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SECOND
SECTION
CASE OF ÜSTÜN v. TURKEY
(Application
no. 37685/02)
JUDGMENT
STRASBOURG
10 May
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 Üstün v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mr A.B. Baka, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mr V. Zagrebelsky,
Mrs A.
Mularoni,
Mr D. Popović, judges,
Ms D.
Jočienė, substitute judge,
and Mrs S. Dollé,
Section Registrar,
Having
deliberated in private on 12 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37685/02) 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 a Turkish national, Mr Saim Üstün
(“the applicant”), on 4 August 2002.
- The
applicant was represented by Mr B. Utku and Mr A. Atalay, lawyers
practising in Istanbul. The Turkish Government (“the Government”)
did not designate an Agent for the purpose of the proceedings before
the Court.
- The
applicant alleged, in particular, under Articles 6 and 10 of the
Convention, that his conviction and sentence for disseminating
separatist propaganda by publishing a book amounted to a violation of
his rights to a fair trial and freedom of expression. He further
alleged under Article 1 of Protocol No. 1 that the confiscation of
copies of the book at issue infringed his property rights.
- On
5 May 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
applicant was born in 1963 and lives in İstanbul.
- At
the time of the events giving rise to this application, the applicant
was the owner of “Dönüşüm Publishing”,
a small independent publication firm.
- In
1992 this firm published a book, written by Mr H.Y., entitled “The
people's artist and fighter: Yılmaz Güney” (Halkın
Sanatçısı, Halkın Savaşçısı:
Yılmaz Güney). The book was about the life and
political views of the left-wing revolutionary cinema artist Yılmaz
Güney. It was reprinted in 2000.
- On
19 October 2000 the public prosecutor at the İstanbul State
Security Court filed a bill of indictment accusing the applicant of
disseminating separatist propaganda, contrary to section 8 (3) of
Law no. 3713 (the Prevention of Terrorism Act).
- The
prosecution relied on the following passages of the book:
“...Sürü (Herd)
depicts Kürdistan. In Yol (Road)
there was even a street sign showing that the film is about
Kürdistan. This scene in particular was sufficient to make the
Turkish fascists go mad...”
“...in the meantime the revolutionary movement
evolved in the country and national conscience awakened in Northern
Kürdistan...”
“...Yılmaz Güney is without a doubt a
cornerstone in Turkey-Northern Kürdistan cinema...”
“...According to them it is separatism and
degeneracy to defend Kurdish peoples' national and democratic rights
and their independence...those who don't want to be degenerate and
bloodless must lick the boots of fascism, endure pressures, turn a
blind eye to human rights violations [and] applaud the oppression of
the Kurdish Nation. According to us they are the real degenerates and
bloodless. We shall fight and defend all national and democratic
rights, including the right of the Kurdish nation to establish an
independent political state...”
“...Those who introduced those prohibitions in
Turkey and in Northern Kürdistan will be held accountable”.
- In
his written submissions, dated 29 June 2001, to the State Security
Court, the applicant pleaded that the book concerned the life and, in
particular, the political views of a famous cinema star and that it
was written by Mr H.Y. He maintained that, while he did not share the
views of the author, he did not think that publishing the book would
constitute an offence. He also argued that the book had been
previously published without any charges being brought against him.
Finally, he also pointed out, relying on the note of the Istanbul
Security Directorate dated 15 November 2000, that no
confiscation decision had been given against the book by the
authorities.
- On
29 June 2001 the Istanbul State Security Court found the applicant
guilty of the offence, as publisher of the book. He was sentenced to
six months' imprisonment, a sentence which was then commuted to a
fine of 1,764,360,000 Turkish liras.
In its decision, the court, relying on the passages indicated by the
prosecution, noted that the book referred to a certain part of the
Turkish territory as Kurdistan, and thus had disseminated propaganda
against the indivisible integrity of the State.
- On
4 February 2002 the Court of Cassation upheld the judgment of the
first-instance court.
- The
applicant paid the fine on 11 July 2003.
