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SECOND
SECTION
CASE OF SAYGILI AND FALAKAOĞLU v. TURKEY
(Application
no. 39457/03)
JUDGMENT
STRASBOURG
21
October 2008
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 Saygılı and Falakaoğlu v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Antonella Mularoni,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl Karakaş,
judges,
and
Sally Dollé,
Section Registrar,
Having
deliberated in private on 29 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39457/03) 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 Fevzi Saygılı
and Mr Bülent Falakaoğlu (“the applicants”),
on 12 November 2003.
- The
applicants were represented by Mr K.T. Sürek, Mr D. Avcı
and Mr S. Mutlu, lawyers practising in Istanbul. The
Turkish Government (“the Government”) were represented by
their Agent.
- On
16 October 2007 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1966 and 1974 respectively and live in
Istanbul.
- The
first applicant, Fevzi Saygılı, and the second applicant,
Bülent Falakaoğlu, are, respectively, the owner and the
editor of Yeni Evrensel, a newspaper published in Istanbul.
- On
22 February 2001 Yeni Evrensel published an article entitled
“Abductions are on the increase”. It read:
“Yesterday Mr Büyükşahin, the
deputy secretary-general of the HADEP (the People's Democracy Party),
drew attention to the illegal pressure and threats directed at the
HADEP and stated that the authorities have still not provided an
explanation as to the whereabouts of Serdar Tanış and
Ebubekir Deniz,
who have disappeared in Silopi. He went on to state that such threats
and abductions had been carried out in Bingöl Karlıova
and Şırnak-Cizre. Various people, identifying themselves as
members of the security forces, had raided houses in Karlıova
and detained Mustafa Boylu, Mehmet Özen, Remzi Genç and
Selahattin Oge. Büyükşahin added that, subsequent to
his detention, Selahattin Oge had been found lying in a coma next to
a school. Following applications made to the prosecutors by the
detainees' relatives, the authorities had acknowledged these
detentions. He further said that Mehmet Dilsiz, chairman of the
HADEP's Cizre branch, had been threatened, arrested and detained by
the Gendarmerie Command on the basis of fake documents and without
any evidence. Mr Büyükşahin stressed that the life of
Mehmet Dilsiz, who had been threatened by the Şırnak
Gendarme Brigade Colonel L.E, was in danger. Mr Büyükşahin
speculated as to whether those who were currently threatening Mehmet
Dilsiz were the same persons as those who had caused Tanış
and Deniz to disappear. Alleging that the commander was threatening
Mehmet Dilsiz, just as he had previously threatened Tanış,
he asked what L.E.'s role had been in the disappearances of the
HADEP's Silopi members. Mr Büyükşahin condemned
these incidents and called on the authorities to take up the victim's
cause and reveal the truth.”
- On
7 March 2001 Yeni Evrensel published an article entitled
“Cizre incidents contain clues for Silopi”. This article
also concerned the issue of forced disappearances in south-east
Turkey. However, this article did not explicitly mention Colonel L.E.
- On 25 July 2001 the prosecutor at the Istanbul State
Security Court filed a bill of indictment with that court and charged
the applicants and Mr Veli Büyükşahin with
offences defined in Section 6 § 1 of the
Anti Terrorism Act (Law no. 3713), namely disclosing the
identities of public officials who are involved in the fight against
terrorism and thus rendering such persons targets for terrorist
organisations. According to the prosecutor, the articles had
endangered the life of Colonel L.E. In
addition, he called for the application of Additional section 2 of
the Press Act (Law no. 5680).
- In
the course of the trial the applicants maintained that the content of
the impugned articles remained within the limits of freedom of
expression. They relied on the case-law of the Court of Cassation and
the European Court of Human Rights.
- On
9 April 2002, the Istanbul State Security Court delivered its
judgment. It acquitted the applicants in respect of the charges
concerning the second article and convicted them in respect of the
charges regarding the first article. The court considered that the
first article was written, under the guise of news, with the aim of
presenting Colonel L.E. as a target for terrorist organisations. The
court found that the applicants bore responsibility for publishing
the remarks made by Mr Büyükşahin. The first applicant
was ordered to pay a “heavy fine” of 757,080,000 Turkish
liras (TRL) and the second applicant was ordered to pay a heavy fine
of TRL 378,540,000. The first-instance court further ordered, in
accordance with Additional section 2 § 1 of Law no. 5680, the
temporary closure of the newspaper for a period of three days.
- The
applicants and the prosecutor appealed. In their appeal petition, the
applicants requested the Court of Cassation to hold a hearing. As to
the merits of their appeal, the applicants maintained, inter alia,
that the article in question was a news item of major public interest
and that all they had done was to impart - in a manner consistent
with their obligations and responsibilities - information on a matter
of public interest. In addition, they maintained that the fine
imposed on them was excessive and complained about the application of
Additional section 2 § 1 of Law no. 5680.
- On
3 July 2003, the Court of Cassation, pursuant to Article 318 of the
Criminal Procedure Code, rejected the request for a hearing and
upheld the judgment.
