Prevention of terrorism
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Criminal Code (Law no. 765, repealed on 1 June 2005 ) 30. At the time of the events at issue, Article 169 of the Criminal Code, which is no longer in force, provided: “ Any person who, knowing that an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and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 no less than three and no more than five years ’ heavy imprisonment ...” B. Detention in police custody and judicial review of such detention 31. Section 9(a) of the State Security Courts Act (Law no. 2845), which is no longer in force, provided that the offences under, inter alia, Article 169 of the Criminal Code fell within the exclusive jurisdiction of those courts. 32. At the material time, section 16 provided : “Any person arrested in connection with an offence within the jurisdiction of State Security Courts shall be brought before a judge and questioned within forty-eight hours at the latest, not including the time needed to convey the detainee to the judge. If an offence has been committed jointly by three or more persons, this period may be extended for up to four days by written order of the public prosecutor owing to difficulties in collecting evidence or to the number of perpetrators, or for similar reasons. If the investigation is not concluded within that period, it may be extended for up to seven days at the request of the public prosecutor and by the decision of the judge. The period of seven days referred to in the second paragraph may be extended for up to ten days at the request of the public prosecutor and by the decision of the judge in respect of persons arrested in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution. ...” 33. Article 128 § 4 of the Code of Criminal Procedure (Law no. 1412 repealed on 1 June 2005) in force at the material time provided that any person who was arrested, or whose police custody period was extended on the order of a public prosecutor, was entitled to challenge that measure before the appropriate judge with a view to securing his or her immediate release. The judge had to rule on the matter within twenty-four hours following an examination based on the case file, without holding a hearing. C. Compensation for unlawful detention 34. The relevant domestic law and practice under Law no. 466 on the payment of compensation to persons unlawfully arrested or detained ( “the Unlawful Detention (Compensation) Act”), which is no longer in force, may be found in Adırbelli and Others v. Turkey (no. 20775/03, § 18, 2 December 2008). D. Constitution 35. At the material time the relevant provisions of the Constitution read as follows: Article 3 “ 1. The State of Turkey constitutes with its territory and nation, an indivisible whole. The official language is Turkish.” Article 14 “ 1. The rights and freedoms set out in the Constitution may not be exercised with a view to undermining the territorial integrity of the State, the unity of the nation or the democratic and secular Republic founded on human rights. No provision of this Constitution shall be interpreted in a manner that would grant the State or individuals the right to engage in activities intended to destroy the fundamental rights and freedoms embodied in the Constitution or to restrict them beyond what is permitted by the Constitution. ... ” Article 42 “No one may be deprived of the right to instruction and education. ... “No language other than Turkish shall be taught as a mother tongue to Turkish citizens at any institutions of training or education. Foreign languages to be taught in institutions of training and education and the rules to be followed by schools conducting training and education in a foreign language shall be determined by law. The provisions of international treaties are reserved. ” Article 74 “Citizens and foreigners resident in Turkey, with the condition of observing the principle of reciprocity, have the right to apply in writing to the competent authorities and to the Grand National Assembly of Turkey with regard to requests and complaints concerning themselves or the public.. .” E. Teaching of the Kurdish language 36. At the time of the events in question, domestic law did not provide for the teaching of or in the Kurdish language at any level of education in public or private institutions. On 3 August 2002 the Foreign Language Education and Teaching Act (Law no. 2923 of 14 October 1983) was amended by Law no. 4771 with a view to regulating the principles of education and training of citizens of Turkey in the different languages and dialects traditionally used in daily life. The title of the legislation in question was changed to the “Foreign Language Education and Teaching and the Learning of Different Languages and Dialects used by Turkish Citizens Act ”. 37. On 30 July 2003 an amendment was made to the second sentence of section 2(a) of Law no. 2923 with a view to enabling the opening of private courses for the teaching of the different languages and dialects used by citizens of Turkey. 38. The Regulation on Foreign Language Education and Training was issued on 31 May 2006 by the Ministry of Education in order to regulate the principles of teaching foreign languages at the public and private schools affiliated to the Ministry. Moreover, by decisions dated 25 June 2012, 7 September 2012 and 23 January 2014 the Board of Education and Training of the Ministry of Education added “living languages and dialects (Kurdish language)” to the weekly timetable of primary and secondary schools as an elective subject. 39. Section 2 of Law no. 2923 was amended on 2 March 2014 by Law no. 6529 with a view to facilitating the opening of private schools to provide education and training in a language or dialect traditionally used in daily life by citizens of Turkey. In line with this amendment, on 5 July 2014 the Regulation on Foreign Language Education and Training was also amended to enable education and training in a language or dialect traditionally used by citizens of Turkey in their daily lives in private schools. