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COX v. TURKEY - 2933/03 [2010] ECHR 700 (20 May 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/700.html
Cite as:
55 EHRR 13,
(2012) 55 EHRR 13,
[2010] Imm AR 664,
[2010] ECHR 700
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SECOND
SECTION
CASE OF COX v. TURKEY
(Application
no. 2933/03)
JUDGMENT
STRASBOURG
20 May 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 Cox v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 29 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 2933/03) 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 national of the United States of America,
Ms Norma Jeanne Cox (“the applicant”), on 28 August
2002.
The
applicant was represented by Mr Selim Baktıaya, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
The
applicant alleged, in particular, that she had been deported from
Turkey and a ban had been imposed on her re-entry on account of
opinions she had expressed.
On
8 February 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1944 and lives in Philadelphia, the United
States.
The
applicant lived and studied in Turkey at various times from 1972
onwards. In 1983 she received a postgraduate degree from Boğaziçi
University in Istanbul. Between 1983 and 1984 she worked as a
lecturer at Istanbul University. In 1984 she started working as a
lecturer at the Middle East Technical University (Ortadoğu
Teknik Üniversitesi) in the city of Gaziantep in southern
Turkey.
On
23 September 1985 the deputy governor of Gaziantep sent a letter to
the Ministry of the Interior, recommending that the applicant be
expelled from Turkey on account of her “harmful activities”.
According to the deputy governor, the applicant had said to her
students and colleagues at the university that the Turks had expelled
the Armenians and had massacred them. Moreover, the Turks had
assimilated the Kurds and exploited their culture. In January 1986
the applicant's contract of employment was terminated by the
university. On 4 April 1986 the National Intelligence Service also
recommended that the applicant be expelled from Turkey. On 12 August
1986 the Ministry of the Interior ordered that the applicant be
expelled and a ban imposed on her return. The applicant left Turkey
in 1986.
At
some stage the applicant returned to Turkey, where she was arrested
in 1989 while distributing leaflets protesting against the film
The Last Temptation of Christ. The applicant was
subsequently expelled from Turkey.
At
the time, and following the applicant's expulsion from Turkey, the
Ministry of the Interior allegedly compiled classified reports about
the applicant containing phrases such as “[the applicant, who]
works as a missionary in our country” and “[the
applicant, who] was put under surveillance following her attendance
at a service in a Protestant church in Turkey”. The applicant
did not submit a copy of these reports to the Court.
At
some stage in 1996 the applicant entered Turkey again. On 31 August
1996, while she was leaving Turkey, an entry was made in her passport
by the authorities, stating that she was banned from entering Turkey.
She was urged by the authorities not to return.
On
14 October 1996 the applicant, with the assistance of her lawyer in
Turkey, brought proceedings against the Ministry of the Interior
before the Ankara Administrative Court and asked for the ban to be
lifted. She argued that the decision to ban her from entering Turkey
had been taken on the basis of a decision adopted by the Ministry of
the Interior on 12 August 1986. She maintained that the reason
for the decision had been her religion. This, she argued, had been in
breach of domestic legislation, the Constitution and international
conventions, including Article 9 of the European Convention on Human
Rights.
The
Ministry of the Interior submitted written observations to the Ankara
Administrative Court on 25 December 1996, stating that, while she was
teaching at the university in Gaziantep, the applicant had had
discussions with her students and colleagues about Turks assimilating
Kurds and Armenians, and Turks forcing Armenians out of the country
and committing genocide. On account of her separatist activities
against the national security of Turkey, her name had been included
in the Ministry's list of persons whose entry into Turkey was
prohibited. Her contract of employment had subsequently been annulled
and she had been expelled on the advice of the National Intelligence
Service and in accordance with section 19 of the Foreigners in
Turkey (Visits and Travels) Act (no. 5683). She had also been
banned from re-entering Turkey, pursuant to section 8(4) and (5)
of the Passport Act (no. 5682).
