ITEMID: 001-92945
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF OPUZ v. TURKEY
IMPORTANCE: 1
CONCLUSION: Preliminary objection dismissed (six month period);Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2;Violation of Art. 3;Violation of Art. 14+2;Violation of Art. 14+3;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall
TEXT: 7. The applicant was born in 1972 and lives in Diyarbakır.
8. The applicant’s mother married A.O. in a religious ceremony. In 1990 the applicant and H.O., A.O.’s son, started a relationship and began living together. They officially married on 12 November 1995. They had three children, in 1993, 1994 and 1996. The applicant and H.O. had heated arguments from the outset of their relationship. The facts set out below were not disputed by the Government.
9. On 10 April 1995 the applicant and her mother filed a complaint with the Diyarbakır Public Prosecutor’s Office, alleging that H.O. and A.O had been asking them for money, and had beaten them and threatened to kill them. They also alleged that H.O. and his father wanted to bring other men home.
10. On the same day, the applicant and her mother were examined by a doctor. The applicant’s medical report noted bruises on her body, an ecchymosis and swelling on her left eyebrow and fingernail scratches on the neck area. The medical report on the applicant’s mother also noted bruises and swellings on her body. On 20 April 1995 definitive reports were issued, which confirmed the findings of the first report and stated that the injuries in question were sufficient to render both the applicant and her mother unfit to work for five days.
11. On 25 April 1995 the public prosecutor lodged indictments against H.O. and A.O. for death threats and actual bodily harm. On 15 June 1995 the Diyarbakır First Magistrate’s Court discontinued the assault case, as the applicant and her mother had withdrawn their complaints and had thereby removed the basis for the proceedings under Article 456 § 4 of the Criminal Code.
12. On 11 September 1995 the Diyarbakır Second Magistrate’s Court also acquitted the defendants of making death threats on account of the lack of evidence, and again discontinued the assault case, noting that it had been previously heard by the Diyarbakır First Magistrate’s Court.
13. On 11 April 1996, during an argument, H.O. beat the applicant very badly. The medical report drawn up on that occasion recorded surface bleeding on the applicant’s right eye, bleeding on her right ear, an ecchymosis on her left shoulder and back pain. The report concluded that the applicant’s injuries were sufficient to endanger her life. On the same day, at the request of the public prosecutor and by a decision of a single judge, H.O. was remanded in custody.
14. On 12 April 1996 the public prosecutor filed a bill of indictment with the Diyarbakır Criminal Court, accusing H.O. of aggravated bodily harm under Articles 456 § 2 and 457 § 1 of the Criminal Code.
15. On 15 April 1996 H.O. filed a petition with the Presidency of the First Magistrate’s Court, requesting his release pending trial. He explained that during an argument with his wife he had become angry and had slapped his wife two or three times. Then his mother-in-law, who worked at a hospital, had obtained a medical report for his wife and that report had led to his detention for no reason. He stated that he did not want to lose his family and business and that he regretted beating his wife.
16. On 16 April 1996 the Second Magistrate’s Court dismissed H.O.’s request for release pending trial and decided that his pre-trial detention should be continued.
17. At the hearing on 14 May 1996, the applicant repeated her complaint. The public prosecutor requested that H.O. be released pending trial, considering the nature of the offence and the fact that the applicant had regained full health. Consequently, the court released H.O.
18. At a hearing of 13 June 1996, the applicant withdrew her complaint, stating that she and her husband had made their peace.
19. On 18 July 1996 the court found that the offence fell under Article 456 § 4 of the Criminal Code, for which the applicant’s complaint was required in order to pursue the proceedings. It accordingly discontinued the case on the ground that the applicant had withdrawn her complaint.
20. On 5 February 1998 the applicant, her mother, her sister and H.O. had a fight, in the course of which H.O. pulled a knife on the applicant. H.O., the applicant and her mother sustained injuries. The medical reports certified injuries which rendered them unfit to work for seven, three and five days respectively.
21. On 6 March 1998 the public prosecutor decided not to prosecute anyone in respect of this incident. He concluded that there was insufficient evidence to prosecute H.O. in connection with the knife assault, and that the other offences such as battery and damage to property could be the subject of civil lawsuits. There was thus no public interest in pursuing the case.
