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SECOND
SECTION
CASE OF ÜNSAL ÖZTÜRK v. TURKEY (No. 2)
(Application
no. 24874/04)
JUDGMENT
STRASBOURG
8 February 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ünsal Öztürk
v. Turkey (No. 2),
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
Dragoljub Popović,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24874/04) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr Ünsal Öztürk
(“the applicant”), on 7 July 2004.
- Until
March 2008 the applicant was represented by lawyers at the Kurdish
Human Rights Project (KHRP) in London. Subsequently, he was
represented by Mr Levent Kanat, a lawyer practising in Ankara. The
Turkish Government (“the Government”) were represented by
their Agent.
- The
applicant alleged, in particular, that the refusal of the national
courts to lift a confiscation order for a number of books published
by his company violated his right to freedom of expression within the
meaning of Article 10 of the Convention.
- On
10 March 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1957 and lives in Ankara. He is the owner of
“Yurt Books and Publishing”, a small independent
firm that has published numerous books in Turkey.
- In
the 1990s a number of books published by the applicant's company were
found to contain propaganda in breach of various provisions of the
Prevention of Terrorism Act (Law no. 3712), as well as “insults
to the memory of Atatürk” in breach of Law no. 5816. He
was convicted and served a total period of one year, five months and
twenty days in prison and paid the equivalent of 5,121 euros (EUR) in
fines. Most of the books in question were confiscated. On 21 December
1994 he introduced an application with the Court in relation to that
conviction and the confiscation of the books. On 4 October 2005 the
Court found a violation of Articles 7 and 10 of the
Convention (see Ünsal Öztürk v. Turkey,
no. 29365/95, 4 October 2005).
- Following
the repeal of section 8 of the Prevention of Terrorism Act in July
2003, the applicant made applications to the First Chamber of the
Ankara State Security Court on various dates in 2003 and asked for
the confiscation orders to be lifted.
- The
First Chamber of the Ankara State Security Court rejected the claims
and the applicant lodged objections against those rejections with the
Second Chamber of the same court.
- The
Second Chamber of the Ankara State Security Court lifted the
confiscation orders in respect of a number of the books but held
that, as the confiscation orders had already been executed, there
were no books to return.
- On
9 January 2004 the Second Chamber of the Ankara State Security Court
held in respect of sixteen books that, although section 8 of the
Prevention of Terrorism Act had been repealed, the contents of those
books amounted not only to “separatist propaganda” but
were also unlawful “under various laws”, and rejected the
objection.
- On
22 November 2005 a further decision was adopted by the Ankara Assize
Court in respect of the same sixteen books. Having regard “to
the legislation in force” and “considering that the
contents of the books might be in contravention of section 7(2) of
the Prevention of Terrorism Act” it refused the applicant's
request for the lifting of the confiscation order in respect of the
sixteen books.
- The
applicant appealed against the decision of 22 November 2005. The
prosecutor at the Court of Cassation also requested that the decision
be quashed because he considered that rejecting the applicant's
request on account of the assumption that the contents of the books
“might be unlawful”, rather than examining the substance
of the applicant's request in the light of the legal developments,
was not in accordance with the law and procedure.
- On
8 April 2006 the Court of Cassation dismissed the appeal lodged by
the applicant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained under Article 10 of the Convention that there
had been an unjustified interference with his right to freedom of
expression on account of, inter alia, the national courts'
failure to state by which laws the continued confiscation was
justified. He submitted that, by virtue of the lack of certainty,
neither the accessibility nor the foreseeability requirements of that
provision had been satisfied. Article 10 of the Convention reads, in
so far as relevant, as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority...
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of
national security...for the prevention of disorder or crime,...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
applicant argued that the national courts' refusals to lift the
confiscation order were devoid of legal basis. If the national courts
had considered that the contents of the books were in breach of any
criminal-law provisions, new criminal proceedings should have been
instigated with reference to specific legal provisions. As to the
conclusion reached by the Ankara Assize Court, namely that “the
contents of the books might be in contravention of section 7(2) of
the Prevention of Terrorism Act”, the applicant pointed out
that the Turkish legal system did not allow courts to base their
judgments on possibilities; national courts could only decide that a
crime has been committed or not committed.
- The
Government submitted that there had been no interference with the
exercise of the applicant's right to freedom of expression. They also
considered that the interference was prescribed by law because “it
was stated in both of the national court decisions in question”.
- The
Court observes that it already found in the previous application
introduced by the applicant concerning the same books that there had
been an interference with the applicant's right to freedom of
expression on account of the applicant's conviction and the
confiscation of the books in accordance with various provisions of
the Prevention of Terrorism Act. It was decided that the interference
was not prescribed by law, and a violation of Article 10 of the
Convention was found (see Ünsal Öztürk, cited
above, § 63).
- Subsequently,
when deciding the applicant's requests for the confiscation orders to
be lifted, the national courts adopted new decisions and once more
decided that the contents of the books were unlawful, not only under
the then still existing provisions of the Prevention of Terrorism
Act, but also under different criminal law provisions which had not
been mentioned in the first set of criminal proceedings examined by
the Court in the first application.
- The
Court notes, therefore, that a new and different justification was
held to exist by the national courts for the continued confiscation
of the sixteen books in question. It follows that the new decisions
adopted by the national courts amount to a fresh interference with
the applicant's rights under Article 10 of the Convention.