The
Ministry maintained that the applicant had been expelled and banned
from entering Turkey on account of her separatist activities, which
were incompatible with national security, and not because of her
religious opinions or for disseminating Christian propaganda.
The
applicant submitted her written observations in response to those of
the Ministry of the Interior, arguing that the Ministry's allegations
against her had not been proven. Even assuming that she had said
those things at the university, she had remained within the
permissible limits of criticism. Furthermore, she had never been
prosecuted for having expressed those opinions. The action taken
against her by the Ministry had therefore been devoid of any legal
basis.
On
17 October 1997 the Ankara Administrative Court rejected the
applicant's claim. It considered that the opinions expressed by the
applicant at the university in Gaziantep had been on issues followed
closely by society because those issues concerned terrorism, from
which the country had been suffering. Such opinions were, without any
doubt, incompatible with national security and also with political
imperatives. The Ministry's decision had been in accordance with the
applicable legislation and the situation complained of by the
applicant did not fall within the ambit of any of her fundamental
rights and freedoms.
The
applicant appealed. She referred to the above-mentioned reports
allegedly detailing her religious activities, and maintained that she
had been subjected to unjust treatment because of her religion.
The
appeal was dismissed by the Supreme Administrative Court on
20 January 2000.
The
applicant requested a rectification of the decision of 17 October
1997. She argued, inter alia, that the entire case had
revolved around her having expressed opinions on certain subjects.
The Ministry's action and the courts' decisions had restricted her
freedom of expression. She added that she still believed that it was
possible to rectify this at the national level before she applied to
international courts.
Her
request for rectification was rejected by the Supreme Administrative
Court in a decision of 26 December 2001, which was communicated to
the applicant on 5 March 2002.
II. RELEVANT DOMESTIC LAW
By
section 19 of the Foreigners in Turkey (Visits and Travels) Act
(no. 5683), aliens whose presence in Turkey is deemed by the
Ministry of the Interior to be contrary to national security and to
political and administrative imperatives are required to leave the
country within a given period. If they fail to leave the country at
the end of that period, they may be deported.
By
section 8(4) and (5) of the Passport Act (Law no. 5682), persons who
have been deported from Turkey and who are refused permission to
return, as well as persons who are deemed to have entered the country
with the aim of harming, or of assisting those whose aim is to harm
the public order and the security of the Turkish Republic, will not
be allowed to enter the country.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 9 AND 10 OF THE
CONVENTION
The
applicant alleged that she had been subjected to unjustified
treatment on account of her religion, in violation of Article 9 of
the Convention. In support of her allegation she submitted that she
had been expelled from Turkey after having protested against the film
The Last Temptation of Christ and after her protests had been
given media coverage. Under the same Article, she further alleged
that expressing opinions on Kurdish and Armenian issues at a
university, where freedom of expression should be unlimited, could
not be used as a justification for any sanctions, such as the ban on
her re-entry into Turkey.
Having
regard to the applicant's failure to substantiate her allegations
under Article 9 of the Convention by failing to submit to the Court a
copy of the reports mentioned by her in her application form (see
paragraph 9 above), and having further regard to the reasons for
the re-entry ban imposed upon her which she challenged before the
national courts, the Court considers it appropriate to examine these
complaints solely from the standpoint of Article 10 of the
Convention, which insofar as relevant reads as follows:
“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, territorial integrity or public safety, [or] for
the prevention of disorder or crime, ...”
The
Government contested the applicant's arguments.
A. Admissibility
The
Court considers that it may only examine the applicant's case insofar
as it is related to events and procedures from 1996 onwards (see
paragraphs 10 19 above). It is prevented from considering
earlier incidents, except as background information, by virtue of the
operation of the six-month rule laid down in Article 35 § 1 of
the Convention.
However,
the Court finds that the applicant's Article 10 complaint concerning
post 1996 events 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. It must therefore be declared
admissible.
