CASE OF ÜRPER AND OTHERS v. TURKEY
Violation of Art. 10;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award
Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky
5. At the material time the applicants were the owners, executive directors, editors-in-chief, news directors and journalists of four daily newspapers published in Turkey: Ülkede Özgür Gündem, Gündem, Güncel and Gerçek Demokrasi. The publication of all four newspapers was regularly suspended, pursuant to section 6(5) of Law no. 3713 (the Prevention of Terrorism Act), by various Chambers of the Istanbul Assize Court, between 16 November 2006 and 25 October 2007, for periods ranging from 15 days to a month in respect of various news reports and articles. The impugned publications were deemed to be propaganda in favour of a terrorist organisation, the PKK/KONGRA-GEL, as well as the approval of crimes committed by that organisation and its members. 6. In the first case against Ülkede Özgür Gündem on 16 November 2006, the trial judge considered that the content of certain reports and articles contained elements of propaganda, the approval of terrorist crimes and had identified officials who risked terrorist attack, contrary to section 6(5) of Law no. 3713. Their content thus exceeded the permissible limits of Article 10 of the Convention. Moreover, the offences had not been limited to a single issue of the newspaper, but had been continuous. Consequently, he was authorised by section 6(5) to suspend the publication and distribution of the periodical for a period of fifteen days to a month. 7. In the case against Güncel on 16 July 2007, the newspaper was suspended for 15 days, not by virtue of section 6(5) of Law no. 3713, but because its owners, journalists and content were the same as those of Gündem, whose publication and distribution had been suspended for 15 days by a court decision of 12 July 2007. 8. Neither the applicants nor their representative participated in these ex parte procedures, and their written objections to the suspension orders were dismissed. Consequently, the orders were executed. 9. The applicant Ali Gürbüz, the owner of Ülkede Özgür Gündem, was prosecuted under sections 6(1) and (2) and 7(2) of Law no. 3713, as well as Article 215 of the Criminal Code, for disseminating propaganda in favour of the aforementioned organisation, approving crimes committed by that organisation and its members, and identifying officials with anti-terrorist duties as targets, in respect of various articles published in their newspaper (case no. 2007/367). Ali Gürbüz was convicted and fined 380,000 new Turkish liras (TRY) (approximately 217,000 euros (EUR)). 10. The applicant Özlem Aktan, the executive director of Ülkede Özgür Gündem and Gündem, was similarly prosecuted. Her first case concerning the former newspaper was disjoined from that of Ali Gürbüz. Her second case (no. 2007/197) involved another applicant, Lütfi Ürper, the owner of Gündem and Güncel. They were charged under sections 5, 6(2) and (4) and 7(2) of Law no. 3713, as well as Articles 215 and 218 of the Criminal Code. Lütfi Ürper was prosecuted on three other occasions on similar charges (case nos. 2007/419, 2007/343 and 2007/482). Another applicant, Hüseyin Bektaş, the owner and executive director of Gerçek Demokrasi, was prosecuted for the same offences under sections 6(2) and 7(2) of Law no. 3713 and Article 215 of the Criminal Code. 11. According to the information in the case file, all these prosecutions are still pending at first instance, except for that against Ali Gürbüz, which is apparently still pending before the Court of Cassation. 12. Article 28 of the Constitution of Turkey reads as follows: “The press is free and shall not be censored. The establishment of a publishing company shall not be subject to prior permission or the deposit of a financial guarantee. The State shall take the necessary measures to ensure freedom of the press and freedom of information. As regards restrictions on freedom of the press, Articles 26 and 27 of the Constitution are applicable. Anyone who writes or prints any news or articles which threaten the internal or external security of the State or the indivisible integrity of the State with its territory and nation, which are aimed at inciting offences, riot or insurrection, or which refer to classified State secrets, and anyone who prints or transmits such news or articles to others for the above purposes, shall be held responsible under the law governing these offences. Distribution may be suspended as a preventive measure by the decision of a judge or, in the event that delay is deemed prejudicial, by the competent authority designated by law. The authority suspending distribution shall notify a competent judge of its decision within twenty-four hours. The order suspending distribution shall become null and void unless upheld by a competent judge within forty-eight hours. No ban shall be placed on the reporting of events except by a judge's decision designed to ensure