SECOND SECTION
CASE OF ATILGAN AND OTHERS v. TURKEY
(Applications nos. 14495/11, 14531/11, 26274/11, 78923/11, 8408/12, 11848/12, 12078/12, 12103/12, 14745/12, 21910/12 and 41087/12)
JUDGMENT
This version was rectified on 28 April 2015
under Rule 81 of the Rules of Court.
STRASBOURG
27 January 2015
This judgment is final but it may be subject to editorial revision.
In the case of Atılgan and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as a committee composed of:
Helen Keller, President,
Egidijus Kūris,
Jon Fridrik Kjølbro, judges,
and Abel Campos, Deputy Section Registrar,
Having deliberated in private on 16 December 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in eleven applications (nos. 14495/11, 14531/11, 26274/11, 78923/11, 8408/12, 11848/12, 12078/12, 12103/12, 14745/12, 21910/12, 41087/12) 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 two Turkish nationals (“the applicants”), whose names appear in the appendix.
2. The applicants were represented by Mr Ö. Kılıç and Ms A. Taşdemir, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3. On 10 January 2013 the applications were communicated to the Government. It was also decided to rule on the admissibility and merits of the applications at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants, whose names appear in the appendix hereto, are Turkish nationals who live in Istanbul. They are the owners, executive directors, editors-in-chief, editors and members of the technical staff of nine publications which were issued on daily, weekly, biweekly or bimonthly basis: Haftalık Yorum, Politik Yorum, Ülkede Yorum, Yeni Demokratik Toplum, Yeni Demokratik Yaşam, Yeni Demokratik Ulus, Azadiya Welat, Demokratik Ulus, and Özgür Mezopotamya. They are represented before the Court by Mr Ö. Kılıç and Ms A. Taşdemir, lawyers practising in Istanbul.
5. On various dates between 23 June 2010 and 15 February 2012, the Istanbul Assize Courts decided to suspend the publication and distribution of the abovementioned nine newspapers for periods ranging from fifteen days to one month under section 6 (5) of the Prevention of Terrorism Act (Law no. 3713), on the ground that the newspapers had published propaganda in favour of various illegal organisations. All copies of the relevant issues were seized. The applicants raised objections to the suspension orders but these objections were dismissed shortly afterwards by the Istanbul, Assize Courts. Neither the applicants nor their representatives were permitted to participate in any of the proceedings held before the Assize Courts.
6. The details of the proceedings may be found in the appended table.
II. RELEVANT DOMESTIC LAW
7. A description of the relevant domestic law and practice may be found in the case of 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).
8. Within the context of the “Judicial Reform Strategy Action Plan”, on 5 July 2012 a new law amending various laws with a view to rendering judicial services more effective and to suspending cases and sentences given in cases concerning crimes committed through the press and media (Law no. 6352) entered into force. Section 105 (2) of Law no. 6352 abolished section 6 (5) of the Prevention of Terrorism Act (Law no. 3713).
THE LAW
9. Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them.
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
10. The Government submitted that the applicants’ observations and claims for just satisfaction had not been submitted in one of the official languages of the Court. They therefore argued that these submissions should not be taken into account for failing to meet the requirements of Article 34 § 1 of the Rules of Court.
11. The Court notes that by a letter sent by the Registry of the Court on 17 July 2013 the applicants had been granted the use of Turkish language.
12. The Court further reiterates that it has already examined and dismissed similar objections by the respondent Government (see, mutatis mutandis, Öner Aktaş v. Turkey (no. 59860/10, § 29, 29 October 2013, and Yüksel v. Turkey (dec.), no. 49756/09, § 42, 1 October 2013). In the present case, the Court finds no reason to depart from that conclusion. The Government’s arguments on this point should therefore be rejected.
II. ADMISSIBILITY
13. The Government submitted that the applicants Nurcan Ercan, Kudret Gülün, Yılmaz Yıldız, Nezife Gündüz, Ferhat Gürgen and Leyla Aydoğan, six employees working as technical personnel at the publications in question, did not have victim status. They submitted in this connection that the aforementioned did not carry out journalistic activities.
