State Support and Financing

Karademirci and Others v. Turkey, 25 January 2005 [ECtHR]

Cases nos 37096/97 and 37101/97

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” (basin açiklamasi) 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 13 February 1996, the Izmir Criminal Court found the applicants and nine other co-defendants guilty as charged and sentenced them to three months' imprisonment under the provisions relied on by the public prosecutor. The prison sentence was commuted to a suspended fine of 450,000 Turkish liras (7 United States dollars).
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.
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.

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 Turkey that have come before it. In the instant case, the applicants were convicted of making “a statement to the press”, within the meaning of sections 44 and 82 of the Associations Act. Although section 44 of that Act does not place any direct restriction on freedom of expression, but subjects associations to “a formality or a condition” within the meaning of Article 10 § 2 of the Convention before they publish or distribute leaflets, written statements or similar publications, the Court considers that this condition (see, mutatis mutandis, Bowman v. the United Kingdom, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 186, § 33) and the applicants' conviction and sentence (see H.N. v. Italy, no. 18902/91, Commission decision of 27 October 1998, Decisions on Reports 94-A, p. 21) are equivalent to an interference with their freedom of expression. In order to be compatible with Article 10, such interference must satisfy three conditions: it must be “prescribed by law”, pursue one or more legitimate aims under the aforementioned paragraph 2 and be “necessary in a democratic society” to achieve the aim or aims.


B.  Whether the interference was “prescribed by law”

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 7 October 1983 (see paragraph 20 above). It therefore finds that the Act satisfied the requirement of accessibility.
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, 7 February 2002).
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 Okçuoglu v. Turkey [GC], nos. 23536/94 and 24408/94, § 36, ECHR 1999-IV). This requirement will be satisfied if the individual is able to establish from the wording of the relevant provision, and if need be with the assistance of the courts' interpretation of it, the acts and omissions which will make him criminally liable.
41.  The Court notes that in the present case the applicants are leaders of the Health Workers' Union. Similar charges had been brought against them in the past, but they were acquitted as a result of the domestic courts' interpretation of section 44 (see paragraph 31 above). However, in convicting the applicants, the Criminal Court appears to have interpreted the relevant provision differently, holding that organising a press conference and reading a text out in public were subject to the same procedure as that applicable to “leaflets”, “written statements” and “similar publications” within the meaning of section 44.
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.

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