B. Merits
1. Existence of an interference with the applicant's
right to freedom of expression
The
Court observes that the applicant did not complain that she was not
allowed to stay or live in Turkey but rather that her previously
expressed opinions had prompted the Turkish authorities to impose a
permanent ban on her re-entry. The Court reiterates in this
connection that, whereas the right of a foreigner to enter or remain
in a country is not as such guaranteed by the Convention, immigration
controls must be exercised consistently with Convention obligations
(see Abdulaziz, Cabales and Balkandali v. the United Kingdom,
28 May 1985, §§ 59-60, Series A no. 94). Thus, in the
context of freedom of religion, in its judgment in the case of Perry
v. Latvia, the Court held that the refusal to issue an
Evangelical pastor with a permanent residence permit “for
religious activities”, a decision which had been grounded on
national-security considerations, amounted to an interference with
that applicant's right to freedom of religion (no. 30273/03,
§§ 10 and 56, 8 November 2007).
In
its decision in the case of Omkarananda and the Divine Light
Zentrum v. Switzerland, the Commission found in the context of
deportation that “deportation does not ... as such constitute
an interference with the rights guaranteed by Article 9, unless it
can be established that the measure was designed to repress the
exercise of such rights and stifle the spreading of the religion or
philosophy of the followers” (no. 8118/77, Commission decision
of 19 March 1981, Decisions and Reports (DR) 25, p. 118).
Similarly, in Nolan and K. v. Russia
the Court examined a denial of re-entry in conjunction with
the grounds of expulsion in the context of freedom of religion (no.
2512/04, §§ 58-79, 12 February 2009).
The considerations applicable in the context of
freedom of religion are also relevant in the context of freedom of
expression. For example, in the case of Piermont v. France the
Court held that the expulsion and ban imposed on a German national's
entry to French Polynesia, on account of that applicant's statements
attacking French policies, amounted to an interference under Article
10 of the Convention (27 April 1995, §§ 51 53,
Series A no. 314). More recently, the Court examined a ban
imposed by the Portuguese authorities on a ship whose crew was about
to launch a campaign in Portugal in favour of the decriminalisation
of abortion. The ban which effectively prevented the ship from
entering Portuguese territorial waters was held by the Court to
amount to an interference with the applicants' right to freedom of
expression (see Women On Waves and Others v. Portugal, no.
31276/05, § 30, ECHR 2009 ... (extracts)).
In
the present case the applicant was banned from re-entering Turkey on
account of the contents of her previous conversations with students
and colleagues. Despite the deportation order issued in 1986, she was
able to re-enter Turkey several times after that. However, when she
became aware of the existence of the ban, which had been stamped in
her passport when leaving Turkey on 31 August 1996, she applied for
its revocation. Her request was denied by the administrative courts
and the ban is still valid. She has been unable to return to Turkey
since then.
The Court considers that the ban
on the applicant's re-entry is materially related to her right to
freedom of expression because it disregards the fact that Article 10
rights are enshrined “regardless of frontiers” and that
no distinction can be drawn between the protected freedom of
expression of nationals and that of foreigners. This principle
implies that the Contracting States may only restrict information
received from abroad within the confines of the justifications set
out in Article 10 § 2 (Autronic AG v. Switzerland,
22 May 1990, §§ 50 and 52, Series A no. 178).
The scope of Article 10 of the Convention includes the right to
impart information. The applicant is precluded from re-entering on
grounds of her past opinions and, as a result, is no longer able to
impart information and ideas within that country. In light of the
foregoing, the Court concludes that there has been an
interference with the applicant's rights guaranteed by Article 10 of
the Convention. The Court will thus proceed to examine whether that
interference was justified under the second paragraph of that
provision.
2. “Prescribed by law”
The
Government submitted that the applicant had been denied re-entry into
Turkey pursuant to section 8(4) and (5) of the Passport Act (Law
no. 5682).
