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FEVZI SAYGILI v. TURKEY - 74243/01 [2008] ECHR 8 (8 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/8.html
Cite as:
[2008] ECHR 8
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SECOND
SECTION
CASE OF FEVZİ SAYGILI v. TURKEY
(Application
no. 74243/01)
JUDGMENT
STRASBOURG
8 January 2008
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 Fevzi Saygılı v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
András Baka,
Rıza
Türmen,
Mindia Ugrekhelidze,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popoviċ, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 4 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 74243/01) 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 a Turkish national, Mr Fevzi Saygılı
(“the applicant”), on 24 July 2001.
The
applicant was represented by Mr K.T. Sürek, a lawyer practising
in Istanbul. The Turkish Government (“the Government”)
did not designate an Agent for the purposes of the proceedings before
the Court.
The
applicant, owner of a daily newspaper, Günlük Evrensel,
complained that the prohibition of its circulation and distribution
in the provinces under a state of emergency had violated his rights
guaranteed by Articles 6, 10 and 14 of the Convention.
On
26 October 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it also decided to examine the merits of the application
at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1966 and lives in Istanbul.
The
applicant is the owner of a daily newspaper, Günlük
Evrensel, published in Istanbul.
Günlük
Evrensel released its first issue on 23 July 2001. On the same
day, the state of emergency regional governor in south-east Turkey
banned the newspaper's entry and distribution in the provinces under
his jurisdiction, namely, Diyarbakır, Tunceli, Hakkari and
Şırnak. The governor considered that the newspaper was
pursuing the same editorial line as another newspaper called Yeni
Evrensel, the entry and distribution of which had also been
banned on 4 January 1999.
The
governor's decision to ban Günlük Evrensel, which
contained no reasons, was served on the newspaper's Diyarbakır
representative on 23 July 2001. The representative acknowledged
its receipt on the same day and the ban took immediate effect.
While
banned in the state of emergency region, the newspaper was freely
distributed elsewhere in Turkey.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The state of emergency region
The
governor's office of the state of emergency region was set up with
special powers after the state of siege was officially declared to be
over on 19 July 1987 by Legislative Decree no. 285 of 10 July 1987. A
state of emergency was thus decreed in the provinces of Bingöl,
Diyarbakır, Elazığ, Hakkari, Mardin, Siirt, Tunceli
and Van. On 19 March 1994 the state of emergency was extended to the
province of Bitlis, but lifted in the province of Elazığ.
It was declared to be over in the provinces of Batman, Bingöl
and Bitlis on 2 October 1997, in the province of Van on 30 July 2000
and in the provinces of Tunceli and Hakkari on 1 August 2002. In July
2002 it was extended by four months in the provinces of Diyarbakır
and Şırnak.
B. The powers of the governor of the state of emergency
region
The
powers of the governor of the state of emergency region (Olağanüstü
Hal Bölge Valisi) are set out in the State of Emergency Act
(Law no. 2935 of 25 October 1983) and various legislative decrees
that were issued after the state of emergency was declared
(Legislative Decrees nos. 313, 387, 413, 421, 425, 426, 427,
428, 430, 432 and 481).
Section
11(e) of the State Emergency Act reads as follows:
“... If a state of emergency is decreed, the
following measures may be imposed with a view to maintaining general
security, safety and public order and to preventing any escalation of
the violence...:
...
(e) An order prohibiting, either absolutely
or without prior permission, the editing, dissemination, publication
or distribution of newspapers, reviews, brochures, pamphlets, posters
or any similar publications, or the publication or distribution of
any such [publications] which have been printed or disseminated
outside the state of emergency region ...”
Article
1 (a) of Legislative Decree no. 430 provides:
“The printing, dissemination, publication or
distribution of books, reviews, newspapers, brochures, posters or
other similar publications liable seriously to undermine public order
in the region, to cause agitation among the local population or to
obstruct the security forces in the course of their duties by giving
a false account of operations being conducted in the region shall be
prohibited, either absolutely or without the prior permission of the
governor of the region to which the state of emergency applies or the
governors of the provinces concerned. [Likewise,] the publication or
distribution of [any publication of the same type] that has been
printed and published outside the state of emergency region shall be
prohibited, either absolutely or without the prior permission of the
governor of the region to which the state of emergency applies or the
governors of the provinces concerned ...”
