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Perihan v. Turkey

Closed Expands Expression

Key Details

  • Mode of Expression
    Press / Newspapers
  • Date of Decision
    January 21, 2014
  • Case Number
    21377/03
  • Region & Country
    Turkey, Europe and Central Asia
  • Judicial Body
    European Court of Human Rights (ECtHR)
  • Type of Law
    International/Regional Human Rights Law
  • Themes
    Content Regulation / Censorship

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Case Analysis

Case Summary and Outcome

The closure of a Turkish publishing company, without sufficient ground, violated the applicants’ right to freedom of expression under Article 10 of the European Convention on Human Rights (“the Convention”).


Facts

The applicants in this case are Zübeyir Perihan  and Mezopotamya Basın Yayın A. Ş. (or “Mesopotamia Publishing”), a company which was registered in Turkey. Mr. Perihan was the company’s director general. Following several complaints lodged against Mesopotamia Publishing, the Ministry of Industry and Trade instituted proceedings against Mesopotamia Publishing in the Istanbul Beyoğlu Commercial Court, with a view to its dissolution on account of its activities against public order.

On October 19, 2001, a court order dissolved Mesopotamia Publishing, pursuant to Article 274 § 2 of the Commercial Code. Furthermore, on March 28, 2002, Mesopotamia Publishing appealed against the decision of the first-instance court, asserting “that the court had failed to duly notify it of the case because the notification had been served on a certain Mr. M.B., who was not a member of the board of directors at that time.” [1] Additionally, the company had not been notified of the evidence admitted in the course of the proceedings. 

The appeal first focused on sections 12 and 13 of the Notification Act (Law no. 7201). These sections state that notification must be made to the authorized representatives of legal entities. Second, under Article 274 § 2 of the Commercial Code, “the Ministry of Industry and Trade could bring an action for the dissolution of any company proven to be responsible for acts and operations that were against law, public order, and its articles of association, without prejudice to the provisions of private laws.” [2] On January 24, 2003, the Court of Cassation dismissed the appeal

The company lodged a complaint to the ECtHR that its dissolution had violated its rights, in particular under Article 10 of the Convention (freedom of expression).

[1] Para. 23 of the decision, http://hudoc.echr.coe.int/eng?i=001-140021#{“itemid”:[“001-140021”]}.

[2] Para. 29 of the decision, http://hudoc.echr.coe.int/eng?i=001-140021#{“itemid”:[“001-140021”]}.


Decision Overview

In its decision, the Court first acknowledges that the parties to the domestic proceedings were Mesopotamia Publishing and the Ministry of Industry and Trade. Therefore, even thought the first applicant, Mr. Zübeyir Perihan became the director general of the Company, he is not a party to these processing. Therefore, the matter of the first applicant’s rights under Article 34 of the Convention are not relevant in this case.

Mesopotamia publishing first argued that it had been deprived of a fair hearing, according toe Article 6 of the Convention, because it was not notified of the case and was thus unable to bring evidence in its defense. Second, the applicant also argued that the court order to dissolve the company violated its right to freedom of expression and association, according to Articles 10 and 11 of the Convention. In response to these complaints, the Court held that these matters should be examined in light of Article 10 alone, which concerns the right of freedom of expression.

With regards to whether the interference was “prescribed by law” or pursued one or more of the legitimate aims, the Court held that the “impugned measure was based on Article 247 § 2 of the Commercial Code and pursued the legitimate aim of protecting national security and preventing disorder and crime.” [Para. 52]  However, since the activities of the publishing company did not breach public order, and taking into account the severe consequences of dissolving the entity, the Court concluded “that the interference in question was not proportionate to the legitimate aim pursued and could not be regarded as necessary in a democratic society.” [Para. 55]

Therefore, the Court held that that the complaint concerning Article 10 is admissible in respect of the [publishing company] and that the remainder of the application is inadmissible. Furthermore, the Court held that there had been a violation of Article 10 of the Convention and the respondent State was charged to pay the publishing company damages. 


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

Global Perspective

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

Official Case Documents

Official Case Documents:


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