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 40. The applicants complained under Article 5 §§ 2, 3 and 4 of the Convention that the authorities had failed to inform them of the reasons for their arrest, that they had not been brought promptly before a judge, and that there had not been any effective remedies to challenge the lawfulness of their arrest and detention. They also complained under Article 5 § 5 that they had had no right to compensation under domestic law in respect of those complaints. The relevant paragraphs of Article 5 provide as follows: Article 5 “2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power... 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. Admissibility 1. Failure to exhaust domestic remedies 41. The Government asked the Court to dismiss the applicants ’ complaints under Article 5 §§ 4 and 5 of the Convention for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1. They maintained that the applicants could have sought compensation under the Unlawful Detention (Compensation) Act ( Law no. 466 ). 42. The applicants rejected the Government ’ s arguments. In this connection, they submitted a copy of a court decision concerning a person who had been arrested and taken into custody at the same time as them and with respect to the same events, whose claim for compensation under Law no. 466 was dismissed by the domestic court. 43. The Court considers that the Government ’ s objection is inextricably linked to the substance of the applicants ’ complaints under Article 5 §§ 4 and 5 of the Convention. It follows that this issue should be joined to the merits of those complaints (see, for instance, Öcalan v. Turkey (dec.), no. 46221/99, 14 December 2000; Süleyman Erdem v. Turkey, no. 49574/99, § 28, 19 September 2006; and Elğay v. Turkey, no. 18992/03, § 26, 20 January 2009). 2. Other admissibility issues (a) Article 5 § 2 of the Convention 44. The applicants complained under Article 5 § 2 that the authorities had failed to inform them promptly of the reasons for their arrest. 45. The Government argued that the applicants had been promptly informed of the reasons for their arrest. 46. The Court notes that the general principles governing the elementary safeguard embodied in Article 5 § 2 of the Convention were set out in the case of Fox, Campbell and Hartley v. the United Kingdom (30 August 1990, § 40, Series A no. 182). 47. The Court observes that the search and seizure reports dated 13 January 2002, which were signed by the applicants, clearly indicated that a search warrant had been issued by the Istanbul State Security Court on account of their petitions requesting education in Kurdish for their children, and that the public prosecutor at the Istanbul State Security Court had ordered their arrest in order to question them in relation to those petitions. The Court stresses that none of the applicants claimed that they were unable to fully understand the content of the search and seizure reports, which gave a fairly precise indication as to why they were being arrested. 48. The Court also notes that subsequent to their arrest at their homes, the applicants were taken to the Istanbul Security Directorate for questioning. According to the interview records, which also bore their signatures, the applicants were asked specific questions relating to the petitions and their suspected affiliation with the PKK, with the assistance of an interpreter as needed (see paragraph 13 above). The Court observes that only three of the applicants were assisted by an interpreter during police questioning, whereas more applicants requested such assistance during their subsequent questioning by the public prosecutor and judge at the Istanbul State Security Court (see paragraphs 18 and 19 above). Be that as it may, in the absence of any allegations from any of the applicants that they were denied the assistance of an interpreter before the police despite their requests, the Court is satisfied that all applicants sufficiently understood the subject matter of the police questioning, which once again clearly indicated the suspicions against them. 49. Having regard to the foregoing, and bearing in mind that Article 5 § 2 does not require that reasons for an arrest be given in any particular form, the Court concludes that the applicants must be deemed to have been aware of the reasons of their arrest at the time of or shortly after their arrest (see, for example, Kerr v. the United Kingdom (dec.), no. 40451/98, 7 December 1999; Dikme v. Turkey, no. 20869/92, § 56, ECHR 2000 ‑ VIII; and Süleyman Erdem, cited above, § 43). It follows that this part of the application should be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. ( b ) The remaining complaints under Article 5 of the Convention 50. The Court notes that the applicants ’ complaints under Article 5 §§ 3, 4 and 5 of the Convention are not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It also notes that these complaints are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Article 5 § 3 of the Convention 51. The applicants complained under Article 5 § 3 of the Convention that they had not been brought promptly before a judge in connection with their detention in police custody between 13 and 17 January 2002. 52. The Government submitted that the applicants ’ allegation under this head was ill-founded as they had been brought promptly before a judge following their arrest. 53. The Court reiterates the importance of the guarantees afforded by Article 5 § 3 to an arrested person (see, among other authorities, Medvedyev and Others v. France [GC], no. 3394/03, § 118, ECHR 2010). The main purpose of this provision is to ensure that arrested persons are physically brought before a judicial officer promptly, which provides an important measure of protection against arbitrary behaviour, incommunicado detention and ill-treatment. 54. While the requirement of promptness has to be assessed in each case according to its specific features (see, among other authorities, Aquilina v. Malta [GC], no. 25642/94, § 48, ECHR 1999 ‑ III), the strict time constraint imposed by this requirement of Article 5 § 3 leaves little flexibility in interpretation (see, for example, Brogan and Others v. the United Kingdom, 29 November 1988, § 62, Series A no. 145 ‑ B and McKay v. the United Kingdom [GC], no. 543/03, § 33, ECHR 2006 ‑ X). 