CASE OF AYDIN v. GERMANY
Remainder inadmissible;No violation of Art. 10
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant was born in 1972 and lives in Wuppertal. 6. On 22 November 1993 the German Interior Ministry issued a decision by which it imposed a ban on the activities of the Workers' Party of Kurdistan (“the PKK”), under Article 18, second sentence, of the Law on Associations (Vereinsgesetz, see Relevant domestic law, below). 7. Relevant parts of the decision read as follows: “1. The activities pursued by the “Workers' Party of Kurdistan” (PKK)...run contrary to provisions of the criminal law, are directed against the concept of international understanding, endanger inner security and other important interests of the Federal Republic of Germany. 2. The “Workers' Party of Kurdistan” (PKK)...is not allowed to pursue its activities within the territorial ambit of the Law on Associations.” 8. As the PKK as such did not challenge the imposition of the ban before the German courts, the decision became final on 26 March 1994. 9. Following the arrest of its leader, Abdullah Öcalan, in 1999, the PKK's executives changed their strategy and declared an end to the armed battle against Turkish army entities. Following a “peace initiative” declared by the party's seventh congress on 17 January 2000, the PKK did not organise any further demonstrations or violent acts in Germany. 10. In 2001 the PKK's presidential counsel decided to launch a large-scale campaign, during which their supporters should address themselves to the German authorities, should acknowledge their support for the PKK and should demand that the ban on the PKK's activities be lifted. 11. The supporters signed a declaration. The declarations were then collected and handed over in large numbers to parliaments, administrative bodies and courts. The content of the largely identical declarations was as follows: “Self declaration (Selbsterklärung) “I also am a follower of the PKK” (“Auch ich bin ein PKK'ler”) As the Kurdish people has been denied its basic right to life, it has had no choice but to take up arms. After twenty years of war, our national leader, Abdullah Öcalan, has initiated a strategic change. For two years the PKK has been using exclusively political means to fight for a peaceful and democratic solution to the Kurdish question. On the basis of this new strategy the Workers' Party of Kurdistan (PKK) is undergoing a global reformation. Strongly determined to find a solution, it has developed its political activities against all resistance without leaving the framework of legality. Although the Kurdish question emerged geographically in the Middle East, having regard to its historical, political and international connections it is a European problem waiting for a solution. Europe played a major role in the setting of Middle Eastern boundaries. That is why Europe is now confronted with the task of playing a role in the solution of the problems. Just as it failed to offer a prospect of a solution when our leader was abducted in the framework of an international conspiracy, Europe fails today to make use of the opportunities offered by the PKK. While the majority of the European Member States make Turkey's accession to the European Union dependent on the Copenhagen criteria, they deny the national and political status of the Kurds living in Europe. Germany and England, in particular, insist on a policy of bans. With this destructive attitude Europe puts itself within the context of the policy of destruction and negation which is directed against the Kurdish people. Today as in the past Europe continues its negative tradition. This is nothing but a policy of double moral standards. 1. On this basis I, as a member of the Kurdish people, declare that I share the PKK's new policy, which, for two years, has been leading its political fight on a legal basis. I further declare that I belong to the PKK. 2. I challenge the European Member States to apply the same standards to themselves they apply to non-member States. I furthermore request these States to comply themselves with the express criteria for accession to the European Union with regard to the Kurds living in Europe. I therefore demand the full recognition of the rights granted to other peoples for the Kurdish people. 3. I further demand the official recognition of the cultural and political values created by the Kurdish people in the course of their great struggle. In this context I demand respect for my people's national and political identity. 4. I support the line of the PKK's democratic struggle, as has been confirmed by its seventh congress. Having regard to the fact that the PKK has not committed one single violent act for two years, I demand the lifting of all bans which are applied on the PKK. 5. I further declare that the liberty of our leader, Abdullah Öcalan, and the possibility of his political activity are the only guarantee for an enduring solution. I therefore demand: “Freedom for Abdullah Öcalan – Peace in Kurdistan”. I hereby declare that I most severely condemn the prohibition issued against the PKK and the criminal prosecution of PKK membership and of active sympathy for the PKK. I further declare that I do not acknowledge this prohibition and that I assume all responsibility arising therefrom.” 12. With others, the applicant organised and coordinated a collection of signatures of the declaration in Berlin. She also signed a declaration herself. On 16 July 2001 the applicant, with two others, handed two folders containing 467 signed declarations to the Berlin public prosecutor. On 24 September 2001 the applicant handed over one further folder containing declarations. Furthermore, the applicant donated certain sums of money to a sub-organisation of the PKK, which was also subject to the ban. 13. Within the framework of the campaign, more than 4,000 declarations were handed to the authorities in Berlin; approximately 100,000 declarations were submitted to German administration as a whole. 14. On 17 July 2003 the Berlin Regional Court (Landgericht) convicted the applicant of contravening a ban imposed on an association's activity (section 20 § 1 no. 4 in conjunction with section 18, second sentence, of the Law on Associations) and sentenced her to 150 daily fines of eight euros each. During the hearing before that court, the applicant submitted a declaration that she had not intended to breach the criminal law, but to express her opinion and to further the understanding between the German and the Kurdish people. The Regional Court considered that the applicant, by signing the declaration, taking part in the campaign and giving donations, had flouted the ban on pursuing the PKK's activities. 15. The Regional Court considered that the declaration's content, seen in the context of the accompanying campaign, was likely to have a positive effect on the association's unlawful activities. The Regional Court considered, in particular, that the declaration “not (to) acknowledge this ban and (to) assume all responsibility arising therefrom” had a twofold effect: Firstly, the applicant expressed her commitment not to abide by the ban in the future and thus to provide the PKK with security for planning further unlawful activities. Secondly, it was likely to strengthen solidarity with other potential supporters. 