C. Judicial scrutiny of legislative decrees on the
state of emergency and of measures taken by the governor of the state
of emergency region
1. Constitutional review of legislative decrees on the
state of emergency
The
relevant part of Article 148 § 1 of the Constitution provides:
“... There shall be no right of appeal to the
Constitutional Court to contest the form or substance of legislative
decrees issued during a state of emergency, a state of siege or in
wartime.”
2. Judicial scrutiny of measures taken by the governor
of the state of emergency region
Article
7 of Legislative Decree no. 285, as amended by Legislative Decree no.
425 of 9 May 1990, precludes any application in the administrative
courts to have an administrative act performed pursuant to
Legislative Decree no. 285 set aside.
Article
8 of Legislative Decree no. 430 reads as follows:
“No criminal, financial or civil liability may be
asserted against ... the governor of the state of emergency region or
provincial governors in that region in respect of decisions taken, or
acts performed, by them in the exercise of the powers conferred on
them by this legislative decree, and no application shall be made to
any judicial authority to that end. This shall be without prejudice
to the rights of individuals to claim reparation from the State for
damage which they have been caused without justification [sebepsiz].”
3. The case-law of the Constitutional Court
The
Constitutional Court has reviewed the constitutionality of Article 7
of Legislative Decree no. 285, as amended by Legislative Decree no.
425 of 9 May 1990, in a judgment of 10 January 1991, which was
published in the Official Gazette on 5 March 1992. It stated:
“It is not possible to reconcile that provision
[which precludes any judicial scrutiny of acts performed by the
governor of the state of emergency region] with the concept of the
rule of law ... The system of government when a state of emergency
has been declared is not an arbitrary one that escapes all judicial
scrutiny. There can be no doubt that individual and regulatory acts
performed by the competent authorities while the state of emergency
continues must be subject to judicial review. Contravention of this
principle is inconceivable in countries run by democratic regimes and
founded on freedom. However, the impugned provision is contained in a
legislative decree that cannot be the subject of constitutional
review ... Consequently, the application for an order quashing that
provision must be dismissed as being incompatible ratione materiae
[yetkisizlik] ...”
As
regards Article 8 of Legislative Decree no. 430, in two judgments
delivered on 3 July 1991 and 26 May 1992 (published in the Official
Gazette on 8 March 1992 and 18 December 1993 respectively), the
Constitutional Court followed that decision in dismissing as
incompatible ratione materiae applications for orders quashing
the relevant provisions.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
The Government argued that the applicant had failed to
exhaust domestic remedies as he had not availed himself of the remedy
offered by the Law on Compensation of the Losses resulting from
Terrorism and the Measures Taken against Terrorism (Law no. 5233 of
27 July 2004). In that connection they claimed that the applicant
could have applied to the relevant governorate and obtained
compensation for the damage resulting from the ban imposed on the
newspaper. Referring to the Court's decision in the case of İçyer
v. Turkey ((dec.), no. 18888/02, 12 January 2006), the Government
claimed that the Court had already acknowledged the effectiveness of
the remedy in question.
The
applicant contended that there was no remedy in domestic law to
challenge the state of emergency governor's decisions.
The
Court recalls that the rule of exhaustion of domestic remedies
referred to in Article 35 § 1 of the Convention requires
applicants first to use the remedies provided by the national legal
system, thus dispensing States from answering before the European
Court for their acts before they have had an opportunity to put
matters right through their own legal system. The rule is based on
the assumption that the domestic system provides an effective remedy
in respect of the alleged breach. The burden of proof is on the
Government claiming non-exhaustion to satisfy the Court that an
effective remedy was available in theory and in practice at the
relevant time; that is to say, that the remedy was accessible,
capable of providing redress in respect of the applicant's complaints
and offered reasonable prospects of success (Çetin and
Others v. Turkey, applications nos. 40153/98 and 40160/98,
§ 37, 3 February 2003).
The
Court notes at the outset that the Turkish law did not offer, at the
relevant time, any remedy to set aside a decision issued by the state
of emergency governor (ibid., § 38). As regards the
Government's reliance on the İçyer decision (cited
above) which examined the effectiveness of the remedy offered by Law
no. 5233, the Court recalls that in that case the Government did not
furnish any example of a decision where a person had successfully
obtained compensation in circumstances similar to those of the
applicant.
Thus,
the Court considers that the remedy indicated by the Government is
not capable of offering redress for the applicant's grievances. In
any event, the payment of monetary compensation is not sufficient in
principle to remove an applicant's status as a victim unless the
national authorities have acknowledged, either expressly or in
substance, for the breach of the Convention as well as providing
redress (see, mutatis mutandis, Öztürk v. Turkey
[GC], no. 22479/93, § 73, ECHR 1999 VI).
