Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> SAYGILI AND KARATAS v. TURKEY - 6875/05 (Judgment : Violation of Freedom of expression-{general}) [2018] ECHR 52 (16 January 2018)
URL: http://www.bailii.org/eu/cases/ECHR/2018/52.html
Cite as: CE:ECHR:2018:0116JUD000687505, [2018] ECHR 52, ECLI:CE:ECHR:2018:0116JUD000687505
[New search] [Contents list] [Printable RTF version] [Help]
SECOND SECTION
CASE OF SAYGILI AND KARATAŞ v. TURKEY
(Application no. 6875/05)
JUDGMENT
STRASBOURG
16 January 2018
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 Saygılı and Karataş v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Robert Spano, President,
Ledi Bianku,
Işıl Karakaş,
Nebojša Vučinić,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 12 December 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 6875/05) 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 two Turkish nationals, Mr Fevzi Saygılı and Mr Ali Karataş (“the applicants”), on 28 March 2001.
2. The applicants were represented by Mr K.T. Sürek, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicants alleged, in particular, that their conviction and the closure of the newspaper Yeni Evrensel had violated their rights under Article 10 of the Convention.
4. On 10 June 2005 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants were born in 1966 and 1976 respectively.
6. At the material time, the first applicant, Mr Fevzi Saygılı, was the owner of a daily newspaper, Yeni Evrensel. The second applicant, Mr Ali Karataş, was the editor-in-chief of the newspaper.
7. On 8 January 2000 an article entitled “Friends, I surely have to watch [it]” (“Ben mutlaka izlemeliyim arkadaşlar”) written by Fatih Polat was published on page two of Yeni Evrensel’s 472nd issue. It concerned a case that had caused a public outcry in Turkey, namely that of Metin Göktepe, a journalist who was beaten to death by the police whilst under arrest in 1996[1]. Following the killing, the Turkish Grand National Assembly set up a Parliamentary Inquiry Commission in order to shed light on the murder of Metin Göktepe. On 19 July 1996 the Commission published its report which contained, among other things, the names, the functions and the statements of numerous police officers, including O.T. and K.B.
The above-mentioned article read as follows:
“This is what Metin said [I surely have to watch [it]] to colleagues who were making their final preparations to observe the funerals of Rıza Boybaş and Orhan Özen - two revolutionary detainees who had been killed in Ümraniye Prison four days earlier - when he arrived at the newspaper office on 8 January 1996. This was an expression of his commitment and involvement in life with a great enthusiasm, which went beyond the mere love of his job.
The difference between doing this job [journalism] reluctantly and doing it wholeheartedly and flawlessly was apparent in his effort to report events fully, notwithstanding the hindrances created by the police at Alibeyköy, where he went on the day of the events.
Unlike his colleagues, he perceived pushing against the police barricade as the means to reach the news behind that barricade. What else was journalism for?
The barricade that stands in front of the reality that the people of Turkey need stands in front of the journalist sometimes officially, sometimes unofficially and sometimes in the form of a gang. However, when that barricade is broken down, a dark bottomless well filled with the danger of “being eliminated” − to use the expression of the official Susurluk Report − is waiting in front of you to swallow you up. In the last ten years alone, fifty-one journalists have been swallowed up by this well. The important message behind this is that we need determination to go beyond the darkness and reach the light. Or, to put it a different way, it is not possible to reach the light from the darkness without eliminating the eliminators (Ya da, başka bir deyişle, “bertaraf ediciler”, “bertaraf” edilmeden karanlıktan sürekli aydınlığa çıkmak da mümkün değil). Following Metin’s death, the honest journalists of Turkey, especially the young ones, thought that waiting to confront that reality was a hopeless prospect. Indeed, they thought that it was already too late. It was also like this for the country’s working class who constantly encountered the police in their struggle to seek legal solutions. Moreover, Metin was one of them. This consciousness became the driving force behind the transformation of every hearing of his trial − which was “exiled”, first to Aydın then to Afyon Province, with the aim of keeping it hidden from public view − into a demonstration.
