Information Note on the Court’s case-law 16
March 2000
Özgür Gündem v. Turkey - 23144/93
Judgment 16.3.2000 [Section IV]
Article 10
Article 10-1
Freedom of expression
Campaign of harassment against newspaper: violation
Facts: The application was brought by the editor-in-chief, assistant editor in chief and owners (an individual and a company) of the newspaper Özgür Gündem, which ceased publication in 1994, allegedly as a result of a systematic campaign involving killings, disappearances, arson, harassment and intimidation of journalists and distributors and detention of the former, as well as unjustified legal proceedings, including the seizure of issues. The applicants claim that the Government instigated or tolerated these actions. On one occasion, the police searched the newspaper's premises, detained everyone there (over 100 people) and seized the archives, library and documents. Numerous petitions to the authorities remained unanswered. The newspaper’s successor was also subjected to similar measures. The Government, which considers the newspapers to be run by the PKK, denies that State agents have been involved in any of these activities. Investigations and, in some cases, criminal proceedings, are pending. The Government further maintains that certain alleged incidents did not occur and that others were not brought to the attention of the authorities. The Susurluk report, commissioned by the Prime Minister, described acquiescence and connivance by State authorities in unlawful activities, some of which targeted Özgür Gündem.
Law: The Court struck the case out in respect of one applicant who had died in 1997, there being no indication that any heir or relative wished to pursue the complaints.
Article 10: The Susurluk report could not be relied on for establishing to the required standard of proof that State officials were implicated in any particular incident, but it had be regarded as a serious attempt to provide information on and analyse problems associated with the fight against terrorism from a general perspective and to recommend preventive and investigative measures. It could therefore be relied on as providing factual substantiation of the fears expressed by the applicants from 1992 onwards that the newspaper and persons associated with it were at risk. The Court was satisfied that between 1992 and 1994 there had been numerous incidents of killing, assault and arson and that the newspaper's concerns had been brought to the attention of the authorities, but that no investigative or protective measures appeared to have been taken. Having regard to the seriousness of the attacks and their widespread nature, the Government could not rely on the investigations lodged by individual public prosecutors into specific incidents, which did not provide an adequate or effective response to the allegation that the attacks formed part of a concerted campaign supported or tolerated by the authorities. Moreover, the Government's conviction that the newspaper and its staff supported the PKK did not, even if true, provide justification for failing to take steps to investigate effectively and, where necessary, provide protection against unlawful violence. The Government had therefore failed to comply with their positive obligation to protect the newspaper's freedom of expression.
The operation at the newspaper's premises constituted a serious interference with its freedom of expression and while it was conducted in accordance with a procedure prescribed by law for the purpose of preventing crime and disorder, it was not proportionate to those aims. No justification had been provided for the seizure of the archives, documentation and library and no explanation had been furnished for the blanket apprehension of everyone found on the premises.
As to the legal proceedings brought against the newspaper, the Court found no reason to criticise the Commission's approach of selecting domestic decisions for examination, since a detailed analysis of all cases would have been impossible, given the number. The measures constituted prima facie an interference under Article 10, which could be regarded as "prescribed by law" and to have pursued the legitimate aims of protecting national security and territorial integrity and of preventing crime and disorder. With regard to necessity, the essential role of the press had to be taken into account. The Court dealt with the different offences charged and concluded as follows: (a) insulting the State and military authorities - there were no convincing reasons for penalising the publications at issue; (b) provoking racial and regional hostility - there were not relevant and sufficient reasons for imposing criminal convictions and penalties in respect of the article at issue; (c) reporting statements of the PKK - in view of the content, tone and context of several of the articles at issue, they could not be regarded as inciting to violence, but others could and, given the relatively light penalties imposed the measures were reasonably proportionate; (d) identifying officials participating in the fight against terrorism - in some of the articles at issue, the named officials were not alleged to be responsible for misconduct, while in the others neither the truth of their content nor the fact that the names were already in the public domain was taken into account and the reasons given for the imposition of criminal sanctions could not be regarded as sufficient; (e) separatist propaganda - while the use of the term "Kurdistan" might be highly provocative to the authorities, the public had a right to be informed of different perspectives on the situation in south-east Turkey and even against the background of serious disturbances in that region expressions which appeared to support the idea of a separate Kurdish entity did not have to be regarded as inevitably exacerbating the situation: the articles could not be reasonably regarded as advocating or inciting to violence, and having regard to the severity of the penalties the restrictions were disproportionate.
The State had failed to take adequate protective and investigative measures and had imposed measures which were disproportionate and unjustified in the pursuit of any legitimate aim.
Conclusion: violation (unanimously).
Article 14: There was no reason to believe that the restrictions could be attributed to a difference of treatment based on the applicants' national origin or to association with a national minority.
Conclusion: no violation (unanimously).
Article 41: The Court accepted that some pecuniary loss must have flowed from the breaches identified and awarded TRL 9,000 million. It found that the two remaining individual applicants had suffered considerable anxiety and stress and awarded them each GBP 5,000. It also made an award in respect of costs.
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This summary by the Registry does not bind the Court.
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