The
Court observes that the applicant was indeed banned from re-entry on
the basis of this legislation (see paragraphs 12 and 21 above). In
this connection, the Court reiterates that a norm cannot be regarded
as a “law” within the meaning of Article 10 § 2
unless it is formulated with sufficient precision to enable the
citizen to regulate his or her conduct; the individual must be able –
if need be with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail (see, inter alia, Lindon,
Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and
36448/02, § 41, ECHR 2007 XI). Nevertheless, having regard
to its conclusion below (see paragraph 45), the Court does not deem
it necessary to ascertain whether this legislation had the quality of
“law” within the meaning of this provision.
3. “Legitimate aim”
The
Government submitted that the interference had been necessary in the
interests of national security, territorial integrity, public safety
and the prevention of disorder or crime.
The
Court is prepared to accept that the interference pursued one or more
of the legitimate aims cited by the Government.
4. “Necessary in a democratic society”
The
applicant submitted that freedom to express opinions at a university
should be unlimited, and argued that sanctioning her for having
discussions on minority related issues had been in breach of the
Convention.
The
Government were of the view that, in placing a ban on the applicant's
re-entry, the national authorities had remained within their margin
of appreciation. The interference in question had thus been necessary
in a democratic society.
The Court reiterates that freedom of expression
constitutes one of the essential foundations of a democratic society
and one of the basic conditions for its progress and for each
individual's self-fulfilment. Subject to paragraph 2, it is
applicable not only to “information” or “ideas”
which are favourably received or regarded as inoffensive or as a
matter of indifference, but also to those that offend, shock or
disturb. Such are the demands of pluralism, tolerance and
broadmindedness, without which there is no “democratic
society”. As set forth in Article 10, this freedom is subject
to exceptions, which must, however, be construed strictly, and the
need for any restrictions must be established convincingly. It is
also to be reiterated at this juncture that such exceptions and
restrictions call for the most careful scrutiny on the part of the
Court (see, inter alia, Editions Plon v. France,
no. 58148/00, § 42, ECHR 2004 IV).
Moreover,
in order for an interference to be compatible with the Convention,
the interference must not only be prescribed by law and pursue one or
more of the legitimate aims set out in the second paragraph of
Article 10 of the Convention, but it must also be “necessary
in a democratic society” to achieve that aim or aims. In this
connection the Court has consistently held that Contracting States
enjoy a certain margin of appreciation in assessing the need for
interference, but this margin goes hand in hand with European
supervision, whose extent will vary according to the case. Where, as
in the instant case, there has been an interference with the exercise
of the rights and freedoms guaranteed in paragraph 1 of Article 10,
the supervision must be strict, because of the importance of the
rights in question; the importance of these rights has been stressed
by the Court many times. The necessity for restricting them must be
convincingly established (see Autronic AG, cited above, §
61, and the case cited therein).
In
exercising its supervisory function, the Court has to look at the
interference complained of in the light of the case as a whole. In
particular, it must determine whether the reasons adduced by the
national authorities to justify the interference were relevant and
sufficient and whether the measure taken was proportionate to the
legitimate aims pursued. In doing so, the Court has to satisfy itself
that the national authorities, basing themselves on an acceptable
assessment of the relevant facts, applied standards which were in
conformity with the principles embodied in Article 10 of the
Convention (Feldek v. Slovakia, no. 29032/95, § 73, ECHR
2001 VIII).
As
noted above, a ban was imposed on the applicant's re-entry into
Turkey for having previously expressed controversial opinions
concerning, inter alia, Kurdish and Armenian issues. The Court
observes that there was never any suggestion that she had committed
any offence by voicing such opinions and, indeed, no criminal
prosecution was ever brought against her.
The
opinions expressed by the applicant related to topics which continue
to be the subject of heated debate, not only within Turkey but also
in the international arena, with all those involved voicing their
views and counter-views. The Court is aware that the opinions
expressed on these issues by one side may sometime offend the other
side but, as pointed out above, a democratic society requires
tolerance and broadmindedness in the face of controversial
expressions.
