Resolution CM/ResDH(2010)63[1]
Execution of the judgment of the European Court of Human Rights
Odabaşı and Koçak against Turkey
(Application No. 50959/99, judgment of 21 February 2006, final on 3 July 2006)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);
Having regard to the judgment transmitted by the Court to the Committee once it had become final;
Recalling that the violation of the Convention found by the Court in this case concerns unjustified interference with the applicants’ freedom of expression due to their criminal conviction in 1998 for publishing a book which was considered by the Turkish courts to defame the memory of Atatürk, the founder of the Turkish Republic, under Articles 1 and 2 of Law No. 5816 (violation of Article 10) (see details in Appendix);
Having invited the government of the respondent state to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;
Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;
Having satisfied itself that the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix),
Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:
- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
DECLARES, having examined the measures taken by the respondent state (see Appendix)], that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination of this case.
Appendix to Resolution CM/ResDH(2010)63
Information about the measures to comply with the judgment in the case of
Odabaşı and Koçak against Turkey
Introductory case summary
This case concerns unjustified interference with the applicants’ freedom of expression due to their criminal conviction in 1998 for publishing a book which was considered by Turkish courts to defame the memory of Atatürk, under Articles 1 and 2 of Law No. 5816.
In deciding that the interference with the applicants’ freedom of expression was not necessary in a democratic society the European Court considered that: the statements in this case did not target Atatürk personally, but rather the Kemalist ideology; the applicants had not made value judgments and had restricted themselves to relating certain events in an introductory manner, while inviting the reader to respond; their work was based on information already available to the wide public and the disputed passages did not incite to violence (violation of Article 10).
I.Payment of just satisfaction and individual measures
a) Details of just satisfaction
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Total
...
8450 EUR
2000 EUR
10450 EUR
Paid on 26/09/2006
b) Individual measures
Mr Odabaşı was sentenced to 18 months’ imprisonment and Mr Koçak was fined.
On 6/09/1999, the applicants’ sentences were suspended in accordance with Law No. 4454 concerning the suspension of pending cases and penalties in media-related offences which also provides, under certain conditions, erasure of convictions and their consequences. In particular, the Turkish authorities indicated that the applicants had no convictions registered on their criminal records. Consequently, no other individual measure was considered necessary.
II.General measures
The Turkish authorities submitted that the direct application of the Convention in Turkish law has been reinforced following the amendment of Article 90 of the Constitution in 2004. In particular, the Turkish authorities submitted a number of examples of decisions not to prosecute given by public prosecutors. A certain number of these decisions concern Law No. 5816 on crimes against the memory of Atatürk in which complaints under this law had been rejected with reference to Article 10 of the Convention and explicit reference to the European Court’s case-law on freedom of expression. These decisions consider debate on historical issues, including Atatürk and his personality, as falling outside the scope of defamation or insulting the founder of the Turkish Republic.
The judgment in this case has been translated into Turkish and circulated to the relevant authorities including the Ministry of Justice and the Court of Cassation.
III.Conclusions of the respondent state
The government considers that no individual measure is required, apart from the payment of the just satisfaction and that the general measures adopted will prevent similar violations and that Turkey has thus complied with its obligations under Article 46, paragraph 1 of the Convention.
[1] Adopted by the Committee of Ministers on 3 June 2010 at the 1086th meeting of the Ministers’ Deputies
Full & Egal Universal Law Academy