FOURTH
SECTION
CASE OF KARADEMİRCİ AND OTHERS v.
(Applications nos. 37096/97 and 37101/97)
JUDGMENT
FOURTH
SECTION
CASE OF KARADEMİRCİ AND OTHERS v.
(Applications nos. 37096/97 and 37101/97)
JUDGMENT
In the case of Karademirci and Others v.
The European Court of Human Rights (Fourth
Section), sitting as a Chamber composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr R. Türmen,
Mr M. Pellonpää,
Mr R. Maruste,
Mr K. Traja,
Mr J. Šikuta, judges,
and Mrs F.
Elens-Passos, Deputy
Section Registrar,
Having deliberated in private on
Delivers the following judgment, which was
adopted on that date:
PROCEDURE
1. The case originated in two
applications (nos. 37096/97 and 37101/97) against the Republic of Turkey lodged
with the European Commission of Human Rights (“the Commission”) under former
Article 25 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by six Turkish nationals, Mr İsmail
Karademirci, Mr Mehmet Zencir, Ms Şennur Yılmaz, Ms Ayla Bilir,
Ms Ayfer Aydoğdu and Ms S.T. (“the applicants”), on 8 April and 12 May
1997 respectively.
2. The first five applicants
were represented by Mr M. Ufacik, and the sixth applicant by Mr A.A. Alkan.
Both representatives are members of the İzmir Bar. The Turkish Government
(“the Government”) did not appoint a representative for the proceedings before
the Court.
3. The applicants alleged violations
of Articles 10 and 11 of the Convention and of Article 9 (in application no.
37101/97).
4. The applications were
transmitted to the Court on
5. The applications were
allocated to the First Section of the Court (Rule 52 § 1 of the Rules of
Court). Within that Section, the Chamber that would consider the case (Article
27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
6. On
7. On
8. By a decision of
9. The applicants and the
Government each filed observations on the merits (Rule 59 § 1).
10. On
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
11. The applicants were born
in 1961, 1964, 1966, 1966, 1961 and 1972 respectively and live in İzmir.
12. On
13. The statement reads as
follows:
“To the press and the general public
The pressure put on pupils by the authorities
at the İzmir Atatürk Sağlık Lisesi secondary school has resulted
in Vesile Bayram receiving a beating. The pupils reacted by protesting against
the school authorities because of the pressure they were under. In an initial
attempt to calm down the pupils, whose reaction was justified, the authorities held
a meeting with them. However, they reneged on a promise to open an inquiry into
the actions of one of the teachers, E.S., who, moreover, was provided with a
forensic report.
The pressure continues in the form of a
lengthy (one year) suspension of nine pupils, and the deduction of eight marks
from their marks for behaviour.
Although officially pupils in the school are
not subjected to beatings or academic pressure, the administrators are despots.
We strongly condemn the administrators and
teachers, who are responsible for such pressure.
We call for the withdrawal of the penalties
imposed on the nine pupils.
We call for an investigation into the conduct
of the teacher who administered the beating.
We will not be intimidated by pressure.
We reject reactionary and oppressive education.
The pupils are not alone.
Society should not remain silent.”
14. By an indictment
submitted on 23 October 1995, the public prosecutor instituted criminal
proceedings against twenty-five leaders and members of the Health Workers'
Union and the Education Union for making a “statement to the press” (basın açıklaması) without
complying with the statutory requirement to obtain a receipt from the public
prosecutor's office confirming that they had filed a copy of the statement with
it. The public prosecutor relied in particular on sections 44 and 82 of the
Associations Act (Law no. 2908 of 6 October 1983).
15. In a judgment of
16. The Criminal Court held
that the constitutive elements of the offence had been made out in that,
firstly, the trade unions had not passed a resolution authorising a statement
to be made to the press and, secondly, the accused were present when the
statement was read out in public. The other co-defendants were acquitted on the
ground that they were not present when the statement was read out.
17. The applicants appealed
to the Court of Cassation against that judgment. In their written submissions,
they alleged that their convictions violated their right to freedom of
expression and, in particular, that “a statement to the press” could not be
classified as a “leaflet” or “written statement” within the meaning of section
44 of the Associations Act.