We have learnt that the murderers will be tried, and we are duty-bound to ensure the effective continuation of such proceedings. This has been the only trial involving a journalist in which the murderers were punished notwithstanding the public authorities’ reluctance − which has taught us all that democracy is won not by waiting for it to appear from some place but by standing up for it. And above all, assuming that the protective ring around the former Director of İstanbul Security Directorate, O.T., who issued the collective detention order which ended with the death of Metin, and around Vice-Director K.B., who executed this order, would remain in place forever would represent nothing but a lack of faith in all these struggles (Metin’in ölümüyle sonuçlanan toplu gözaltı emrini veren dönemin İstanbul Emniyet Müdürü O.T. ile bu emri uygulayan yardımcısı K.B.’ın üzerindeki koruma halesinin sonsuza kadar öyle kalacağını düşünmek ise, herşeyden önce verilen onca mücadeleye karşı bir inançsızlık olur). All those following the case of Metin Göktepe will not stop coming after T. and B., who were already guilty in people’s minds (Metin Göktepe davasının takipçisi olanlar, halkın vicdanında çoktan mahkum olan T. ve B.’ın peşini elbette bırakmayacaklar).
The fact that the eliminators dragged one more name into their dark well after Metin’s, namely that of Ahmet Taner Kışlalı, has shown another reality. Absolute protection from this fate requires constant and persistent monitoring. Is not one of the reasons why we are entering the third millennium with unsolved journalist murders the fact that those who occupy the seat and write the column of Çetin Emeç at Hürriyet, and those who occupy the seat and write the column of Abdi İpekçi at Milliyet, and also the newspaper of the journalist İzzet Kezer, did not make it their business to reveal the murderers and all those responsible in the first place?
Is there any solution other than coming after the “eliminators”, whilst “surely watching”, and removing them and their collaborators completely from our soil, in order to save ourselves from becoming a country in which gangs can behave as they please?”
8. On 18 January 2000 the prosecutor at the Istanbul State Security Court filed a bill of indictment with that court and charged the applicants with offences defined in Section 6 § 1 of the Prevention of Terrorism Act (Law no. 3713), namely disclosing the identities of public officials who are involved in the fight against terrorism, thereby rendering such persons targets for terrorist organisations. In addition, he called for the application of Additional section 2 of the Press Act (Law no. 5680) and Article 36 of the former Criminal Code.
9. In a petition dated 17 May 2000 the applicants’ lawyer argued in their defence submissions that the crime of disclosing the identities of public officials who are involved in the fight against terrorism is not committed merely by using the officials’ names in connection with a case in which they have been tried as accused. The applicants’ lawyer maintained that the persons were already known to the public due to their positions and that their names were already in the public domain. He further contended that the applicants’ trial before the State Security Court was in contravention of Articles 6 and 10 of the Convention.
10. On 21 June 2000 the Istanbul State Security Court convicted the applicants as charged and sentenced them to heavy fines, of 474,481,000 Turkish liras (TRL) (approximately 804 euros (EUR) at the relevant time) and TRL 237,240,000 (approximately EUR 402) respectively. In accordance with Additional section 2 § 1 of Law no. 5680, the first-instance court also ordered the temporary closure of the newspaper for a period of seven days. According to the brief reasons given by the Istanbul State Security Court, the following sentences from the article were sufficient to conclude that O.T. and K.B. had been rendered targets for terrorist organisations:
“... it is not possible to reach the light from the darkness without eliminating the eliminators ... And above all, supposing that the protective ring around the former Director of İstanbul Security Directorate, O.T., who issued the collective detention order which ended with the death of Metin, and around Vice-Director K.B., who executed this order, would remain in place forever would represent nothing but a lack of faith in all these struggles. All those following the case of Metin Göktepe will not stop coming after T. and B., who were already guilty in people’s minds.”
