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THIRD
SECTION
CASE OF SAYGILI AND FALAKAOĞLU v. TURKEY (no. 2)
(Application
no. 38991/02)
JUDGMENT
STRASBOURG
17
February 2009
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 (no. 2),
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Alvina
Gyulumyan,
Egbert Myjer,
Ineta Ziemele,
Işıl
Karakaş,
Ann Power, judges,
and
Santiago Quesada,
Section Registrar,
Having
deliberated in private on 27 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 38991/02) 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 Fevzi Saygılı
and Mr Bülent Falakaoğlu (“the applicants”),
on 26 July 2002.
- The
applicants were represented by Mr K.T. Sürek, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
- The
applicants alleged that their conviction by the Istanbul State
Security Court and the closure of their newspaper for three days for
having published declarations of detainees who were being kept in
prisons in Turkey had amounted to a violation of their rights
protected by Articles 6 and 10 of the Convention.
- On
18 January 2008 the President of the Third 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 1966 and 1974 respectively and live in
Istanbul. They are, respectively, the owner and the editor-in-chief
of a daily newspaper called Yeni Evrensel.
- On
23 October 2000, on payment of a certain amount of money,
Yeni Evrensel newspaper published three declarations by
detainees who were being kept in several prisons in Turkey and who
were either convicted or being tried on charges of having been
involved in the activities of left wing illegal armed
organisations. By these declarations the detainees protested mainly
against the F-type prison system put in place by the Government. They
stated, in particular, that they would go on hunger strike until the
Government abolished the F-type prison system. They also made a
number of other requests to the Government, such as the abrogation of
Law no. 3717 (Anti-Terrorism Law), the state security courts and
anti-democratic laws as well as prosecution of those who tortured
detainees.
- The
first declaration on page 9 of the newspaper was entitled “We
warn the Government which tries to put in place a cell system, we
will not enter the cells”, and in its relevant parts stated as
follows:
“As we fought off the 12 September Junta’s
policies of controlling the prisons,
As the circulars of 1 August were torn off,
As the Eskişehir coffin house (prison) was forced
to close down in 1991,
As we forced the authorities to close down the Eskişehir
coffin house once again in 1996 by our hunger strikes and we set up a
barricade against the attacks on the people, today we the
revolutionary prisoners who have come across the same duties will
fight off this attack as well. We will pay off whatever it costs. But
we will not enter the cells. From now on the strong voice of the
resistance will resonate in the prisons of our country. As detainees
of the DHKP-C and TKP (ML) cases kept in various prisons, we start an
indefinite hunger strike from 20 October 2000 until the F-type cell
assault ends and our demands are met...
We will die but we will not enter the cells,
Long live our general resistance,
We will win...”
- The
second declaration on page 10 of the newspaper was entitled “We
are on indefinite hunger strike, we will die but we will not enter
the cells”, and stated in its relevant parts:
“...With these beliefs and determination, and
together with the prisoners of DHKP-C and TKP (ML) cases, we started
our hunger strike resistance for an indefinite period. We call on all
revolutionary prisoners, including the prisoners of PKK cases, to
unite under the resistance flag and to set up a stronger and
indestructible barricade of revolutionist mind.
The fundamental requests of our resistance are as
follows:
* Abolish F-type prisons immediately,
* Reinstate all rights seized in prisons,
* Abolish the Anti-Terrorism Law,
* Abolish the tripartite protocol,
* Abolish the state security courts and invalidate the
outcome of all judgments delivered by these courts, and
* Try the torturers and perpetrators of massacres.
...
We call on the working class, labourers, all oppressed
people and revolutionary people and ask them to support us in this
resistance, for which we are ready to sacrifice our lives for human
honour. We call on you to fight off the cell system which is the most
critical chain of assault aiming at turning our lives into cells.
We will die but we will not enter the cells!
Long live resistance, long live victory!
In the name of TKIP detainees in all prisons.”
- Finally,
the third declaration, which appeared on page 10 of the newspaper,
was entitled “To the public” and made calls similar to
the first two declarations above. In particular, it called on all
forces struggling to gain political freedom and class independence to
take a stand against the fascist establishment and to spread the
existing movement and actions and not to content themselves with mere
declarations. It also called on these “forces” to use the
request “F-type prisons should be closed” as leverage for
their own political requests.
- On
2 November 2000 the Chief Public Prosecutor at the State Security
Court filed an indictment charging the applicants with publishing the
declarations of terrorist organisations. The charges were brought
under section 6/2 of Law no. 3713, section 2/1 of Law no. 5680
(Press Law) and Article 36 of the former Criminal Code.