- The
closure order for the newspaper was executed from 24 to
27 September 2003. The first applicant paid the fine on
24 January 2004. The second applicant paid on 19 November
2004.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in Özgür Gündem v. Turkey (no. 23144/93,
§ 32, ECHR 2000 III), and Demirel and Ateş v.
Turkey (no. 2) (no. 31080/02, § 12, 29 November
2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained that their conviction and sentence under
section 6 of Law no. 3713 and the temporary closure of the newspaper
had infringed their right to freedom of expression. They relied in
that connection on Article 10 of the Convention, which, in so far as
relevant, provides:
“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...
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, ... for the
prevention of disorder or crime, [or] for the protection of the
reputation or rights of others...”
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
1. The applicants' conviction and sentence under
Article 6 § 1 of Law no. 3713
(a) The parties' submissions
- 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. In particular, they pointed to
the manner in which Mr L.E. had been portrayed in the article in
question and submitted that the explicit mention of his name had made
him a target for terrorist organisations. The Government argued that
the content of the article was likely to provoke violence and hate
crimes in the region.
- The
applicants maintained their allegations.
(b) The Court's assessment
- The
Court notes that it is not in dispute between the parties that the
applicants' conviction and sentence constituted an interference with
their 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, namely the prevention of crime for the
purposes of Article 10 § 2. 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 v. Turkey,
nos. 28635/95, 30171/96 and 34535/97, §§ 51-53,
10 October 2000; Lingens v. Austria, judgment of 8
July 1986, Series A no. 103, p. 26, §§ 41 42,
Fressoz and Roire v. France [GC], no. 29183/95, § 45,
ECHR 1999, Sürek v. Turkey (no. 1) [GC], no.
26682/95, § 61, ECHR 1999-IV, and Kuliś v.
Poland, no. 15601/02, §§ 36-41, 18 March
2008). 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 article and the context in
which it was diffused. 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”.
Furthermore, the Court takes into account the background to the cases
submitted to it, particularly problems linked to the prevention of
terrorism (see Üstün v. Turkey, no. 37685/02, § 30,
10 May 2007).
- However,
the pre-eminent role of the press in a State governed by the rule of
law must not be forgotten. Although it must not overstep various
bounds set, inter alia, for the prevention of disorder or
crime and the protection of the reputation of others, it is
nevertheless incumbent on it to impart information and ideas on
political questions and on other matters of public interest. Freedom
of the press affords the public one of the best means of discovering
and forming an opinion of the ideas and attitudes of their political
leaders (see Castells v. Spain, judgment of 23 April
1992, Series A no. 236, § 43). Journalistic freedom
also covers possible recourse to a degree of exaggeration, or even
provocation (see Prager and Oberschlick v. Austria, judgment
of 26 April 1995, Series A no. 313, p. 19, § 38).
- In
addition, the Court reiterates that news reporting based on
interviews or declarations by others, whether edited or not,
constitutes one of the most important means whereby the press is able
to play its vital role of “public watchdog”. The
punishment of a journalist for assisting in the dissemination of
statements made by another person would seriously hamper the
contribution of the press to the discussion of matters of public
interest, and should not be envisaged unless there are particularly
strong reasons for doing so (see, for example, Kuliś v.
Poland, no. 15601/02, § 38, 18 March 2008). A
general requirement for journalists systematically and formally to
distance themselves from the content of a quotation that might insult
or provoke others or damage their reputation is not reconcilable with
the press's role of providing information on current events, opinions
and ideas (see, for example, Thoma v. Luxembourg, no.
38432/97, § 64, ECHR 2001 III).
- Turning
to the facts of the case, the Court notes that the article in
question concerned a statement by a politician, Mr Büyükşahin,
on the issue of forced disappearances in south-east Turkey. In the
article, Mr Büyükşahin criticised the State for
not doing enough to find those responsible for these disappearances.
He also made a number of serious allegations. Mr Büyükşahin,
firstly, accused Colonel L.E. of threatening a HADEP member and,
secondly, made implicit reference to the latter's possible
involvement in the disappearance of two other HADEP members. The
Court observes that the State Security Court assessed that the
article in question was written with the aim of presenting Colonel
L.E. as a target for terrorist organisations and held that the
applicants were responsible for publishing it.
- The
Court has examined the article in question. It considers, firstly,
that the subject of the article, namely forced disappearances in
south-east Turkey, was undoubtedly a matter of public interest.
However, the Court notes that Mr Büyükşahin's
statements contain serious allegations of misconduct by the security
forces and, in particular, by Colonel L.E., and as such his
statements, if untrue, were defamatory and capable of exposing the
colonel to public contempt. In this connection, the Court reiterates
that it may be necessary to protect public servants from offensive,
abusive and defamatory attacks which are calculated to affect them in
the performance of their duties and to damage public confidence in
them and the office they hold (see Nikula v. Finland, no.
31611/96, § 48, ECHR 2002 II). Nevertheless, the Court
notes that this was not in issue in the instant proceedings where the
applicants were charged under the Prevention of Terrorism Act and not
for defamation (see Falakaoğlu and Saygılı
v. Turkey, no. 11461/03, § 26, 19 December 2006).
