shorten the time limits for appeals, or even make all appeals impossible [39]. Article 6 did not include a guarantee for the parties to be notified in a particular way, but the way in which the court decision was brought to the attention of a party had to make it possible to verify the delivery of the decision to the party as well as the date of this delivery [40].
It was not for the ECtHR to interpret and apply domestic law in order to decide the question of whether or not the Turkish judicial authorities had been under an obligation to notify the decision or not – but even assuming that the notification had not been provided for in domestic law, the time-limit for lodging an individual appeal was to start to run from the date on which the applicant or his lawyer had actually learned of the content of the decision [44]. In the present case, therefore, by rejecting Mr Üçdağ’s appeal on grounds of delay, the Constitutional Court had shown “excessive formalism” [48] and there had been a violation of Article 6 [50].
As to Article 10, the Court decided that, in view of the dissuasive effect which Mr Üçdağ’s criminal conviction, suspended for five years, might have had on him, there had been an interference with his right to freedom of expression [75]. There is a press release in English, here.
[With thanks to Georg Neureither: though it’s only marginally about “religion”, he thought it worth reporting, so I followed suit.]