- By
an additional judgment (ek karar) dated 7 October 2003, the
Istanbul State Security Court, taking into account that Article 8
of Law no. 3713 was abolished pursuant to Law no. 4928,
acquitted the applicant and nullified his conviction together with
all its consequences. This judgment became final on 15 October
2003.
- In
their observations the Government submitted that the applicant had
not yet applied to the court in order to be reimbursed.
II. THE RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice in force at the material time are
outlined in the following judgments: Erdoğdu v. Turkey
(no. 25723/94, §§ 21-26, ECHR 2000-VI), and Başkaya
and Okçuoğlu v. Turkey ([GC], nos. 23536/94 and
24408/94, §§ 25-27, ECHR 1999-IV).
- By
Law no. 4928, published in the Official journal on 15 July 2003,
Article 8 of the Prevention of Terrorism Act (Law no. 3713)
was abolished.
THE LAW
I. ADMISSIBILITY
- The
applicant complained under Article 6 of the Convention that his right
to a fair hearing was breached since he was tried and convicted by a
State Security Court. He further submitted that the written opinion
of the principal public prosecutor at the Court of Cassation was
never served on him, thus depriving him of the opportunity to put
forward his counter arguments. He submitted under Article 10
that his conviction and sentence for disseminating separatist
propaganda by publishing a book amounted to a violation of his right
to freedom of expression. Finally, the applicant alleged under
Article 1 of Protocol No. 1 that the confiscation of copies of the
book at issue infringed his property rights.
- The
Government suggested that, since the applicant had been acquitted in
2003, he was no longer a victim. They invited the Court to declare
the application inadmissible pursuant to Articles 35 §§ 3
and 4 of the Convention.
- The
applicant disputed the Government's argument.
- As regards the applicant's complaint under Article 10,
the Court reiterates that it has already examined and rejected the
Government's preliminary objections in similar cases (see, in
particular, Güneş v. Turkey
(dec.), no. 53916/00, 13 May 2004). The Court finds no particular
circumstances in the instant case which would require it to depart
from its previous findings.
- In
view of the above, the Court rejects the Government's preliminary
objection under this head.
- 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.
- As to the applicant's complaint under Article 6 of the
Convention, the Court further reiterates that it has already held
that, following annulment of a conviction, an applicant can no longer
be considered a victim, within the meaning of Article 34 of the
Convention, of the alleged violation of Article 6 (see, in
particular, Güneş, cited above, and Koç
and Tambaş v. Turkey
(dec.), no. 46947/99, 24 February 2005). The Court finds
that the applicant's situation is comparable. In these circumstances,
the Court accepts the Government's objection under this head. It
follows that this part of the application should be rejected as being
manifestly ill founded pursuant to Article 35 §§ 3 and
4 of the Convention.
- Finally,
the Court notes that no documents were submitted to substantiate the
applicant's complaint under Article 1 of Protocol No. 1 pertaining to
the confiscation of copies of the impugned book. Therefore this part
of the application is also inadmissible as being manifestly
ill founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that his conviction and sentence for publishing
a book constituted an unjustified interference with his freedom of
expression. He 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 maintained that the interference with the applicant's
right to freedom of expression was justified under the provisions of
the second paragraph of Article 10. In this respect, they maintained
that the applicant had published a book which disseminated propaganda
against the indivisible integrity of the State. The Government noted
that at the time of the events this act was sanctioned by Article 8
of Law no. 3713. Finally, they submitted that, following the
abrogation of the aforementioned law, the applicant was acquitted of
all charges.
- The
applicant maintained his allegations.
- The
Court notes that it is not in dispute between the parties that the
applicant's original conviction constituted an interference with his
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 what is in issue is
whether the interference was “necessary in a democratic
society”.
- The
Court reiterates the basic principles laid down in its judgments
concerning Article 10 (see, in particular, the following judgments,
Şener v. Turkey, no. 26680/95, §§ 39-43,
18 July 2000, İbrahim Aksoy, cited above, §§
51-53, Lingens v. Austria, judgment of 8 July 1986,
Series A no. 103, p. 26, §§ 41-42, and Fressoz and
Roire v. France [GC], no. 29183/95, § 45, ECHR 1999).