22. The applicant went to stay with her mother.
23. On 4 March 1998 H.O. ran a car into the applicant and her mother. The applicant’s mother was found to be suffering from life-threatening injuries. At the police station, H.O. maintained that the incident had been an accident. He had only wished to give the applicant and her mother a lift, which they had refused before they continued walking. They had then thrown themselves in front of the car. The applicant’s mother alleged that H.O. had told them to get into his car and that he would kill them if they refused. Since they did not want to get into the car and had started running away, H.O. had driven his car into the applicant, who had fallen. While the applicant’s mother tried to help her daughter, H.O. reversed and then drove forward, this time into the mother. The applicant’s mother regained consciousness in hospital. In her statements to the police the applicant confirmed her mother’s statements and alleged that her husband had tried to kill them with his car.
24. On 5 March 1998 a single judge at the Diyarbakır Magistrate’s Court remanded H.O. in custody.
25. On 19 March 1998 the public prosecutor initiated criminal proceedings against H.O. in the Diyarbakır Third Criminal Court for making death threats and inflicting grievous bodily harm. On the same day the Forensic Medicine Institute submitted a medical report which noted grazes on the applicant’s knees. The report concluded that the applicant’s injuries rendered her unfit to work for five days.
26. On 20 March 1998 the applicant brought divorce proceedings against H.O. on the grounds that they had intense disagreements, that he was evading his responsibilities as a husband and a father, that he was mistreating her (as proved by medical reports), and that he was bringing other women to their home. The applicant submits that she later dropped the divorce case due to threats and pressure from her husband.
27. On 2 April 1998 the applicant and her mother filed a petition with the Diyarbakır Chief Public Prosecutor’s Office, asking for protective measures from the authorities subsequent to the death threats issued by H.O. and his father.
28. On 2 and 3 April 1998 police officers took statements from the applicant, her mother, her brother and the latter’s wife as well as H.O. and his father. The applicant and her mother stated that H.O. had attempted to kill them with his car and that he had threatened to kill them if the applicant did not return to H.O. They noted that the applicant had already commenced divorce proceedings and that she did not want to return to live with H.O. The applicant’s brother and his wife alleged that the applicant was discouraged by her mother from going back to her husband and that they knew nothing about the threats issued by H.O. and his father. H.O. contended that his only intention was to bring his family together, but that his mother-in-law was preventing this. He also alleged that he had gone to the applicant’s brother and family elders for help, but to no avail. He maintained that he had never threatened the applicant or her mother and that their allegations were slanderous. H.O.’s father maintained that the applicant’s mother wanted her daughter to divorce H.O. and to marry somebody else.
29. In a report dated 3 April 1998, the Director of the Law and Order Department of the Diyarbakır Security Directorate informed the Chief Public Prosecutor’s Office of the outcome of the investigation into the allegations made by the applicant and her mother. He concluded that the applicant had left her husband and gone to live with her mother. H.O.’s repeated requests for the return of his wife had been turned down by the applicant’s mother and the latter had insulted H.O. and made allegations that H.O. had issued death threats against her. H.O. had spent twenty-five days in prison for running a car into his mother-in-law and, following his release, had asked a number of mediators to convince his wife to return home. However, the mother did not allow the applicant to go back to H.O. Both parties had issued threats against each other. Furthermore, the mother had wished to separate her daughter from H.O. in order to take revenge on her ex-husband, had constantly made slanderous allegations and had also “wasted” the security forces’ time.
30. On 14 April 1998 the Diyarbakır Chief Public Prosecutor indicted H.O. and his father A.O. and charged them with issuing death threats against the applicant and her mother, contrary to Article 188 § 1 of the Criminal Code.
31. On 30 April 1998 the Diyarbakır Criminal Court released H.O. pending trial. It further declared that it had no jurisdiction over the case and sent the file to the Diyarbakır Assize Court.
32. On 11 May 1998 the Assize Court classified the offence as attempted murder. During the hearing of 9 July 1998, H.O. repeated that the incident had been an accident; the car door was open, and had accidentally hit the complainants when he moved the car. The applicant and her mother confirmed H.O.’s statement and maintained that they no longer wished to continue the proceedings.
33. On 23 June 1998 the Diyarbakır Assize Court acquitted H.O. and his father of the charges of issuing death threats, for lack of sufficient evidence. The court noted that the accused had denied the allegations and the complainants had withdrawn their complaints. The applicant again resumed living with H.O.