11. On the same day, the applicants lodged an appeal. They stated first of all that the article in question had been written on the fourth anniversary of the killing of journalist Metin Göktepe, who had been beaten to death by the police in 1996 whilst in custody. The applicants argued that the purpose of the article had been to raise concern over the fact that some high-ranking officials had not been tried and that those accused in Metin Göktepe’s trial had still not been convicted, four years after the death of Metin Göktepe. The applicants maintained in this respect that the two officials concerned, namely O.T. and K.B., were the ones who had given and executed the detention order which had resulted in Metin Göktepe’s death. The applicants also pointed out that these two officials had been the only ones in respect of whom the requests for authorisation to prosecute under Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials) had been rejected by the Interior Minister at the material time. The names of the two officials had therefore been mentioned in the article because of their involvement in the above-mentioned events and not because of their role in the fight against terrorism. The applicants further submitted that the names of the officials had already appeared in the public domain and that the officials, being the Director and the Vice-Director of Istanbul Security Directorate, were already known to the public and thus not in a position to complain about the disclosure of their identities.
12. As regards the content of the article, the applicants observed that the writer of the article had defended the rule of law and the notion of justice and had not incited people to violence or advocated terrorism. According to the applicants, the article constituted a critical assessment of Metin Göktepe’s trial and of the impunity of some high-ranking officials, as well as the challenges journalists were facing.
13. The applicants emphasised that the sentence “And above all, assuming that the protective ring around the former Director of İstanbul Security Directorate, O.T., who issued the collective detention order which ended with the death of Metin, and around Vice-Director K.B., who executed this order, would remain in place forever, would represent nothing but a lack of faith in all these struggles” had been a reference to the fact that no permission had been given under Law no. 4483 to authorise the prosecution of the two officials in question for their alleged criminal conduct in connection with the events surrounding Metin Göktepe’s death.
14. They observed that, with the sentence “...it is not possible to reach the light from the darkness without eliminating the eliminators” the writer of the article had highlighted the challenges faced by journalists in their struggle to seek justice. This being so, they argued that it was untenable to conclude that the writer had in any way suggested the physical elimination of the two officials.
15. Lastly, they asserted that with the expression “coming after” the writer had obviously referred to the aftermath of Metin Göktepe’s trial which contributed significantly to the punishment of the accused police officers. According to the applicants, the writer had wished the cases against the two officials to be followed up by the people of Turkey with a view to bringing these officials to justice.
16. In their appeal application, the applicants requested that the Court of Cassation hold a hearing.
17. They also complained about the application of Additional section 2 § 1 of Law no. 5680.
18. On 1 February 2001 the Court of Cassation rejected the request for a hearing and upheld the judgment.
19. The closure order for the newspaper was executed from 20 to 27 March 2001.
II. RELEVANT DOMESTIC LAW
A. The Press Act (Law no. 5680 of 15 July 1950)
20. At the material time additional Article 2 § 1 of the Press Law (Law no. 5680) provided:
“Where there is a conviction for an offence mentioned in additional Article 1 and committed through the medium of press, the court may order the closure of the periodical in which the article that constitutes an offence appeared, for a period of from one day to fifteen days.”
B. The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991)
21. At the material time, Article 6 § 1 of the Prevention of Terrorism Act provided:
“It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce that terrorist organisations will commit an offence against a specific person or a person who is presented in such manner that he or she may be identified without his or her name being specifically stated, or to reveal the identity of civil servants who are involved in the fight against terrorism or to publish their names or to render them targets through these means.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
22. The applicants complained that their conviction under section 6 of Law no. 3713 and the temporary closure of the newspaper had infringed their right to freedom of expression. They relied in that connection on Article 10 of the Convention, which, in so far as relevant, 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
23. The Government contested that argument.
A. Admissibility
24. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
25. The Government acknowledged the existence of an interference in the instant case but submitted that it was justified under the provisions of the second paragraph of Article 10 of the Convention. The interference with the applicants’ right to freedom of expression had been based on Article 6 of Law no. 3713 as well as Additional section 2 of Law no. 5680. The interference had been in the interests of national security, territorial integrity and the protection of the rights of others owing to the disclosure of the identities of certain public officials.
26. The Government submitted that the interference had been necessary in a democratic society and thus compatible with Article 10 § 2. The disclosure of the identities of the former Chief Security Director and his deputy in an obvious manner had made them possible targets of terrorist attacks as it had been suggested several times in the article that the two officials should be eliminated. The article could just as well have been published without disclosing the identities of the two officials concerned. The interference was therefore proportionate to the legitimate aim pursued and the reasons adduced by the national authorities to justify it were relevant and sufficient. The national authorities had applied standards which conformed with the principles embodied in Article 10 of the Convention.