- This
interference contravenes Article 10 of the Convention unless it was
“prescribed by law”, pursued one or more of the
legitimate aims referred to in paragraph 2 of Article 10, and was
“necessary in a democratic society” for achieving such
aim or aims. The Court will examine each of these criteria in turn.
- As to whether the interference was “prescribed
by law”, the Court reiterates that a norm cannot be regarded as
a “law” within the meaning of Article 10 § 2
unless it is formulated with sufficient precision to enable the
citizen to regulate his or her conduct; the individual must be able –
with appropriate advice if need be – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail (see, inter alia, Lindon,
Otchakovsky-Laurens and July v. France [GC], nos. 21279/02
and 36448/02, § 41, ECHR 2007 XI).
- In
the present case, however, the national courts did not even refer to
any specific domestic-law provisions. Instead, in order to provide a
legal basis for their refusals, they relied on ambiguous phrases such
as “under various laws” and “the legislation in
force”.
- When
notice of the application was given to the Government they were
requested by the Court to clarify whether the interference could be
regarded as “prescribed by law” notwithstanding the
national courts' reliance on those phrases. However, the Government
did not respond to that specific question other than stating that
“the interference was prescribed by law because it was stated
in both of the national court decisions in question”.
- Moreover, the national courts also considered that the
contents of the books “might” be in contravention of
section 7(2) of the Prevention of Terrorism Act. The Court is struck
by the national courts use of the expression “might”, and
considers that the conclusion reached by the national courts bordered
on arbitrariness as it was too broad and vague to be compatible with
the requirement of legal certainty, required by Article 10 § 2
of the Convention (see, mutatis mutandis, Asan v. Turkey,
no. 28582/02, § 36, 27 November 2007, and Maestri
v. Italy [GC], no. 39748/98, §§ 21 and 30,
ECHR 2004 I).
- Having
regard to the absence of any references to specific domestic law
provisions and the wording employed by the national courts, the Court
finds that the interference with the applicant's right to freedom of
expression was not prescribed by law. This conclusion makes it
unnecessary to examine whether the other requirements of paragraph 2
of Article 10 were complied with.
- It
follows that there has been a violation of Article 10 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- Lastly,
relying on Article 1 of Protocol No.1 to the Convention the applicant
complained that the national courts' decisions not to return his
books had constituted an interference with his right to the peaceful
enjoyment of his possessions.
- The
Government contested that argument.
- The
Court observes that the applicant's complaint concerning the
confiscation of the books was already examined by the Court in its
judgment in 2005 and deemed not to require a separate examination
because it was held that the confiscation of the books was an
incidental effect of the applicant's prosecution and convictions (see
Ünsal Öztürk, cited above, § 70). The
Court considers that the refusal to lift the confiscation orders is
an extension of the confiscation of the books and, as such, does not
amount to a new “deprivation” within the meaning of this
provision. It therefore reiterates its earlier finding that this
complaint does not raise an issue that needs to be examined
separately (ibid).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 60,000 euros (EUR) in respect of pecuniary damage
on account of his inability to sell the books and to pay the
royalties to their authors. He also claimed EUR 50,000 in respect of
non-pecuniary damage.
- The
Government considered the sums claimed to be speculative and
excessive, and invited the Court not to make any awards.
- The
Court notes that an award has already been made to the applicant in
his first application in respect of pecuniary damage stemming from
his losses due to the cumulative effects of the criminal proceedings.
In the same judgment his claims concerning loss of profits were
rejected as being speculative. Furthermore, the Court did not find a
causal link between the violation found and the sums owed by the
applicant to various authors (see Ünsal Öztürk,
cited above, § 74). The Court reiterates those findings in the
present case, and rejects the applicant's claims in respect of
pecuniary damage. On the other hand, ruling on an equitable basis, it
awards the applicant EUR 9,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 3,525 for the costs and expenses incurred
before the domestic courts and before the Court. In support of this
claim the applicant submitted a breakdown of the hours spent by his
legal representative on the case.
- The
Government submitted that rough figures should not be accepted by the
Court.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,500 covering costs
under all heads.
- When
the applicant's previous legal representatives at the KHRP ceased to
represent the applicant in March 2008 (see paragraph 2 above) they
submitted to the Court a schedule of costs for the sum of
4,674.30 pounds sterling, and stated that that sum had been
incurred by them in representing the applicant up until that date. On
6 October 2009 the Court invited the applicant to submit, in
accordance with Rule 60 of the Rules of Court, his claims for just
satisfaction “even if [he] has indicated his wishes concerning
just satisfaction at an earlier stage”. Nevertheless, in his
claims for just satisfaction the applicant did not re-submit the
costs and expenses incurred by his previous lawyers, but stated that
he had been informed by the KHRP that the Court had been informed of
them.
- According
to Rule 60 § 2 of the Rules of Court, claims for just
satisfaction must be made within the time-limit fixed for that
purpose. Noting that the applicant has not made any claims other than
those set out above in paragraphs 33 and 36 within the time-limit
given to him, the Court cannot take the schedule of costs submitted
by the applicant's previous legal representatives.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint under Article 10 of the
Convention admissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds that there is no need to examine the
complaint under Article 1 of Protocol No. 1 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 9,000 (nine thousand
euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, and EUR 1,500 (one thousand five hundred
euros), plus any tax that may be chargeable to the applicant, in
respect of costs and expenses, to be converted into Turkish liras at
the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 8 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