14. The Court notes that there is no evidence in the file, and the Government failed to demonstrate, that the aforementioned applicants did not carry out journalistic activities. Furthermore, the Court recalls that it has previously considered some of the applicants in question, namely Nurcan Ercan, Kudret Gülün and Ferhat Gürgen to have victim status in a similar case concerning the suspension of publication of some weekly newspapers and awarded them non-pecuniary damages in respect of a violation of their rights under Article 10 (see Turgay and Others v. Turkey (no. 5), nos. 32869/08, 35022/08 and 39904/08, 21 September 2010). In the light of the foregoing, the Court finds that the applicants took active part in the preparation and publication of the newspapers in question. It accordingly rejects the Government’s objection.
15. 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.
III. MERITS
A. Alleged violation of Article 10 of the Convention
16. The applicants alleged under Article 10 of the Convention that the suspension of the publication and distribution of Haftalık Yorum, Politik Yorum, Ülkede Yorum, Yeni Demokratik Toplum, Yeni Demokratik Yaşam, Yeni Demokratik Ulus, Azadiya Welat, Demokratik Ulus, and Özgür Mezopotamya, 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 courts’ decisions, had amounted to censorship.
17. The Court notes that the Government did not submit any observations on the merits of the case.
18. The Court notes that it has already examined a similar complaint and found a violation of Article 10 of the Convention in the case of 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, §§ 24-45, 20 October 2009, 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.
19. 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
20. 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 Haftalık Yorum, Politik Yorum, Ülkede Yorum, Yeni Demokratik Toplum, Yeni Demokratik Yaşam, Yeni Demokratik Ulus, Azadiya Welat, Demokratik Ulus, and Özgür Mezopotamya had constituted an unjustified interference with their right to property.
21. The Government did not comment on these allegations.
22. Having regard to the circumstances of the cases and to its finding of a violation of Article 10 of the Convention (see paragraph 19 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; Turgay and Others v. Turkey, § 27, 15 June 2010; and Ölmez and Turgay v. Turkey, § 20, 5 October 2010)
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
1. Pecuniary damage
23. The applicants Mehmet Atılgan, Özlem Özdemir, Saadet Irmak, Arafat Dayan and Menderes Öner[1], who were the owners and executive directors of the relevant publications at the time, claimed 3,000 euros (EUR) each in respect of pecuniary damage for the commercial loss which the newspapers had suffered as a result of the suspension decisions. They did not submit any documentary evidence in support of their claims.
24. The Government contested these claims, arguing that the purported pecuniary damage had not been duly documented. The Government further argued that the sum requested by the applicants was excessive.
25. The Court notes the applicants’ failure to submit any documents to substantiate this claim. Accordingly, it must be rejected.
2. Non-pecuniary damage
26. The applicants claimed EUR 2,000 each in respect of non‑pecuniary damage.
27. The Government considered this sum to be excessive.
28. 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
29. The applicants also claimed EUR 3,000 jointly for the costs and expenses incurred before the Court and as fees of legal representation. They did not support any documents in support of their claim.
30. The Government contested this claim.
31. 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 rejects the claim for costs and expenses in the absence of documents supporting the applicants’ claim.
C. Default interest
32. 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. Decides to join the applications;
2. Holds that there has been a violation of Article 10 of the Convention;
3. 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;
4. 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 the currency of the respondent State 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:
- Mehmet Atılgan;
- Özlem Özdemir;
- Saadet Irmak;
- Arafat Dayan;
- Menderes Öner[2];
- Güler Özdemir;
- Nurcan Ercan;
- Kudret Gülün;
- Yılmaz Yıldız;
- Nezife Gündüz;
- Sevinç Şimşek Karaman;
- Rüya Işık;
- Pervin Kaya;
- Barış Döner;
- Ferhat Gürgen;
- Lokman Balık;
- Leyla Aydoğan;
- Tayip Temel;
- Nadir Arzu;
- Özgür Güllü;
- Sinan Balık;
- Burcu Özkaya.
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount[s] at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 27 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Abel CamposHelen Keller
Deputy RegistrarPresident
No.
Application
no.