27. Moreover, the Government argued that the State authorities had a wider margin of appreciation when examining the need for interference with the applicants’ freedom of expression since the impugned article had been tantamount to an incitement to violence. In this respect, they referred to Gündüz v. Turkey ((dec.), no. 59745/00, ECHR 2003-XI (extracts)).
28. The applicants maintained their position before the national courts and alleged a violation of Article 10 of the Convention.
The Court’s Assessment
(a) General principles
29. The general principles concerning the question of whether an interference with freedom of expression is “necessary in a democratic society” are well established in the Court’s case-law (see, among recent authorities, Bédat v. Switzerland [GC], no. 56925/08, § 48, ECHR 2016):
“(i) 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 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that 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 ...
(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10.
(iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...
The nature and severity of the penalties imposed are further factors to be taken into account when assessing the proportionality of an interference ...”
30. In assessing the relevance and sufficiency of the national courts’ findings, the Court, in accordance with the principle of subsidiarity, takes into account the extent to which the former balanced the conflicting rights implicated in the case, in the light of the Court’s established case-law in this area (see Erla Hlynsdottir v. Iceland (no. 2), no. 54125/10, § 54, 21 October 2014). The Court recalls that the quality of judicial review in respect of the necessity of the measure is of particular importance in the context of the proportionality assessment under Article 10 of the Convention (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts)). Thus, the absence of an effective judicial review of the impugned measure may lead to a violation of Article 10 (see Matúz v. Hungary, no. 73571/10, § 35, 21 October 2014, and the references therein).
31. It will examine the present case in the light of these principles.
(b) Application to the present case
(i) Interference, legality and legitimate aim
32. The Court notes that it is common ground between the parties that the applicants’ conviction and sentencing and the temporary closure of the newspaper constituted an interference with their exercise of their right to freedom of expression, which is protected by Article 10 of the Convention. That interference had a legal basis in Article 6 of Law no. 3713 and Additional section 2 of Law no. 5680, and was in that sense “prescribed by law” for the purposes of the second paragraph of Article 10.
33. As regards the legitimate aim, the Court, taking into account the subject of the article and the absence of any elaboration by the Government, is not convinced that the interference in question pursued the legitimate aim of protecting “territorial integrity”. As for the question of whether it was aimed at protecting “national security”, the Court reiterates the need to apply that concept with restraint and to interpret it restrictively, as a result of which it should be brought into play only where it has been shown to be necessary to suppress the release of information for the purposes of protecting national security and public safety (see Görmüş and Others v. Turkey, no. 49085/07, § 37, 19 January 2016). As will be seen below, the information at issue, namely the identities of the two public officials, was already in the public domain as a result of the publication of the Parliamentary Inquiry Commission’s report some four years prior to the publication of the article in the present case. Thus, the Court’s doubts persist as to whether the interference can be said to have been in furtherance of the protection of national security. Having said that, in the circumstances of the instant case, the Court accepts that the interference pursued the legitimate aim of the protection of the rights of others (see Fatih Taş v. Turkey, no. 36635/08, § 33, 5 April 2011). It remains to be established whether the interference was “necessary in a democratic society”.
(ii) Necessity
34. The Court reiterates that, in view of the subsidiary nature of its role, it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. It is not the Court’s task to substitute its own assessment of the facts for that of the national courts and as a general rule it is for those courts to assess the evidence before them (see Ringier Axel Springer Slovakia, a. s. v. Slovakia, no. 41262/05, § 107, 26 July 2011). As such, the Court considers that the “necessity” assessment in the instant case should focus on the reasoning adopted by the national courts.