When
the interference with a right under the Convention takes the form of
a denial of re-entry to a country, the Court is empowered to examine
the grounds for that ban (cf. mutatis mutandis, Nolan
and K., cited above, §§
62-63). In the present case the Court is unable to glean from
the reasoning of the Ankara Administrative Court (see paragraph 15
above) how and why exactly the applicant's views were deemed harmful
to the national security of Turkey. Moreover, given that the sole
reason for her inability to return to Turkey was based on her
previously expressed opinions, the Court is unable to agree with the
Ankara Administrative Court that “the situation complained of
by the applicant did not fall within the ambit of any of her
fundamental rights and freedoms”. As the Court has already
found, the purported national security grounds for the denial of the
applicant's re-entry indeed concerned the applicant's freedom of
expression.
In
light of the foregoing, the Court concludes that the reasons adduced
by the domestic courts cannot be regarded as a sufficient and
relevant justification for the interference with the applicant's
right to freedom of expression. Having regard to the fact that the
applicant has not been shown to have been engaged in any activities
which could clearly be seen as harmful to the State, the Court
considers it established that the ban on the applicant's re-entry
into Turkey was designed to repress the exercise of her freedom of
expression and stifle the spreading of ideas (see, mutatis
mutandis, Nolan and K.,
cited above, § 66; and Omkarananda and the Divine
Light Zentrum, cited above).
It
thus follows that the interference complained of was not “necessary
in a democratic society” within the meaning of Article 10 §
2 of the Convention.
There
has therefore been a violation of Article 10 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant also complained that the proceedings had not been completed
within a reasonable time, contrary to the requirement of Article 6
of the Convention. Relying on Article 7 of the Convention, she
complained that she had been expelled and banned from re-entering
Turkey on account of her religious activities. Relying on Article 14
of the Convention, the applicant further alleged that she had been
discriminated against because, although persons who disseminated
Islamic propaganda were not subjected to any sanctions in Turkey but
were supported by the State, those who disseminated Christian
propaganda were subjected to physical sanctions.
She
further alleged that the Supreme Administrative Court had interpreted
the domestic legislation to mean that expressing opinions which were
incompatible with the prevailing political ideas was against national
security. Such a restriction on freedom of expression was not
compatible with Article 17 of the Convention. Finally, the applicant
argued that her expulsion from Turkey had been in violation of
Article 1 of Protocol No. 7 to the Convention.
The
Court has examined these complaints. Having regard to all the
material in its possession, and in so far as these complaints fall
within its competence, the Court finds that they do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. It follows that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
III. 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 submitted that, as a result of her deportation, she had had
to leave Turkey and had lost her job and income. She claimed
100,000 euros (EUR) in respect of pecuniary damage on that
account. She also claimed EUR 100,000 in respect of non-pecuniary
damage.
The
Government considered the sums claimed to be exaggerated and
unsupported.
The
Court observes that it has only examined the merits of the complaint
about freedom of expression since 1996, in respect of which the facts
relating to the applicant's employment, dismissal and deportation
from Turkey were excluded (paragraphs 25-26 above).
In
these circumstances, the Court does not discern any causal link
between the violation found and the pecuniary damage claimed by the
applicant on account of her loss of employment in Turkey; it
therefore dismisses this claim. However, deciding on an equitable
basis, it awards the applicant EUR 12,000 in respect of
non-pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 20,000 for costs and expenses, but did not
submit any bills or any other information quantifying this claim. In
the absence of such information and substantiation, the Court makes
no award in this respect.
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 complaint under Article 10 of the
Convention, as of 1996, admissible and the remainder of the
application inadmissible;
Holds that there
has been a violation of Article 10
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 12,000 (twelve
thousand euros) in respect of non-pecuniary damage, plus any tax that
may be chargeable, to be converted into the national currency of the
United States at the rate applicable at the date of settlement;
(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 points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
