541
06.07.2010

Press release issued by the Registrar

Chamber judgment
Not final

 (applications no. 43453/04 et 31098/05)

VIRTUALLY AUTOMATIC CONVICTIONS of the media FOR PUBLICATION OF TEXTS BY BANNED ORGANISATIONS BREACHED THE CONVENTION

Unanimously

Violation of Article 10 (freedom of expression)

Violation of Article 6 § 1 (right to a fair trial) – M. Özer –
of the European Convention on Human Rights

Principal facts

The applicants are two Turkish nationals who live in Istanbul: Aylin Gözel, who was born in 1978, is the owner and editor of the monthly magazine Maya, and Aziz Özer, who was born in 1964, is the publisher and editor of the monthly Yeni Dünya İçin Çağrı. Both magazines are based in Istanbul.

In February 2003 an article entitled “Imminent war in Middle East threatens Turkish Bourgeoisie!” was published in Maya. It contained a statement by the central committee of an illegal organisation, the Marxist-Leninist/Turkish Communist Party, concerning hunger strikes by prisoners, about 100 of whom had died as a result, following violent clashes on 19 December 2000 with security forces, in which officers and prisoners had been killed and wounded. Ms Gözel was charged with “propaganda through the medium of the press against the indivisible unity of the State, and publication of a statement by an illegal armed organisation”, two offences under the Prevention of Terrorism Act (“Law no. 3713”). She was acquitted of the first offence in September 2003 but was fined about 170 euros for the second. In addition, the publication of her magazine was suspended for one week on the ground that it had conveyed the views of an illegal organisation. That decision was upheld by the Court of Cassation.

In June 2002 an article entitled “The Great Workers’ Resistance of 15 and 16 June and the Revolutionary Movement in Turkey” was published in the magazine Yeni Dünya İçin Çağrı. The article, whose author remained anonymous, concerned peaceful demonstrations by workers on 15 and 16 June 1971. It particularly looked at the role of left-wing movements in those demonstrations, focussing on the leading contribution of Ibrahim Kaypakkaya, founder of the party TKP/ML who, according to the article, had efficiently guided the Marxist movement in Turkey. The magazine also published a statement by eight individuals who were in custody in connection with criminal proceedings against them for belonging to illegal organisations, under the title “To our People”. The prisoners stated that they had ceased their hunger strike in protest about F-type prisons, but that they would pursue their resistance. Mr Özer was sentenced under Law no. 3713 to a fine of about 120 euros and the closure of the monthly magazine was ordered for two weeks, on the ground that the aim of the offence had been to undermine national security. An appeal by the applicant was dismissed by the Court of Cassation.

Complaints, procedure and composition of the Court

Relying on Article 10 (freedom of expression), the applicants complained about their conviction for publishing what the Turkish courts considered to be statements made by illegal organisations and, in the case of Ms Gözel, about the ban on the publication of her monthly magazine. Relying on Article 6 § 1 (right to a fair trial), Mr Özer further complained that the opinion of the Principal Public Prosecutor at the Court of Cassation had not been communicated to him, and under Article 7 (no punishment without law), he complained that he had been convicted for publishing statements of which he was not the author. He also relied on Article 1 of Protocol No. 1 (protection of property) in respect of a seizure order made by the Assize Court.

The applications were lodged with the European Court of Human Rights respectively on 20 September 2004 and 25 May 2005.

Judgment was given by a Chamber of seven judges, composed as follows:

Françoise Tulkens (Belgium), President,
Ireneu Cabral Barreto (Portugal),
Danutė Jočienė (Lithuania),
András Sajó (Hungary),
Nona Tsotsoria (Georgia),
Işıl Karakaş (Turkey),
Guido Raimondi (Italy), Judges,

and also Stanley Naismith, S

Decision of the Court

Article 10

The interference with the applicants’ freedom of expression had a legal basis, namely Law no. 3713, which was directed against anyone who “printed or published statements or leaflets of terrorist organisations”. That interference further pursued the legitimate aims of maintaining public safety and the prevention of disorder and crime in the context of the fight against terrorism.

The applicants had been convicted for publishing three texts that the domestic courts had characterised as “terrorist organisation statements” without taking into account their context or content. In fact, two of the texts had been published without any journalist’s comments and the article “The Great Workers’ Resistance of 15 and 16 June and the Revolutionary Movement in Turkey” consisted more of an analysis of the left-wing movement in Turkey.

The Court was prepared to take into account the difficulties related to the fight against terrorism and took the view that States were entitled to take effective measures to counter public provocation to commit terrorist offences. However, as regards writings emanating from prohibited organisations it was appropriate to have regard not only to the message’s author and recipients but also to the content. To condemn a text simply on the basis of the identity of the author would entail the automatic exclusion of groups of individuals from the protection afforded by Article 10. If the opinions expressed did not constitute hate speech or stir up violence, States were not entitled to rely on national security to restrict the public’s right to receive information by using the criminal law against the media.

The grounds given by the Turkish courts for the interference in question, while pertinent, were not sufficient. This lack of reasoning stemmed from the very wording of Law no. 3713, which contained no obligation for the judges to carry out a textual or contextual examination of the writings, applying the criteria established and implemented by the Court under Article 10. The Court had found a violation of that provision in numerous cases against Turkey in which media professionals had been convicted for publishing statements by terrorist organisations, without any further analysis by the judges. This virtually automatic repression, without taking into account the objectives of the media professionals or the right of the public to be informed of another view of a conflictory situation, could not be reconciled with the freedom to receive or impart information or ideas.

Accordingly, the applicants’ conviction and the measures taken to stop publication were not necessary in a democratic society. The Court found that there had been a violation of Article 10.

Other Articles

As the Turkish Government had not provided any convincing argument concerning the failure to transmit to Mr Özer the opinion of the Principal Public Prosecutor at the Court of Cassation, the Court found that there had been a violation of Article 6 § 1.

The complaints under Article 7 and Article 1 of Protocol No. 1 were related to the complaint examined under Article 10. Having regard to the Court’s finding concerning the latter provision, it was not necessary to examine those other complaints separately.

Just satisfaction

Under Article 41 the Court held that Turkey was to pay 170 euros (EUR) to Ms Gözel and EUR 120 to Mr Özer for pecuniary damage, and EUR 2,000 to Ms Gözel and EUR 3,000 to Mr Özer for non-pecuniary damage, together with EUR 2,000 to each applicant for costs and expenses.

In addition, having regard to its findings to the effect that the wording and application of Law no. 3713 had resulted in a violation of Article 10 in respect of both applicants, the Court observed that to bring the relevant domestic law into compliance with Article 10 would constitute an appropriate form of redress by which to put an end to the violation in question.

***

The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its .

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