35. In that connection, the Court observes that the Istanbul State Security Court, in the reasoning part of its two-page decision, cited certain phrases from the article in question and found that those phrases rendered the two public officials targets for terrorist organisations. In particular, the State Security Court found it established that the writer of the article, who was not a party to the proceedings, had emphasised that it was necessary to “eliminate (bertaraf etmek)” the two public officials. Accordingly, it found the applicants, who were the owner and the editor-in-chief of the Yeni Evrensel newspaper, criminally responsible for disclosing the identities of the two public officials and thus rendering them targets for terrorist organisations and convicted them under Article 6 § 1 of the Prevention of Terrorism Act. The Court of Cassation, without elaborating any further, simply endorsed the trial court’s judgment.
36. Having examined the national courts’ decisions, the Court makes the following observations. Firstly, there is no indication in the national courts’ judgments whether they considered examining the impugned article from the standpoint of Article 10 of the Convention (compare and contrast Kania and Kittel v. Poland, no. 35105/04, § 49, 21 June 2011). The Court is thus deprived of the benefit of the views of the national courts, which are better placed than an international court given their advantage of possessing direct knowledge of the situation and having all the evidence before them (see, by contrast, Dorota Kania v. Poland (no. 2), no. 44436/13, § 74, 4 October 2016).
37. Secondly, the national courts failed to assess the disputed remarks by taking into account the various different factors such as the context in which the article had been published, its background as well as the circumstances surrounding the subject matter of the article (see Terentyev v. Russia, no. 25147/09, § 22, 26 January 2017). Instead, they focused solely on the disputed phrases and failed to consider those remarks in the context of the article as a whole. In the same vein, the national courts also made no reference to the writer’s arguments to the effect that the judicial proceedings against the two officials must be followed up by the people of Turkey with a view to bringing those officials to justice.
38. More importantly, the national courts did not carry out a balancing exercise of the competing interests at stake seen in the context in which the disputed remarks were made (see Kurłowicz v. Poland, no. 41029/06, § 51, 22 June 2010, and Kącki v. Poland, no. 10947/11, § 56, 4 July 2017). In that connection, the State Security Court in particular did not consider whether O.T.’s or K.B.’s names and roles in fighting terrorism were already in the public domain and whether they were in any actual danger as a result of the disclosure. In this respect, the State Security Court failed to weigh up the interest in protecting the identities of public officials - who, on account of their status, would have been well known in Istanbul, at least - as opposed to disclosing them for reasons of public interest (see Sürek v. Turkey (no. 2) [GC], no. 24122/94, § 40, 8 July 1999; Özgür Gündem v. Turkey, no. 23144/93, §§ 67-68, ECHR 2000-III; and Saygılı and Falakaoğlu v. Turkey, no. 39457/03, § 26, 21 October 2008).
39. In fact, the identities of the two public officials had already been in the public domain since at least 19 July 1996, the date on which the Parliamentary Inquiry Commission’s Report into the murder of Metin Göktepe had been published (see Fatih Taş, cited above, § 39). That report had contained the names, the functions and the statements of the two public officials whose names and functions were mentioned in the impugned article in the present case. Hence, although the disputed remarks were capable of exposing the officers to strong public contempt, the interest in protecting their identity had been substantially diminished and the potential damage which the restriction was aimed at preventing had already been done (see Sürek (no. 2), cited above, § 40, and Fatih Taş, cited above, § 40). However, the fact remains that the national courts failed to carry out any examination on those points.
40. As regards the Government’s argument that the article incited others to violence, the Court notes that there was no explanation in the national courts’ judgments as to whether they perceived the disputed remarks as incitement to violence. The Court is aware of the vehement tone of the article and the seriousness of the remarks contained therein; however, the absence of any reasons or scrutiny by the national courts prevents it from assessing this argument (see Saygılı and Seyman v. Turkey, no. 51041/99, § 24, 27 June 2006), all the more so since the applicants were not convicted by the Istanbul State Security Court for the offence of incitement to violence, but for disclosing the identities of public officials who are involved in the fight against terrorism (see Halis v. Turkey, no. 30007/96, § 35, 11 January 2005) and thereby rendering them targets for terrorist organisations.
