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THIRD
SECTION
CASE OF DEMİREL AND ATEŞ v. TURKEY (no2)
(Application
no. 31080/02)
JUDGMENT
STRASBOURG
29
November 2007
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 Demirel and Ateş v. Turkey (no2),
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr R.
Türmen,
Mrs A. Gyulumyan,
Mr E.
Myjer,
Mrs I. Ziemele,
Mrs I. Berro-Lefèvre,
judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 8 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31080/02) 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 two Turkish nationals, Mr Hıdır Ateş
and Ms Hünkar Demirel (“the applicants”), on 1
August 2002.
- The
applicants were represented by Mr Ö Kılıç, a
lawyer practising in Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
29 June 2006 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1979 and 1951 respectively and live in
Istanbul. The first applicant was the editor-in-chief of a
weekly newspaper, Yedinci Gündem, and the second
applicant was its owner.
- In
August 2001, in the tenth issue of the newspaper, an article which
contained an interview with Cemil Bayık, who was one of the
leaders of an illegal organisation, namely the PKK (the Kurdistan
Workers' Party), was published. The relevant parts of the interview
read as follows:
“Three years have passed since the PKK declared a
ceasefire to stop the bloodshed and to contribute to the peace
process. Subsequently, the PKK withdrew its armed forces out of
Turkey to maintain peace. However, the state did not take any steps
for democratisation or to solve the Kurdish problem.
...
The case brought against our leader Abdullah Öcalan
is a case against the Kurdish people. Therefore, it is not our Prime
Minister who wishes to be tried before the European Court of Human
Rights, but it is our people. The law was violated in İmralı
and, consequently, the death penalty imposed on Öcalan and on
our people is not legitimate. All things considered, it is natural
that our people have expectations from the European Court of Human
Rights, the court of Europe which defends democracy, human rights and
the rule of law.
...”
- On
10 September 2001 the public prosecutor at the Istanbul State
Security Court filed a bill of indictment against the applicants. By
referring to the above-mentioned paragraphs of the interview, the
public prosecutor accused the applicants of having allowed the
publication of the declarations of an illegal armed terrorist
organisation. The charges were brought under Article 6 §§ 2
and 4 of the Law on the Prevention of Terrorism (Law no. 3713),
additional Article 2 of the Press Law (Law no. 5680) and
Article 36 of the Criminal Code.
- On
27 December 2001 the Istanbul State Security Court, composed of three
civilian judges, convicted the applicants as charged and fined
them 2,034,900,000
Turkish liras (TRL) and TRL 4,069,800,000
respectively. The first instance court further ordered temporary
closure of the newspaper for a period of fifteen days.
- The
applicants appealed. On an unspecified date, the chief public
prosecutor at the Court of Cassation submitted his written opinion on
the merits of the applicants' appeal. The opinion was not notified to
the applicants.
- On
21 May 2002 the Court of Cassation upheld the judgment of 27 December
2001.
- On
24 June 2002 the president of the Istanbul State Security Court sent
the final judgment to the public prosecutor's office at the Istanbul
State Security Court and requested that the order for the newspaper's
closure be executed.
- On
15 July 2002 two police officers executed the order of closure by way
of notification of the order in question to the first applicant.
II. RELEVANT DOMESTIC LAW
- At
the material time Article 6 §§ 2 and 4 of the Law on the
Prevention of Terrorism (Law no. 3713) provided:
“Persons, who print or publish declarations or
leaflets emanating from terrorist organisations, shall be liable to a
fine from five million to ten million Turkish liras.
...
Where the offences contemplated in the above paragraphs
are committed through the medium of periodicals within the meaning of
Article 3 of the Press Law (Law no. 5680), the publisher
shall also be liable to a fine equal to ninety percent of the income
from the average sales for the previous month if the periodical
appears more frequently than monthly, or from the sales of the
previous issue if the periodical appears monthly or less frequently.
However, the fine may not be less than fifty million Turkish liras.
The editor of the periodical shall be ordered to pay a sum equal to
half the fine imposed on the publisher.”
At
the material time additional Article 2 § 1 of the Press Law
(Law no. 5680) provided:
“Where there is a conviction for an offence
mentioned in additional Article 1 and committed through the medium of
press, the court may order the closure of the periodical in which the
article that constitutes an offence appeared, for a period of from
one day to fifteen days.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that their right to a fair trial was breached
as they had not been given an opportunity to reply to the chief
public prosecutor's written opinion submitted to the Court of
Cassation. Article 6 § 1 of the Convention reads as
relevant:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court notes that it has already examined the same grievance and found
a violation of Article 6 § 1 of the Convention in its Göç
v. Turkey judgment (no. 36590/97, § 58, ECHR
2002 V). In that judgment, the Court held that, having regard to
the nature of the principal public prosecutor's submissions and to
the fact that the applicant was not given an opportunity to make
written observations in reply, there had been an infringement of the
applicant's right to adversarial proceedings (loc. cit. §
55).
- The
Court has examined the present application and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned case.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention as regards the non-communication to the applicants of the
chief public prosecutors' submissions before the Court of Cassation.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained that their criminal conviction had infringed
their right to freedom of expression. In that connection, they relied
on Article 10 of the Convention, which provides insofar as relevant
as follows:
“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
... territorial integrity or public safety, [or] for the prevention
of disorder or crime...”