Lodged on
Applicant
name
date of birth
place of residence
Represented by
Name of the newspaper and the duration of the suspension of its publication and distribution
Date of suspension of publication and distribution
Date of dismissal of applicants’ objections to the suspensions
14495/11
27/10/2010
Mehmet Atılgan
(the owner)
02/05/1986
Istanbul
Güler Özdemir
12/10/1981
Istanbul
Nurcan Ercan
15/10/1974
Istanbul
Kudret Gülün
23/041982
Istanbul
Yılmaz Yıldız
16/09/1979
Istanbul
Nezife Gündüz
24/04/1962
Istanbul
Sevinç Şimşek
Karaman
07/01/1980
Istanbul
Rüya Isık
05/02/1966
Istanbul
Pervin Kaya
22/01/1988
Istanbul
Barış Döner
01/12/1987
Istanbul
Özcan Kılıç
Haftalık Yorum
(weekly newspaper)
Duration of suspension: one month
24/08/2010
(Istanbul 11th Assize Court- case no. 2010/673)
28/08/2010
(Istanbul 11th Assize Court- case no. 2010/702)
14531/11
12/10/2010
Mehmet Atılgan
(The owner)
02/05/1986
Istanbul
Güler Özdemir
12/10/1981
Istanbul
Nurcan Ercan
15/10/1974
Istanbul
Kudret Gülün
23/04/1982
Istanbul
Yılmaz Yıldız
16/09/1979
Istanbul
Nezife Gündüz
24/04/1962
Istanbul
Sevinç Şimşek
Karaman
07/01/1980
Istanbul
Rüya Isık
05/02/1966
Istanbul
Pervin Kaya
22/01/1988
Istanbul
Barış Döner
01/12/1987
Istanbul
Özcan Kılıç
Politik Yorum
(weekly newspaper)
Duration of suspension: one month
17/08/2010
(Istanbul 14th Assize Court- case no. 2010/820)
24/08/2010
(Istanbul 13th Assize Court- case no. 2009/425)
26274/11
20/12/2010
Saadet Irmak
01/07/1976
Istanbul
Özcan Kılıç
Ülkede Yorum
(weekly newspaper)
Duration of suspension: one month
15/11/2010
(Istanbul 12th Assize Court- case no. 2010/1085
25/11/2010
(Istanbul 12th Assize Court- case no. 2010/1102)
78923/11
14/11/2011
Özlem Özdemir
01/01/1978
Istanbul l
Pervin Kaya
22/01/1988
Istanbul
Kudret Gülün
23/04/1982
Istanbul
Nurcan Ercan
15/10/1974
Istanbul
Ferhat Gürgen
28/09/1983
Istanbul
Lokman Balık
01/01/1981
Istanbul
Leyla Aydoğan
04/07/1978
Istanbul
Özcan Kılıç
Yeni Demokratik Toplum
(weekly newspaper)
The issue of 10-16 October
Duration of suspension: one month
11/10/2011
(Istanbul 10th Assize Court-case no. 2011/676)
24/10/2011
(Istanbul 10th Assize Court-case no. 2011/727)
8408/12
28/12/2011
Özlem Özdemir
01/01/1978
Istanbul
Pervin Kaya
22/01/1988
Istanbul
Kudret Gülün
23/04/1982
Istanbul
Nurcan Ercan
15/10/1974
Istanbul
Ferhat Gürgen
28/09/1983
Istanbul
Lokman Balık
01/01/1981
Istanbul
Leyla Aydoğan
04/07/1978
Istanbul
Özcan Kılıç
Yeni Demokratik Yaşam
(weekly newspapers)
The issue of 24-30 October
Yeni Demokratik Toplum
The issue of 14-20 November
Duration of suspension: fifteen days
26/10/2011
(Istanbul 17th Assize Court-case no. 2011/55)
15/11/2011
(Istanbul 13th Assize Court-case no. 2011/3422)
21/11/2011
(Istanbul 17th Assize Court-case no. 2011/77)
25/11/2011
(Istanbul 13th Assize Court-case no. 2011/755)
11848/12
11/01/2012
Özlem Özdemir
01/01/1978
Istanbul
Pervin Kaya
22/01/1988
Istanbul
Kudret Gülün
23/04/1982
Istanbul
Nurcan Ercan
15/10/1974
Istanbul
Ferhat Gürgen
28/09/1983