16. According to the Regional Court, the declaration signed by the applicant was not covered by her right to freedom of expression, as the applicant did not confine herself to claiming freedom and self-determination for the Kurdish people, to demand the lifting of the ban on the PKK and most severely to condemn its continuation, which would fall within the ambit of the applicant's freedom of expression. Seen in the context of the aims of the overall campaign, the declaration also contained the statement that the applicant would continue to support the PKK even if the ban imposed on its activities was not lifted. This was already implied in the concluding statement, that the applicant would “assume all responsibility arising therefrom”, that is to say from any flouting of the ban. The Regional Court also considered that the campaign had the further aim of overburdening the public prosecution service with such a large number of criminal proceedings that they would not be able to cope. 17. The Regional Court considered as mitigating factors, inter alia, the importance of the right to freedom of expression. 18. On 15 January 2004 the Federal Court of Justice (Bundesgerichtshof), referring to its own pilot judgment given on 27 March 2003 (see relevant domestic law and practice, below), dismissed the applicant's appeal on points of law. According to that court, the Regional Court's interpretation of the applicant's statement and the evaluation of her behaviour were compatible with the right to freedom of expression as enshrined in Article 5 of the Basic Law.comprehensively and coherently refuted the applicant's allegations that she had not participated in a campaign which had been organised by the PKK with the aim to hamper the criminal prosecution of breaches of the ban by provoking a massive quantity of criminal investigations, but that she had merely intended to express her opinion on the ban. This was demonstrated by the fact that the applicant and the other campaigners did not address themselves to the Federal Interior Ministry, which would have been competent for lifting the ban, but addressed a massive quantity of collected individually signed declarations to the public prosecutor's office. The applicant's unwillingness to abide by the ban was further demonstrated by the fact that she had been previously convicted of a similar offence and that she had flouted the ban in another, separate way by financially supporting a sub-organisation of the PKK. 19. The Federal Court of Justice finally considered that the Regional Court had sufficiently weighted the importance of the right to freedom of expression when assessing the sentence. 20. On 20 March 2004 the applicant lodged a constitutional complaint in which she complained that her right to freedom of expression and her right to petition had been violated. 21. On 26 September 2006 the Federal Constitutional (Bundesverfassungsgericht), in a reasoned decision of 21 pages, refused to accept the applicant's complaint for adjudication as being unfounded. 28. Article 5 of the German Basic Law (Freedom of Expression) reads as follows: “(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources(...). (2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour. (3)....” Article 9 of the Basic Law (Freedom of Association) provides: “(1) All Germans shall have the right to form corporations and other associations. (2) Associations whose aims or activities contravene the criminal laws, or that are directed against the constitutional order or the concept of international understanding, shall be prohibited.” 29. Article 103 of the Basic Law (ban on retroactive criminal laws) provides: “(1)... (2) An act may be punished only if it was defined by a law as a criminal offence before the act was committed.” 30. The relevant sections of the Law on Associations (Vereinsgesetz) read as follows: Section 3 Banning “An association can only be treated as being banned if the competent authority established by decree that its aims or its activity contravene the criminal law or that it is directed against the constitutional order or against the idea of international understanding ...” Section 18 Geographical applicability of bans imposed on associations “...If a (foreign) association does not have a sub-organisation within the geographical applicability of this Act, the ban (section 3 paragraph 1) is directed against its activity within that territory.” Section 20 “Anyone who, within the geographical applicability of this act, by pursuing an activity (...) 4. contravenes an enforceable prohibition under section 18 sentence 2 (...) Will be sentenced to up to one year's imprisonment or to a fine.” 31. On 27 March 2003 the Federal Court of Justice issued a pilot judgment (no. 3 StR 377/02) on the criminal liability incurred by signing the “self declaration” which also forms the subject matter of the instant complaint. 32. The Federal Court of Justice confirmed its earlier case-law that a person contravened an enforceable prohibition within the meaning of section 20 § 1 no. 4 in conjunction with section 18 sentence 2 of the Law on Association if his activity made reference to the banned activity of the association and was conducive to those activities. The acts had to be actually suited to producing an advantageous effect in regard to the banned activities. 33. The court considered that the submission of these signed declarations within the framework of a large-scale campaign was concretely suited to support the PKK's activities. Having regard to the overall context of the statement and to the circumstances of the campaign, the Federal Court of Justice considered that it could be ruled out that the signatories confined themselves merely to demand freedom and self-determination for the Kurdish people, a lifting of the ban and most severely to condemn the maintenance of the ban. This statement would have been covered by their right to freedom of expression. However, the concluding statement, according to which the signatories declared that they assumed “all responsibility arising therefrom” (that is to say from the non-observance of the ban) made it unequivocally clear that they were ready to flout the ban and to bear the ensuing criminal prosecution. Otherwise, the addendum would not make sense, as these consequences could not be expected for the mere utterance of criticism and the request for a lifting of the ban, which would be covered by the right to freedom of expression and thus be exempt from criminal liability. 34. This interpretation was further corroborated by the fact that it had been the campaigners' declared aim to overburden public prosecution authorities with such a large number of proceedings that they would be unable to cope.