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SECOND
SECTION
CASE OF ÇAMYAR AND BERKTAŞ v. TURKEY
(Application
no. 41959/02)
JUDGMENT
STRASBOURG
15 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 Çamyar and
Berktaş v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş,
Kristina Pardalos,
Guido
Raimondi, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 25 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41959/02) 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 two Turkish nationals, Ms Elif Çamyar
and Ms Nevin Berktaş (“the applicants”), on 7
October 2002.
- The
applicants, who had been granted legal aid, were represented by Ms
V.D. Behrens, a lawyer practising in Berlin, as well as Mr M.
Filorinali and Ms Y. Başara, lawyers practising in Istanbul. The
Turkish Government (“the Government”) were represented by
their Agent.
- The
applicants alleged that they had been denied a fair hearing by an
independent and impartial tribunal and that their conviction for
publishing a book had constituted a violation of their right to
freedom of expression within the meaning of Articles 6 and 10 of the
Convention, respectively.
- On
8 February 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1968 and 1958 respectively and live in
Istanbul. The first applicant is the owner of a publishing house in
Istanbul which published a book giving rise to the present
application. The second applicant is the editor and author of the
book in question.
A. The criminal proceedings before the Istanbul State
Security Court
- On
25 April 2000 the public prosecutor at the
Istanbul State Security Court commenced an investigation in
connection with a book, entitled Hücreler,
published and written by the first and second applicants respectively
as a critique of the Turkish penitentiary system. The book contains
nine articles, five of which are written by the second applicant, in
which the authors criticise the cell system in Turkish prisons. By
way of examples from other countries and personal anecdotes, the
second applicant claims in her articles that the cell system
facilitates ill treatment and leads to deaths in prison. The
introductory part of the book states the following:
“This book is a salute to the new generations who
fascism is trying to separate from our history of resistance and
tradition of unity. It is a white page handed over by those who made
courage and sacrifice the norm and created future revolutionary
fighters. It is a message from those who, like a magnet, carried new
powers from generation to generation to our ranks. We did not and
will not allow [future generations] to forget the traditions and
norms that were created during humanity's, revolutionists' and
communists' struggle and revolt against slavery, genocide, fascism
and national and class exploitation ... In this book, we transmit our
conscience and hearts to those who are fighting for a better future.”
- The
book also contains four other articles written by persons serving
prison sentences, following their conviction for having been involved
in an illegal armed organisation called the TIKB (Bolşevik).
In their articles, entitled “Isolation cells are death cells”,
“She was in [prison], I was out”, “Empty the
dungeons, free the prisoners” and “Prisons and health”,
the authors criticise the isolation of prisoners, ill-treatment of
detainees and poor prison conditions and recount their personal
experiences of imprisonment. Furthermore, the book comprises
newspaper clippings concerning the real events on which the articles
are based.
- On
23 October 2000 the public prosecutor filed a bill of indictment
against the applicants, accusing them of disseminating propaganda
that undermined the territorial integrity and the indivisible unity
of the Republic of Turkey through publishing, and of aiding and
abetting an illegal armed organisation, namely, TIKB (Bolşevik),
in certain parts of the book. The charges were brought under sections
5 and 8 subsections 1, 2 and 4 of Law no. 3713
and Articles 36 and 169 of the now defunct Criminal Code. The
Government noted that TIKB (Bolşevik) had been
involved in a number of terrorist acts with a view to detaching part
of the territory of Turkey and forming a political regime based on
Marxist-Leninist ideology. The organisation, which was qualified as a
terrorist organisation under the domestic law of Turkey, disseminated
separatist propaganda within the Kurdish community and incited hatred
and hostility by making distinctions on the basis of race and region.
- At
the first hearing, held on 24 January 2001, the Istanbul State
Security Court invited the applicants to present their defence
arguments against the bill of indictment filed by the public
prosecutor. Both applicants requested an extension of the time-limit
for the preparation of their defence, which was granted. The
applicants were informed that they were expected to present their
defence arguments at the next hearing and that otherwise they would
be deemed to have waived their defence rights in so far as the bill
of indictment was concerned.
