[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF TURGAY AND OTHERS v. TURKEY (no. 4)
(Applications nos. 29572/08, 55180/08, 55427/08, 56294/08,
60443/08 and 61438/08)
JUDGMENT
STRASBOURG
21
September 2010
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Turgay and Others
v. Turkey (no. 4),
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise Elens-Passos
Deputy Section Registrar,
Having
deliberated in private on 31 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in six applications (nos. 29572/08, 55180/08,
55427/08, 56294/08, 60443/08 and 61438/08) against the Republic of
Turkey lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by eleven Turkish nationals (“the
applicants”), whose names appear in the appendix.
- The
applicants were represented by Mr Ö. Kılıç, a
lawyer practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- On
18 June, 15 and 22 October, 10 November, 1 and 3 December 2008
the applicants' representative requested that the respondent
Government be notified of the introduction of the applications in
accordance with Rule 40 of the Rules of Court and that the cases be
given priority under Rule 41.
- On
17 March 2009 the President of the Second Section decided to give
priority to the applications under Rule 41 of the Rules of Court and
to give notice of the applications to the Government. It was also
decided to examine the merits of the applications at the same time as
their admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The prosecution of the newspapers
- At
the material time the applicants were the owners, executive
directors, editors-in-chief, news directors and journalists of one
weekly and four daily newspapers published in Turkey: Yedinci Gün,
Gerçek, Özgür Ülke, Gelecek
and Alternatif. The publication of all five newspapers was
suspended pursuant to section 6(5) of Law no. 3713 (the Prevention of
Terrorism Act) by various Chambers of the Istanbul Assize Court on
different dates between 13 May and 20 October 2008 for a period of
one month on account of various news reports and articles. The
impugned publications were mainly deemed to be propaganda in favour
of a terrorist organisation, the PKK/KONGRA-GEL,
and to constitute the approval of crimes committed by that
organisation and its members.
- Neither
the applicants nor their representative participated in these
ex parte procedures, and their written objections to the
suspension orders were dismissed. Consequently, the orders were
executed.
B. The prosecution of the applicants
- The
applicant Ali Turgay, the owner of Yedinci Gün, was
prosecuted under sections 6(2) and 7(2) of Law no. 3713, as well as
Articles 215, 218, 220 §§ 6 and 7 and 318 §§ 1
and 2 of the Criminal Code, mainly for disseminating propaganda in
favour of the aforementioned organisation and praising crimes
committed by that organisation and its members, on account of various
articles published in the said newspaper. According to the
information in the case file, this case is currently pending before
the Istanbul Assize Court (case no. 2008/188).
- The
applicant Cevat Düşün, the owner of Gerçek,
Özgür Ülke, Gelecek and Alternatif,
was prosecuted on five occasions on similar charges, two of which
resulted in his conviction (cases nos. 2008/257 and 2008/236). It
appears that the remaining cases (which were joined under case
no. 2008/283) are still pending before the Istanbul Assize
Court. Case no. 2008/283 also involves another applicant,
Ragıp Zarakolu, the executive director of Alternatif, who
was similarly prosecuted under sections 6(2) and 7(2) of Law no.
3713.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law and practice may be found in
Ürper and Others v. Turkey (nos. 14526/07, 14747/07,
15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07 and
54637/07, §§ 12 14, 20 October 2009).
- Moreover,
Article 220 of the Turkish Criminal Code (Law no. 5237) provides
as follows:
“(1) Those persons founding or leading an
organisation for the purpose of committing acts defined as crimes by
the law shall be sentenced to two to six years of imprisonment where
the structure of the organisation, number of its members as well as
its supplies and equipment are suitable for the crimes intended to be
committed. An organisation shall be deemed to exist where there are
at least three members.
...
(6) A person who is not a member of an organisation but
who [nevertheless] commits crimes on behalf of an organisation shall
be punished for the crime of membership of an [illegal] organisation,
as well as for the crimes he or she has committed.
(7) A person who is not a part of the hierarchy within
an organisation but who [nevertheless] knowingly and willingly
provides assistance to the organisation shall be punished for the
crime of membership of an [illegal] organisation.”
- Lastly,
Article 318 of the Turkish Criminal Code reads as follows:
“(1) Those persons who make suggestions that seek
to dissuade the people from serving in the military service, or make
propaganda or encourage people to that end, shall be imprisoned for a
period of six months to two years.
(2) Where this offence is committed through the press or
the media, the sentence shall be increased by half.”
THE LAW
- Having
regard to the similar subject matter of the applications, the Court
finds it appropriate to join them.
I. ADMISSIBILITY
- The
Government argued that the applicants had failed to exhaust domestic
remedies as the domestic proceedings were still pending.
- The
Court notes that the applicants' complaints under the Convention
solely relate to the assize court's decisions suspending the
publication of the five newspapers, and that the applicants had
exhausted domestic remedies within the meaning of Article 35 § 1
of the Convention by filing objections to the various decisions (see
Ürper and Others, cited above, § 21). The Court
accordingly rejects the Government's objection.
- The
Court notes that the applications are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
II. MERITS
A. Alleged violations of Article 10 of the Convention
- The
applicants alleged under Article 10 of the Convention that the
suspension of the publication and distribution of Yedinci Gün,
Gerçek, Özgür Ülke, Gelecek
and Alternatif, which had been based on section 6(5) of Law
no. 3713, constituted an unjustified interference with their freedom
of expression. They claimed in particular that the banning, for such
lengthy periods, of the publication of the newspapers as a whole,
whose future content was unknown at the time of the national court's
decisions, had amounted to censorship.
- The
Government submitted that the national court's decisions had pursued
several legitimate aims, including the protection of national
security, territorial integrity and public safety. Moreover, taking
into account the content of the articles in question, the measures
taken had been proportionate to the legitimate aims pursued and
necessary in a democratic society.