55. Turning to the case at hand, the Court notes that the applicants were arrested on 13 January 2002, and were brought before a judge at the Istanbul State Security Court on 17 January 2002, who ordered their release. The Court cannot, however, establish the exact period that elapsed between their arrest and their appearance before the judge, because the custody records submitted by the Government indicate the time of arrest for only some of the applicants and provide no information about the time of their appearance before the judge (see paragraphs 12 and 19 above). 56. The Court nevertheless notes from the information available that the time the applicants spent in the detention centre alone  without taking into account the periods between their arrest and actual placement in detention (which for some of the applicants was as long as six hours and twenty minutes ) and after their removal from the detention centre until their appearance before the judge  was between three days and seventeen hours and four days (see paragraph 12 ). The Court considers, even on the basis of that limited information, that the applicants were not brought “promptly” before a judge for the reasons set out below. 57. The Court notes in this connection that while it has required that the initial review by a judge take place within a “maximum” of four days after arrest (see McKay, cited above, § 33, and Magee and Others v. the United Kingdom, nos. 26289/12, 29062/12 and 29891/12, §§77-78, ECHR 2015 (extracts)), this case - law must not be understood as requiring no justification where the relevant period is less than four days (see Gal v. Ukraine, no. 6759/11, § 28, 16 April 2015 ). Accordingly, Article 5 § 3 may still be breached before the end of the four-day period in the absence of specific circumstances justifying detention for such a period of time (see, for instance, Kandzhov v. Bulgaria, no. 68294/01, § 66, 6 November 2008 and Gutsanovi v. Bulgaria, no. 34529/10, §§ 158-159, ECHR 2013 (extracts) ). 58. The Court notes that in the present case, permission to extend the applicants ’ detention until 17 January 2002 was obtained mainly to complete the applicants ’ files (see paragraph 17 above). The Government did not, however, provide any information regarding any specific investigatory measures taken during this period that required the applicants ’ deprivation of liberty, or present any specific difficulties or exceptional circumstances which would have prevented the authorities from bringing the applicants before a judge much sooner, considering in particular the non-complex and non-violent nature of their allegedly criminal act (see, mutatis mutandis, Kandzhov, cited above, § 66 and Gutsanovi, cited above, §§ 158-159 ). 59. Having regard to the foregoing, the Court considers that the applicants were not brought promptly before a judge following their arrest in the particular circumstances of the case. The incompleteness of the custody records in relation to the exact times of arrest and appearance before a judge, which suggest that most of the applicants were in fact kept in police custody for longer than four days, must also be taken into consideration in this regard (see paragraph 55 above). 60. There has accordingly been a violation of Article 5 § 3 of the Convention. 2. Article 5 § 4 of the Convention 61. The applicants alleged under Article 5 § 4 of the Convention that there had been no effective remedies in domestic law to challenge the lawfulness of their arrest and detention in police custody. They argued in particular that they had had no access to legal assistance or to their families during their detention in police custody, and that the Istanbul State Security Court had used formulaic reasoning to dismiss their objections and had delivered its decisions without hearing them in person. 62. The Government did not submit any observations on this complaint other than those regarding the remedy provided under Law no. 466 (see paragraph 41 above). 63. The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to actively seek judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12). A remedy must be made available during a person ’ s detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see, mutatis mutandis, Vachev v. Bulgaria, no. 42987/98, § 71, ECHR 2004 ‑ VIII (extracts), and Stoichkov v. Bulgaria, no. 9808/02, § 66, 24 March 2005). The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to give applicants a realistic opportunity to use the remedy (see, mutatis mutandis, Čonka v. Belgium, no. 51564/99, §§ 44 and 55, ECHR 2002 ‑ I). 64. Turning first to the objection raised by the Government, the Court notes that it has already examined and rejected similar arguments in previous cases where it held that a claim under Law no. 466 could not constitute proceedings of the type required by Article 5 § 4 on account of the lack of jurisdiction in such proceedings to order release if the detention was found to be unlawful or to award reparation for a breach of the Convention if the detention complied with domestic law as in the instant case (see, for instance, Öcalan v. Turkey [GC], no. 46221/99, § 71, ECHR 2005 ‑ IV, and Süleyman Erdem, cited above, § 33). The Court finds no particular circumstances in the instant case which would require it to depart from such findings. 