34. On 9 July 1998 the applicant’s mother was given another medical examination, which found that her injuries were not life-threatening but were sufficient to render her unfit for work for twenty-five days.
35. At the hearing of 8 October 1998 the applicant and her mother withdrew their complaints. They stated that the car door had been open and that H.O. had accidentally hit them. When questioned about their complaints against H.O., the applicant and her mother stated that they had had a fight with H.O. and that they had made those allegations in anger.
36. On 17 November 1998 the Diyarbakır Assize Court concluded that the case should be discontinued in respect of the offence against the applicant, as she had withdrawn her complaint. However, it decided that, although the applicant’s mother had also withdrawn her complaint, H.O. should still be convicted of that offence, since the injuries were more serious. Subsequently, the court sentenced H.O. to three months’ imprisonment and a fine; the sentence of imprisonment was later commuted to a fine.
37. On 29 October 2001 the applicant went to visit her mother. Later that day H.O. telephoned and asked the applicant to return home. The applicant, worried that her husband would again be violent towards her, said to her mother “this man is going to tear me to pieces!” The applicant’s mother encouraged the applicant to return home with the children. Three-quarters of an hour later one of the children went back, saying that his father had stabbed and killed his mother. The applicant’s mother rushed to the applicant’s house. She saw that the applicant was lying on the floor bleeding. With the help of neighbours, she put the applicant into a taxi and took her to the Diyarbakır State Hospital. The hospital authorities told her that the applicant’s condition was serious and transferred her to the Dicle University Hospital, which was better equipped. The medical report on the applicant noted seven knife injuries on different parts of her body. However, the injuries were not classified as life-threatening.
38. At about 11.30 p.m. on the same day, H.O. handed himself in at a police station. The police confiscated the knife which he had used during the incident. H.O. maintained that his wife and children were still not at home when he came back at 6 p.m. He had telephoned them and asked them to come back. On their return, he asked the applicant, “Why are you wandering outside? Why haven’t you cooked anything for me?” The applicant replied, “We ate at my mother’s”, and brought him a plate of fruit. They continued arguing. He told her, “Why are you going to your mother so often? Don’t go there so much, stay at home and look after the children!” The argument escalated. At some point, the applicant attacked him with a fork. They started fighting, during which he lost control, grabbed the fruit knife and stabbed her; he did not remember how many times. He claimed that his wife was bigger than him, so he had to respond when she attacked him. He added that his wife was not a bad person and that they had lived together peacefully until two years previously. However, they started fighting when the applicant’s mother began interfering with their marriage. He stated that he regretted what he had done. H.O. was released after his statement had been taken.
39. On 31 October 2001 the applicant’s mother’s lawyer petitioned the Diyarbakır Public Prosecutor’s Office. In her petition, she stated that the applicant’s mother had told her that H.O. had beaten her daughter very badly about five years earlier, after which he was arrested and detained. However, he was released at the first hearing. She maintained that her client and the applicant had been obliged to withdraw their complaints due to continuing death threats and pressure from H.O. She further stated that there was hearsay about H.O. being involved in trafficking women. Finally, she referred to the incident of 4 March 1998 (see paragraph 23 above), arguing that, following such a serious incident, H.O.’s release was morally damaging and requested that he be detained on remand.
40. On 2 November 2001 the applicant’s lawyer filed an objection with the Chief Public Prosecutor’s Office against the medical report of the Dicle Medical Faculty Hospital, which had concluded that the applicant’s injuries were not life-threatening. The lawyer requested a new medical examination.
41. On 9 November 2001 the applicant filed a petition with the Diyarbakır Chief Public Prosecutor’s Office, complaining that she had been stabbed many times by H.O. subsequent to an argument with him. She asked the public prosecutor to send her to the Forensic Institute for a new medical examination.
42. On 8 November 2001 the applicant underwent a new medical examination at the Forensic Institute in Diyarbakır on the instructions of the public prosecutor. The forensic medical doctor noted the presence of wounds caused by a knife on the left-hand wrist (3 cm long), on the left hip (5 cm deep), another 2 cm-deep wound on the left hip and a wound just above the left knee. He opined that these injuries were not life-threatening but would render the applicant unfit for work for seven days.