- The
Government contested that argument.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government maintained that the interference with the applicants'
right to freedom of expression was justified under the provisions of
the second paragraph of Article 10.
- The
Court notes that it is not in dispute between the parties that the
conviction complained of constituted interference with the
applicants' right to freedom of expression, protected by Article 10 §
1. Nor is it contested that this interference was prescribed by law
and pursued a legitimate aim or aims, namely the protection of
territorial integrity and public order for the purposes of Article 10
§ 2. The Court agrees. In the present case the issue is whether
the interference was “necessary in a democratic society”.
- The
Court has examined a number of cases raising similar issues to those
in the present case and found a violation of Article 10 of the
Convention (see, in particular, the following judgments: Ceylan v.
Turkey [GC], no. 23556/94, § 38, ECHR 1999 IV;
Öztürk v. Turkey [GC], no. 22479/93, §
74, ECHR 1999 VI; İbrahim Aksoy v. Turkey,
nos. 28635/95, 30171/96 and 34535/97, §§ 80, 10
October 2000 and Kızılyaprak v. Turkey,
no. 27528/95, §43, 2 October 2003).
- The
Court has examined the present case in the light of its case-law and
considers that the Government have not submitted any facts or
arguments capable of leading to a different conclusion in this
instance. The Court has had particular regard to the content of the
article and the context in which it was diffused. In this connection,
it has taken into account the background to the case submitted to it,
particularly the problems linked to the prevention of terrorism (see
İbrahim Aksoy, cited above, § 60 and Incal v.
Turkey, judgment of 9 June 1998, Reports of Judgments and
Decisions 1998 IV, p. 1568, § 58).
- The
Court observes that the views expressed in the interview in question
consisted of a critical assessment of Turkey's policies concerning
the Kurdish problem, and the trial and subsequent sentence of
Abdullah Öcalan. The domestic court, however, considered that
the impugned interview contained separatist propaganda of a terrorist
organisation. The Court has examined the judgment in question and it
would appear that no sufficient reasoning was given in the judgment
to justify the interference with the applicants' right to freedom of
expression (see, mutatis mutandis, Sürek v. Turkey
(no. 4) [GC], no. 24762/94, § 58, 8 July 1999). In its view,
taken as a whole, the interview in question does not encourage
violence, armed resistance or insurrection and, therefore, does not
constitute hate speech. As established in the case-law, this is the
essential factor (contrast Sürek v. Turkey (no. 1)
[GC], no. 26682/95, § 62, ECHR 1999-IV, and Gerger v. Turkey
[GC], no. 24919/94, § 50, 8 July 1999) in the assessment of the
necessity of the measure.
- Having
regard to the above considerations, the Court concludes that the
applicants' conviction was disproportionate to the aims pursued and
therefore not “necessary in a democratic society”.
Accordingly, there has been a violation of Article 10 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants further invoked Articles 1, 6 § 1 (in respect of the
independence and impartiality of the Istanbul State Security Court),
7, 13, 14, 17, 18 of the Convention and Article 1 of Protocol No. 1.
- The
Court finds nothing whatsoever in the case file which might disclose
any appearance of a violation of these provisions. It follows that
this part of the application is manifestly-ill founded and must be
rejected, pursuant to Article 35 §§ 3 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicants alleged that their conviction had a negative impact on
their professional reputation. They therefore claimed 3,000 euros
(EUR) and EUR 5,000 respectively for pecuniary damage and EUR 2,000
and EUR 3,000 respectively for non-pecuniary damage.
- The
Government contested these claims.
- In
the absence of any supporting evidence, the Court considers the
applicants' claims for pecuniary damage unsubstantiated. It
accordingly dismisses them. On the other hand, the Court considers
that the applicants may be taken to have suffered a certain amount of
distress and anxiety in the circumstances of the case. Making its
assessment on an equitable basis, as required by Article 41 of the
Convention, it awards them, EUR 1,000 each for non-pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 3,250 for legal fees and EUR 400 for the
costs and expenses incurred before the Court. In respect of their
claims, they relied on the Istanbul Bar Association's list of
recommended minimum fees and submitted a document showing the number
of hours – 25 hours – spent by the lawyer on their case.
- The
Government contested this claim.
- The
Court may make an award in respect of costs and expenses in so far as
these were actually and necessarily incurred and were reasonable as
to quantum (see, for example, Sawicka v. Poland, no. 37645/97,
§ 54, 1 October 2002). Making its own estimate based
on the information available, and having regard to its case-law, the
Court awards the applicants jointly EUR 1,000 for the costs and
expenses claimed.
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
- Declares the complaints concerning the
non-communication of the written opinion of the chief public
prosecutor at the Court of Cassation and the applicants' right to
freedom of expression admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
10 of the Convention;
- 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 New Turkish liras at the rate
applicable at the date of settlement and free of any taxes or charges
that may be payable:
(i) EUR
1,000 (one thousand euros) each in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros) jointly in respect of costs and expenses.
(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 29 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan
M. Zupančič
Registrar President