- At
the second hearing, on 11 April 2001 the applicants requested a
further extension. The first applicant, Elif Çamyar, claimed
that she had appointed a new lawyer who had prior engagements, and
the second applicant argued that she had encountered problems in
meeting with her lawyer due to the searches conducted on lawyers
visiting the prison. The State Security Court dismissed the
applicants' request for a further extension and indicated that that
interim decision could be appealed against along with the decision on
the merits.
- At
the third and fourth hearings, on 11 July 2001 and 24 October 2001
Nevin Berktaş requested extensions of the time-limit for
submission of her defence arguments, whereas Elif Çamyar or
her representative did not attend. The court granted the extensions
requested and ruled that at the next hearing the applicants were
required to be present and make their final submissions.
- On
7 November 2001 the Istanbul State Security Court heard the
applicants' defence submissions. The applicants pleaded not guilty
and argued that in the book they had merely criticised fascist
policies in Turkey and, particularly, had expressed their opinion
about the prison system. They claimed further that their trial by a
State security court for publication of a book had constituted a
violation of Articles 6 and 10 of the European Convention on Human
Rights. Following this hearing, the State Security Court
rendered its judgment and convicted the applicants under Article 169
of the now defunct Criminal Code of aiding and abetting the illegal
armed organisation TIKB (Bolşevik). The court
sentenced the first applicant to three years and nine months'
imprisonment, convertible to a fine of 4,152,330,000 Turkish liras
(TRL), and the second applicant to four years, four months and
fifteen days' imprisonment in view of her previous conviction of
membership of the TIKB (Bolşevik). The State Security
Court did not make reference to any specific passages or pages of the
book, but rather based its conviction on a review of the book as a
whole.
B. The appeal proceedings
- By
petitions dated 8 and 12 November 2001 the applicants appealed
against the above-mentioned judgment and requested the Court of
Cassation to hold a hearing. The Court of Cassation decided to hold a
hearing in respect of Nevin Berktaş but dismissed the request of
Elif Çamyar on the grounds that the conditions required under
Article 318 of the Code of Criminal Procedure had not been met.
- On
4 April 2002 the Court of Cassation upheld the judgment of the State
Security Court without holding a hearing. It noted that Nevin Berktaş
and her representative had not attended the hearing and had not
informed the court of the reason for their absence. The opinion of
the Chief Public Prosecutor submitted to the Court of Cassation was
not communicated to the applicants.
- On
26 April 2002 the decision of the Court of Cassation was returned to
the registry of the Istanbul State Security Court.
C. The re-examination of the final judgment by the
Istanbul Assize Court in view of the entry into force of the new
criminal code
- On
10 January 2004 the applicants requested a re-examination of their
case by the 14th Chamber of the Istanbul Assize Court in view of the
future entry into force of the new criminal code on 13 January 2005
(Law no. 5237). They further asked the court to suspend the
execution of their sentences.
- In
a judgment dated 29 June 2007 the Istanbul Assize Court first
determined which law was the most favourable in respect of the
applicants. It held that the former criminal law was more favourable
to the first applicant because she had been convicted of an offence
under Article 169 of the now defunct Criminal Code and her sentence
had been converted to a fine, whereas if the new amendments had
applied she would have been sentenced to at least one year of
imprisonment, which could not be converted into a fine.
- As
regards the second applicant, Nevin Berktaş, the court held that
the provisions of the new criminal code were more favourable to her.
Thus, it convicted her of the offence under section 7(2) of Law no.
3713. The court, after reducing the penalty to be imposed by 1/6
under Article 62 of the new Criminal Code, sentenced the second
applicant to ten months' imprisonment and to a fine of TRY 416. The
applicants appealed.
- On
an unspecified date, the Court of Cassation quashed the above
judgment in respect of the first applicant, Elif Çamyar, on
the ground that a pre-payment notice (ön ödeme ihtaratı)
had not been served on her. It noted that the offence committed by
the applicant fell within the scope of section 7(2) of Law no.
3713, as amended by Law no. 5532, and that the said provision
provided for a fine and required pre-payment.
- In
a judgment dated 18 December 2009 the Istanbul Assize Court convicted
the first applicant, Elif Çamyar, of the offence under Article
169 of the former Criminal Code and sentenced her to three years and
nine months' imprisonment. The Assize Court reiterated that the
former criminal code was more favourable to the first applicant since
it provided for a lighter sentence that could be converted to a fine.
