The ECHR judgment of March 12, 2019 in the case of Ali Gurbuz v. Turkey (application No. 52497/08 and other applications).
In 2008, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Turkey.
The case has successfully examined the application about the prolonged criminal prosecution of the applicant, who was subsequently acquitted, in several criminal cases brought against him as the owner of a daily publication for publishing appeals from terrorist organizations. The case has violated the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
In the period from June 2004 to April 2006, seven criminal cases were opened against the applicant in connection with the publication of articles containing appeals by the leaders of illegal organizations in the daily publication, of which he was the owner. As part of these proceedings, which lasted for almost seven years, the applicant was sentenced to a fine, then he was acquitted in connection with the abolition of the criminal liability of the owners of the media for the content of these articles.
QUESTIONS OF LAW
Regarding compliance with article 10 of the Convention. The automatic application of the law, which criminalized the publication of any message emanating from terrorist organizations, regardless of the content and context of the message, led to the initiation of seven identical criminal cases against the applicant within two years. In the present case, it had to be determined whether the criminal proceedings themselves could constitute an interference with the applicant’s right to freedom of expression, if no other repressive measures were taken against the applicant. These proceedings, by virtue of their number and duration (up to seven years), had a deterrent effect on the applicant’s right to freedom of expression and public discussion, instilling fear in him and discouraging him from publishing articles on issues of public interest. Thus, criminal prosecution in itself was a real and effective enforcement mechanism. The acquittal of the applicant stopped only some of the risks, but in no way affected the fact that these risks for some time put pressure on the applicant and forced him, as a specialist in the field of mass media, to engage in self-censorship. Accordingly, the criminal prosecution constituted “interference” with the applicant's right to freedom of expression.
The specified interference was prescribed by law and pursued the legitimate goals of protecting Turkey’s national security and territorial integrity, ensuring the rule of law and preventing crimes.
The judicial authorities opened criminal proceedings, taking into account only the fact that the daily publication of the applicant published texts written by representatives of organizations classified as terrorist in accordance with Turkish law. The judicial authorities did not conduct any analysis of the content of the texts or the context in which they were drawn up, taking into account the criteria set out and applied by the European Court in cases concerning the right to freedom of expression. The Turkish authorities did not argue that the controversial texts taken together contained calls for violence, armed resistance or rebellion or incited hatred, which had to be taken into account.
In addition, the controversial texts related to the political debate on issues of public interest that related to the conflict between the relevant organizations and law enforcement agencies.
Repeated prosecutions in criminal cases could also lead to partial censorship of media employees and restrict their ability to express their opinion publicly, provided that it did not contain a direct or indirect appeal for terrorist crimes, which occupied an important place in public debate. Repressions against media employees, carried out mechanically by virtue of the current legislation without taking into account the goals of interested parties and the right of the public to familiarize themselves with a different point of view on a conflict situation, could not be compatible with the freedom to receive and disseminate information and ideas.
The substantial prosecution of several criminal cases against the applicant on the basis of serious allegations was not in the public interest. The measure complained of was disproportionate to the legitimate goals pursued and was therefore not necessary in a democratic society.
In the case there was a violation of the requirements of Article 10 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant EUR 3,500 in respect of non-pecuniary damage.