65. The Court secondly notes that under Article 128 § 4 of the Code of Criminal Procedure in force at the material time, the applicants were entitled, as soon as they were taken into custody, to apply to a judge to challenge the lawfulness of that detention or of the decision of the public prosecutor to extend it, and the judge had to decide the matter within twenty-four hours of an examination based on the case file (see paragraph 33 above). The Court does not, however, consider that the relevant provision constituted an effective remedy on the facts of the case before it. 66. It observes in this connection, first and foremost, that the applicants were not given a realistic opportunity by the authorities to use the remedy in question, bearing in mind that most of them were illiterate with a limited understanding of Turkish and no legal training, and were also denied any access to their lawyers or families during the period of their detention. In the Court ’ s opinion, the specific circumstances the applicants found themselves in while in incommunicado detention in police custody made it very difficult for them to have effective recourse to the remedy under Article 128 of the former Code of Criminal Procedure (see, mutatis mutandis, Öcalan [GC], cited above, § 70 ). 67. The Court also notes that it has already found in similar circumstances that the remedy which existed in theory under Article 128 of the former Code of Criminal Procedure was not effective in practice, since it offered little prospect of success and did not comply with the procedural guarantees required under Article 5 § 4 (see, for example, Öcalan [GC], cited above, §§ 66-71; Maçin v. Turkey, no. 52083/99, § § 30 ‑ 33, 4 May 2006; and İpek and Others v. Turkey, nos. 17019/02 and 30070/02, § 41, 3 February 2009 and the cases cited therein). In the absence of any arguments by the Government to the contrary, the Court sees no reason to depart from its findings in those cases. It follows that, even in the case of the applicants who had managed to file objections concerning their detention despite the difficulties noted above, the proceedings under Article 128 of the former Code of Criminal Procedure did not provide an effective remedy satisfying the requirements of Article 5 § 4 of the Convention. The Court finds it particularly striking that when examining the objections raised by the relevant applicants against their detention, the judge at the Istanbul State Security Court did not even verify whether or not they were in police custody, which reinforces the conclusion about the ineffectiveness of this remedy on the facts of the instant case (see the judge ’ s decision in paragraph 15 above). 68. The Court acknowledges that no issue arises with regard to the right to a speedy judicial review of the lawfulness of detention under Article 5 § 4 of the Convention where a detainee is released before any speedy review could have taken place (see, for instance, Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 45, Series A no. 182; Slivenko v. Latvia [GC], no. 48321/99, § 159, ECHR 2003 ‑ X; and M.B. and Others v. Turkey, no. 36009/08, § 45, 15 June 2010). Moreover, it reiterates that a period of up to four days before first appearance before a judge may be compatible with the requirements of Article 5 § 3 (see paragraph 57 above). Nevertheless, the wording of Article 5 § 4 indicates that it becomes operative immediately after arrest or detention and is applicable to “[e]veryone who is deprived of his liberty” (see Petkov and Profirov v. Bulgaria, nos. 50027/08 and 50781/09, § 67, 24 June 2014). The right to “take proceedings” thus arises at that stage, with the consequence that the denial of the right to institute such proceedings – subject to reasonable practical considerations – will raise an issue under Article 5 § 4, all the more so when such a denial is in breach of domestic law. Thus, in the case of Petkov and Profirov, the Court held that Article 5 § 4 required the provision of a judicial remedy to the applicants, who were detained in police custody for less than twenty-four hours, to enable them to challenge their detention and obtain release (cited above, §§ 64-71). 69. In the present case, while the applicants were released by a judge at the Istanbul State Security Court after approximately four days ’ detention following the automatic review of their detention within the meaning of Article 5 § 3, during that four day period they were practically denied access to a remedy to challenge the lawfulness of their detention for the reasons explained above which, in the Court ’ s opinion, contravenes not only the relevant requirements of Turkish law but also goes against the object and purpose of Article 5 § 4. 70. Having regard to the foregoing, the Court dismisses the Government ’ s preliminary objection under this head and finds that there has been a violation of Article 5 § 4 of the Convention. 3. Article 5 § 5 of the Convention 71. The applicants complained under Article 5 § 5 of the Convention that they had not had a right to compensation in respect of the alleged violation of their rights under Article 5. 72. The Government did not submit any specific observations under this head, save for those mentioned above (see paragraph 41 ). 73. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see Elğay, cited above, § 30 ). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court (see Saraçoğlu and Others v. Turkey, no. 4489/02, § 50, 29 November 2007). 74. The Court has found in the present case that the applicants were not brought promptly before a judge within the meaning of Article 5 § 3 and that their right to challenge the lawfulness of their detention in police custody was infringed, in violation of Article 5 § 4 (see paragraphs 60 and 70 above). It follows that Article 5 § 5 of the Convention is applicable. The Court must therefore establish whether or not Turkish law at the time of the events in question afforded the applicants in this case an enforceable right to compensation for the breaches of Article 5. 75. In this connection, the Court observes that it was open to the applicants to bring a claim for compensation under section 1(6) of Law no. 466 as the criminal proceedings against them had ended with their acquittal. However, the Court has already found in other cases raising similar issues that when awarding compensation under Law no. 466, the national courts based their assessment solely on the fact that there had been an acquittal. The national courts ’ assessment was therefore an automatic consequence of the acquittal and did not amount to the establishment of a violation of any of paragraphs 1 to 4 of Article 5 (see, for example, Sinan Tanrıkulu and Others v. Turkey, no. 50086/99, § 50, 3 May 2007; Medeni Kavak v. Turkey, no. 13723/02, § 34, 3 May 2007; Saraçoğlu and Others, cited above, § 52; Elğay, cited above, § 32; and Mekiye Demirci v. Turkey, no. 17722/02, § 70, 23 April 2013). 