Thus, in the light of the new amendments, the court converted the
first applicant's prison sentence to a fine in the amount of TRY
4,095 (approximately EUR 2,000). The court noted that the first
applicant and her representative had failed to attend the hearing and
had also failed to make the pre-payment.
- On
26 January 2010 the first applicant appealed against that judgment.
The proceedings are still pending before the Court of Cassation.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- At the time of the applicants'
conviction, Article 169 of the Criminal Code provided as follows:
“Any person who, knowing
that an armed gang or organisation is illegal, assists it, harbours
its members, provides it with food, weapons and ammunition or
clothes or
facilitates its operations in any manner whatsoever shall be
sentenced to no less than three and no more than five years'
imprisonment ...”
On 30
July 2003 this Article was amended and the part “... or
facilitates its operations in any manner whatsoever ...” was
deleted.
- Under
section 7(2) of the Prevention of Terrorism Act (Law no. 3713
of 12 April 1991), any person who disseminates propaganda in favour
of a terrorist organisation shall be liable to a term of imprisonment
of one to five years.
- Further information on the relevant domestic law and
practice in force at the material time can be found in the following
judgments and decision: İbrahim Aksoy v. Turkey,
nos. 28635/95, 30171/96 and 34535/97, §§ 41-42,
10 October 2000; Özel v. Turkey no. 42739/98, §§
20-21, 7 November 2002; Gençel v. Turkey,
no. 53431/99, §§ 11-12, 23 October 2003; and Halis
v. Turkey (dec.), no. 30007/96, 23 May 2002.
- By
Law no. 5190 of 16 June 2004, published in the official journal on 30
June 2004, the State Security Courts were abolished.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicants complained that their conviction for publication of a book
constituted a violation of their right to freedom of expression under
Article 10 of the Convention, which reads 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 and regardless of frontiers. ...
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, territorial integrity or public safety, for the
prevention of disorder or crime ...”
- The
Government contested that argument.
A. Admissibility
- The
Government contended that the applicants had failed to exhaust
domestic remedies, within the meaning of Article 35 § 1 of the
Convention, since they had not raised an objection in respect of
their right to freedom of expression. Nor could they claim to be
victims under Article 34 of the Convention.
- The
applicants disputed the Government's submissions.
- The
Court notes that the applicants pleaded not guilty to the charges
brought against them throughout the proceedings and, particularly, at
the hearing on 7 November 2001 they alleged that their trial had
violated their rights protected by Articles 6 and 10 of the
Convention (see paragraph 12 above). The Court thus considers that
the applicants, who pursued the proceedings up until the last
instance and raised their complaints before the Court of Cassation,
can be considered to have exhausted domestic remedies. They can also
claim to be victims of a violation of their rights guaranteed by
Article 10 in view of their conviction by the national courts.
The Court dismisses the Governments' objection concerning the
exhaustion of domestic remedies and the applicants' victim status.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. Nor is it
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties' submissions
- The
applicants alleged that their conviction for publishing the book in
question was not justified since their aim had been merely to
criticise the penitentiary system in question. In their view, the
prosecuting authorities had punished them for their use of the
phrase, “The freedom fight of the Kurdish people” on page
39 of the book. The interference was therefore a new obstacle to
freedom of press and the freedom to impart opinions.
- The
Government maintained that the interference with the applicants'
right to freedom of expression was justified under the provisions of
the second paragraph of Article 10. They argued that the content of
the book incited hatred and hostility and praised terrorist crime. In
their opinion, the measures taken against the applicants fell within
the margin of appreciation of the authorities and were justified
under the second paragraph of Article 10.
2. The Court's assessment
- The
Court notes that it is not in dispute between the parties that the
applicants' conviction and sentence constituted an interference with
their right to freedom of expression, protected by Article 10 §
1. Nor is it contested that this interference was prescribed by law
and pursued a legitimate aim, namely, the prevention of crime, for
the purposes of Article 10 § 2. In the present case what is
at issue is whether the interference was “necessary in a
democratic society”.
(a) General principles
- The
Court reiterates the basic principles laid down in its judgments
concerning Article 10 (see, in particular, the following judgments:
Handyside v. the United Kingdom, 7 December 1976, Series A no.