- The
Court has examined the reasons given in the national courts'
decisions. It does not consider them sufficient to justify the
interference with the applicants' right to freedom of expression for
the following reasons. Firstly, the Court notes that the State
Security Court appears in its judgment not to have relied on or given
any special weight to the nature of the accusations brought against
Colonel L.E. in the reasoning leading to the conviction of the
applicants (see, mutatis mutandis, Halis v. Turkey,
no. 30007/96, § 35, 11 January 2005). Secondly, the
issue of whether Colonel L.E.'s name and role in fighting terrorism
were already in the public domain and whether he was in any actual
danger as a result of this disclosure was never taken into account;
as such, the State Security Court failed to weigh the interest in
protecting the identity of the colonel, who, on account of his
status, would have been well known at least in his district, as
opposed to disclosing it for reasons of public interest. The Court
notes in this context that, despite particularly libellous passages,
the article, read as a whole, cannot be construed as incitement to
violence against a public official and thus as having exposed Colonel
L.E. to significant risk of physical violence (see Koç and
Tambaş v. Turkey, no. 50934/99, § 38, 21 March
2006). In the Court's view, these are the essential factors in
assessing the necessity of the measure.
- Having
regard to the circumstances of the case as a whole and
notwithstanding the national authorities' margin of appreciation, the
Court reiterates that the interference with the applicants' freedom
of expression was not based on sufficient reasons to show that the
interference complained of was “necessary in a democratic
society”. This finding makes it unnecessary for the Court to
pursue its examination in order to determine whether the applicants'
conviction under criminal law and their sentence was proportionate to
the aim pursued.
- It
follows that there has been a violation of Article 10 of the
Convention.
2. The temporary closure of the newspaper in accordance
with Additional section 2 § 1 of Law no. 5680
- Having
regard to the facts of the case, the submissions of the parties and
its finding of a violation under Article 10 above, the Court
considers that it has examined the main legal question raised in the
present application. The Court concludes therefore that there is no
need to give a separate ruling on the applicants' remaining complaint
under Article 10 (see, for example, Eser Ceylan v.
Turkey, no. 14166/02, § 33, 13 December 2007, K.Ö.
v. Turkey, no. 71795/01, § 50, 11 December 2007, Mehmet
and Suna Yiğit v. Turkey, no. 52658/99, § 43, 17
July 2007, and Uzun v. Turkey, no. 37410/97, § 64,
10 May 2007).
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that they were denied a fair hearing by an
independent and impartial tribunal. In this connection, they
complained about the structure of the State Security Court and the
attachment of the judges sitting on the bench of this court to the
Supreme Council of Judges and Public Prosecutors. In addition, the
applicants complained about the lack of reasoning before the Court of
Cassation and the latter's refusal to hold a hearing in their case.
- The
Court observes that it has previously examined and rejected
grievances of this kind (see, amongst others, Maçin v.
Turkey (no. 2), no. 38282/02, § 31, 24
October 2006, Falakaoğlu v. Turkey (dec.), no. 77365/01,
5 June 2003, and Emire Eren Keskin v. Turkey (dec.),
no. 49564/99, 16 December 2003). The Court finds no particular
circumstances in the instant case which would require it to depart
from its earlier findings. Consequently, this part of the application
is manifestly ill founded within the meaning of Article 35 §
3 of the Convention and must be rejected pursuant to Article 35
§ 4.
III. 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 claimed, in total, 2,496 euros (EUR) in respect of
pecuniary damages. This sum included the damage incurred as a result
of the closure of the newspaper for three days and the fines paid by
the applicants (EUR 664 and EUR 332 respectively). In addition, the
applicants claimed EUR 10,000 in respect of non-pecuniary damage.
- The
Government contested the amounts.
- In the absence of any pertinent documents, the Court
considers the applicants' claim regarding the pecuniary damage
sustained due to the temporary closure of the newspaper as
speculative and unsubstantiated. It accordingly dismisses it.
However, the Court finds that there is a causal link between the
violation found and the fines the applicants had to pay. The Court
awards the full amount claimed by the applicants in this respect.
- In
addition, the Court considers that the applicants may be assumed 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,
jointly, EUR 3,000 for non pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 3,000 for the costs and expenses incurred
before the Court.
- The
Government contested the amount.
- Since the applicants submitted no substantiation of
their claim for costs and expenses, as required by Rule 60 of the
Rules of Court, the Court makes no award under this head.
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 complaint concerning the alleged
interference with the applicants' 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 on account of the applicants' conviction and
sentence;
- Holds that there is no need to examine
separately the applicants' remaining complaint under 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
sums, to be converted into new Turkish liras at the rate applicable
at the date of settlement:
(i) EUR
664 (six hundred and sixty-four euros) to Mr Saygılı and
EUR 332 (three hundred and thirty-two euros) to Mr Falakoğlu
for pecuniary damage;
(ii) EUR
3,000 (three thousand euros), jointly, in respect of non pecuniary
damage;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 21 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