76. It follows that, in the applicants ’ case, Law no. 466 did not provide an enforceable right to compensation for the breach of their rights under Article 5 § § 3 and 4 of the Convention, as required by Article 5 § 5. 77. The Court accordingly dismisses the Government ’ s preliminary objection under this head and concludes that there has been a violation of Article 5 § 5 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 78. The applicants maintained under Article 7 of the Convention that they had been subjected to criminal proceedings for using their constitutional right to file a petition, despite the absence of any provisions in domestic law criminalising such conduct. 79. The Court, being the master of characterisation to be given in law to the facts of the case (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012 ), considers that this complaint falls to be examined under Article 10 of the Convention. The relevant parts provide : Article 10 “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime ... ”. A. Admissibility 1. As regards the applicant Yılmaz Yavuz 80. The Court observes that, although the applicant Yılmaz Yavuz was initially arrested on the same grounds as the other applicants, no criminal charges were subsequently brought against him since he had not submitted a petition to the authorities requesting education in Kurdish. Accordingly, the Court considers that the applicant ’ s arrest and subsequent detention cannot be viewed in terms of an interference with his rights under Article 10. It follows that this part of the application must be rejected as being manifestly ill-founded with the meaning of Article 35 §§ 3 and 4 of the Convention. 2. As regards the remaining applicants 81. The Court considers that although the respondent State did not raise an objection as to the Court ’ s competence ratione personae in relation to the remaining applicants ’ complaints under this head, the issue of victim status calls for consideration by the Court given that it is closely linked to the question of whether there was an interference with the applicants ’ right to freedom of expression (see, Gülcü v. Turkey, no. 17526/10, § 78, 19 January 2016, and, mutatis mutandis, Babajanov v. Turkey, no. 49867/08, § 70, 10 May 2016). The Court therefore joins the issue of victim status to the merits (see paragraphs 8 5 - 8 9 below). 82. The Court notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ arguments 83. The applicants maintained in their observations that they had been prevented from exercising their democratic right to submit a petition, which amounted to an infringement of their right to freedom of expression under Article 10 of the Convention. 84. The Government argued that there had been no interference with the applicants ’ right to freedom of expression under Article 10. They claimed in this connection that the petitions that had been the subject matter of the criminal proceedings in the instant case had been submitted as part of a collective action organised by the PKK, a terrorist organisation, as could be seen from their virtually identical wording and the timing of their submission. In these circumstances, the criminal investigation initiated in relation to those petitions had been prescribed by law and necessary in a democratic society in the interests of the prevention of disorder. They also argued that even if an interference were to be found on the facts, the applicants had been acquitted at the end of the criminal proceedings and there had therefore been no violation of their right to freedom of expression. 2. The Court ’ s assessment (a) Existence of an interference 85. The Court observes that the applicants submitted petitions to certain State authorities requesting education in Kurdish for their children – an act provided for under the Constitution and a medium through which they were exercising their right to freedom of expression. As a result of them expressing their opinion on the subject of education in Kurdish in that manner, their homes were searched, they were arrested and taken into police custody for approximately four days and some of them were remanded in custody for almost a month afterwards. Subsequently, criminal proceedings were brought against them for aiding and abetting an illegal armed organisation pursuant to Article 169 of the Criminal Code, an offence punishable by three to five years ’ “ heavy imprisonment ”, and they were on trial before a State Security Court for over a year and four months on those charges. 86. The Court notes that while the criminal proceedings in question were still pending at the time the present application was lodged, the applicants were eventually acquitted of the charges brought against them, which raises the question as to whether there has nonetheless been an “interference” with their right to freedom of expression and whether they can still be considered to be “ victims ” of an alleged breach of that right. 87. The Court notes in this connection that State action that has been found to amount to an interference with the right to freedom of expression encompasses a wide variety of measures – mainly in the form of a “formality, condition, restriction or penalty” (see, mutatis mutandis, Wille v. Liechtenstein [GC], no. 28396/95, § 43, ECHR 1999 ‑ VII ) – and may include, depending on the circumstances, criminal proceedings not culminating in a criminal conviction (see, for instance, Altuğ Taner Akçam v. Turkey, no. 27520/07, §§ 65-83, 25 October 2011, and Dilipak v. Turkey, no. 29680/05, §§ 40-51, 15 September 2015 and the cases cited therein). 88. Turning to the facts of the present case, the Court considers that regardless of the outcome of the criminal proceedings at issue, the string of measures that the applicants faced within the framework of those proceedings for merely petitioning the State authorities on a matter of “public interest” (see more in paragraph 10 3 below) – notably their arrest and deprivation of liberty – amounted to an interference with the exercise of their right to freedom of expression (see, mutatis mutandis, Kandzhov, cited above, § 70, and the cases cited therein ). 