CASE OF PERİHAN AND MEZOPOTAMYA BASIN YAYIN A.Ş. v. TURKEY
Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award
András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque;Peer Lorenzen
3. The first applicant was born in 1966 and lives in Istanbul. The second applicant is a joint-stock company incorporated in Turkey in 1991 and dissolved in 2001 (see below). The first applicant was appointed as Director General of Mesopotamia Publishing on 24 December 2001. 4. On 26 October 1997 Mesopotamia Publishing inaugurated a branch office in Şanlıurfa. On the same day, police officers from the Şanlıurfa Security Directorate conducted a search of that office, confiscating certain newspapers, magazines, books, cassettes and documents, which were allegedly illegal. 5. On 27 October 1997 the Deputy Governor of Şanlıurfa requested the Ministry of Industry and Trade to institute proceedings against Mesopotamia Publishing with a view to its dissolution. 6. On 30 October 1997 the public prosecutor instituted proceedings against Mr Murat Gökdağ, the manager of the Şanlıurfa branch office, and Ms Nuray Şen, the then Director General of Mesopotamia Publishing. They were accused of storing banned books at the branch office. 7. On 6 June 2000 the Şanlıurfa Magistrate’s Court held that the criminal proceedings should be discontinued since the prosecution was time-barred under Article 102 of the Criminal Code. 8. On 13, 14, 20, 25, 27 and 28 December 1997, the Diyarbakır office of Mesopotamia Publishing was searched by police officers. Various books and publications, including a calendar published by Mesopotamia Publishing, were confiscated. 9. On 14 January 1997 the Diyarbakır office was closed on the order of the Diyarbakır Governor. 10. On 10 February 1998 the Diyarbakır Governor requested the Ministry of Industry and Trade to institute proceedings against Mesopotamia Publishing with a view to its dissolution under the relevant provisions of the Commercial Code. 11. On an unspecified date criminal proceedings were instituted in the Istanbul State Security Court against members of Mesopotamia Publishing’s board of directors for publishing a calendar which was allegedly used to disseminate propaganda in favour of the illegal Kurdistan Workers’ Party (“the PKK”). 12. On 17 September 1999 the Istanbul State Security Court suspended the proceedings, pursuant to Law No. 4454 on the suspension of pending cases and penalties in media-related offences. 13. On 26 December 1997 the Izmir office of Mesopotamia Publishing was searched by police officers. Certain publications, which were allegedly illegal, and a satellite decoder were seized. 14. On 30 December 1997 the Izmir Governor asked the Ministry of Industry and Trade to institute dissolution proceedings against Mesopotamia Publishing, alleging that the company had been disseminating propaganda in favour of the PKK. 15. On an unspecified date, criminal proceedings were instituted in the Izmir Magistrate’s Court against Ms Hatice Çoban, the manager of the Izmir branch. 16. On 14 May 1998 the court acquitted Ms Çoban of the charges against her. 17. Following complaints lodged by the Şanlıurfa Governor and the Diyarbakır Governor respectively, on 24 February 1998 the Ministry of Industry and Trade (“the plaintiff”) instituted proceedings against Mesopotamia Publishing in the Istanbul Beyoğlu Commercial Court, with a view to its dissolution on account of its activities against public order. On 27 February 1998 the Istanbul Beyoğlu Commercial Court registered the case against Mesopotamia Publishing. It decided, inter alia, to notify the parties of the date of the hearing fixed for 3 April 1998, in accordance with Articles 509 and 510 of the Code of Civil Procedure, which provided a warning that if one of the parties failed to appear before it or to submit observations, the court would not be precluded from determining the merits of the case. It further decided to notify Mesopotamia Publishing of the plaintiff’s written submissions and evidence. 18. On 12 March 1998 the above documents were served on Mesopotamia Publishing, as recorded in the Trade Commercial Registry. They were picked up by a certain Mr M.B., who signed the notification record as an authorised representative (şirket yetkilisi). 19. In the meantime, the plaintiff submitted a number of pieces of evidence to the case file in support of its claim, including official documents, such as incident and seizure reports relating to the abovementioned searches. They were admitted to the case file on 17 March 1998. 20. At a hearing on 3 April 1998 the court noted the absence of Mesopotamia Publishing, but observed that the notification had been duly served. The evidence provided by the plaintiff was read out. The court decided to compile further information and documents regarding the accusations against Mesopotamia Publishing from the Şanlıurfa, Izmir and Diyarbakır public prosecutors’ offices. 21. The court held regular hearings. At the hearing held on 28 July 1999 the court decided to stay the proceedings pending the outcome of the cases before the criminal courts. 22. On 19 October 2001 the court decided to dissolve Mesopotamia Publishing, pursuant to Article 274 § 2 of the Commercial Code. In its decision, it noted that, despite due notification, the company had failed to attend the hearings and had not submitted any observations. It took into account the incidents which had taken place at the Şanlıurfa and Diyarbakır branch offices, and held that the company was responsible for them. It considered that the activities of those branches had breached public order and that therefore the company had to be dissolved. A liquidator was assigned. The decision of the court was served on Mesopotamia Publishing, as recorded in the Trade Commercial Registry. 23. On 28 March 2002 Mesopotamia Publishing appealed against the decision of the first-instance court. In its procedural grounds of appeal, it contended, inter alia, that the court had failed to duly notify it of the case because the notification had been served on a certain Mr M.B., who was not a member of the board of directors at that time. In addition, Mesopotamia Publishing argued that it had not been notified of the evidence admitted in the course of the proceedings. In its substantive grounds of appeal, it claimed that the court had decided on the basis of two incidents in connection with which the company had not been convicted. 24. At a hearing on 15 October 2002 the Court of Cassation, having heard the parties, decided to adjourn the deliberations. 25. On 17 October 2002 the Court of Cassation, having examined the case file, the parties’ submissions to it and the documents contained therein, dismissed Mesopotamia Publishing’s objections. 26. On 10 December 2002 Mesopotamia Publishing requested the Court of Cassation to rectify its judgment. It repeated its earlier submissions regarding what it described as “substantial grounds for appeal”. 27. On 24 January 2003 the Court of Cassation dismissed the abovementioned rectification request.