18. In a judgment of
19. On
II. RELEVANT DOMESTIC LAW AND
PRACTICE
A. The Associations Act (Law no. 2908
of 6 October 1983)
20. The relevant provisions
of the Associations Act, which was published in the Official Gazette on
Section 44
(as in force at the material time)
“(1) Associations shall not publish
or distribute leaflets [bildiri], written
statements [beyanname] or similar publications
[benzeri yayın] without a prior resolution by their executive board. The
leaflets, written statements and similar publications shall contain the forenames,
surnames and signatures of the president and members of the executive board
which passed the resolution.
(2) A copy of the resolution by the
association's executive board to publish and of the leaflet, written statement
or similar publication shall be filed for information purposes with the head of
the local authority and the public prosecutor's office for the area. The latter
shall deliver, in exchange, a receipt recording the time and date the documents
were filed. No leaflet, written statement or similar publication may be distributed
or communicated to the press until twenty-four hours after it has been filed.”
Section 82
(as in force at the material time)
“Anyone failing to comply with the procedure
set out in section 44(1) and (2) shall be liable on conviction to between three
and six months' imprisonment.”
B. Domestic practice
21. At the material time trade
unions representing public servants were formed without any specific statutory
basis. Associations and trade unions were governed by two pieces of
legislation: the Associations Act and the Trade Unions Act (Law no. 2821 of 5
May 1983). Although there are no restrictions in the Trade Unions Act on
written statements by trade unions, section 63 refers to the Associations Act and
lays down that the provisions of that Act shall apply where the Trade Unions
Act is silent.
C. The decisions of the Turkish
courts in similar cases
22. The first five applicants
produced various judgments that had been delivered by the İzmir Criminal
Court in cases concerning the activities of public-sector trade unions. These
included a judgment of 1 July 1996 (no. 1996/669), from which it emerged
that the first five applicants had ultimately been acquitted in another case in
which they had been charged with an offence under sections 44 and 82 of the
Associations Act after reading out a statement to the press and distributing it
to members of the press. In that case, the Criminal Court had followed a judgment
of the Court of Cassation (without giving the reference) in finding that a
statement read out to the press drafted by the Health Workers' Union could not be
classified as a “written statement” or “similar publication” within the meaning
of section 44 of the Associations Act.
D. Decisions of the Court of Cassation after the events in the present case
23. On 2 May 2000 and 4 June 2002 the Court of
Cassation, sitting as a full court, delivered two judgments in which it clarified
the issue of whether it was foreseeable that section 44(1) and (2) of the
Associations Act applied to written statements read out to the press by members
of an association's executive board. In its view, those subsections applied to
texts which had previously been adopted and prepared for publication and dissemination.
However, a statement read out to the press by an association on a particular
subject was not a text that was drafted with a view to publication and dissemination,
but a series of verbal comments. “Dissemination”, “publication” and similar
terms could not possibly cover the situation in which the content of a speech due
to be made orally was distributed among members of the press as an aid to
understanding. The effect of holding otherwise – by a broad interpretation of the
law, one which, in other words, included oral statements within the scope of
section 44 – would be that members of an association's executive board would be
liable to penalties for any replies or explanations given in response to
questions from journalists; such a state of affairs would introduce an unlawful
restriction on freedoms. In addition, the legislature had unambiguously laid
down in that section that a text drafted with a view to publication could be
published only once the executive board of the association had so resolved and
the relevant documents had been filed with the competent authority.
E. New legislation on associations
24. Law
no. 5231, which Parliament passed on
THE LAW
I. COMPLAINTS
25. Relying on Articles 10 and 11 of the Convention and on Article 9 (in application no. 37101/97), the applicants complained of a violation of their rights to freedom of thought, conscience and religion, to freedom of expression and to freedom of peaceful assembly and association.
26. The Court considers that the matters relied on by the applicants fall within the scope of Article 10 of the Convention in particular. For this reason, it will examine the complaints solely under this provision.
II. ALLEGED VIOLATION OF ARTICLE
10 OF THE CONVENTION
27. The applicants complained
that their conviction and sentence under section 44 of the Associations Act had
infringed Article 10 of the Convention, which provides:
“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 ...”
A. Whether there was an interference
28. The
Government denied that there had been interference, arguing that the applicants
had not been convicted for making a statement to the press but for failing to
comply with a “formal procedure”.
29. The applicants rejected that argument and contended that their conviction constituted interference with their right to freedom of expression within the meaning of Article 10 of the Convention.