89. Furthermore, the Court considers that the applicants ’ acquittal at the end of those proceedings did not automatically have the effect of removing the effects of the interference with their right to freedom of expression and thus depriving them of their victim status on the particular facts of the instant case. The Court reiterates in this connection that a decision or measure favourable to an applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Gülcü, cited above, § 99 and the cases cited therein). In the instant case the Istanbul State Security Court, when ordering the applicants ’ acquittal, neither acknowledged nor afforded redress for the alleged breach of their right to freedom of expression on account of the measures they had faced as mentioned in paragraphs 8 5 and 8 8 above. For this reason, the applicants may not be considered to have lost their victim status on account of their acquittal. (b) Whether the interference was justified 90. Such interference will give rise to a breach of Article 10 unless it can be shown that it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2, and was “necessary in a democratic society” for achieving such aims. (i) Lawfulness and legitimate aim 91. The parties did not submit any specific observations on whether the interference was prescribed by law. The Government, however, stated that the impugned measures against the applicants pursued the legitimate aim of “prevention of disorder”. 92. The Court reiterates that the expression “prescribed by law”, within the meaning of Article 10 § 2, requires firstly that the impugned measure should have some basis in domestic law. However, it also refers to the quality of the law in question, which requires that legal rules should be accessible to the person concerned, their consequences foreseeable and their compatibility with the rule of law ensured (see, for further details, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 141, ECHR 2012; Delfi AS v. Estonia [GC], no. 64569/09, § 121, ECHR 2015; Perinçek v. Switzerland [GC], no. 27510/08, § 131, ECHR 2015 (extracts); Association Ekin v. France, no. 39288/98, § 44, ECHR 2001-VIII; and Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 114, 14 September 2010 ). 93. Turning to the facts of the present case, the Court observes that the interference in question was based on Article 169 of the Criminal Code in force at the material time, concerning the offence of aiding and abetting an illegal armed organisation. This fact is not contested by the parties. The Court therefore accepts that the restriction in question had a basis in domestic law in the formal sense. 94. As to the quality of the relevant law, there is no question that the law at issue was accessible. The Court, however, has doubts about the foreseeability of the consequences of the provision in question in that it may not have been possible to foresee that the mere submission of a petition requesting education in Kurdish for elementary school students would be considered to be aiding and abetting a terrorist organisation. Nor is the legitimate aim of the measures taken against the applicants evident in these circumstances. 95. However, having regard to its examination of these matters below from the point of view of the “necessity” of the measure (see paragraphs 9 6 ‑ 1 0 9 ), the Court considers that it is not required to reach a final conclusion on whether the interference was prescribed by law and pursued a legitimate aim (see Association Ekin, cited above, § 46; Dink, cited above, § § 116 and 118; and Nedim Şener v. Turkey, no. 38270/11, § § 102 and 105, 8 July 2014). (ii) “Necessary in a democratic society” 96. The parties did not submit any specific observations on this matter. 97. The general principles concerning the question whether an interference with freedom of expression is “necessary in a democratic society” are well established in the Court ’ s case-law (see, amongst recent authorities, Karácsony and Others v. Hungary [GC], no. 42461/13, § 132, 1 7 May 2016 ). 98. The Court reiterates accordingly, and in so far as is relevant to the present case, that freedom of expression constitutes one of the essential foundations of a democratic society. Subject to Article 10 § 2, freedom of expression is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society” (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Baka v. Hungary [GC], no. 20261/12, § 158, 2 3 June 2016 and the cases cited therein). As set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Baka, cited above ). 99. When examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered “necessary in a democratic society” within the meaning of Article 10 § 2, the Contracting States enjoy a certain but not unlimited margin of appreciation. It is, in any event, for the Court to give a final ruling on the restriction ’ s compatibility with the Convention and this is to be done by assessing the circumstances of a particular case (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 142, 15 October 2015 ). 100. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, mutatis mutandis, Fernández Martínez v. Spain [GC], no. 56030/07, § 124, ECHR 2014 (extracts) ). In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 1 0 of the Convention (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 91, ECHR 2004 ‑ XI, and Cumhuriyet Vakfı and Others v. Turkey, no. 28255/07, § 59, 8 October 2013). 101. In the present case, the Court observes that the applicants were subjected to a series of measures for petitioning the State authorities for the provision of education in Kurdish in elementary schools. The arguments put forward by the public prosecutor in the indictment and by the Government in their observations reveal that the applicants faced those measures not on account of the substance of their requests as such, but because they had allegedly submitted them as part of a collective action instigated by an illegal armed organisation, the PKK (see paragraphs 9, 10, 17, 27 and 8 4 above). 