SECOND SECTION
DECISION
Applications nos. 27670/10 and 38384/10
Şenol SAĞALTICI
against Turkey
The European Court of Human Rights (Second Section), sitting on 15 September 2015 as a Committee composed of:
Nebojša Vučinić, President,
Egidijus Kūris,
Jon Fridrik Kjølbro, judges,
and Abel Campos, Deputy Section Registrar,
Having regard to the above applications lodged on 10 May 2010 and 15 March 2010 respectively,
Having regard to the declaration submitted by the respondent Government on 28 May 2014 requesting the Court to strike the applications out of the list of cases and the applicant’s failure to reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The applicant, Mr Şenol Sağaltıcı, is a Turkish national, who was born in 1981 and lives in Istanbul. He was represented before the Court by Ms A. Kaymak, a lawyer practising in İzmir.
The Turkish Government (“the Government”) were represented by their Agent.
The applications had been communicated to the Government.
A. The circumstances of the case
The facts of the cases, as submitted by the parties, may be summarised as follows.
The applicant is the owner and editor in chief of one weekly and one monthly newspaper published in Turkey: Ezilenlerin Sosyalist Alternatifi Atılım and Sosyalizm ü Azadi.
On 11 September 2009 and 24 October 2009, the Istanbul Assize Court decided to suspend the publication and distribution of the abovementioned newspapers for a period of one month under section 6(5) of the Prevention of Terrorism Act (Law no. 3713), on the ground that the newspapers had published propaganda material in favour of two illegal organisations, namely the PKK (the Kurdistan Workers’ Party) and the MLKP (Marxist-Leninist Communist Party). All copies of the relevant issues were seized. The applicant raised objections to the suspension orders but these objections were dismissed by the Istanbul Assize Court on 1 October 2009 and 2 November 2009. Neither the applicant nor his representative was permitted to participate in any of the proceedings held before the Istanbul Assize Court.
B. Relevant domestic law and practice
A description of the relevant domestic law and practice in force at the relevant time 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).
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).
COMPLAINTS
The applicant complained under Article 6 of the Convention about the national courts’ decisions to suspend the publication and distribution of the aforementioned two newspapers without holding an oral hearing or obtaining his defence submissions.
The applicant complained under Article 6 § 2, that the decisions to suspend the newspapers’ publication had constituted a violation of his right to be presumed innocent, since the decisions contained the assumption that criminal offences had been committed by virtue of the content of particular news reports and articles published therein.
The applicant submitted under Article 7 of the Convention that the decisions to suspend the publication and distribution of the newspapers had amounted to a “penalty” without any legal basis
The applicant further complained, under Article 10 of the Convention, that the national courts’ decisions under sections 6 and 7 of Law no. 3713 had constituted an unjustified interference with his freedom of expression.
He contended under Article 13 of the Convention that he had not had a domestic remedy by which to challenge the lawfulness of the national courts’ decisions, as his objections to those decisions had also been dismissed without a hearing.
Lastly, the applicant complained under Article 1 of Protocol No. 1 that the decisions to suspend the publication of the newspapers had constituted an unjustified interference with the peaceful enjoyment of his possessions.
THE LAW
Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
The applicant complained about the national courts’ decisions to suspend the publication and distribution one weekly and one monthly newspaper published in Turkey, namely Ezilenlerin Sosyalist Alternatifi Atılım and Sosyalizm ü Azadi, for a period of one month, without holding an oral hearing or obtaining his defence submissions and about the lack of a domestic remedy by which to challenge the lawfulness of the national courts’ decisions. He relied on Articles 6, 7 and 10 of the Convention and Article 1 of Protocol No. 1. The applicant’s complaints were communicated to the Government under Article 10 of the Convention as the main legal question was whether the interference was justified under Article 10 of the Convention.
After the failure of attempts to reach a friendly settlement, by a letter of 5 January 2015 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
The declaration[1] provided as follows:
“I declare that the Government of the Republic of Turkey offers to pay to the applicant, Mr Şenol Sağaltıcı, the amount of 3 700 EUR (three thousand and seven hundred euros), to cover any and all pecuniary and non-pecuniary damage and 750 EUR (seven hundred and fifty euros), to cover all costs and expenses, plus any tax that may be chargeable to the applicant; which is considered to be appropriate in the light of the jurisprudence of the Court.
These sums, which are to cover any pecuniary and non-pecuniary damage as well as costs and expenses will be converted into the national currrency at the rate applicable on the date of payment, and will be free of any further taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month-period, the Government undertake to pay simple interest on it, from expiry of that period until the settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.
The Government wishes to express that the interference in this case does not conform with the requirements of the Convention. In addition, Article 6 (5) of the Prevention of Terrorism Act (Law no. 3713), which constitutes the basis of the present application, had been abolished by the Section 105 (2) of Law no. 6352 (2 July 2012) in the light of the Court’s jurisprudence concerning the subject matter (see 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, § 52, 20 October 2009). The Government invites the Court to declare that it is not justified anymore to continue the examination of the application and to strike the case out of its lists in accordance with Article 37 of the Convention.”
The applicant did not submit any response to the declaration of the Government.
The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“... for any other reason established by the Court, it is no longer justified to continue the examination of the application.”
It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; see also, WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
The Court has established in a number of cases, including those brought against Turkey, its case-file concerning complaints about the violation of one’s freedom of expression as a result of court orders suspending the publication of newspapers under section 6 (5) of Law no. 3713 (see Ürper and Others, cited above).
Having regard to the nature of the admissions contained in the Government’s declaration and the fact that section 6 (5) of Law no. 3713 was abolished with effect from 2 July 2012, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
For these reasons, the Court, unanimously,
Decides to join the applications;
Takes note of the terms of the respondent Government’s declaration and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 8 October 2015.
Abel CamposNebojša Vučinić
Deputy RegistrarPresident
[1]. Unofficial translation by the Registry.
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