Ozgur Gundem v. Turkey

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ARTICLE 19

16 Mar 2000

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16 March 2000, Application No. 23144/93 (European Court of Human Rights)

Theme:Journalists and media workers; Media regulation: general issues; Other content restrictions
Sub-Issues:Violence and threats; National security; Prior scrutiny, seizures and bans;
Test:positive obligations
Penalty:ban/suspension/seizure
Decision:

violation of freedom of expression; unanimous

JurisdictionEuropean Court of Human Rights; Turkey

Facts:

The applicants were the editor-in-chief, assistant editor-in-chief and two owners of the newspaper Ozgur Gundem, which was published from 30 May 1992 until April 1994. It was closed after being subjected to a series of attacks and harassment which the applicants claimed were the direct or indirect responsibility of the Turkish authorities. In addition, legal steps had been taken against the paper and its staff. Details were given of circumstances in which several persons connected with the paper were killed; newsagents were attacked, arson attacks were perpetrated against news-stands and newsagents, and bombs exploded at the newspaper's offices and a news-agency. The applicants addressed numerous petitions to the authorities concerning the attacks. On only one occasion, the police responded by escorting employees of companies engaged in the distribution of the paper. In addition, certain security measures were taken with respect to deliveries of the papers to distribution stores. In December 1993, the police conducted a search of the applicant's premises. They took into custody all those present in the building, 107 persons, including two of the applicants, and seized all the documents and archives. Charges were brought against the first three applicants for offences of having rendered assistance to the PKK, a terrorist organisation, and having made propaganda in its favour. Numerous prosecutions were brought against the newspaper alleging a number of offences, and resulting in a large number of convictions. The offences included publishing material which constituted separatist propaganda and disclosing the names of officials involved in fighting terrorism. During one period of 68 days, 41 issues of the paper were seized. There were 486 prosecutions out of 580 editions of the paper.

Held:

The evidence showed that there were numerous incidents of violence involving the newspaper, journalists, distributors and other persons associated with it. The concerns of the paper were brought to the attention of the authorities; no measures were taken to investigate the situation, and no protective measures were taken save in two incidents.

Positive Obligations

Stressing the key importance of the right to freedom of expression, the Court noted:

Genuine effective exercise of this freedom does not depend merely on the State's duty not to interfere, but may require positive measures of protection even in the sphere of relations between individuals. In determining whether a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual ... The scope of this obligation will vary having regard to the diversity of situations obtaining in the Contracting States, the difficulties in policing modern societies and the choices which must be made in respect of priorities and resources. Nor must such an obligation be interpreted as to impose an impossible or disproportionate burden on the authorities. (para. 43)

National Security and Ban/suspension/seizure

The authorities in the present case were aware that the paper had been the subject of a series of violent attacks. No response was given to almost all petitions and requests for protection by the paper or its staff. Having regard to the seriousness of the attacks and their widespread nature, the Government cannot rely on investigations lodged by individual public prosecutor into specific incidents. The government's allegation that the newspaper and staff supported the PKK cannot, even if true, provide justification for failing to take steps effectively to investigate and where necessary, provide protection against unlawful acts involving violence. There was a failure to comply with their positive obligation to protect Ozgur Gundem in the exercise of its right to freedom of expression.

The police operation at the Ozgur Gundem premises which resulted in the paper being disrupted for two days was a serious interference with the applicants' freedom of expression. It was prescribed by law, for the purpose of preventing crime and disorder. However, the measure of such dimension was not proportionate to its aim. No justification was offered for the seizure of the paper's archives and documentation. Nor was there an explanation for the blanket apprehension of every person found on the newspaper's premises, including the cook, cleaner and heating engineer. It was not shown to be necessary for the implementation of any legitimate aim.

Taking a selection of prosecutions and convictions, the Court concluded that there was an interference with the right to freedom of expression. Freedom of expression constitutes one of the essential foundations of a democratic society. Subject to Article 10(2), it extends to information or ideas which offend, shock or disturb. All exceptions to the right to freedom of expression must be construed strictly and the need for restrictions must be convincingly established. "Necessary" within the meaning of Article 10(2) implies the existence of a pressing social need. The Court must establish whether the interference was proportionate to the legitimate aim pursued and whether the reasons adduced by the Government are relevant and sufficient. The national authorities must show that they applied standards in conformity with Article 10 and that they based themselves on an acceptable assessment of the relevant facts. The impugned interference must be seen in the context of the essential role of the press in ensuring the proper functioning of a political democracy. It is incumbent upon the press to impart information or ideas on political issue, including divisive ones and the public has a right to receive them.

Five sets of prosecutions were examined by the Court involving the following offences: (i) insulting the State and the military authorities; (ii) provoking racial and regional hatred and hostility; (iii) reporting statements of the PKK; (iv) identifying officials participating in the fight against terrorism; (v) statements constituting separatist propaganda.

In respect of the first three categories, no relevant or sufficient reasons were given to justify the interference and accordingly there was no pressing social need for imposing the majority of the criminal convictions. In respect of the third set of prosecutions, three of the eight impugned articles appeared to glorify war and advocated the intensification of armed struggle. In respect of these three prosecutions, the measures were found to be reasonably proportionate to the aim pursued. The remaining articles did not advocate violence; accordingly, the measures taken were not proportionate. In respect of the fourth category, the Court noted that the question of the truth of the allegations had never been taken into account. Had they been found to have been true, the matters described were in the public interest. Nor had it been taken into account that the names of the officials and their role in fighting terrorism were already in the public domain. Accordingly, the interest in protecting the identities was substantially diminished and the potential damage was minimal. The reasons for the restrictions were not sufficient. The fifth category of prosecutions covered the publication of reports on economic or social matters, commentaries on historical developments, a declaration condemning torture and accounts of alleged destruction of villages. The Court noted the provocative nature of some of the articles which spoke of Kurdistan, implying that it was or should be a separate territory. However, the public enjoys the right to be informed of different perspectives on the situation in Southeastern Turkey no matter how unpalatable to the authorities. The background of serious disturbances in the region did not justify treating expressions which support a separate Kurdish identity, as inevitably exacerbating the situation. None of the articles could be interpreted as likely to incite violence, despite their use of colourful and pejorative terms. Having regard also to the severity of the penalties, the restrictions were disproportionate to the aim pursued.


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