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SECOND
SECTION
CASE OF DEMİREL AND ATEŞ (NO. 3) v. TURKEY
(Application
no. 11976/03)
JUDGMENT
STRASBOURG
9
December 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 Demirel and Ateş
(no. 3) v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens, President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş, judges,
and
Sally Dollé,
Section Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11976/03) 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, Ms Hünkar Demirel
and Mr Hıdır Ateş (“the applicants”),
on 4 March 2003.
- 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 January 2008 the President of the Second Section decided to give
notice of the application to the Government. It was 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 1979 and 1951 respectively and currently
reside in Neu Isenburg and Berlin respectively.
- The
second applicant, Mr Ateş, and the first applicant, Ms Demirel,
were, respectively, the owner and the editor of Yedinci Gündem,
a weekly newspaper.
- In
its 31st edition, in January 2002, Yedinci Gündem
published an article entitled 'Öcalan's
reply to Akçam'.
It concerned Abdullah Öcalan's response to Taner Akçam's
accusations on issues concerning the establishment of the PKK and its
development which was published in another newspaper. It also
featured Öcalan's thoughts on various issues such as education
and cultural activities in Kurdish. Various parts of the article read
as follows:
“ Response to Taner Akçam
....Öcalan replied to one of the ex-leaders of
DEV-YOL, Taner Akçam...It is not a coincidence that they are
making him talk. It is important...Those that Taner Akçam
claimed to have saved from the hands of the PKK, he had them
murdered...he caused great damage...they had them murdered. This
person's identity and personality is dubious. He also caused great
damage to the PKK...We were at ADYÖD together in 1975...In 1982
he provoked the anti-fascist front. You can ask Teslim Töre
this, he knows this period. He said that, at that time, Apo wanted to
kill him. No, I never had any intention of killing him. On the
contrary, we have suspicions that it was that front who attempted to
kill or assassinate us. He very openly dissolved DEV-YOL. He is
swearing to his past...he has one foot in America, the other in
Yerevan. It is not known to whom and what he adheres...He is
dangerous...
Identity notice
Abdullah Öcalan also referred to the desires for a
Kurdish education and the State's response to these requests and
said: It would be better to establish special learning houses in
villages and streets to learn Kurdish on a scientific basis rather
than the State giving permission for it. I am saying do literary and
cultural work and activities...If Turkey prohibits it then it cannot
make progress...
“May it be a democratic year”
If there are no developments in the democratic expansion
then there will be deadlock. If State keeps the doors open for
democratic expansion and, a democratic response develops then Turkey
will grow big both inside and outside...If pressure, denial and
destruction develops a new in that case the state of legitimate
defence will be realised”.
- On
28 January 2002 the prosecutor at the Istanbul State Security Court
filed a bill of indictment with that court and charged the applicants
with offences defined in Section 6 § 2 of the Anti-Terrorism Act
(Law no. 3713), namely publishing declarations of an illegal
organisation. In addition, he called for the application of
Additional section 2 of the Press Act (Law no. 5680) and section 36
of the Criminal Code.
- On
4 February 2002 criminal proceedings against the applicants commenced
before the Istanbul State Security Court.
9. In
their written submissions to the court the applicants denied that the
publication of the article had been in contravention of the
applicable legislation. They maintained, inter alia, that by
publishing the article they had been doing their jobs and informing
the public. There had been nothing in the article which could be
interpreted as an insult to other individuals or as an incitement to
commit offences and that there was no justification for a restriction
on their right to freedom to impart information.
- On
3 June 2002 the Istanbul State Security Court convicted the
applicants as charged. It found that the article in question had
described the establishment, development and activities of the PKK
and had further referred to Öcalan's statements about a Kurdish
education campaign. As such, the article as a whole had constituted a
statement on behalf of the illegal organisation and the applicants
had committed an offence by publishing that statement in their
newspaper. The second applicant was ordered to pay a “heavy
fine” of 4,000,500,000 Turkish liras (TRL) (approximately 3,000
euros (EUR)) and the first applicant was ordered to pay a
heavy fine of TRL 2,000,250,000 (approximately EUR 1,500). 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 seven days.
- The
applicants appealed. On an unspecified date the principal 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
19 December 2002 the Court of Cassation upheld the judgment of the
first-instance court.
- On
20 January 2003 the president of the Istanbul State Security Court
sent the final judgment to the prosecutor's office at the Istanbul
State Security Court and requested that the order for the newspaper's
closure be executed.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law at the material time can be
found in 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 criminal
conviction had infringed their right to freedom of expression. They
relied in that connection on Article 10
of the Convention, which provides, 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
national security, territorial integrity or public safety, for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or
for maintaining the authority and impartiality of the judiciary.”
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 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 considered
that the content of the article incited violence and hostility among
various groups in Turkish society, thus endangering human rights and
democracy. Therefore, the interference with the applicants' right was
proportionate to the legitimate aims pursued and the reasons adduced
by the authorities were relevant and sufficient.