30. The Court notes that this
case differs from a number of other cases concerning freedom of expression against
B. Whether the interference was
“prescribed by law”
1. The parties' submissions
31. The applicants argued
that a statement read out to the press could not be classified as a “written
statement” or “similar publication” within the meaning of section 44 of the
Associations Act. In their submission, that section could not be considered a
basis in law for their conviction and sentence. They pointed out that on
32. The Government contended that the measure in issue was “prescribed by law”. In their submission, as a result of the cross-reference in section 63 of the Trade Unions Act (Law no. 2821), section 44 of the Associations Act laid down a formal procedure to be followed by associations (trade unions in this instance) wishing to publish or distribute leaflets, statements or similar publications. As to the applicants' acquittal on similar charges by the İzmir Criminal Court, the Government pointed out that the two judgments were quite different.
2. The Court's assessment
33. The
Court reiterates its settled case-law according to which the expression “prescribed
by law” not only requires that the impugned measure should have some basis in
domestic law, but also refers to the quality of the law in question, requiring
that it should be accessible to the person concerned and foreseeable as to its
effects (see, among many other authorities,
Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; Gawęda v. Poland, no. 26229/95, §
39, ECHR 2002-II; and Maestri v. Italy
[GC], no. 39748/98, § 30, ECHR 2004-I).
34. In the instant case, the Court notes that the legal provisions which served as the basis for the penalty that was imposed on the applicants were sections 44 and 82 of the Associations Act (see paragraph 15 above). It therefore concludes that there was a basis for the measure in domestic law.
35. The Court must now examine whether, in the light of the particular circumstances of the case, those provisions had the requisite quality to constitute law. It must therefore verify whether they were accessible and foreseeable.
36. As regards accessibility,
the Court notes that sections 44 and 82 of the Associations Act satisfied that
condition, as the Act was published in the Official Gazette of
37. On the issue of
foreseeability, the Court must verify whether the domestic legislation
indicated with sufficient accuracy the procedure which trade union leaders were
required to follow when organising press conferences and distributing written statements
to the press (see, mutatis mutandis, Maestri, cited above, § 34).
38. The applicants argued
that, even assuming that section 44 constituted the statutory basis, it
regulated the publication and distribution of leaflets, written statements and
similar publications (see paragraph 20 above), not the reading out in public
and dissemination of a “statement to the press”.
39. The Court accepts that the
wording of section 44, in particular the expression “similar publications”, was
vague and imprecise and gave the courts a wide discretion (see Barthold v. Germany, judgment of 25
March 1985, Series A no. 90, p. 22, § 47). However, it has stated in previous
cases that it may be difficult to frame laws with absolute precision and that a
certain degree of flexibility may be called for to enable the national courts
to determine the scope of a “formal procedure”, such as that referred to in
section 44.
However clearly drafted a legal provision may
be, there will inevitably be a need for interpretation by the courts. There
will always be a need to elucidate doubtful points and to adapt to changing
circumstances (see E.K. v. Turkey, no.
28496/95, § 52,
40. It is quite clear that
the exercise of freedom of expression may be made subject to compliance with
certain formalities. Furthermore,
Article 10 of the Convention does not in terms prohibit the imposition of
prior restraints on a particular form of communication. However, in the Court's
view, if, as in the present case, a failure to comply with a formal procedure
constitutes a criminal offence, the law must clearly define the circumstances
in which it will apply (see, mutatis mutandis, Observer and Guardian v. the United Kingdom,
judgment of 26 November 1991, Series A no. 216, p. 30, § 60). This principle
also means that the scope of a restriction must not be extended to an accused's
detriment, for instance by analogy (see, mutatis mutandis, Başkaya
and Okçuoğlu v.
41. The Court notes that in
the present case the applicants are leaders of the Health Workers'
42. In the Court's view, the
issue is whether, for the purposes of determining the foreseeability of the “law”,
the reading out of a statement in public and its dissemination at a press
conference can be considered to constitute “publication” in the same way as “leaflets”,
“written statements” and “similar publications”.
The Court considers that, as the Court of Cassation in plenary session found (see paragraph 23 above), a statement to the press cannot be classified as a “leaflet”, “written statement” or “similar publication”, as such documents are intrinsically different from the reading out of a statement to the press in public. The aforementioned documents are prepared with a view to publication or distribution and require greater consideration and preparation, whereas statements to the press are intended instead to inform members of the press of the content of a speech that has just been, or is about to be, delivered orally.