In
the light of the foregoing reasons, the Court dismisses the
Government's objection. It also considers that
the application 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.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicant complained that the ban imposed by the governor on 23 July
2001 on the distribution of the daily newspaper Günlük
Evrensel in the state of emergency region constituted an
unjustified interference in the exercise of his right to impart
information or ideas. He relied on Article 10 of the Convention, the
relevant part of which 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 and regardless of frontiers. ...
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, in the interests of
national security, ... [or] for the prevention of disorder or crime,
...”
26. The
Government asserted that the interference with the applicant's
freedom of expression was prescribed by law, namely by Article 11 (e)
of Law no. 2935 dated 25 October 1983, and that it pursued the
legitimate aims of preventing disorder and crime and protecting
national security as permitted by Article 10 § 2 of the
Convention. They maintained that the measure taken against the
newspaper was within the authorities' margin of appreciation and that
it was justified given the specific circumstances of the case. They
submitted in this connection that vital interests of the State were
at stake and that the decision to ban was in response to a pressing
social need and was proportionate to the legitimate aims pursued.
27. The
applicant maintained that the decision to ban the circulation and
distribution of the newspaper was unjustified and disproportionate.
28. The
Court notes that it is not in dispute between the parties that the
interference complained of constituted interference with the
applicant's right to freedom of expression, protected by Article 10 §
1. Nor is it contested that the interference was prescribed by law
and pursued a legitimate aim or aims, namely the prevention of
disorder or crime or the protection of national security, 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 would first point out that Article 10 guarantees freedom of
expression to “everyone”. No distinction is made in it
according to the nature of the aim pursued or the role played by
natural or legal persons in the exercise of that freedom (see,
mutatis mutandis, Casado Coca v. Spain, judgment of 24
February 1994, Series A no. 285-A, pp. 16-17, § 35). It applies
not only to the content of information but also to the means of
dissemination, since any restriction imposed on the latter
necessarily interferes with the right to receive and impart
information (see, mutatis mutandis, Autronic AG v.
Switzerland, judgment of 22 May 1990, Series A no. 178, p. 23, §
47). In the present case, the Court considers that the applicant's
ability to exercise his freedom to impart ideas and information to
the inhabitants of the state of emergency region was directly at
stake, as the ban affected Günlük Evrensel,
published by the applicant, which reported and commented on, among
other things, items of regional news.
The
Court recalls that in its judgment in the case of Çetin and
Others (cited above, §§ 57-66), which also concerned a
ban imposed on the circulation and distribution of a newspaper in the
state of emergency region, it examined the domestic legislation then
in force, namely section 11(e) of the State of Emergency Act (Law no.
2935) and Article 1 (a) of Legislative Decree no. 430, and the
arguments put to it by the Government, as the impugned measure
escaped judicial scrutiny by the domestic courts and the governor of
the state of emergency region did not give any reasons for his
decision.
The
Court observed that section 11(e) of the State of Emergency Act and
Article 1 (a) of Legislative Decree no. 430 were drafted in very
broad terms and granted the governor of the state of emergency region
vast powers to impose administrative bans on the publication and
distribution of publications.
Having
carefully examined the extent of governor's exceptional powers, which
by their nature could only be justified by very special
circumstances, as well as what safeguards existed against their
possible abuse in practice, the Court further observed that, although
it was possible to counterbalance and limit powers of this type by
strict and effective judicial scrutiny, both the provisions
conferring the powers on the governor of the state of emergency
region and the manner in which the rules were applied escaped such
scrutiny. In that regard, sharing the concern expressed by the
Constitutional Court, the Court held that it was not possible to
reconcile the provision which precluded any judicial scrutiny of acts
performed by the governor of the state of emergency region with the
concept of the rule of law.
As
to the Government's arguments that the local population had numerous
sources of ideas and information available and that, as journalists,
the applicants were involved in the publication of various newspapers
and thus had been able to impart their ideas and information along
with the rest of the country, the Court reiterated that the press
played an essential role in a democratic society. In view of their
passive role as recipients of information, citizens must be permitted
to receive a variety of messages, to choose between them and reach
their own opinions on the various views expressed, for what sets
democratic society apart is this plurality of ideas and information.
The
Court has examined the present case in the light of its findings in
the Çetin and Others case (cited above) and considers
that the Government have not submitted any facts or arguments capable
of leading to a different conclusion in this instance.