- The
applicants maintained their allegations and asked the Court, in line
with its case-law, to find a violation.
2. The Court's assessment
- The
Court notes that it is not in dispute between the parties that the
applicants' conviction 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 or aims, namely national security and territorial
integrity for the purposes of Article 10 § 2. The Court,
therefore, will confine its examination of the case to the question
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; Fressoz and Roire v. France ([GC],
no. 29183/95, § 45, ECHR 1999-I; Lingens v. Austria,
8 July 1986, §§ 41-42, Series A no. 103; and
Erdoğdu v. Turkey, no. 25723/94, §§
51-53, ECHR 2000 VI). 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 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”.
In addition, the nature and severity of the penalties imposed are
also factors to be considered when assessing the proportionality of
the interference (see Skałka v. Poland, no.
43425/98, § 42, 27 May 2003). Moreover, the Court also
takes into account the background to the case submitted to it,
particularly problems linked to the prevention of terrorism
(see Karataş v. Turkey [GC], no. 23168/94, §
51, ECHR 1999-IV).
- The
Court has on many occasions stressed the essential role the press
plays in a democratic society. It has, inter alia, stated that
although the press must not overstep certain bounds set, for example,
for the protection of vital interests of the State such as national
security or territorial integrity, its duty is nevertheless to impart
– in a manner consistent with its obligations and
responsibilities – information and ideas on all matters of
public interest, including divisive ones (see, for example, Şener
v. Turkey, cited above, § 41; and Sürek v.
Turkey (no. 1) [GC], no. 26682/95, § 59,
ECHR 1999 IV). Not only does the press have the task of
imparting such information and ideas: the public also has a right to
receive them (see Bladet Tromsø and Stensaas
v. Norway [GC], no. 21980/93, § 62, ECHR
1999-III).
- 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). The
Court reiterates that, in cases concerning the
press, the national
margin of
appreciation
is
circumscribed
by the interest
of a democratic
society in
ensuring and maintaining a free press (see Dąbrowski
v. Poland, no. 18235/02, § 31, 19 December
2006).
24.
The Court observes that it has examined a number of cases, two of
which were brought by the same applicants, raising similar issues to
those in the present case and found a violation of Article 10 of the
Convention (see, in particular, Sürek and Özdemir
v. Turkey [GC], nos. 23927/94 and 24277/94, 8 July 1999;
Özgür Gündem v. Turkey, no. 23144/93,
§§ 63-64, ECHR 2000 III; Korkmaz v. Turkey
(no. 1), no. 40987/98, 20 December 2005; Korkmaz
v. Turkey (no. 3), no. 42590/98, 20 December 2005;
Halis Doğan v. Turkey (no. 2), no. 71984/01, 25
July 2006; Karakoyun and Turan v. Turkey,
no. 18482/03, 11 December 2007; Demirel and Ateş
v. Turkey, nos. 10037/03 and 14813/03, 12 April 2007;
and Demirel and Ateş v. Turkey (no. 2), cited
above). 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 different conclusions in
this instance for the following reasons.
- In
the instant case, the Court notes that the article in question
concerned statements by Abdullah Öcalan, partly in response to
Mr Akçam's statements published in another newspaper and
which concerned an historical account of the establishment and
development of the PKK. It also included his views on the use of
Kurdish in education and cultural activities as well as his general
message as regards the year 2002. The Court observes that the
domestic courts assessed that the article in question constituted a
statement on behalf of an illegal organisation and that the
applicants had committed an offence by publishing that statement in
their newspaper. The applicants were subject to heavy fines
and, in addition, the newspaper was closed for a period of seven
days; that is for one single issue.
- The
Court has examined the article in question. It considers that the
article in question had a newsworthy content since it provided,
however one-sided, historical information about an organisation which
has since 1985 waged armed opposition against the State, its
background, place in the leftist movements and persons involved and
an insight into the psychology of the person who was the driving
force behind it. While it also contained serious allegations about Mr
Akçam, the Court notes that this was not in issue in the
instant proceedings, where the applicants were charged under the
Anti-Terrorism Act and not with defamation. The Court further
considers that, despite particularly libellous and acerbic passages,
the article as a whole cannot be construed, on any reading, as
encouraging violence, armed resistance or an uprising (see,
Gerger v. Turkey [GC], no. 24919/94, § 50, 8 July
1999, a contrario, Halis Doğan v. Turkey,
no. 75946/01, §§ 35 38, 7 February
2006, and Gülcan Kaya v. Turkey (dec.), no. 6250/02,
22 March 2007). In the instant case, the article in question was
not capable of inciting to violence by instilling a deep-seated and
irrational hatred against identifiable persons (see, a contrario,
Sürek v. Turkey (no. 1) [GC], no. 26682/95,
cited above, § 62).
