Information Note on the Court’s case-law 71
January 2005
Karademirci and Others v. Turkey - 37096/97 and 37101/97
Judgment 25.1.2005 [Section IV]
Article 10
Article 10-1
Freedom of expression
Foreseeability of a conviction, based on the law of associations, for the public disclosure of a declaration to the press: violation
Facts: The applicants were leaders of a union of health professionals. As part of a group of twenty-five persons, they gathered in front of a secondary school in Izmir in 1995; the chairperson read out a text from the trade union, criticising the treatment meted out to certain pupils in that school. The participants dispersed after twenty-five minutes. The applicants were prosecuted for those acts. The judicial authorities considered that the events came under section 44 of the Associations Act. That section concerned the act of “publishing or distributing leaflets, written statements and similar publications” and made that action subject to preconditions and prior formalities. The applicants unsuccessfully argued that they had read aloud a statement to the press, an action which was not covered by the section in issue. In application of the section 44 concerned, they were sentenced to a term of imprisonment, which was commuted to a fine, for failure to observe the preliminary requirements.
Law: Article 10 – Section 44 of the Associations Act, in force until 2004, did not directly limit freedom of expression, but made associations subject to a “formality or condition”, within the meaning of Article 10 § 2 of the Convention, before publishing or distributing leaflets, written statements and similar publications. This condition and the applicants’ conviction amounted to an “interference”. The sentence imposed had a basis in domestic law and the law applied was accessible. Freedom of expression could be made subject to certain formalities and Article 10 did not prohibit the imposition of prior restraints on a form of communication. However, where failure to observe a formality was punishable by a criminal penalty, the law must clearly define its application and the restriction could not be extensively construed to the detriment of an accused, for instance by analogy. An individual had to be able to ascertain from the wording of the relevant provision and, where necessary, with the assistance of the courts’ interpretation of it, what acts and omissions would make him criminally liable.
In this particular case, the applicants had been prosecuted and acquitted on several occasions in the past under the section 44 in issue, for similar offences. However, the court had interpreted the provision differently, holding that such acts were subject to the same formality as that established for “leaflets, written declarations and similar publications”. In this particular instance, the courts had found that the fact of reading a text aloud during a press conference could be considered as a publication in the same way as leaflets, written statements and similar publications. Like the Turkish Court of Cassation sitting as a full Court in 2000 and 2002, the Court considered that a statement to the press could not be classified as a “leaflet”, “written statement” or “similar publication”: the latter, intended for publication or dissemination, required greater consideration and preparation, while a press statement was intended instead to inform members of the press of the contents of a speech which was to be delivered orally, or had just been delivered. In short, the domestic courts had applied an interpretation that extended the scope of the criminal law through analogy, which could not reasonably have been foreseen in the circumstances of the case. Accordingly, the applicants could not reasonably have foreseen that the public reading and distribution of a press statement could be considered as an action which fell within the scope of section 44 of the Associations Act. The requirements of foreseeability were thus not met.
Conclusion: violation (unanimously).
Article 41 – The Court made awards in respect of non-pecuniary damage and for costs and expenses.
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This summary by the Registry does not bind the Court.
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