41. Likewise, the national courts did not seek to explain or clarify in which way the public officials were rendered targets for terrorist organisations (see Kommersant Moldovy v. Moldova, no. 41827/02, § 36, 9 January 2007). This is all the more important, given the applicants’ argument that the names of the two public officials had been mentioned as a result of their involvement in the death of Metin Göktepe, who was a journalist, and not because of their role in the fight against terrorism.
42. As regards the applicants’ arguments regarding the way in which the article should be read, the Court is mindful of the fact that that element constitutes an important point of departure for the possibly different readings of the disputed article. However, the national courts did not address that submission either.
43. Accordingly, the Court is unable to conclude that the national courts applied the standards which were in conformity with the principles embodied in Article 10 or based themselves on an acceptable assessment of the relevant facts (see, mutatis mutandis, Cumhuriyet Vakfı and Others v. Turkey, no. 28255/07, §§ 67-69, 8 October 2013, and Terentyev, cited above, § 24).
44. Notwithstanding the above, the Court will also have regard to the nature and severity of the penalty imposed, given that they are important factors to be taken into account when assessing the proportionality of the interference (see Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 64, second sub-paragraph, ECHR 1999-IV; and Pentikäinen v. Finland [GC], no. 11882/10, § 112, ECHR 2015). In this connection, it notes that, apart from the fines imposed on the applicants, the first-instance court also ordered the temporary closure of the newspaper for a period of seven days, which amounted to veiled censorship and hindered their professional activities (see Demirel and Ateş v. Turkey (no. 3), no. 11976/03, § 28, 9 December 2008).
45. In the light of the absence of relevant and sufficient reasons in the national courts’ judgments and bearing in mind the severity of the penalty imposed, the Court concludes that the Government have not demonstrated that the applicants’ conviction was proportionate to the aims pursued and, accordingly, “necessary in a democratic society”.
46. There has therefore been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
47. The applicants further complained of the fact that they were denied a fair hearing by an independent and impartial tribunal. In this connection, they complained about the structure of the State Security Court and the links between the judges sitting on the bench of this court and the Supreme Council of Judges and Public Prosecutors. In addition, the applicants complained about the lack of reasoning by the Court of Cassation and the latter’s refusal to hold a hearing in their case. They relied on Article 6 of the Convention.
48. The Government contested that argument.
49. The Court observes that it has previously examined and rejected complaints of this kind (see, amongst others, Falakaoğlu v. Turkey (dec.), no. 77365/01, 5 June 2003; Emire Eren Keskin v. Turkey (dec.), no. 49564/99, 16 December 2003; Maçin v. Turkey (no. 2), no. 38282/02, § 31, 24 October 2006; and Saygılı and Falakaoğlu v. Turkey, cited above, § 31). It finds no particular circumstances in the instant case which would require it to depart from its earlier findings. Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
50. 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
51. The applicants claimed 7,000 euros (EUR) in respect of pecuniary damage for the closure of the newspaper for seven days. In addition, the applicants claimed EUR 10,000 in respect of non-pecuniary damage.
52. The Government considered that the damage claims were excessive and were not supported by any documents.
53. In the absence of any pertinent documents, the Court considers the applicants’ claim regarding pecuniary damage sustained due to the temporary closure of the newspaper as speculative and unsubstantiated. It accordingly dismisses it (see Saygılı and Falakaoğlu v. Turkey, cited above, § 35; and compare to Ürper and Others v. Turkey, nos. 14526/07 and 8 others, §§ 57-58, 20 October 2009). However, deciding on an equitable basis, it awards the applicants, jointly, EUR 5,000 in respect of non-pecuniary damage.
B. Costs and expenses
54. The applicants also claimed EUR 3,000 for the costs, expenses and legal fees.
55. The Government maintained that this claim was not supported by any documents and invited the Court to dismiss this claim.
56. The applicants did not submit any documents in support of their claims. In those circumstances, and bearing in mind the terms of Rule 60 § 2 and 3 of its Rules, the Court makes no award in respect of the costs and expenses claimed by the applicants.
C. Default interest
57. The Court considers it appropriate that the default interest rate 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,
1. Declares the complaint concerning the applicants’ freedom of expression admissible, and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 10 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicants, jointly, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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;
4. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 16 January 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Robert Spano
Registrar President