102. While the Court does not underestimate the difficulties to which the fight against terrorism gives rise, it considers that that fact alone does not absolve the national authorities from their obligations under Article 10 of the Convention. Accordingly, although freedom of expression may be legitimately curtailed in the interests of national security, territorial integrity and public safety, those restrictions must still be justified by relevant and sufficient reasons and respond to a pressing social need in a proportionate manner ( as noted in paragraph 100 above ). In making this assessment, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicants, the context in which they were made, and the actual impact that those remarks were likely to produce (see Nedim Şener, cited above, § 117). 103. The Court accordingly observes that the petitions at issue requesting education in Kurdish in elementary schools were submitted amidst a public debate in Turkey regarding the social and cultural rights of Turkish citizens of Kurdish ethnic origin, including in particular their right to education in their mother tongue. Having regard to the content and context of those petitions and to the legislative changes that ensued in the area of education in Kurdish language shortly after their submission, the Court thus considers that the applicants ’ request concerned a matter of “public interest” (see Eğitim ve Bilim Emekçileri Sendikası v. Turkey, no. 20641/05, § 74, ECHR 2012 (extracts)). 104. The Court reiterates in this connection that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see the Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996 ‑ V; Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV; and Sürek v. Turkey (no. 4) [GC], no. 24762/94, § 57, 8 July 1999), and State authorities must therefore display restraint in resorting to criminal proceedings where such debate is concerned. 105. The Court observes, however, that contrary to this principle, the relevant State authorities did not display the restraint called for by the circumstances and evidence before them when dealing with the applicants ’ petitions. It notes accordingly that on receipt by the General Education Directorates, the petitions were at once transmitted to the Istanbul Security Directorate, and from there to the public prosecutor ’ s office at the Istanbul State Security Court, which from the outset treated them as acts of aiding and abetting the PKK, on the grounds that the PKK had made general appeals for such petitions to be submitted (see the preliminary investigative measures taken by the public prosecutor ’ s office in paragraphs 9, 10, 17 and 27 above). 106. Thereupon, the relevant State authorities not only initiated an investigation against the applicants for engaging in a terrorism-related offence, but used the legal arsenal at their hands in an almost repressive manner against them. The Court notes in this regard that the applicants ’ homes were searched in the early hours of the morning, that they were arrested and placed in police custody for approximately four days and, in the case of some of them, continued to be held for almost a month pending the criminal proceedings. 107. The Court considers these measures, and certainly those involving a deprivation of the applicants ’ liberty, to be unjustified and disproportionate in the circumstances of the case, having regard to the purpose of the petitions in question and the context in which they were submitted. In the Court ’ s opinion, the applicants in the instant case, parents of elementary school pupils, used their constitutional right to file a petition to make a request regarding the education of their children. For the Court, neither the views expressed in those petitions nor the form in which they were conveyed raise doubts regarding the peaceful nature of their request. Furthermore, the fact that the applicants ’ peaceful request regarding the education of their children may have coincided with the aims or instructions of an illegal armed organisation did not remove that request from the scope of protection of Article 10 (see, for a similar discussion in the context of Article 220 of the new Turkish Criminal Code, Gülcü, cited above, § 112, and the comments of the Council of Europe ’ s Commissioner of Human Rights referred to in paragraphs 68 and 6 9 of that judgment). The Court stresses in this regard that in a democratic society based on the rule of law, political ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression (see, mutatis mutandis, Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 97, ECHR 2001 ‑ IX), which, on the instant facts, the prosecution authorities ignored. 108. Having regard to the foregoing arguments, the Court considers that while applying the measures against the applicants, the relevant State authorities failed to use as a basis an acceptable assessment of the relevant facts and apply standards which were in conformity with the principles embodied in Article 10 of the Convention despite the important interests at stake (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298). The Court cannot therefore hold that the interference in question was “necessary in a democratic society”. This is all the more so considering that shortly after the applicants ’ arrest and while they were still on trial for aiding and abetting the PKK by way of their petitions requesting education in Kurdish, the Foreign Language Education and Teaching Act (Law no. 2923) was amended on 2 August 2002 to provide for such education, at least on a private basis initially (see paragraph 36 above and Eğitim ve Bilim Emekçileri Sendikası, cited above, § 11, 55 and 74). 109. There has accordingly been a violation of Article 10 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 2 OF PROTOCOL NO. 1 TO THE CONVENTION 110. The applicants maintained that the authorities ’ attitude towards Kurdish people ’ s right to education in their mother tongue had amounted to a violation of Article 14 of the Convention. 