- On
17 April 2001 the applicants made their defence submissions to the
Istanbul State Security Court. They argued that they had merely
published declarations on payment of a certain amount of money and
that they had had no intention of publishing the view of any
terrorist organisation. They maintained that their trial by a state
security court for exercising their right to impart ideas would
amount to a breach of Articles 6 and 10 of the European
Convention on Human Rights.
- Following
the hearing of 17 April 2001, the Istanbul State Security Court
convicted the applicants as charged and sentenced them to heavy
fines, of 10,995,840,000 Turkish liras (TRL) (6,380 euros (EUR)) and
TRL 183,240,000 (EUR 105) respectively, which sums corresponded
to 90% of the newspaper’s average sales in the previous month.
The court further decided to ban the publication of Yeni Evrensel
for three days.
- On
20 April 2001 the applicants appealed, arguing that they were
innocent of the crime and that the sanction imposed on them was
disproportionate.
- On
17 September 2001 the Court of Cassation quashed the Istanbul State
Security Court’s judgment, holding that the fine imposed on the
applicants was miscalculated.
- On
11 December 2001 the Istanbul State Security Court delivered its
reasoned judgment. Relying on Article 10 § 2 of the Convention
and the Zana v. Turkey judgment (25 November 1997, Reports
of Judgments and Decisions 1997 VII), the court held that
publication of terrorist organisations’ declarations was not
protected by the right to freedom of expression. It also noted that
freedom of expression was not absolute and that Article 10 § 2
of the Convention did not permit the publication of views expressed
by armed terrorist organisations.
- On
12 December 2001 the applicants appealed again and asked the Court of
Cassation to hold a hearing and to quash the State Security Court’s
judgment of 11 December 2001. They claimed that the incriminated
declarations did not incite violence or harm national security. They
only exercised their duty to impart political opinions. The
applicants also challenged the constitution of the state security
courts.
- On
15 April 2002 the Court of Cassation dismissed the applicants’
request for a hearing and upheld the judgment of the Istanbul State
Security Court.
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. They argued that the content of
the declarations was likely to provoke violence and disturbances.
- The
applicants maintained that they had published these declarations for
commercial and journalistic purposes and that therefore their content
should not be seen as their own views.
(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, 8 July 1986, §§
41-42, Series A no. 103; Fressoz and Roire v. France [GC], no.
29183/95, § 45, ECHR 1999 I; 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 declarations and the context
in which they were 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”. Furthermore, the Court takes into account the
background to the cases submitted to it, particularly problems linked
to the prevention of public disorder and terrorism (see Falakaoğlu
and Saygılı v. Turkey, nos. 22147/02 and 24972/03,
§ 31, 23 January 2007).
- Since
the applicants were convicted of disseminating propaganda of
terrorist groups through the medium of the newspaper of which they
were the owner and editor-in-chief, the impugned interference must
also be seen in the context of the essential role of the press in
ensuring the proper functioning of political democracy (see Lingens,
cited above, § 41, and Fressoz and Roire, cited above, §
45). While the press must not overstep the bounds set, inter alia,
for the protection of vital interests of the State such as national
security or territorial integrity against the threat of violence or
the prevention of disorder or crime, it is nevertheless incumbent on
the press to impart information and ideas on political issues,
including divisive ones. Not only has the press the task of imparting
such information and ideas; the public has a right to receive them.
Freedom of the press affords the public one of the best means of
discovering and forming an opinion of the ideas and attitudes of
political leaders (see Sürek (no. 1), cited above, §
62)
- Turning
to the facts of the case, the Court notes that the applicants were
convicted of publishing the declarations of terrorist organisations.
These declarations were prepared by the detainees who were being kept
in several prisons for their affiliation to various terrorist groups
and carried messages concerning their dissatisfaction with the new
F-type prison system which led to their “resistance by hunger
strikes for an indefinite period”. The detainees called on the
public, including other prison inmates and “revolutionary
groups”, to support them by action in their struggle against
the “fascist establishment” until their demands were
met by the authorities (see paragraphs 7-9 above).
- In
the Court’s opinion, what is in question in these declarations
is not the suggested goals that must be achieved; i.e. abolishment of
the state security court, punishment of perpetrators of torture etc.
