Case Summary and Outcome

The conviction of the applicant journalists for reporting statement by member of a terrorist organization violated the right to freedom of expression under Article 10 of the European Convention on Human Rights (“ECHR”).

Facts

Applicants, Zozan Sezen and Memet Aslan, Turkish nationals born in 1976 and 1952, were the owner of a bi-monthly periodical, Dema Nu, and the editor-in-chief, respectively.

Aslan and Sezen (no.1) v. Turkey concerned an article published in that bi-monthy periodical, Dema Nu, on 1 February 2003 which described a series of conflicts that occurred in southeast Turkey between the Kurdistan Workers’ Party and the Turkish army. The State Security Court ordered the confiscation of the periodical issue in question and the prosecutor called for both applicants to be convicted for publishing statements by an illegal armed organization, the Kurdistan Workers’ Party, in their newspaper. In June 2003, the State Security Court not only convicted the two applicants of an offense under the anti-terrorist legislation and imposed fines, but it also ordered the temporary closure of the newspaper for a day. As a result, both applicants then appealed on points of law but the Court of Cassation upheld the judgment.

Aslan and Sezen (no.2) v. Turkey concerned the publication of articles in the 30 April 2002 issue of the same periodical, Dema Nu, resulting in the confiscation of copies of the issue in question on an order by a judge of the State Security Court, and subsequently the imposition of fines on Mr. Aslan and Ms. Sezen on the ground that their newspaper had published a statement by a terrorist organization, the Kurdistan Workers’ Party. The State Security Court ordered that no issues of the newspaper be published for an entire week. Despite the Appeal, the Court of Cassation upheld that judgment.

Decision Overview

With regards to whether The Turkish Court of Cassation had violated the applicants’ right to freedom of expression under Article 10 of the ECHR, the Court considered whether the seizure of the relevant issue of the newspaper was foreseeable by law, pursuing a legitimate aim and necessary in a democratic society. The Court noted that it was undisputed between the parties that the state interference in this case consisting of the seizure of the newspaper and the indictment of the applicants for the above offense was perscribed by law and pursued a legitimate aim, namely the maintenance of public safety, law defense and crime prevention within the meaning of Article 10 (2) of the Convention. The dispute rather concerned the question of whether the interference was “necessary in a democratic society.”

The Court paid particular attention to the words used in this article and the context of its publication, taking into account the circumstances surrounding the case submitted to it, particularly problems linked to the fight against terrorism. It noted that, taken as a whole, the text contained no call for the use of violence, armed resistance, or insurrection, and did not constitute hate speech, which are the essential elements to be considered. Moreover, it observed that the trial court did not conduct any examination of the text and they convicted the applicants simply because they had published a text by the terrorist organization. Having considered the reason given by the national courts to order the applicants, the Court concluded that it cannot be considered, as such, sufficient to justify the interference with the applicants’ right to freedom of expression. Accordingly, there had been a violation of Article 10 of the Convention.

With regards to the applicants’ complaint of a breach of the principle of equality of arms and denounce the seizure of the disputed procedure newspaper, given the place occupied in the courtroom by the prosecutor about the State Security Court, which according to them sat at the same rank as the judges, the Court held the application inadmissible. In reaching this decision, the Court recalled its previous decision in Chalmont v. France; the circumstances denounced were not sufficient to call into question the equality of arms, since, if the prosecutor was given a “physical” position in the privileged room hearing, the accused were not placed in a real disadvantage for the defense of their interests.

The Court also held the respondent State was to pay the applicants, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, 1500 EUR, plus any tax that may be chargeable to tax for non-pecuniary damage, to be converted into national currency at the rate applicable at the date of settlement.