24; Şener v. Turkey, no. 26680/95, §§
39-43, 18 July 2000; İbrahim Aksoy v. Turkey,
nos. 28635/95, 30171/96 and 34535/97, §§ 51-53,
10 October 2000; Lingens v. Austria, judgment of 8
July 1986, Series A no. 103, p. 26, §§ 41 42;
Fressoz and Roire v. France [GC], no. 29183/95, §
45, ECHR 1999; and Kuliś v. Poland, no. 15601/02,
§§ 36-41, 18 March 2008).
- The
Court considers that the principles contained in the above mentioned
judgments also apply to the publication of books in general or
written texts other than the periodical press (see Association
Ekin v. France, no. 39288/98, §§ 56-57, ECHR
2001 VIII). It will examine the present case in the light of the
above principles.
(b) Application of the above principles to
the facts of the present case
- The
Court notes that the applicants were convicted of aiding and abetting
a terrorist organisation and disseminating propaganda in favour of it
through the publication and distribution of a book. Since they were,
respectively, the owner of the publishing house which printed the
book and editor-in-chief and author of the book in question, the
impugned interference must also be seen in the context of the
essential role of the press in ensuring the proper functioning of
political democracy (see Lingens, cited above, § 41, and
Fressoz and Roire, cited above, § 45). While the press
must not overstep the bounds set, inter alia, for the
protection of vital interests of the State, such as national security
or territorial integrity, against the threat of violence or for the
prevention of disorder or crime, it is nevertheless incumbent on the
press to impart information and ideas on political issues, including
divisive ones. Not only does the press have the task of imparting
such information and ideas; the public has a right to receive them.
Freedom of the press affords the public one of the best means of
discovering and forming an opinion of the ideas and attitudes of
political leaders (see Sürek v. Turkey (no. 1)
[GC], no. 26682/95, § 62, ECHR 1999-IV).
- Turning
to the facts of the case, the Court notes that the impugned book is a
compilation of articles inspired by real events, namely, the personal
experience of the second applicant and certain other persons who had
been convicted of affiliation with the TIKB (Bolşevik).
When examined in its entirety, it appears that the book is a severe
criticism of the Turkish penitentiary system. The personal anecdotes
told in the book concentrate on the ill-treatment inflicted on the
detainees or pressure exerted on them by security officials, which no
doubt may create in the mind of the reader a powerful hostility
towards the injustice to which the detainees were subjected in the
prisons. Furthermore, in one of the articles, entitled “Prisons
and health”, the author, who is a medical doctor, criticizes
the general conditions of detention in prisons, which he considers
inhuman and degrading for the detainees. However, he makes
constructive recommendations to the authorities for the improvement
of the conditions in prisons.
- Nonetheless,
it is also possible that certain ideas conveyed in the book may be
regarded as highly controversial and be correlated to the TIKB
(Bolşevik) by some readers. In particular, the book
glorifies the struggle of “revolutionaries” against
slavery, genocide, fascism and national and class exploitation (see
paragraph 6 above). On that account, the Court takes note of the
Turkish authorities' concern about the dissemination of views which
they considered might exacerbate serious disturbances in the prisons
or in the country generally.
- However,
even though some of the passages from the book seem hostile in tone,
the Court considers them to be an expression of deep distress in the
face of tragic events that occurred in prisons, rather than a call to
violence.
- Moreover,
while the Government argued that the book incited hatred and
hostility and praised terrorist crime, the domestic courts did not
rely on the arguments that are now adduced by the Government to
justify the interference in question. In other words, the national
courts did not make reference to any specific passages or pages of
the book which could be regarded as incitement to hatred or violence,
but rather based the applicants' conviction on a review of the book
as a whole.
- Finally,
the Court takes into account the fact that the impugned articles in
the book, written by private individuals, would necessarily reach a
relatively narrow readership compared to views expressed by well
known figures in the mass media. Accordingly, this limits the
potential impact of the book on “public order” to a
substantial degree.
- Against
this background, the Court considers that the reasons given by the
domestic courts for convicting and sentencing the applicants cannot
be considered sufficient to justify the interference with their right
to freedom of expression.
- In
the light of the foregoing considerations, the Court concludes that
the applicants' conviction was disproportionate to the aims pursued
and, accordingly, not “necessary in a democratic society”.