There is no doubt that it is perfectly legitimate to make suggestions
to achieve these goals. However, the problem results from the wording
of the overall message given to the readers, where their authors
state that they will rather die than enter the cells and call on
others to take action in order to support their general resistance
and not to content themselves with mere declarations. It is clear
that the message given is not a peaceful one and cannot be seen as a
mere criticism of the new prison system. While it is true that the
applicants did not personally associate themselves with the views
contained in these declarations, they nevertheless provided their
writers, who expressed their affiliation to illegal armed groups,
with an outlet to stir up violence and hatred. Accordingly, the
content of these declarations must be seen as capable of inciting
violence in the prisons by instilling an irrational reaction against
those who introduced or were in charge of the new incarceration
system. In other words, the message which is communicated to the
readers is that recourse to violence is a necessary and justified
measure of self-defence in the face of the aggressor who wants to
turn their lives into prison cells (see paragraph 8 above). It is to
be noted that in a similar case the Court had already expressed its
concern about the making of such declarations at a time when serious
disturbances had taken place in several prisons between the security
forces and detainees, resulting in the deaths and injuries of parties
to the conflict (see Falakaoğlu and Saygılı,
cited above, § 33). In such a context, the Court considers that
there were indeed reasons to fear for violent reactions and thus to
be reticent in view of the events that had taken place in the prisons
in less than two months after the publication of the impugned
declarations (ibid.)
- This
being so, the Court cannot accept the applicants’ argument that
they should be exonerated from any criminal liability for the content
of the declarations on account of the fact that they only published
them for commercial reasons. As the owner and editor-in-chief of the
newspaper, the applicants were vicariously subject to the “duties
and responsibilities” which the newspaper’s editorial and
journalistic staff undertakes in the collection and dissemination of
information to the public and which assume an even greater importance
in situations of conflict and tension (see Sürek (no. 1),
cited above, § 63).
- Finally,
the Court observes that the nature and severity of the penalty
imposed are factors to be taken into account when assessing the
proportionality of the interference. In this connection, it concludes
that the heavy penalty imposed on the applicants as the owner and
editor-in-chief of the newspaper could reasonably be regarded as
answering a “pressing social need” and that the reasons
adduced by the authorities for the applicants’ conviction are
“relevant and sufficient”.
- For
these reasons and having regard to the margin of appreciation which
national authorities have in such a case, the Court considers that
the interference in issue was proportionate to the legitimate aims
pursued. There has consequently been no breach of Article 10 of the
Convention in the circumstances of this case.
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 no violation under Article 10 above, the Court
considers that it has examined the main legal question raised in the
present application. It 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). It 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.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint concerning
the alleged breach of the applicants’ right to freedom of
expression admissible and the remainder of the application
inadmissible;
- Holds, by five votes to two, that there has been
no violation of Article 10 of the Convention in respect of the
conviction of the applicants;
- Holds, by five votes to two, that there is no
need to give a separate ruling on the applicants’ remaining
complaint under Article 10.
Done in English, and notified in writing on 17 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint dissenting opinion of
Judges Gyulumyan and Power is annexed to this judgment.
J.C.M
S.Q.
JOINT DISSENTING OPINION OF JUDGES POWER
AND
GYULUMYAN
The
criminal prosecution of the applicants as owner and editor-in-chief
of a daily newspaper, the imposition upon them of a heavy financial
penalty and the closure of their newspaper for three days
constituted, in our view, a violation of Article 10 of the Convention
and we voted in favour of such a finding. Their newspaper published
declarations of detainees who called for support and resistance in
their campaign against what they regarded as an oppressive and
dehumanising prison regime. In their unsuccessful appeal against
conviction before the domestic courts, the applicants claimed that
they exercised their duty to impart political opinions and that the
declarations published did not incite violence or harm national
security.
Freedom
of the press is a value to be guarded, jealously, in a democratic
society. For the flourishing of the common good of that social order,
many journalists work in difficult situations and often at great
personal risk. Whilst assassinations and disappearances of
journalists who impart politically controversial opinion indicate the
collapse of democratic order, their criminalisation undermines its
very foundations. Given their critical function in the maintenance of
democracy, the pre-eminent role of the press as “public
watchdog” has been acknowledged, repeatedly, by this Court.
Thus, it has held that due to its “chilling effect” upon
the profession, there can be no justification whatsoever for the
imprisonment of journalists who are alleged to have defamed within
the context of a debate on matters of public interest.
In certain cases, the fact alone of a criminal conviction of a
journalist, even if minor, can be considered excessive.
While
the “closest scrutiny” of an impugned expression is
required to see if it could be integrated within a public interest
debate
even a cursory examination of the declarations in this case
demonstrates that the matters in question - the nature and conditions
of prisoners’ detention - are issues of obvious public concern.
