In Aydin v. Germany, the ECHR held that there was no violation of Article 10 (freedom of expression) of the European Convention on Human Rights when a Turkish national was convicted for supporting the Workers’ Party of Kurdistan (PKK), which is banned in Germany, and ordered to pay a fine of 1,200 Euros. Aydin v. Germany, App. No. 16637/07 (Jan. 27, 2011). The applicant was one of many thousands who signed a declaration in 2001 refusing to recognize the ban, supporting the PKK, and committing to accept any legal consequences of that stance. In addition, the applicant participated in the campaign to collect such declarations and made a donation to a banned PKK affiliate. The German courts and ECHR found that the applicant’s actions had been aimed at flouting the ban, rather than securing its end, and demonstrated a commitment not to respect the ban.
The Federal Constitutional Court (Bundesverfassungsgericht) held, in 2006, that though the conviction impacted the applicant’s right to freedom of expression, the conviction was justified because the ban applied to purposeful support of the PKK’s activities, rather than the expression of any opinion or political aims. As quoted by the ECHR, German jurisprudence established that “the self declarations would nevertheless have been exempt from criminal liability as expressions of the right to freedom of expression if they had restricted themselves to demanding freedom and self-determination for the Kurdish people, to calling for a lift of the ban on the PKK’s activities and severely condemning the maintenance of that ban”, but crossed the line “to the extent that they had to be understood as a commitment made by those signing it not to respect the ban on activities in the future and not to be deterred from contravening the ban even by the threat of criminal sanctions”. In this sense, the judgment is interesting because the offending conduct deemed to constitute support for the PKK was, it seems, an intellectual commitment to potential future illegality, rather than past, concrete action in contravention of the ban. In other words, the conviction was based not on acts already taken to further the PKK’s activities, but on a commitment not to be prevented from doing so in the future. Pars. 21-26. This commitment was found to support the PKK’s activities through, inter alia, building solidarity among followers.
The ECHR held that the interference with the applicant’s freedom of expression was prescribed by law because, even though the legal provision was broad, subsequent decisions by German courts refined its scope; the court also held that “the applicants’ conviction was designed to protect public order and safety”. Id., pars. 54-58.
On the question of whether the interference was “necessary in a democratic society, the court held that – because other public means were available to the applicant to promote the lifting of the ban without risking criminal consequences and the applicant’s purpose of flouting the ban could be drawn from the context of the PKK campaign to collect declarations and the applicant’s donation– prosecution was necessary to ensure compliance with the ban. Id., pars 58-61. The court’s findings relied heavily on the German courts’ analysis, and the court states, “Having regard to the thorough examination by the domestic courts, the Court does not consider that the interpretation they gave to the applicant’s statement was contrary to her rights under Article 10 of the Convention.” Id., par 61.
On the applicant’s ex post facto claim (Article 7, §1), the ECHR held that the applicant had failed to exhaust domestic remedies. Id., pars. 64-65.
In her dissent, Judge Kalaydjieva (elected in respect of Bulgaria) accused the court of showing too much deference to domestic interpretation, and because the German courts did not balance freedom of expression against the government’s interest in the applicant’s case, it was clear that “national courts were not required to and accordingly failed to determine whether the interference with the freedom of expression reflected a pressing social need justifying the interference in the individual case of the applicant.” Further, “Looking also at the fact that the applicant’s conviction was based on an interpretation of the law which classified her act as punishable two years after it was committed, I am far from convinced that the interference with the applicant’s rights under Article 10 was ‘prescribed by law’, or that ‘the (national) courts have sufficiently taken account of the applicant’s right to freedom of expression in the course of the criminal proceedings against her.”