Information Note on the Court’s case-law 50

February 2003

Çetin and Others v. Turkey - 40153/98 and 40160/98

Judgment 13.2.2003 [Section II]

Article 10

Article 10-1

Freedom to impart information

Prohibited on distribution of newspaper in region under state of emergency: violation

Facts : Most of the applicants worked as journalists for the Turkish-language daily newspaper Ülkede Gündem , based in Istanbul. On many occasions in late 1997, the distribution of the newspaper was disrupted as a result of repeated seizures by law enforcement agencies. The public prosecutor's office, which had been served with a complaint for interference with the distribution of the newsp aper, found that it had no jurisdiction and forwarded the complaint to the administrative board pursuant to the Act on Criminal Proceedings against Officials. In December 1997 the prefect of the region under the state of emergency prohibited the newspaper' s being brought into that region and distributed there. The administrative board gave a decision discontinuing the proceedings, which was upheld by the Council of State. The Prefect of the region under the state of emergency prohibited the newspapers succe eding the daily newspaper Ülkede Gündem from being brought into the region and distributed there.

Law : Preliminary objection from the government (non-exhaustion) – Turkish law affords no legal remedy so as to obtain the annulment of a measure ordered by th e prefect of the region under the state of emergency. As far as the action for damages referred to by the government was concerned, the government had not given any example of a person who had obtained compensation following such an action. It had not been shown in this case that such a procedure had been capable of allowing the applicants to obtain redress and that it would have had reasonable prospects of success. The objection was therefore rejected.

Article 10 – The prohibition on distributing and brin ging the newspaper into the region under the state of emergency constituted an interference with the applicants' freedom to communicate ideas and information. There was no point in determining whether the legal provision in question satisfied the requireme nts of accessibility and foreseeability in view of the finding reached below from the point of view of the necessity for the interference. In view of the sensitive nature of the fight against terrorism and the need for the authorities to show vigilance in the face of acts liable to increase violence, it could be accepted that the prohibition pursued the aim of defending public order and the protecting national security. As for the necessity for the interference, the prefect of the region under a state of em ergency had wide-ranging prerogatives with regard to the administrative prohibition of the distribution and introduction of publications. Such prior restrictions were not incompatible a priori with the Convention but they had to be set in a particularly st rict legal framework as regards the delimitation of the prohibition and the effectiveness of judicial review of any abuses. In this case, the powers conferred on the prefect of the region under a state of emergency and the application of the rules governin g the state of emergency were not subject to strict and effective judicial review of any abuses. Admittedly, account had to be taken of the difficulties associated with the fight against terrorism and of the political tension existing in the region in ques tion at the material time on account of acts of terrorism. The articles which had been the subject of seizure proceedings were certainly capable of having a particular impact on that sensitive climate, even though the press often had less immediate and les s powerful an impact than audiovisual media. However, the prohibiting decision had not been reasoned and made no reference to the decisions relating to the seizures. In the absence of a detailed statement of reasons, accompanied by adequate judicial review , the application of such a measure was capable of different interpretations. Accordingly, in the applicants' opinion, the prohibition in question could have been based on the publication in Ülkede Gündem of severe criticism of the activities of the law en forcement agencies in the region. Furthermore, citizens, as passive interlocutors, had to receive several messages, and to choose and form their opinions on the basis of those various expressions of opinion, since democratic society was enriched by this pl uralism of ideas and information. Moreover, the prohibition at issue had still been in force more than one and a half years after the newspaper had ceased publication and the publications which succeeded it had also been prohibited. Lastly, such measures c ould be lifted only by a unilateral discretionary act of the prefect of the region under the state of emergency. In short, the lack of judicial review of the administrative prohibition of publications deprived the applicants of guarantees sufficient to avo id any abuses. The interference connected with the application of the rules on the state of emergency in question was not necessary in a democratic society.

Conclusion : violation (unanimously).

Article 41 – The Court awarded each of the applicants € 2 500 for non-pecuniary damage and € 3000 to all the applicants for costs and expenses.

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