Information Note on the Court’s case-law No. 93
January 2007
Falakaoğlu and Saygılı v. Turkey - 22147/02
Judgment 23.1.2007 [Section II]
Article 10
Article 10-1
Freedom of expression
Conviction for publishing the declarations of an armed terrorist group in a daily newspaper: no violation
Facts: The applicants were respectively the editor and proprietor of a daily newspaper which published a declaration entitled “We will vanquish the terror of solitary confinement”, signed on behalf of all detainees held on charges of belonging to an armed terrorist group. The relevant passages referred to: a campaign against the transfer of detainees to certain types of solitary confinement cell, which had to be demolished because of the terror they created; hunger strikes that had turned into a “death fast”; repeal of a statutory provision concerning the prevention of terrorism; the need to release detainees who had sustained incapacitating injuries in a brutal attack, together with the “hunger-strike warriors”; the perpetrators of certain killings who had to be held to account; and an appeal for others to join in this “just struggle”. The statement was accompanied by a list of names of hunger strikers and the prisons in which they were held. Subsequently, the daily newspaper published an article entitled “For the attention of the press and public opinion - We will resist and demolish [solitary confinement] cells! No more terror by solitary confinement!”, reiterating the ideas set out in the previous article. Consequently, by two separate indictments, proceedings were brought against the applicants in the National Security Court on charges of having published the impugned articles contrary to the legislation on the prevention of terrorism and on the press. In their pleadings in response to the indictment concerning the first article, the applicants claimed that it had been published in the form of an announcement and that nothing in it constituted an offence. It had not consisted in a statement by illegal or terrorist groups but merely one by detainees who had not yet been convicted. The applicants were found guilty of publishing statements by terrorist organisations, were sentenced to a heavy fine and were ordered to close the daily newspaper in question for one day. They appealed on points of law. The Court of Cassation dismissed their appeal and upheld the decision given at first instance. The newspaper was shut down for two days. In response to the indictment concerning the second article, the applicants set out the same arguments as in their first pleadings. They were found guilty of publishing statements by terrorist groups, sentenced to heavy fines and ordered to close the newspaper for three days. The National Security Court considered that the offence was capable of undermining national security, as the article satisfied all the conditions for the offence of publication of statements by armed terrorist organisations to be made out. Under the legislation on the press, the proprietors of newspapers and editors-in-chief were liable in such circumstances. The applicants appealed on points of law. The Court of Cassation upheld the decision given at first instance.
Law: Article 10 - The press had the task of imparting information and ideas on all matters of public interest but could not overstep the bounds set, inter alia, for the protection of vital interests of the State such as national security or territorial integrity against the threat of terrorism or for the prevention of disorder or crime. National authorities, which had a certain margin of appreciation, assessed whether there was a pressing social need warranting the restriction of such freedom. The impugned interference was to be considered in the light of the case as a whole, with particular reference to the expressions used in the offending article and to the context of its publication, and taking into account the problems related to the prevention of terrorism. The applicants had been convicted of publishing statements by terrorist groups in a daily newspaper of which they had been, respectively, the editor-in-chief and proprietor. The statements had been written by detainees, asserting their membership of terrorist groups and setting out their demands, and the seriousness of their appeal to raise support for an unlimited hunger strike could not be disregarded. The content could not be assessed independently of the authors' personality, nor of the context of the publication. The offending statements had been published not long after the simultaneous intervention of the security forces in twenty prisons where coordinated hunger strikes had taken place, involving hundreds of detainees who had been charged under prevention of terrorism legislation. That operation, condemned in the offending statements, had given rise to violent clashes between security forces and detainees in which many detainees had been injured or killed and police officers had been injured. The offending announcements consisted in a direct appeal to public opinion, for the purpose of mobilising “support” for the action launched to “demolish” the prisons – an action in which the authors risked their lives. That appeal had been published on its own, with no presentation or analysis by a journalist. In this connection, whilst it was true that the applicants had not personally associated themselves with the views contained in the offending announcements, they had nevertheless provided the authors with an outlet and had permitted dissemination of the statements. Having the power to shape the editorial direction of the newspaper, they could not be exonerated from all liability for the content of the articles, and the right to impart information could not be used as an alibi or pretext for the distribution of statements by terrorist groups. Lastly, the nature and severity of the penalties imposed were elements to be taken into account in assessing the proportionality of interference with the right to freedom of expression. Accordingly, the penalties imposed, having regard to the margin of appreciation which national authorities had in such a case, could not be regarded as disproportionate to the legitimate aims pursued.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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