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Cite as: [2010] ECHR 1315

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SECOND SECTION

CASE OF TURGAY AND OTHERS v. TURKEY (no. 3)

(Applications nos. 21950/08, 23173/08, 23182/08 and 23200/08)

JUDGMENT

STRASBOURG

21 September 2010

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 Turgay and Others v. Turkey (no. 3),

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having deliberated in private on 31 August 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in four applications (nos. 21950/08, 23173/08, 23182/08 and 23200/08) 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 twenty-one Turkish nationals (“the applicants”), whose names appear in the appendix.

The applicants were represented by Mr Ö. Kılıç, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

On 22 April and 29 April 2008 the applicants' representative requested that the respondent Government be notified of the introduction of the applications in accordance with Rule 40 of the Rules of Court and that the cases be given priority under Rule 41.

On 17 October 2008 the President of the Second Section decided to give priority to the applications under Rule 41 of the Rules of Court and to give notice of the applications to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. The prosecution of the newspapers

At the material time the applicants were the owners, executive directors, editors-in-chief, news directors and journalists of four weekly newspapers published in Turkey: Haftaya Bakış, Yedinci Gün, Toplumsal Demokrasi and Yaşamda Demokrasi. The publication of these newspapers was suspended pursuant to section 6(5) of Law no. 3713 (the Prevention of Terrorism Act) by the Istanbul Assize Court on 18 March, 7 April, 25 February and 4 April 2008, respectively, for a period of one month on account of various news reports and articles. The impugned publications were mainly deemed to be propaganda in favour of a terrorist organisation, the PKK/KONGRA-GEL ¹, and to constitute the approval of crimes committed by that organisation and its members.

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.

B. The prosecution of the applicants

The applicant Ali Turgay, the owner of Haftaya Bakış and Yedinci Gün, was prosecuted on two occasions under, inter alia, sections 6(2) and 7(2) of Law no. 3713, as well as Articles 215 and 218 of the Criminal Code, for disseminating propaganda in favour of the aforementioned organisation and praising crimes committed by that organisation and its members, on account of various articles published in the said newspaper. The first case concerning the former newspaper resulted in his conviction (case no. 2008/107). According to the information in the case file, this case is currently pending before the Court of Cassation. The second case (case no. 2008/188) is apparently still pending before the first-instance court.

The applicant Hüseyin Bektaş, the owner of Toplumsal Demokrasi and Yaşamda Demokrasi, was similarly prosecuted on two occasions (joined under case no. 2007/422). According to the information in the case file, these prosecutions are still pending at first instance.

II. RELEVANT DOMESTIC LAW

A description of the relevant domestic law and practice may be found in Ürper and Others v. Turkey (nos. 14526/07, 14747/07, 15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07 and 54637/07, §§ 12 14, 20 October 2009).

THE LAW

Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them.

I. ADMISSIBILITY

The Government submitted that the applicants other than Ali Turgay and Hüseyin Bektaş, who are the owners and executive directors of the relevant newspapers and against whom criminal proceedings have been instituted, did not have victim status. The Government further argued that the applicants had failed to exhaust domestic remedies as the criminal proceedings against the applicants Ali Turgay and Hüseyin Bektaş were still pending before the first-instance court.

As regards the Government's first objection, the Court notes that it has already examined and rejected similar objections in previous cases (see Tanrıkulu, Çetin, Kaya and Others v. Turkey (dec.), nos. 40150/98, 40153/98 and 40160/98, 6 November 2001, Yıldız and Others v. Turkey (dec.), no. 60608/00, 26 April 2005, and Ürper and Others, cited above, § 18). It finds no particular circumstances in the instant case which would require it to depart from this jurisprudence. The Court accordingly rejects the Government's objection under this head.

As for the applicants' alleged failure to exhaust domestic remedies, the Court notes that the applicants' complaints under the Convention solely relate to the assize court's decisions suspending the publication of the four newspapers, and that the applicants exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention by filing objections to the various decisions (see Ürper and Others, cited above, § 21). The Court accordingly rejects the Government's objection.

The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

II. MERITS

A. Alleged violations of Article 10 of the Convention

The applicants alleged under Article 10 of the Convention that the suspension of the publication and distribution of Haftaya Bakış, Yedinci Gün, Toplumsal Demokrasi and Yaşamda Demokrasi, which had been based on section 6(5) of Law no. 3713, constituted an unjustified interference with their freedom of expression. They claimed in particular that the banning, for such lengthy periods, of the publication of the newspapers as a whole, whose future content was unknown at the time of the national court's decisions, had amounted to censorship.

The Government submitted that the national court's decisions had pursued several legitimate aims, including the protection of national security, territorial integrity and public safety. Moreover, taking into account the content of the articles in question, the measures taken had been proportionate to the legitimate aims pursued and necessary in a democratic society.

The Court notes that it has recently examined a similar complaint and found a violation of Article 10 of the Convention in the case of Ürper and Others (cited above, §§ 24-45), where it noted in particular that the practice of banning the future publication of entire periodicals on the basis of section 6(5) of Law no. 3713 went beyond any notion of “necessary” restraint in a democratic society and, instead, amounted to censorship. The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence.

There has accordingly been a violation of Article 10 of the Convention.

