The systematic prosecution of a newspaper owner for the publication of statements by leaders of “terrorist” organizations violated freedom of expression.

JUDGMENT

Ali Gürbüz v. Turkey  12-3-2019 (no. 52497/08, 6741/12, 7110/12, 15056/12, 15057/12 and 15059/12)

see here  

SUMMARY

The case concerned seven sets of criminal proceedings brought against Mr Gürbüz for publishing, in
his daily newspaper Ülkede Özgür Gündem, statements by the leaders of organisations characterised
as terrorist under Turkish law. He was acquitted after proceedings which had lasted between five
and over seven years, without having been remanded in custody.

The Court found that criminal proceedings had been systematically opened, regardless of the actual
content of the articles. They had in fact contained insignificant messages such as Christmas wishes
which did not call for any violence, armed resistance or uprising, and did not constitute hate speech,
that being an essential factor to be considered.

The Court found, in particular, that those proceedings had consisted in themselves of actual and
effective constraints, in spite of the ultimate acquittal. They had put pressure on Mr Gürbüz over a
certain period, and the fear of being convicted had inevitably made him, as a media professional,
apply some self-censorship.

The Court further found that the opening of these criminal proceedings could be seen as a reaction
by the authorities intended to suppress, under the criminal law, the publication of statements by
leaders of organisations characterised as terrorist under Turkish law, without having regard to their
content, even though they could be regarded as contributing to a public debate on questions of
general interest. The Court explained, in that connection, that enforcement measures automatically
taken against media professionals, without considering their intentions or the public’s right to be
informed of other views on a conflict situation, could not be reconciled with the freedom to receive
or impart information or ideas.

The Court lastly found that the maintaining, for a considerable length of time, numerous sets of
criminal proceedings against Mr Gürbüz, did not meet a pressing social need, was not proportionate
to the legitimate aims pursued (protection of national security and territorial integrity) and was not
necessary in a democratic society.

PROVISION

ARticle 10

PRINCIPAL FACTS 

The applicant, Ali Gürbüz, was born in 1971 and lives in Cologne (Germany). At the time he was the
proprietor of the daily newspaper Ülkede Özgür Gündem.

Between 2004 and 2006 seven charges were brought against Mr Gürbüz for breaches of counterterrorism Law no. 3713 for publishing 11 articles about the PKK (Kurdistan Workers’ Party, an illegal armed organisation) in his newspaper. Among other subjects, the articles concerned the Christmas wishes of the PKK/Kongra-Gel, the toll of recent armed conflicts and statements by prisoners alleging that the solution to the Kurdish problem required dialogue with Abdullah Öcalan.

In 2007 the Assize Court found Mr Gürbüz guilty on the charge of publishing statements by a
terrorist organisation and sentenced him to pay fines in each of the sets of proceedings. Those
judgments were subsequently quashed by the Court of Cassation because the Constitutional Court
had decided, in the meantime, to delete the word “proprietors” from section 6(4) of Law no. 3713.
Consequently Mr Gürbüz was acquitted, in 2011, in all of the proceedings against him

THE DECISION OF THE COURT 

Article 10 (freedom of expression)

Whether there had been an interference

The Court observed that the criminal proceedings (based on seven different prosecutions) had
systematically been opened against Mr Gürbüz, under Law no. 3713, for publishing statements by
the representatives of an organisation characterised as terrorist under Turkish law. He had been
acquitted in each set of proceedings, which had lasted between five and over seven years, without
having been remanded in custody.

The Court noted that the publications had consisted of insignificant messages and it found that the
automatic application of Law no. 3713 to any statement emanating from a terrorist organisation,
regardless of the actual content, was capable of having a chilling effect on freedom of expression
and public debate. In addition, even though the applicant had ultimately been acquitted, the
proceedings had been prolonged for lengthy periods during which the fear of being convicted had
inevitably put pressure on Mr Gürbüz, making him, as a media professional, apply some selfcensorship. Moreover, having regard to the number of prosecutions and the length of the proceedings, they could be regarded as a form of harassment such as to intimidate the newspaper proprietor and discourage him from publishing articles on questions in the general interest. Lastly, those proceedings consisted in themselves of actual and effective constraints, in spite of his ultimate acquittal which merely put an end to the existence of the risks, without detracting from the fact that those proceedings had put pressure on Mr Gürbüz over a certain period. Consequently, there had
been an interference in Mr Gürbüz’s right to freedom of expression.

Whether the interference was justified

The Court observed that the publications concerned topics such as the training provided by an
organisation, Christmas wishes, the toll of recent armed conflicts, events organised in certain cities,
the solution to the Kurdish problem, and praise by an organisation for success in a sports
competition and an act of protest. The judicial authorities had brought proceedings solely on the
ground that this content emanated from organisations characterised as terrorist under Turkish law,
without carrying out an appropriate analysis of the substance of the disputed comments or the
context in which they had been written. Nor had they alleged that these articles contained any calls
to violence, armed resistance or uprising, or that they constituted hate speech, this being the
essential factor to consider in the Court’s view.

Thus the Court found that the opening of the criminal proceedings against Mr Gürbüz could be seen
as a reaction by the authorities intended to suppress, under the criminal law, the publication of
statements by leaders of organisations characterised as terrorist under Turkish law, without having
regard to their content, even though they could be regarded as contributing to a public debate on
questions of general interest relating to the conflict between the organisations in question and the
police force. In addition, the repeated criminal prosecution of proprietors, publishers or editors of
periodicals, merely on the ground that they had published statements covered by Law No. 3713,
might have the effect of partly censoring the media professionals concerned and limit their ability to
publicly convey an opinion – provided of course that they did not advocate directly or indirectly the
commission of terrorist offences – which was part of a public debate. Lastly, the enforcement
measures taken automatically against media professionals under Law no. 3713, without considering
their intentions or the public’s right to be informed of other views on a conflict situation, could not
be reconciled with the freedom to receive or impart information or ideas. Consequently, the fact
that the numerous sets of criminal proceedings against Mr Gürbüz had been prolonged for a
considerable length of time, on the basis of serious criminal charges, did not meet a pressing social
need, was not proportionate to the legitimate aims pursued (protection of national security and
territorial integrity) and was not necessary in a democratic society. There had therefore been a
violation of Article 10 of the Convention.

Just satisfaction (Article 41)

The Court held that Turkey was to pay Mr Gürbüz 3,500 euros in respect of non-pecuniary damage(echrcaselaw.com editing). 


ECHRCaseLaw

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