Istanbul
Lokman Balık
01/01/1981
Istanbul
Leyla Aydoğan
04/07/1978
Istanbul
Özcan Kılıç
Yeni Demokratik Ulus
(weekly newspaper)
Duration of suspension: one month
Yeni Demokratik Yaşam
(weekly newspaper)
Duration of suspension: one month
23/11/2011
(Istanbul 11th Assize Court- case no. 2011/1182)
06/12/2011
(Istanbul 10th Assize Court- case no. 2011/804)
07/12/2011
(Istanbul 11th Assize Court- case no. 2011/1243)
19/12/2011
(Istanbul 10th Assize Court- case no. 2011/871)
12078/12
02/02/2012
Menderes Öner
01//01/1975
Diyarbakır
Tayyip Temel
01/06/1982
Diyarbakır
Nadir Arzu
22/05/1981
Diyarbakır
Özcan Kılıç, Azize Deniz Taşdemir
Azadiya Welat
(daily newspaper)
Duration of suspension: fifteen days
12/06/2011
(Istanbul 12th Assize Court- case no. 2011/709)
17/10/2011
(Istanbul 12th Assize Court- case no. 2011/1173)
12103/12
30/01/2012
Özlem Özdemir
01/01/1978
Istanbul
Pervin Kaya
22/ 01/1988
Istanbul
Nurcan Ercan
15/ 10/1974
Istanbul
Ferhat Gürgen
28/ 09/1983
Istanbul
Lokman Balık
01/ 01/1981
Istanbul
Leyla Aydoğan
04/ 07/1978
Istanbul
Özcan Kılıç, Azize Deniz Taşdemir
Yeni Demokratik Ulus
(weekly newspaper)
Duration of suspension: one month
28/12/2011
(Istanbul 13th Assize Court- case no. 2011/821)
17/01/2012
(Istanbul 13th Assize Court- case no. 2012/43)
14745/12
23/01/12
Özlem Özdemir
01/01/1978
Istanbul
Pervin Kaya
22/ 01/1988
Istanbul
Nurcan Ercan
15/ 10/1974
Istanbul
Ferhat Gürgen
28/ 09/1983
Istanbul
Lokman Balık
01/ 01/1981
Istanbul
Leyla Aydoğan
04/ 07/1978
Istanbul
Özcan Kılıç, Azize Deniz Taşdemir
Yeni Demokratik Yaşam
(weekly newspaper)
Duration of suspension: one month
18/01/2012
(Istanbul 14th Assize Court- case no. 2012/35)
09/02/2012
(Istanbul 14th Assize Court- case no. 2012/145)
21910/12
25/03/2012
Arafat Dayan
01/01/1982
Istanbul
Özgür Güllü
01/12/1977
Istanbul
Sinan Balık
01/01/1982
Istanbul
Ferhat Gürgen
28/09/1983
Istanbul
Leyla Aydoğan
04/07/1978
Istanbul
Burcu Özkaya
15/08/1988
Istanbul
Nurcan Ercan
15/10/1974
Istanbul
Pervin Kaya
22/01/1988
Istanbul
Özcan Kılıç, Azize Deniz Taşdemir
Demokratik Ulus
(weekly newspaper)
Duration of suspension: one month
15/02/2012
(Istanbul 10th Assize Court- case no. 2012/139)
28/02/2012
(Istanbul 14th Assize Court- case no. 2012/180)
41087/12
02/05/2012
Arafat Dayan
01/01/1982
Istanbul
Özgür Güllü
01/12/1977
Istanbul
Sinan Balık
01/01/1982
Istanbul
Ferhat Gürgen
28/09/1983
Istanbul
Leyla Aydoğan
04/07/1978
Istanbul
Burcu Özkaya
15/08/1988
Istanbul
Nurcan Ercan
15/10/1974
Istanbul
Pervin Kaya
22/01/1988
Istanbul
Özcan Kılıç
Özgür Mezopotamya
(weekly newspapers)
Duration of suspension: one month
15/07/2011
(Istanbul 10th Assize Court- case no. 2012/208)
30/03/2012
(Istanbul 14th Assize Court- case no. 2012/253)
[1]. Rectified on 28 April 2015. The name of Menderes Öner read Menderes Özen in the former version of the judgment.
[2]. Rectified on 28 April 2015. The name of Menderes Öner read Menderes Özen in the former version of the judgment.
Full & Egal Universal Law Academy