Information Note on the Court’s case-law 227

March 2019

Ali Gürbüz v. Turkey - 52497/08, 6741/12, 7110/12 et al.

Judgment 12.3.2019 [Section II]

Article 10

Article 10-1

Freedom of expression

Prolonging of numerous sets of criminal proceedings against a newspaper proprietor, subsequently acquitted, for publishing statements by terrorist organisations: violation

Facts – Seven sets of criminal proceedings were b rought against the applicant between June 2004 and April 2006 for the publication of articles containing statements by leaders of illegal organisations in the daily newspaper of which he was the proprietor. In the context of those proceedings, which had la sted for up to seven years, the applicant was sentenced to pay fines and was subsequently acquitted on account of the abolition of the criminal liability of press proprietors for such publications.

Law – Article 10: The automatic application of the law pro hibiting the publication of any statement emanating from a terrorist organisation, regardless of its actual content or context, had entailed seven sets of criminal proceedings, brought against the applicant for similar facts over a two-year period. The que stion was therefore whether those proceedings, in the absence of any other repressive measures against the applicant in that connection, could constitute in themselves an interference with the applicant’s right to freedom of expression. Those proceedings, on account of their number and duration – up to seven years –, were capable of having a chilling effect on freedom of expression and public debate, by intimidating the applicant and discouraging him from publishing articles on questions of general interest . Those criminal proceedings had consisted in themselves of genuine and effective constraints. His ultimate acquittal had merely put an end to the existence of certain risks, without detracting from the fact that those risks had put pressure on him over a certain period and had made him, as a media professional, apply some self-censorship. Consequently, there had been an interference with the applicant’s right to freedom of expression.

The interference in question was prescribed by law and pursued the legit imate aim of protecting national security and territorial integrity, and of preventing disorder and crime.

The judicial authorities had brought proceedings solely on the ground that the statements published in the applicant’s newspaper emanated from organi sations 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, in the light of the criteria laid down and applied by the Court in c ases concerning freedom of expression. Nor had the authorities alleged that these articles, taken as a whole, contained any calls to violence, armed resistance or uprising, or that they constituted hate speech, this being the essential factor to be taken i nto consideration.

Therefore, the articles 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.

The repeated criminal prosecutions could also have had the effect of partly censoring the media professionals concerned and of limiting their ability to publicly convey an opinion – provided of course that they did not advocate directly or indirectly the c ommission of terrorist offences – which was part of a public debate. The enforcement measures taken automatically against media professionals under the relevant law, without considering their aims or the public’s right to be informed of other views on a co nflict, could not be reconciled with the freedom to receive or impart information or ideas.

The fact that the numerous sets of criminal proceedings against the applicant had been prolonged for a considerable length of time, on the basis of serious criminal charges, did not meet a pressing social need. The impugned measure had not been proportionate to the legitimate aims pursued and accordingly was not necessary in a democratic society.

Conclusion : violation (unanimously).

Article 41: EUR 3,500 in respect o f non-pecuniary damage.

(See also Gözel and Özer v. Turkey , 43453/04 and 31098/05, 6 July 2010, Information Note 132 ; Altuğ Taner Akçam v. Turkey , 27520/07, 25 October 2011, Information Note 145 ; Nedim Şener v. Turkey , 38270/11, 8 July 2014, Information Note 176 ; Şık v. Turkey , 53413/11, 8 July 2014, Information Note 176 ; Dilipak v. Turkey , 29680/05, 15 September 2015, Information Note 188 ; Döner and Others v. Turkey , 29994/02, 7 March 2017, Information Note 205 ; and the Recommendation CM/Rec(2016)4 of the Committee of Ministers to member States on the prot ection of journalism and safety of journalists and other media actors )

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