- The
Court notes that it has recently examined a similar complaint and
found a violation of Article 10 of the Convention in the case of
Ürper and Others (cited above, §§ 24-45),
where it noted in particular that the practice of banning the future
publication of entire periodicals on the basis of section 6(5) of Law
no. 3713 went beyond any notion of “necessary” restraint
in a democratic society and, instead, amounted to censorship. The
Court finds no particular circumstances in the instant case which
would require it to depart from this jurisprudence.
- There
has accordingly been a violation of Article 10 of the Convention.
B. Alleged violations of Articles 6, 7 and 13 of the
Convention and Article 1 of Protocol No. 1 to the Convention
- The
applicants complained under Article 6 §§ 1 and 3 of the
Convention that they had been unable to participate in the
proceedings before the Istanbul Assize Court and that the latter had
decided to suspend publication and distribution of the aforementioned
newspapers without obtaining their submissions in defence. They
further contended under Article 13 of the Convention that they
had not had a domestic remedy by which to challenge the lawfulness of
the national court decisions, as their objections to the suspension
orders had been dismissed without trial. The applicants also
complained under Article 6 § 2 that these orders had violated
their right to be presumed innocent, since the national courts had
held that criminal offences had been committed through the
publication of news reports and articles in the aforementioned
newspapers, for which they had been responsible. The applicants
further submitted under Article 7 of the Convention that the
decisions to suspend the publication and distribution of the
newspapers amounted to a “penalty” without a legal basis.
Lastly, they complained under Article 1 of Protocol No. 1 that the
decisions to suspend the publication of Yedinci Gün,
Gerçek, Özgür Ülke, Gelecek
and Alternatif had constituted an unjustified interference
with their right to property.
- The
Government contested these allegations.
- Having
regard to the circumstances of the cases and to its finding of a
violation of Article 10 of the Convention (see paragraph 19 above),
the Court considers that it has examined the main legal question
raised in the present applications. It concludes therefore that there
is no need to make separate rulings in respect of these other
complaints (see, mutatis mutandis, Demirel and Others v.
Turkey, no. 75512/01, § 27, 24 July 2007; Demirel and
Ateş v. Turkey (no. 3), no. 11976/03, § 38, 9
December 2008; Ürper and Others, cited above, § 49).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
1. Pecuniary damage
- The
applicants claimed 1,149,000 Turkish liras (TRY) (approximately
527,000 euros (EUR)) in pecuniary damage for the commercial loss
which the newspapers had suffered as a result of the suspension
decisions. Under the same head, the applicants further claimed EUR
48,000 for the damage which they had suffered individually. However,
they did not produce any documentary evidence in support of their
claims for pecuniary loss.
- The
Government contested these claims, arguing that the purported
pecuniary damage had not been duly documented.
- The
Court notes the applicants' failure to submit any documents to
substantiate this claim. Accordingly, it must be rejected.
2. Non-pecuniary damage
- The
applicants next claimed EUR 48,000 in total in respect of
non pecuniary damage.
- The
Government considered this sum to be excessive.
- The
Court considers that all the applicants may be deemed to have
suffered a certain amount of distress and frustration which cannot be
sufficiently compensated by the finding of a violation alone. Taking
into account the particular circumstances of the case and the type of
violation found, the Court awards the applicants EUR 1,800 each for
non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 16,040 for the costs and expenses
incurred before the domestic courts and before the Court. In this
connection they submitted documentation indicating the time spent by
their legal representative on the applications, as well as tables of
costs and expenditure.
- The
Government contested this claim.
- 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 were
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 jointly the sum of
EUR 2,000 for their costs before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
- Declares the applications admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds that there is no need to examine
separately the complaints under Articles 6, 7 and 13 of the
Convention and Article 1 of Protocol No. 1;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts to be
converted into Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
1,800 (one thousand eight hundred euros), in respect of non pecuniary
damage, plus any tax that may be chargeable, to each of the following
applicants:
- Ali
Turgay
- Cevat
Düşün
- Ragıp
Zarakolu
- Nurettin
Fırat
- Ramazan
Pekgöz
- Şinasi
Tur
- Güler
Özdemir
- Bilir
Kaya
- Cengiz
Kapmaz
- Bayram
Balcı
- Memet
Ali Çelebi
(ii) EUR
2,000 (two thousand euros) to the applicants jointly in respect of
costs and expenses, plus any tax that may be chargeable to them;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 21 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
APPENDIX
|
File No
|
Case Name
|
Date of lodging
|
Introduced by
|
|
29572/08
|
Turgay v. Turkey
|
18 June 2008
|
Ali
Turgay
|
|
55180/08
|
Düşün v. Turkey
|
15 October 2008
|
Cevat Düşün
|
|
55427/08
|
Düşün
v. Turkey
|
22 October 2008
|
Cevat Düşün
|
|
56294/08
|
Düşün v. Turkey
|
10 November 2008
|
Cevat Düşün
|
|
60443/08
|
Düşün and Others v.
Turkey
|
1 December 2008
|
Cevat
Düşün, Ragıp Zarakolu, Nurettin Fırat,
Ramazan Pekgöz, Şinasi Tur, Güler Özdemir,
Bilir Kaya, Cengiz Kapmaz, Bayram Balcı and Memet Ali Çelebi.
|
|
61438/08
|
Düşün and Others v.
Turkey
|
3 December 2008
|
Cevat
Düşün, Ragıp Zarakolu, Nurettin Fırat,
Ramazan Pekgöz, Şinasi Tur, Güler Özdemir,
Bilir Kaya, Cengiz Kapmaz, Bayram Balcı and Memet Ali Çelebi.
|