The detainees’ “fundamental requests” included the
abolition of “F” Type prison cells, the reinstatement of
prisoners’ rights, the abrogation of an anti-terrorism law, the
abolition of state security courts and the bringing to trial of
torturers and perpetrators of massacres. Their grievances bear a
remarkable resemblance to matters that come, not infrequently, before
this Court. The potential vulnerability of prisoners, as a specific
social group, is frequently acknowledged in Strasbourg and without
the press one wonders how otherwise their voices might be heard?
It
appears from the reasoning of the majority, that the problem is not
with the prisoners’ goals per se but rather with “the
wording of the overall message”, namely, their willingness
to die for their convictions and their call for support in their
resistance. The majority considers that the message conveyed by the
newspaper was “not a peaceful one” and that it
went beyond “a mere criticism” of the new prison
system (§ 28). Such a consideration is disquieting. ‘Watchdogs’
are not meant to be peaceful puppies; their function is to bark and
to disturb the appearance of peace whenever a menace threatens. A new
and, in our view, a dangerous threshold in the protection of free
speech has been reached if expression may be suppressed, lawfully,
because it is neither “peaceful” nor confined to “mere
criticism”. Such qualifications are new conditions precedent to
the right to exercise such freedom and are not reflected in this
Court’s case law.
There
was nothing peaceful in the “virulent remarks” describing
the Turkish government’s actions as “terror” and
part of a “special war” against “the Kurdish
people” in the case of Incal v Turkey. Nevertheless, the
Court found that such words could not “be taken as incitement
to the use of violence, hostility or hatred” (§ 50) and
held that the criminal prosecution of the applicant was a
disproportionate interference with the right to freedom of
expression. By contrast, the majority in this case, without citing,
by way of example, one violent word or any call to aggression, finds
that the “overall message” was not peaceful and
that the newspaper provided “an outlet to stir up violence
and hatred”. The declarations were, undoubtedly, marked by
a strong sense of passion, resolve, conviction and determination.
They were, indeed, a rallying call for support and resistance but
their authors (however well or misguided they may have been) did not
advocate violence, injury or harm to any person. As such, there was
no clear and pressing danger that required such a radical
interference as the criminal prosecution of the applicants.
The
majority rely upon what they describe as “a similar case”
in which the Court has already expressed its concern about the making
of such declarations “at a time when serious disturbances had
taken place in several prisons”. The case cited as authority
for their finding in this case is distinguishable on its facts,
timing and context and on the proportionality of the interference
involved. The Court in Falakaoğlu and Saygılı
(cited in § 25 of the judgment) came to its conclusion that
there was no violation of Article 10 because the impugned publication
was made in the aftermath of what were then recent and serious
disturbances in prisons. By contrast, the publication in the instant
case took place two months before any such disturbances had occurred.
The majority considers that “there were indeed reasons to
fear for violent reactions and thus to be reticent in view of the
events that had taken place in the prisons in less than two months
after the publication of the impugned declarations” (§
28). How, one wonders, were the publishers to know in October 2000
that there were reasons for them “to be reticent” in view
of events that were to take place the following December?
In
this regard, it should also be pointed out that the disturbances in
question were not caused when the readership of Yeni Evrensel
descended en masse upon the prisons inspired so to do by the
rallying call in the published declarations. Rather, the events
occurred when members of the security forces entered, simultaneously,
into twenty penitential centres in which the hunger strikers were
detained and violent clashes erupted between them and the protesting
prisoners.
The
threshold of the “necessity” test of state interference
with freedom of expression is not equivalent to nor does it have the
latitude associated with such notions as “tolerable”,
“acceptable” or “reasonable”. Necessity
implies the existence of a “pressing social need”
not a “possible” one.
Thus, the fact that social disturbances occur some two months after
an article is published, cannot be used to justify radical state
interference in a protected Convention right as exercised two months
prior to such events.
The
majority, through a process of retrospective reasoning, impute a
causal connection between a publication in a daily newspaper in
October 2000 and subsequent events in prisons the following December.
The logic of their position would require the press not just to look
over its shoulder to ensure that its publications do not add fuel to
flaming fires. They must, in addition, look into the future to try to
ascertain whether a fire might some day occur and, if so, whether
their publication could be identified as one of a number of matches
that may be accused of having caused it! Such a burden places an
unworkable restriction upon the freedom of the press and jeopardises
the protection of a fundamental value in a democratic society. There
is nothing in the case law of this Court to justify the imposition of
such a restriction.
Finally,
the majority’s conclusion, in our view, is difficult to
reconcile with this Court’s finding in Thoma v Luxembourg
in which the Court reiterated that punishing a journalist for
assisting in the dissemination of statements made by another person
would seriously hamper the contribution of the press to discussion of
matters of public interest and should not be envisaged unless there
were particularly strong reasons for doing so. We find no such
reasons in this case.
