SECOND SECTION

CASE OF SAYGILI AND KARATAŞ v. TURKEY

(Application no. 6875/05)

JUDGMENT

STRASBOURG

16 January 2018

FINAL

16/04/2018

This judgment has become final under 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 tempo