PROCEDURE

The case originated in two applications (nos. 40153/98 and 40160/98) 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 eight Turkish nationals (“the applicants”): Mr Vedat Çetin, who lodged application no. 40153/98 on 5 January 1998, and Mr Mehmet Kaya, Mr Ismet Bakaç, Mr Ahmet Sünbül, Mr Zeynel Bagir, Mr Metin Dag, Mr Kemal Sahin and Mr Naif Kiliç, who jointly lodged application no. 40160/98 on 5 February 1998.

The applicants were represented before the Court by Mr S. Tanrikulu, of the Diyarbakir Bar. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

The object of the applications was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 10 of the Convention.

The applications were transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The applications were allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber which would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed Second Section (Rule 52 § 1).

After deciding to join the applications the Chamber declared them partly admissible in a decision of 6 November 2001.

The applicants and the Government each filed observations on the merits (Rule 59 § 1).

THE FACTS

The applicants are Turkish nationals and live in Diyarbakir. At the material time, they worked as journalists on Ülkede Gündem, a Turkish-language daily newspaper based in Istanbul. Publication of the newspaper ceased on 24 October 1998 and it was replaced initially by Özgür Bakis and subsequently, on 27 April 2000, by another daily newspaper, 2 Binde Yeni Gündem. That newspaper was replaced on 31 May 2001 by a weekly periodical called Yedinci Gündem.

At the material time one of the applicants, Mr Çetin, an independent journalist, wrote a column entitled “Notes from Diyarbakir” (Diyarbakir'dan Notlar), which was published on Tuesdays in Ülkede Gündem. Mr Bakaç was Ülkede Gündem's representative in Diyarbakir. He currently works as a press officer for the Diyarbakir Urban District Council.

As for the other applicants, Mr Bagir is now the mayor of Lice, Mr Kaya is a lawyer and Mr Sahin and Mr Kiliç both teach in schools in eastern Turkey. Mr Sünbül continues to work as a journalist with the weekly publication 7. Gündem, while Mr Dag currently works as a press officer for Kayapinar Town Council.

The main point at issue in the present case is a ban that was imposed on 1 December 1997 by the governor of the state of emergency region on the distribution of Ülkede Gündem in that region.

I. THE CIRCUMSTANCES OF THE CASE

A. Background to the governor of the state of emergency region's decision

According to the applicants, the distribution of Ülkede Gündem was impeded by the security forces in the period from September to November 1997, and the governor of the state of emergency region subsequently imposed a ban on its publication and distribution in the region where the state of emergency had been declared (see paragraph 24 below). On 13 November 1997 the proprietor of Ülkede Gündem sent a letter to the Ministry of the Interior informing it of the disruption caused to the distribution of the newspaper and demanding an end to these unlawful acts. He also sought compensation for the loss sustained.

On 19 November 1997 the governor of the state of emergency region wrote to the proprietor of Ülkede Gündem to say that his office was not responsible for the acts mentioned in the letter. He enclosed the seizure orders that had been made by the relevant authorities.

The Government have produced to the Court seventy-two warrants issued by judges of the Istanbul National Security Court for the seizure of various issues of the newspaper in the months of September, November and December 1997.

On 4 November 1997 Mr Bakaç and Mr Bagir lodged a criminal complaint with the Diyarbakir public prosecutor's office because of the alleged disruption to the distribution of the newspaper.

On 25 November 1997 the public prosecutor's office ruled that it had no power to deal with the complaint and referred it to the Diyarbakir Administrative Council under the Prosecution of Civil Servants Act.

On 5 February 1998 the Diyarbakir Administrative Council held that there was no case to answer in view of the seizure warrants that had been issued by the Istanbul National Security Court. Its decision was upheld by the Supreme Administrative Court on 3 March 2000.

B. The ban on the publication and distribution of Ülkede Gündem in the state of emergency region

On 1 December 1997 the governor of the state of emergency region imposed a ban on the publication and distribution of Ülkede Gündem in that region.

On 4 December 1997 the Diyarbakir Security Directorate wrote to Mr Bakaç, in his capacity as Ülkede Gündem's representative in Diyarbakir, informing him of the ban. Its letter read as follows: “Regard being had to Directive no. 1344 issued by the governor's office of the state of emergency region on 1 December 1997, With effect from 1 December 1997 the publication and distribution of the daily newspaper Ülkede Gündem in the provinces in which a state of emergency has been declared under the aforementioned directive (Diyarbakir, Hakkari, Siirt, Sirnak, Tunceli and Van) shall be prohibited.”

Likewise, on 5 December 1997 the Tunceli Security Directorate wrote a letter to the company responsible for distributing the newspaper, Birlesik Basim Dagitim A.S., based in Adana, in the following terms: “Regard being had to Directive no. 1344 issued by the governor's office of the state of emergency region on 1 December 1997, With effect from 1 December 1997 the publication and distribution of the Istanbul daily newspaper Ülkede Gündem in the provinces in which a state of emergency has been declared under the aforementioned directive (Diyarbakir, Hakkari, Siirt, Sirnak, Tunceli and Van) shall be prohibited, pursuant to Article 1 of Legislative Decree no. 430 and section 11(e) of the State of Emergency Act.”

C. The bans imposed on the successor publications to Ülkede Gündem

On 7 May 1999 the governor of the state of emergency region imposed a ban pursuant to Article 11 (e) of Legislative Decree no. 285 on the publication and distribution of Özgür Bakis, the daily newspaper that had replaced Ülkede Gündem. Similarly, on 1 June 2000 he issued an order prohibiting the publication and distribution of the daily newspaper 2 Binde Yeni Gündem in the state of emergency region. Lastly, on 27 June 2001 the weekly publication Yedinci Gündem, which had replaced 2 Binde Yeni Gündem, met the same fate, with a ban being imposed on its publication and distribution in the region.

The applicants have produced a notice dated June 2000 which shows that at different times the governor of the state of emergency region imposed bans on the publication and distribution of seventeen periodicals, including Ülkede Gündem, Özgür Bakis and 2 Binde Yeni Gündem.