It will examine the present case in the light of these principles.
- The
Court must look at the impugned interference in the light of the case
as a whole, including the content of the book and the context in
which it was published. In particular, it must determine whether the
interference in question was “proportionate to the legitimate
aims pursued” and whether the reasons adduced by the national
authorities to justify it are “relevant and sufficient”.
The Court takes into account, furthermore, the background to cases
submitted to it, particularly problems linked to the prevention of
terrorism (see Karakaş v. Turkey [GC], no. 23168/94, §
54, ECHR 1999 IV).
- The Court observes that the applicant reprinted a book
which had been written by Mr H.Y. It notes that the book in issue
took the form of a biography of Yılmaz Güney, a famous
left-wing revolutionary cinema artist. The Court, taking into account
the information contained in the case file, finds that the book does
not give a neutral account of Mr Güney's life but a politicised
version, and that the author seeks to convey to the public, through
this book, his own opinions on certain matters such as the rights of
the Kurdish people and the authorities' stance against the
achievement of such rights. Reiterating that there is little scope
under Article 10 § 2 of the
Convention for restrictions on political speech or the debate
on questions of public interest (see Sürek v. Turkey (no.
1) [GC], no. 26682/95, § 61, ECHR 1999-IV), the Court finds
that, although the passages highlighted by the prosecution do give
the narrative a hostile tone, they do not encourage violence, armed
resistance or insurrection, and do not constitute hate speech. In the
Court's view, this is an essential consideration (contrast Sürek
v. Turkey (no. 1), cited above, § 62, and
Gerger v. Turkey [GC], no. 24919/94, § 50, 8 July 1999)
in the assessment of the necessity of the measure.
- Moreover,
the Court observes that the first edition of the book had sold out
without occasioning criminal proceedings. The Government failed to
explain how the second edition of the same book could have caused
more concern to the judicial authorities than the first, published in
1992.
- Furthermore,
the Court notes that, notwithstanding the eventual acquittal and the
annulment of the sentence imposed on the applicant, he nevertheless
remained convicted for over a year and had to pay the fine which had
been imposed in order to avoid a prison sentence.
- Against
this background, the Court considers that the reasons given by the
State Security Court for convicting and sentencing the applicant,
although relevant, cannot be considered sufficient to justify the
interference with his right to freedom of expression.
- Having
regard to the above considerations, the Court concludes that the
applicant's original conviction and sentence
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.
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, costs and expenses
- The
applicant claimed, in total, 214,764,400,000 Turkish Liras
(approximately 116,880 euros (EUR)) in respect of pecuniary and
non pecuniary damage. This sum included the loss of profit on
the selling of the books, the fine which he had paid and
representation fees, costs and expenses incurred both before the
Court and in the domestic proceedings.
- The
Government suggested that the applicant had failed to comply with
Rule 60 of the Rules of the Court.
1. Pecuniary damage
- The
Court dismisses the applicant's claims concerning a loss of profits
as being speculative. Moreover, the Court finds that the
reimbursement by the Government of the fine paid by the applicant,
plus the statutory interest applicable under domestic law, running
from the date when the applicant had paid it, would satisfy his claim
for pecuniary damage.
2. Non-pecuniary damage
- The
Court considers that the applicant may be taken to have suffered a
certain amount of distress in the circumstances of the case. Making
its assessment on an equitable basis, it awards him EUR 2,000 for
non pecuniary damage.
3. Costs and expenses
- The
Court dismisses the applicant's request for the reimbursement of his
costs and expenses incurred before the domestic courts, since the
applicant has failed to submit any receipt or invoices demonstrating
that they were necessarily and reasonably incurred. However, the
Court, making its own estimate based on the information available,
considers it equitable to award the applicant EUR 1,000 for the costs
and expenses incurred before the Court.
B. 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 complaint concerning the
interference with the applicant's right to freedom of expression
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the
reimbursement of the fine paid by the applicant, plus the statutory
interest applicable under domestic law, running from the date of
payment, as well as the following sums, to be converted into new
Turkish liras at the rate applicable at the date of settlement:
(i) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 10 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé A.B. Baka
Registrar President