In the Court's view, the Criminal Court's interpretation
of the relevant law when it convicted the applicants, which interpretation was
approved by the Court of Cassation, extended the scope of section 44 beyond
what had reasonably been foreseeable in the circumstances of the case. The
applicants could not, therefore, reasonably have foreseen that the reading out of
a statement to the press in public and its dissemination would be considered to
be within the scope of section 44 of the Associations Act. By sentencing them
to three months' imprisonment, and notwithstanding the fact that the sentence
was subsequently commuted to a suspended fine, the domestic courts extended the
scope of a criminal statute by applying it by analogy (see, mutatis mutandis, Ecer and Zeyrek v. Turkey, nos. 29295/95 and 29363/95, § 33,
ECHR 2001-II).
43. The Court therefore finds
that the manner in which section 44 of the Associations Act was applied in the
present case did not satisfy the requirements of foreseeability. Consequently,
there has been a violation of Article 10 of the Convention.
C. Compliance with the other
conditions set out in paragraph 2 of Article 10 of the Convention
44. In view of its conclusion that the interference was not prescribed by law, the Court does not consider it necessary to examine whether the other conditions set out in paragraph 2 of Article 10 – namely, whether the interference pursued a legitimate aim and was necessary in a democratic society – were complied with in the instant case.
III. APPLICATION OF ARTICLE 41
OF THE CONVENTION
45. 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
46. Mr Karademirci, Mr
Zencir, Ms Yılmaz, Ms Bilir and Ms Aydoğdu alleged that they had
sustained pecuniary damage which they put at 9,190 euros (EUR). This was the amount
of the lawyer's fees in the domestic proceedings, according to the rates set by
the İzmir Bar. Ms S.T. alleged that she had suffered pecuniary damage which
she estimated at EUR 5,000.
47. The applicants claimed
EUR 120,000 in respect of non-pecuniary damage.
48. The Government disputed
the claims.
49. With regard to the
alleged pecuniary damage, the Court considers that the evidence that has been
adduced does not allow it to assess the loss the applicants sustained as a
result of the violation of Article 10 of the Convention. It therefore dismisses
that claim.
50. As to non-pecuniary damage,
the Court finds that the applicants may be taken to have suffered some anxiety
in the circumstances of the case. Ruling on an equitable basis as required by
Article 41 of the Convention, the Court awards each of the applicants EUR 1,000
under this head.
B. Costs and expenses
51. Mr Karademirci, Mr
Zencir, Ms Yılmaz, Ms Bilir and Ms Aydoğdu claimed EUR 16,878 for the
costs and expenses incurred in the domestic proceedings and in the proceedings
before the Commission and the Court. They produced as evidence an agreement on
fees that referred to the rates applicable to the İzmir Bar and receipts
for translation costs in an amount approximately equivalent to EUR 150.
Ms S.T. claimed EUR 2,650 for the costs and
expenses incurred before the domestic courts, the Commission and the Court. She
did not produce any evidence.
52. The Government disputed
the claims.
53. Having
regard to the evidence before it and its own case-law in this sphere, the Court
considers it reasonable to make an overall award to Mr Karademirci,
Mr Zencir, Ms Yılmaz, Ms Bilir and Ms Aydoğdu of EUR 1,500 for all their costs.
As regards Ms S.T.'s claim, the Court considers
it reasonable to award her EUR 1,500 for all her costs, less the sum of EUR
625.04 which she has received by way of legal aid from the Council of Europe.
C. Default interest
54. 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
1. Holds that there has been a violation of Article 10 of the
Convention;
2. Holds
(a) that the respondent State is
to pay the applicants, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the Convention, the
following amounts to be converted into Turkish liras at the rate applicable at
the date of settlement:
(i) EUR 1,000 (one thousand euros)
to each of the six applicants in respect of non-pecuniary damage;
(ii) for costs and expenses,
EUR 1,500 (one thousand five hundred euros)
to İsmail Karademirci, Mehmet Zencir, Şennur Yılmaz, Ayla Bilir
and Ayfer Aydoğdu jointly;
EUR 1,500 (one thousand five hundred euros) to Ms S.T., less
EUR 625.04 (six hundred and twenty-five euros
four cents) received by way of legal aid from the Council of Europe;
(iii) any tax that may be
chargeable on the above amounts;
(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;
3. Dismisses the remainder of the applicants' claim for just
satisfaction.
Done in French, and notified in writing on
Françoise Elens-Passos Nicolas
Bratza
Deputy Registrar President