CASE OF KARADEMİRCİ AND OTHERS v. TURKEY
Violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award
Nicolas Bratza
11. The applicants were born in 1961, 1964, 1966, 1966, 1961 and 1972 respectively and live in İzmir. 12. On 30 June 1995 twenty-five people, including the applicants, gathered outside the Yenişehir Meslek Lisesi secondary school. The first applicant, İsmail Karademirci, who was the president of the Health Workers' Union (Tüm Sağlık Sen), read out a statement signed by the İzmir branches of that union and of the Education Union (Eğitim Sen) denouncing the ill-treatment of pupils from the İzmir Atatürk Sağlık Meslek Lisesi secondary school. The group remained outside the school for twenty-five minutes before dispersing. 13. The statement reads as follows: “To the press and the general public The pressure put on pupils by the authorities at the İzmir Atatürk Sağlık Lisesi secondary school has resulted in Vesile Bayram receiving a beating. The pupils reacted by protesting against the school authorities because of the pressure they were under. In an initial attempt to calm down the pupils, whose reaction was justified, the authorities held a meeting with them. However, they reneged on a promise to open an inquiry into the actions of one of the teachers, E.S., who, moreover, was provided with a forensic report. The pressure continues in the form of a lengthy (one year) suspension of nine pupils, and the deduction of eight marks from their marks for behaviour. Although officially pupils in the school are not subjected to beatings or academic pressure, the administrators are despots. We strongly condemn the administrators and teachers, who are responsible for such pressure. We call for the withdrawal of the penalties imposed on the nine pupils. We call for an investigation into the conduct of the teacher who administered the beating. We will not be intimidated by pressure. We reject reactionary and oppressive education. The pupils are not alone. Society should not remain silent.” 14. By an indictment submitted on 23 October 1995, the public prosecutor instituted criminal proceedings against twenty-five leaders and members of the Health Workers' Union and the Education Union for making a “statement to the press” (basın açıklaması) without complying with the statutory requirement to obtain a receipt from the public prosecutor's office confirming that they had filed a copy of the statement with it. The public prosecutor relied in particular on sections 44 and 82 of the Associations Act (Law no. 2908 of 6 October 1983). 15. In a judgment of 13 February 1996, the İzmir Criminal Court found the applicants and nine other co-defendants guilty as charged and sentenced them to three months' imprisonment under the provisions relied on by the public prosecutor. The prison sentence was commuted to a suspended fine of 450,000 Turkish liras (7 United States dollars). 16. The Criminal Court held that the constitutive elements of the offence had been made out in that, firstly, the trade unions had not passed a resolution authorising a statement to be made to the press and, secondly, the accused were present when the statement was read out in public. The other co-defendants were acquitted on the ground that they were not present when the statement was read out. 17. The applicants appealed to the Court of Cassation against that judgment. In their written submissions, they alleged that their convictions violated their right to freedom of expression and, in particular, that “a statement to the press” could not be classified as a “leaflet” or “written statement” within the meaning of section 44 of the Associations Act. 18. In a judgment of 11 October 1996, the Court of Cassation upheld the judgment at first instance, holding that it complied with the law and the rules of procedure. The applicants did not receive a full copy of the judgment. 19. On 12 November 1996 the judgment of 11 October 1996 was placed in the file of the İzmir Criminal Court. The sixth applicant, Ms S.T., obtained a copy of it on 25 December 1996. 20. The relevant provisions of the Associations Act, which was published in the Official Gazette on 7 October 1983, are as follows: “(1) Associations shall not publish or distribute leaflets [bildiri], written statements [beyanname] or similar publications [benzeri yayın] without a prior resolution by their executive board. The leaflets, written statements and similar publications shall contain the forenames, surnames and signatures of the president and members of the executive board which passed the resolution. (2) A copy of the resolution by the association's executive board to publish and of the leaflet, written statement or similar publication shall be filed for information purposes with the head of the local authority and the public prosecutor's office for the area. The latter shall deliver, in exchange, a receipt recording the time and date the documents were filed. No leaflet, written statement or similar publication may be distributed or communicated to the press until twenty-four hours after it has been filed.” “Anyone failing to comply with the procedure set out in section 44(1) and (2) shall be liable on conviction to between three and six months' imprisonment.” 21. At the material time trade unions representing public servants were formed without any specific statutory basis. Associations and trade unions were governed by two pieces of legislation: the Associations Act and the Trade Unions Act (Law no. 2821 of 5 May 1983). Although there are no restrictions in the Trade Unions Act on written statements by trade unions, section 63 refers to the Associations Act and lays down that the provisions of that Act shall apply where the Trade Unions Act is silent. 22. The first five applicants produced various judgments that had been delivered by the İzmir Criminal Court in cases concerning the activities of public-sector trade unions. These included a judgment of 1 July 1996 (no. 1996/669), from which it emerged that the first five applicants had ultimately been acquitted in another case in which they had been charged with an offence under sections 44 and 82 of the Associations Act after reading out a statement to the press and distributing it to members of the press. In that case, the Criminal Court had followed a judgment of the Court of Cassation (without giving the reference) in finding that a statement read out to the press drafted by the Health Workers' Union could not be classified as a “written statement” or “similar publication” within the meaning of section 44 of the Associations Act. 23. On 2 May 2000 and 4 June 2002 the Court of Cassation, sitting as a full court, delivered two judgments in which it clarified the issue of whether it was foreseeable that section 44(1) and (2) of the Associations Act applied to written statements read out to the press by members of an association's executive board. In its view, those subsections applied to texts which had previously been adopted and prepared for publication and dissemination. However, a statement read out to the press by an association on a particular subject was not a text that was drafted with a view to publication and dissemination, but a series of verbal comments. “Dissemination”, “publication” and similar terms could not possibly cover the situation in which the content of a speech due to be made orally was distributed among members of the press as an aid to understanding. The effect of holding otherwise – by a broad interpretation of the law, one which, in other words, included oral statements within the scope of section 44 – would be that members of an association's executive board would be liable to penalties for any replies or explanations given in response to questions from journalists; such a state of affairs would introduce an unlawful restriction on freedoms. In addition, the legislature had unambiguously laid down in that section that a text drafted with a view to publication could be published only once the executive board of the association had so resolved and the relevant documents had been filed with the competent authority. 24. Law no. 5231, which Parliament passed on 17 July 2004, amends the Associations Act, repealing sections 44 and 82. On 2 August 2004 the President of the Republic returned the legislation to Parliament for a fresh debate on sections 10 and 21, which relate to the financing of associations.