B. Alleged violations of Articles 6, 7 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention

The applicants complained under Article 6 §§ 1 and 3 of the Convention that they had been unable to participate in the proceedings before the Istanbul Assize Court and that the latter had decided to suspend publication and distribution of the aforementioned newspapers without obtaining their submissions in defence. They further contended under Article 13 of the Convention that they had not had a domestic remedy by which to challenge the lawfulness of the national court decisions, as their objections to the suspension orders had been dismissed without trial. The applicants also complained under Article 6 § 2 that these orders had violated their right to be presumed innocent, since the national courts had held that criminal offences had been committed through the publication of news reports and articles in the aforementioned newspapers, for which they had been responsible. The applicants further submitted under Article 7 of the Convention that the decisions to suspend the publication and distribution of the newspapers amounted to a “penalty” without a legal basis. Lastly, they complained under Article 1 of Protocol No. 1 that the decisions to suspend the publication of Haftaya Bakış, Yedinci Gün, Toplumsal Demokrasi and Yaşamda Demokrasi had constituted an unjustified interference with their right to property.

The Government contested these allegations.

Having regard to the circumstances of the cases and to its finding of a violation of Article 10 of the Convention (see paragraph 18 above), the Court considers that it has examined the main legal question raised in the present applications. It concludes therefore that there is no need to make separate rulings in respect of these other complaints (see, mutatis mutandis, Demirel and Others v. Turkey, no. 75512/01, § 27, 24 July 2007; Demirel and Ateş v. Turkey (no. 3), no. 11976/03, § 38, 9 December 2008; Ürper and Others, cited above, § 49).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

1. Pecuniary damage

The applicants claimed 96,000 Turkish liras (TRY) (approximately 45,400 euros (EUR)) in pecuniary damage for the commercial loss which the newspapers had suffered as a result of the suspension decisions. Under the same head, the applicants further claimed EUR 56,000 for the damage which they had suffered individually. However, they did not produce any documentary evidence in support of their claims for pecuniary loss.

The Government contested these claims, arguing that there was no causal link between the alleged violations of the Convention and the purported pecuniary damage, and that this damage had not been duly documented in any event.

The Court notes the applicants' failure to submit any documents to substantiate this claim. Accordingly, it must be rejected.

2. Non-pecuniary damage

The applicants claimed EUR 56,000 in total in respect of non pecuniary damage.

The Government considered this sum to be excessive and submitted that awarding such an amount would lead to unjust enrichment.

The Court considers that all the applicants may be deemed to have suffered a certain amount of distress and frustration which cannot be sufficiently compensated by the finding of a violation alone. Taking into account the particular circumstances of the case and the type of violation found, the Court awards the applicants EUR 1,800 each for non-pecuniary damage.

B. Costs and expenses

The applicants also claimed EUR 11,480 for the costs and expenses incurred before the domestic courts and before the Court. In this connection they submitted documentation indicating the time spent by their legal representative on the applications, as well as tables of costs and expenditure.

The Government contested this claim.

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 documents in its possession and the above criteria, the Court considers it reasonable to award the applicants jointly the sum of EUR 1,000 for their costs before the Court.

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

Decides to join the applications;

2. Declares the applications admissible;

Holds that there has been a violation of Article 10 of the Convention;

Holds that there is no need to examine separately the complaints under Articles 6, 7 and 13 of the Convention and Article 1 of Protocol No. 1;

Holds

(a) that the respondent State is to pay the applicants within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts to be converted into Turkish liras at the rate applicable at the date of settlement:

(i) EUR 1,800 (one thousand eight hundred euros), in respect of non-pecuniary damage, plus any tax that may be chargeable, to each of the following applicants:

- Ali Turgay;

- Salih Sezgi;

- Nevin Nazman;

- Turabi Kişin;

- Hüseyin Aykol;

- Fuat Bulut;

- Memet Ali Çelebi;

- Zeriman Dağdelen;

- Ramazan Pekgöz;

- Cengiz Kapmaz;

- Nurettin Fırat;

- Bayram Balcı;

- Yüksel Genç;

- Şinasi Tur;

- Kudret Gülün;

- Nurcan Ercan;

- Fatma Ayaz;

- Güler Özdemir;

- Ferhat Gürgen;

- Bilir Kaya;

- Hüseyin Bektaş.

(ii) EUR 1,000 (one thousand euros) to the applicants jointly in respect of costs and expenses, plus any tax that may be chargeable to them;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 21 September 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Françoise Elens-Passos Françoise Tulkens
Deputy Registrar President

Appendix

File No	Case Name	Date of lodging	Introduced by
21950/08	TURGAY and Others v. Turkey	22.04.2008	Ali Turgay, Salih Sezgi, Nevin Nazman, Turabi Kişin, Hüseyin Aykol, Fuat Bulut, Memet Ali Çelebi, Zeriman Dağdelen, Ramazan Pekgöz, Cengiz Kapmaz, Bayram Balcı, Nurettin Fırat, Bilir Kaya, Güler Özdemir, Ferhat Gürgen, Şinasi Tur, Kudret Gülün, Nurcan Ercan and Fatma Ayaz
23173/08	TURGAY and Others v. Turkey	29.04.2008	Ali Turgay, Salih Sezgi, Turabi Kişin, Hüseyin Aykol, Fuat Bulut, Memet Ali Çelebi, Yüksel Genç, Ramazan Pekgöz, Cengiz Kapmaz, Bayram Balcı, Nurettın Fırat, Bilir Kaya, Güler Özdemir, Ferhat Gürgen, Şinasi Tur, Kudret Gülün, Nurcan Ercan, Nevin Nazman and Fatma Ayaz
23182/08	BEKTAŞ v. Turkey	22.04.2008	Hüseyin Bektaş
23200/08	BEKTAŞ v. Turkey	29.04.2008	Hüseyin Bektaş

1. Kurdistan Workers’ Party, an illegal organisation.