There has therefore been a violation of Article 10 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained that the written opinion of the principal
public prosecutor at the Court of Cassation had never been served on
them, thus depriving them of the opportunity to put forward their
counter arguments. The applicants relied on Article 6 of the
Convention which, in so far as relevant, provides:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
A. Admissibility
- The
Government contended that the second applicant had no victim status
within the meaning of Article 34 of the Convention since she had
failed to attend the hearing at the Court of Cassation where the
written opinion of the Principal Public Prosecutor had been read out.
- The
second applicant disputed this allegation.
- The
Court reiterates that it has already examined and rejected similar
arguments advanced by the Government in similar cases (see, in
particular, Kabasakal and Atar v. Turkey, nos.
70084/01 and 70085/01, § 37, 19 September 2006).
It finds no particular circumstances in the instant case
which would require it to depart from its findings in the
above-mentioned case. It therefore rejects the Government's
preliminary objection.
- 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
Government submitted that the written opinion of the Principal Public
Prosecutor was not binding on the Court of Cassation, as it was free
to decide on appeals regardless of the Prosecutor's opinion. They
further maintained that the applicants or their representatives had
had the right to consult the case file and examine the documents.
Finally, the Government pointed out that, on account of the recent
amendment of 27 March 2003, Article 316 of the Code of Criminal
Procedure now provided that the written opinion of the Principal
Public Prosecutor of the Court of Cassation must be sent to the
parties.
- The
applicants maintained their allegations.
- The
Court notes that it has already examined the same grievance in the
case of Göç v. Turkey and found a violation of
Article 6 § 1 of the Convention ([GC], no. 36590/97, § 58,
ECHR 2002 V). In that judgment the Court held that, having
regard to the nature of the Principal Public Prosecutor's submissions
and to the fact that the applicant had not been given an opportunity
to make written observations in reply, there had been an infringement
of the applicant's right to adversarial proceedings (loc. cit.
§ 55).
- The
Court has examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned case.
- Accordingly,
there has been a violation of Article 6 § 1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants complained under Article 6 § 1 of the
Convention that they had not been tried by an
independent and impartial tribunal and that they had been denied an
oral hearing before the Court of Cassation. They further alleged that
they had not had adequate time and
facilities for the preparation of their defence as safeguarded under
6 § 3 (b) of the Convention, because the State Security
Court refused to grant them an extension of the time-limit for the
preparation of their initial defence against the indictment by the
public prosecutor.
- In
the light of all the material in its possession, the Court finds that
the applicants' submissions do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
declared inadmissible as manifestly ill-founded, pursuant to Article
35 §§ 3 and 4 of the Convention.
IV. 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
applicants each claimed 50,000 euros (EUR) in respect of
non pecuniary damage. As to the pecuniary damage, the applicants
claimed EUR 27,300 and EUR 60,500, respectively.
- The
Government invited the Court not to make any awards in respect of
pecuniary damage on account of the applicants' failure to submit any
evidence in support of their claims. The Government also considered
that the claim for non-pecuniary damage was excessive and therefore
unacceptable.
- The
Court observes that the applicants have not submitted any evidence to
enable the Court to assess and calculate the damage caused by their
conviction; it therefore rejects this claim. However, having regard
to the nature of the violations found in the present case and ruling
on an equitable basis, the Court awards each applicant the sum of
EUR 15,000 in respect of non pecuniary damage.
B. Costs and expenses
- The
applicants also claimed EUR 5,000 for the costs and expenses incurred
before the Court.
- The
Government objected to the claim as being unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to 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, the applicants have not substantiated
that they have actually incurred the costs claimed. In particular
they failed to submit documentary evidence, such as bills, receipts,
a contract, a fee agreement or a breakdown of the hours spent by
their lawyer on the case. Accordingly, the Court makes no award under
this head.
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 complaints concerning the alleged
breach of the applicants' rights to freedom of expression and
non-communication of the Principal Public Prosecutor's written
opinion admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds that there has been a violation of Article
6 § 1 of the Convention as a result of the non-communication to
the applicants of the Principal Public Prosecutor's written opinion;
- Holds
(a) that
the respondent State is to pay each applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 15,000
(fifteen thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage, 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 amount 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 15 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
