CASE OF MURAT VURAL v. TURKEY
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Nicolas Bratza;Robert Spano
5. The applicant was born in 1975 and lives in Ankara. 6. The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows. 7. In the early hours of 28 April 2005 the applicant went to a primary school in the town of Sincan and poured paint on a statue of Atatürk which was situated in the school’s garden. On the evening of the same day, he poured paint on a statue of Atatürk in the garden of another primary school. 8. On 6 May 2005 he did the same thing in the same two primary schools. 9. On 8 July 2005 the applicant poured paint on a statue of Atatürk in Sincan town centre. 10. On 12 September 2005 the applicant went to the same statue in Sincan town centre equipped with a tin of paint, paint thinner and a ladder. As he was about to open the tin of paint he was arrested by police officers and taken to a police station where he was questioned. In a statement taken from him on the same day the applicant was reported as having told the police officers that he had carried out the above-mentioned actions because he resented Atatürk and had expressed his resentment by pouring paint on the statues. 11. On the same day the applicant was brought before a prosecutor and then a judge, who ordered his detention on remand pending the opening of criminal proceedings against him. In his statement to the prosecutor the applicant maintained that he had carried out his actions to express his “lack of affection” for Atatürk. 12. In his indictment of 15 September 2005, lodged with the Sincan Criminal Court of First Instance (hereinafter “the trial court”), the Sincan prosecutor charged the applicant with the offence of contravening the Law on Offences Committed Against Atatürk (Law no. 5816; see “Relevant Domestic Law and Practice” below). 13. In the course of the trial the applicant admitted that he had poured paint on the statues. He told the trial court that he had completed his university studies and qualified as a teacher. However, he had been unemployed for a long time because his application to work as a teacher had not been accepted by the Ministry of Education. He had carried out his offences in order to protest against the Ministry’s decision. 14. On 10 October 2005 the trial court found the applicant guilty as charged. Having regard to the fact that the offence was committed in a public place and on a number of occasions, the trial court sentenced him to three years’ imprisonment instead of the minimum term of imprisonment applicable under Law no. 5816, which is one year. The fact that the offence had been committed in a public place also led the trial court to increase the sentence by half in accordance with section 2 of Law no. 5816. The trial court also considered that the applicant had committed the offence on five separate occasions, and decided to multiply the sentence by five. The applicant was thus sentenced to a total prison term of twenty-two years and six months for his above-mentioned actions. 15. The applicant appealed. In his appeal he argued that, according to the provisions of the Criminal Code, only one sentence should have been imposed on him because, regardless of the fact that he had poured paint on the statues on five occasions, he had in fact only committed one offence and not multiple offences. In support of his argument, he submitted that his five actions had been carried out within a short span of time. 16. The applicant also pointed out that, instead of imposing on him the minimum one-year prison sentence provided for in Law no. 5816 in respect of each offence, the trial court had handed down a three-year sentence because it had had regard to the number of times he had poured paint on the statues. The trial court had then gone on to rely on the frequency of his actions when multiplying the sentence by five. 17. The applicant also challenged the trial court’s reliance on section 2 of Law no. 5816 when increasing his sentence by half because the offence had been committed in a public place. He drew the Court of Cassation’s attention to the fact that, by their nature, statues are placed in public places. 18. The applicant added that he had carried out his actions in order to express his “lack of affection” for Atatürk. As such, he had remained within the boundaries of his right to freedom of expression, which was guaranteed by Article 10 of the Convention. Thus, although it would have been reasonable to prosecute and punish him for damaging property, he had in fact been punished for expressing his opinions. 19. On 6 April 2006 the Court of Cassation rejected the applicant’s argument that he had been expressing his opinion, but quashed the trial court’s judgment on the ground of, inter alia, that court’s failure to give adequate consideration to the possibility that the five separate incidents could form only one offence and not multiple offences. The Court of Cassation considered that the applicant had carried out his actions in order to protest against the Ministry of Education’s decision not to appoint him as a teacher. The case file was sent back to the trial court. 20. In its decision of 5 July 2006 the trial court agreed with the Court of Cassation’s conclusion, and held that the applicant’s actions had amounted to a single offence and not five offences. However, having regard, inter alia, to the “contradictory reasons” put forward by the applicant as justification for his actions, as well as “the effects of his actions on the public”, the trial court concluded that the applicant’s actions had amounted to “insults”, and deemed it fit to sentence him to five years’ imprisonment, which is the maximum allowed under Law no. 5816. The sentence was then increased by half because the acts had been committed in a public place. Furthermore, pursuant to Article 43 of the Criminal Code (see “Relevant Domestic Law and Practice” below), the sentence was further increased by three quarters. The applicant was thus sentenced to a total of thirteen years, one month and fifteen days’ imprisonment. 21. Furthermore, in its decision the trial court set out the restrictions under section 53 of the Criminal Code which were to be placed on the applicant on account of his conviction. Accordingly, until the execution of his sentence, the applicant was banned from, among other things, voting and taking part in elections, as well as from running associations, parties, trade unions and cooperatives (see “Relevant Domestic Law and Practice”). 22. The applicant appealed and repeated his arguments under various provisions of the Convention. He maintained, in particular, that he had carried out his actions in order to express his “lack of affection” for Atatürk and had thus exercised his freedom of expression guaranteed in Article 10 of the Convention. 23. The appeal was dismissed by the Court of Cassation on 5 February 2007. No mention was made in the Court of Cassation’s decision of the arguments raised by the applicant about his freedom of expression. 24. According to a document drawn up by the prosecutor on 16 April 2007 setting out the details of the applicant’s prison sentence, the date of the applicant’s release from prison was set as 22 October 2018, with a possibility of release on 7 June 2014 for good behaviour. 25. In the meantime, on 1 June 2005 the Law on the Execution of Prison Sentences and Other Security Measures (Law no. 5275) entered into force. This law sets out the circumstances in which prisoners can benefit from early release. 26. On 15 May 2007 the prosecutor responsible for the prison the applicant was serving his sentence in wrote to the trial court and asked for guidance in calculating the date of the applicant’s possible early release. The prosecutor stated that, for offences committed before 1 June 2005, Law no. 647 was applicable and, for offences committed after that date, the new Law no. 5275 would be applicable. The applicant had carried out his actions both before and after that date. 27. On 16 May 2007 the trial court considered that the critical date was the date of the commission of the final act and thus the new law was applicable. 28. The applicant lodged an objection against that decision and argued that most of his actions had been carried out before 1 June 2005 and that therefore, when calculating his prison sentence, the old law should be taken into account. If his prison sentence were calculated in accordance with the new law, he would spend four more years in prison. That objection was rejected by the trial court on 18 June 2007 and the date of the applicant’s possible release from prison was calculated in accordance with the document drawn up by the prosecutor on 16 April 2007 (see paragraph 24 above). 29. A request made by the applicant to the Ministry of Justice for his conviction to be quashed and another request to the Court of Cassation to rectify the judgment were rejected on 28 September 2007 and 28 December 2007 respectively. 30. On 11 June 2013 the applicant was released conditionally.