Against
this background, the Court observes that, given that the courts have
no power to review administrative bans on publications and that the
governor of the state of emergency region had not given any reasons
for the ban imposed on the circulation and distribution of Günlük
Evrensel, the applicant was deprived of sufficient safeguards to
protect against abuse. Accordingly, it finds that the interference
caused by section 11(e) of the State of Emergency Act and Article 1
(a) of Legislative Decree no. 430, and the way in which those
provisions were applied in the instant case, cannot be regarded as
having been “necessary in a democratic society” and went
beyond the requirements of the legitimate aim pursued. There has
therefore been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant further complained that he had been denied a fair trial
since no court proceedings had taken place before the ban was imposed
on the newspaper. He also maintained that he had been denied an
effective remedy by which he could have challenged the governor's
decision before a national authority.
The
Court considers that these complaints should be examined from the
standpoint of Article 13 of the Convention since they essentially
pertain to the applicant's right to an effective remedy. Article 13
reads:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Government contended that the applicant could have had recourse to
the Compensation Law and sought damages for the loss he had sustained
as a result of the ban imposed on his newspaper.
According to the Court's settled case-law, Article 13
guarantees the availability of a remedy at national level to enforce
– and hence to allege non-compliance with – the substance
of the Convention rights and freedoms in whatever form they may
happen to be secured in the domestic legal order. However, such a
remedy is only required in respect of grievances which can be
regarded as “arguable” in terms of the Convention (see,
among many other authorities, Boyle and Rice v. the United
Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23,
§ 52).
In the light of the finding of a violation of Article
10 above, the complaint is clearly arguable. The Court must thus
verify whether the applicant had a remedy at national level to
enforce the substance of his Convention rights.
The
Court observes at the outset that the applicant's complaint does not
pertain to his inability to seek damages in domestic law but to bring
court proceedings to set aside the ban imposed on Günlük
Evrensel by the governor of the state-of-emergency region. It
notes that Article 7 of Legislative Decree no. 285 granted
exceptional powers to the governor of the state-of-emergency region
who could issue decisions which could not be reviewed by the
administrative courts. As observed by the Constitutional Court (see
paragraph 17 above), such immunity from judicial review is
incompatible with the rule of law in a free and democratic society
and, in the Court's opinion, renders nugatory the right guaranteed by
Article 13.
In view of the foregoing considerations, the Court
concludes that Turkish law did not provide effective remedies against
the ban imposed on Günlük Evrensel by the governor
of the state of emergency region. There has therefore been a
violation of Article 13 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
The
applicant claimed that the measures imposed on Günlük
Evrensel disclosed discrimination, invoking Article 14 of the
Convention which provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
The
applicant argued that his newspaper was subjected to discrimination
on account of its political stance.
The
Government submitted that the applicant's claim was unsubstantiated.
The
Court recalls that it has found a violation of Article 10 of the
Convention. However, in reaching the conclusion that the ban imposed
was not necessary in a democratic society, it was satisfied that the
impugned measure pursued the legitimate aims of preventing
disorder and crime and protecting national security.
There is no reason to believe that the restrictions on the
applicant's freedom of expression can be attributed to a difference
of treatment based on his national origin or his political opinions.
In
the light of the foregoing, the Court considers that the applicant's
allegations are unsubstantiated. There has therefore been no
violation under this head.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 10,000 euros (EUR) in respect of pecuniary damage
and EUR 3,000 for non-pecuniary damage.
The
Government asserted that no award should be made under this head.
They submitted, in the alternative, that should the Court decide to
award damages, this should not lead to unjust enrichment.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, ruling on an equitable basis, it awards the applicant EUR
2,500 in respect of non-pecuniary damage (see Çetin and
Others, cited above, § 73).
B. Costs and expenses
The
applicant also claimed EUR 2,000 for the costs and expenses incurred
before the Court.
The
Government contended that the applicant's claim was unsubstantiated.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the above criteria and the applicant's failure to substantiate his
claim, the Court makes no award under this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been a violation of Article
10 of the Convention;
Holds that there has been a violation of Article
13 of the Convention;
Holds that there has been no violation of
Article 14 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,500 (two thousand five
hundred euros) in respect of non-pecuniary damage, to be converted
into New Turkish liras at the rate applicable at the date of
settlement free of any taxes or charges that may be payable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage point;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 8 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Françoise
Tulkens
Deputy
Registrar President