- For
the Court it appears that the domestic courts have not given
consideration to any of the above but have concentrated instead on
the mere fact that the article contained statements on the PKK from
Abdullah Öcalan. As such the wording of Article 6 § 2 of
Law no. 3713 and its application in the instant case falls short of
the Convention requirements, since the fact that interviews or
statements were given by a member of a proscribed organisation cannot
in itself justify a blanket ban on the exercise of freedom of
expression. Regard must be had instead to the words used and the
context in which they were published, with a view to determining
whether the impugned text, taken as a whole, can be considered an
incitement to violence (see Özgür Gündem, cited
above, § 63). When a publication cannot be
categorised as such, Contracting States cannot with reference to
national security or territorial integrity restrict the right of the
public to be informed by bringing the weight of the criminal law to
bear on the media (see, mutatis mutantis, Sürek and
Özdemir, cited above, §§ 51 and 61).
- Moreover,
the Court notes that, apart from the substantial fines imposed on the
applicants, the first-instance court also ordered the temporary
closure of the newspaper for a period of seven days, which amounted
to veiled censorship, likely to discourage the applicants and others
from publishing similar articles in the future and hinder their
professional activities.
- Having
regard to the circumstances of the case as a whole and
notwithstanding the national authorities' margin of appreciation, the
Court finds 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” and their conviction under criminal law and sentence
was disproportionate to the aim pursued.
- It
follows that there has been a violation of Article 10 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that the non-communication of the principal
public prosecutor's written opinion to them infringed their right to
a fair trial, resulting from the failure to respect the principle of
equality of arms. They relied on Article 6 § 3 (b) of the
Convention.
- The
Court considers that this complaint should be examined from the
standpoint of Article 6 § 1, which in so far as relevant
provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
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 in the
past and has found a violation of Article 6 § 1 of the
Convention (see, in particular, Demirel and Ateş v. Turkey
(no. 2), cited above, § 17; Karakoyun and Turan
v. Turkey, cited above, § 40; and Abdullah Aydın
v. Turkey (no. 2), no. 63739/00, § 30,
10 November 2005).
- The
Court has examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned cases.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROCOTOL No.1
- The
applicants complained under Article 1 of Protocol No. 1 that the
temporary closure of the newspaper had constituted an unjustified
interference with their right to peaceful enjoyment of their
property.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible. It further
observes that the temporary closure of the newspaper was an
incidental effect of the applicants' conviction. Having already
determined that their conviction constituted a breach of Article 10
of the Convention (see paragraph 31 above), the Court finds it
unnecessary to examine this complaint separately (see, for example,
mutatis mutandis, Ünsal Öztürk v. Turkey,
no. 29365/95, § 70, 4 October 2005, and, mutatis
mutandis, Öztürk v. Turkey [GC], no. 22479/93,
§ 76, ECHR 1999 VI).
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
their application form the applicants also raised complaints under
Articles 1, 6 § 1 (in respect of the independence and
impartiality of the Istanbul State Security Court), 7, 13, 14, 17 and
18 of the Convention.
- The
Court observes that it has previously examined and rejected the
applicants' grievances of this kind (see Demirel and Ateş v.
Turkey (dec.), no. 10037/03 and 14813/03, 9 February 2006).
The Court finds no particular circumstances in the instance 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.
V. 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 5,000 euros (EUR) and EUR 3,000 respectively for
pecuniary damage and EUR 3,000 each in respect of non pecuniary
damage. The applicants maintained that their numerous convictions
under the Anti-terrorism legislation had had a negative impact on
their professional and private life, as a result of which they had to
leave Turkey to avoid imprisonment.
- The
Government contested the amounts.
-
In the absence of any supporting evidence, the Court considers the
applicants' claim for pecuniary damage unsubstantiated (see Demirel
and Ateş v. Turkey (no. 2), cited above, § 32).
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 frustration, which
cannot be sufficiently compensated by the finding of a violation
alone. Taking into account the particular circumstances of the case,
the type of violations found and having regard to its case law, the
Court awards the applicants jointly EUR 4,000 for non-pecuniary
damage.
B. Costs and expenses
- The applicants also claimed EUR 3,250 for the costs
and expenses incurred before the domestic courts and the Court. In
support of their claims, they submitted a time
sheet
indicating 25 hours' legal work carried out by their legal
representative.
- The
Government contested the amount.
- 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 information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 1,000 for the
proceedings 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
- Declares the complaints concerning the
applicants' right to freedom of expression, the non-communication of
the written opinion of the principal public prosecutor at the Court
of Cassation to them and the interference with their right to
peaceful enjoyment of their property admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that it is not necessary to examine
separately the applicants' complaint under Article 1 of Protocol
No.1;
- Holds
(a) that
the respondent State is to pay the applicants, jointly, 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
4,000 (four thousand euros) for 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 9 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