the proper functioning of the judiciary, within the limits specified by law. Periodical and non-periodical publications may be seized by the decision of a judge in the event of an ongoing investigation into or prosecution of offences prescribed by law and, in situations where a delay could endanger the indivisible integrity of the State with its territory and nation, national security, public order or public morals, and for the prevention of an offence, by order of the competent authority designated by law. The authority issuing the order to confiscate shall notify a competent judge of its decision within twenty-four hours. The order to confiscate shall become null and void unless upheld by the competent court within forty-eight hours. The general common provisions shall apply to the seizure and confiscation of periodicals and non-periodicals for the purposes of criminal investigation and prosecution. Publication of periodicals published in Turkey may be temporarily suspended by order of the courts in the event of a criminal conviction on account of their containing material which undermines the indivisible integrity of the State with its territory and nation, the fundamental principles of the Republic, national security and public morals. Any publication which is clearly a continuation of a suspended periodical shall be prohibited and shall be seized following a decision by a competent judge.” 13. The relevant provisions of the Prevention of Terrorism Act (Law no. 3713), amended by Law no. 5532, which entered into force on 18 July 2006, read as follows: “1. It shall be an offence, punishable by a term of imprisonment of one to three years, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person's ... identity is divulged, provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target. 2. It shall be an offence, punishable by a term of imprisonment of one to three years, to print or publish declarations or leaflets emanating from terrorist organisations. ... 4. If any of the offences defined in the paragraphs above are committed through the press or the media, the owners and editors-in-chief of the press and media organs concerned who did not participate in the commission of the offence shall also be liable to a judicial fine equivalent to between a thousand and ten thousand days' imprisonment. However, the maximum limit of this punishment shall be the equivalent of five thousand days for editors-in-chief. 5. Periodicals whose content openly encourages the commission of offences within the framework of the activities of a terrorist organisation, approves of the offences committed by a terrorist organisation or its members or constitutes propaganda in favour of the terrorist organisation may be suspended for a period of fifteen days to one month as a preventive measure by decision of a judge or, if a delay is detrimental, on an instruction from a public prosecutor. The public prosecutor shall notify the judge of such instruction within twenty-four hours. If the judge does not approve the decision within forty-eight hours, the instruction to suspend publication shall become null and void.” On 3 March 2006 the former President of Turkey lodged a case with the Constitutional Court (case no. 2006/121) challenging the validity of section 6(5) of Law no. 3713. It had been argued, inter alia, that this section had created an unconstitutional penalty. On 18 June 2009 the Constitutional Court dismissed the case (decision no. 2009/90). “Any person who disseminates propaganda in favour of a terrorist organisation shall be liable to a term of imprisonment of one to five years. Where this offence is committed through the press or the media, the sentence shall be increased by half. Moreover, the owners and editors-in-chief of the press and media organs concerned who did not participate in the commission of the offence shall also be liable to a judicial fine equivalent to between one thousand and ten thousand days' imprisonment. However, the maximum limit of this punishment shall be the equivalent of five thousand days for editors-in-chief.” 14. The relevant provisions of the Criminal Code (Law no. 5237) read as follows: “(1) A person who abets commission of an offence shall be liable to a term of imprisonment of fifteen to twenty years if the offence is punishable by an aggravated life sentence and ten to fifteen years where the offence is punishable by a life sentence. Punishment is reduced by half in all other circumstances. However, in the latter case the punishment cannot exceed eight years. (2) A person is deemed to have abetted commission of an offence in the following circumstances: (a) Encouragement to commit an offence...” “Any person who approves of an offence committed, or praises a person on account of an offence he or she has committed, shall be liable to a term of imprisonment of up to two years.” “Where one of the offences proscribed by Articles 213-217 is committed through the press or the media, the sentence shall be increased by half.”