111. The Court notes that this complaint was communicated to the Government in conjunction with Article 2 of Protocol No. 1 to the Convention. 112. The Court reiterates that the applicants in the instant case were charged with aiding and abetting the PKK on account of their petitions requesting education in Kurdish in elementary schools. However, the evidence indicates, as already discussed (see paragraph 1 0 1 above ), that they were charged not because of the content of their petitions per se, but for allegedly acting on the instructions of an illegal armed organisation in submitting those petitions. There is no information in the case file to suggest that the substance of the applicants ’ request was taken into consideration by the relevant State authorities. 113. Looking at the facts of the case as a whole and the parties ’ arguments, the Court considers that the crux of the problem is not the denial of the applicants ’ right to education and alleged discriminatory nature of such an attitude, concerns which were never voiced before the domestic authorities, but the measures they faced for submitting those petitions with the alleged intent of supporting the PKK. In the Court ’ s opinion, the measures thus applied in respect of the applicants were principally an impediment to their right to freedom of expression, and it was the infringement of that right that lies at the heart of the case presented to the Court. 114. Having regard to the facts of the case, the submissions of the parties and its finding of a violation under Article 10 of the Convention (see paragraph 1 0 9 above), and noting also the changes in the domestic law regarding the teaching of the Kurdish language (see paragraphs 36-39 above), the Court considers that there is no need to give a separate ruling on the admissibility or the merits of the applicants ’ complaints under this head (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014 and the cases cited therein). IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 115. Lastly, the applicants raised a number of complaints under Articles 6 §§ 1 and 3 (a), (b), (c) and 8 of the Convention. They complained under Article 6 §§ 1 and 3 that the Istanbul State Security Court had lacked independence and impartiality, that the authorities had failed to inform them promptly of the charges against them, that they had been denied access to a lawyer during their detention in police custody, including at the time of their questioning by the police and the public prosecutor, that their lawyer ’ s requests to access the criminal case file during the investigation stage had been refused, and that they had not had adequate time and facilities for the preparation of their defence. They also maintained under Article 8 that they had submitted the petitions in question to enable their children to communicate with their family members in Kurdish, and that the measures they had faced as a result had therefore also violated that provision. 116. In their observations, dated 1 April 2009, the applicants also complained of additional violations of their rights under Article 5 § 4 and Article 13. 117. In the light of all the material in its possession, the Court finds that these allegations by the applicants do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its protocols. It follows that these complaints must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 118. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 119. The applicants claimed 15,000 euros (EUR) each in respect of non ‑ pecuniary damage. 120. The Government argued that the claims were unsubstantiated and excessive. 121. The Court considers that the applicants, except for Yılmaz Yavuz, must have suffered non ‑ pecuniary damage on account of the violation of their rights under Article 5 §§ 3, 4 and 5 and Article 10 of the Convention, which cannot be compensated for solely by the finding of violations. Having regard to the seriousness of the violations in question and to equitable considerations, it awards the applicants, except for Yılmaz Yavuz, EUR 10,000 each in respect of non-pecuniary damage. As for the applicant Yılmaz Yavuz, the Court considers that he must also have suffered non ‑ pecuniary damage on account of the violations of his rights under Article 5 §§ 3, 4 and 5 alone. It therefore awards that applicant EUR 6,500 in respect of non-pecuniary damage. B. Costs and expenses 122. The applicants also claimed EUR 11,400 for lawyer ’ s fees and EUR 550 for other costs and expenses incurred before the Court, such as photocopying, postage and telephone costs and translation fees. In that connection, they submitted a timesheet showing that their legal representatives had carried out 114 hours ’ legal work. The remaining expenses were not supported by any documents. 123. The Government contested those claims, deeming them unsubstantiated. 124. According to the Court ’ s case-law, an applicant is entitled 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, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants the sum of EUR 3 ,000 jointly, covering costs under all heads. C. Default interest 125. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 10 (right to freedom of expression) of the Convention, finding that the interference in question had not been “necessary in a democratic society”. It stressed in particular that, while it did not underestimate the difficulties to which the fight against terrorism gave rise, that fact alone did not absolve the national authorities from their obligations under Article 10 of the Convention. Accordingly, although freedom of expression could be legitimately curtailed in the interests of national security, territorial integrity and public safety, those restrictions still had to be justified by relevant and sufficient reasons and respond to a pressing social need in a proportionate manner. In the instant case, however, the Court found that the relevant State authorities had failed to use as a basis for the measures an acceptable assessment of the relevant facts and to apply standards that were in conformity with the principles embodied in Article 10 of the Convention.