43. On 12 December 2001 the public prosecutor filed a bill of indictment with the Diyarbakır Magistrate’s Court, charging H.O. with knife assault under Articles 456 § 4 and 457 § 1 of the Criminal Code.
44. By a criminal decree of 23 May 2002, the Diyarbakır Second Magistrate’s Court imposed a fine of 839,957,040 Turkish liras (TRL) on H.O for the knife assault on the applicant. It decided that he could pay this fine in eight instalments.
45. On 14 November 2001 the applicant lodged a criminal complaint with the Diyarbakır Public Prosecutor’s Office, alleging that H.O. had been threatening her.
46. On 11 March 2002 the public prosecutor decided that there was no concrete evidence to prosecute H.O. apart from the allegations made by the applicant.
47. On 19 November 2001 the applicant’s mother filed a complaint with the public prosecutor. In her petition, she stated that H.O., A.O. and their relatives had been consistently threatening her and her daughter. In particular, H.O. told her, “I am going to kill you, your children and all of your family!” He was also harassing her and invading her privacy by wandering around her property carrying knives and guns. She maintained that H.O. was to be held liable should an incident occur involving her and her family. She also referred to the events of 29 October 2001, when the applicant was stabbed by him (see paragraph 37 above). In response to this petition, on 22 November 2002, the public prosecutor wrote a letter to the Security Directorate in Diyarbakır and asked them to take statements from the complainant and H.O. and to submit an investigation report to his office.
48. In the meantime, on 14 December 2001 the applicant again initiated divorce proceedings in the Diyarbakır Civil Court.
49. On 23 December 2001 the police took statements from H.O. in relation to the applicant’s mother’s allegations. He denied the allegations against him and claimed that his mother-in-law, who had been interfering with his marriage and influencing his wife to lead an immoral life, had issued threats against him. The police took further statements from the applicant’s mother on 5 January 2002. She claimed that H.O. had been coming to her doorstep every day, showing a knife or shotgun and threatening to kill her, her daughter and her grandchildren.
50. On 10 January 2002 H.O. was charged under Article 191 § 1 of the Criminal Code with making death threats.
51. On 27 February 2002 the applicant’s mother submitted a further petition to the Diyarbakır Public Prosecutor’s Office. She maintained that H.O.’s threats had intensified. H.O., together with his friends, had been harassing her, threatening her and swearing at her on the telephone. She stated that her life was in immediate danger and requested that the police tap her telephone and take action against H.O. On the same day, the public prosecutor instructed the Directorate of Turkish Telecom in Diyarbakır to submit to his office a list of all the numbers which would call the applicant’s mother’s telephone line over the following month. In the absence of any response, the public prosecutor repeated his request on 3 April 2002.
52. On 16 April 2002 the Diyarbakır Magistrate’s Court questioned H.O. in relation to his knife assault on his mother-in-law. He repeated the statement he had made to the police, adding that he did not wish his wife to visit her mother, as the mother had been pursuing an immoral life.
53. The applicant had been living with her mother since the incident of 29 October 2001.
54. On an unspecified date the applicant’s mother made arrangements with a removal company to move her furniture to İzmir. H.O. learned of this and allegedly said, “Wherever you go, I will find and kill you!”. Despite the threats, on 11 March 2002 the furniture was loaded onto the removal company’s pick-up truck. The pick-up truck made two trips between the company’s transfer centre and the house. On its third trip, the applicant’s mother asked the driver whether she could drive with him to the transfer centre. She sat on the front seat, next to the driver. On their way, a taxi pulled up in front of the truck and started signalling. The pick-up driver, thinking that the taxi driver was going to ask for an address, stopped. H.O. got out of the taxi. He opened the front door where the applicant’s mother was sitting, shouted something like, “Where are you taking the furniture?” and shot her. The applicant’s mother died instantly.
55. On 13 March 2002 the Diyarbakır Public Prosecutor filed an indictment with the Diyarbakır Assize Court, accusing H.O. of intentional murder under Article 449 § 1 of the Criminal Code.
56. In his statements to the police, the public prosecutor and the court, H.O. claimed that he had killed the applicant’s mother because she had induced his wife to lead an immoral life, like her own, and had encouraged his wife to leave him, taking their children with her. He further alleged that on the day of the incident, when he asked the deceased where she was taking the furniture and where his wife was, the deceased had replied “F... off, I will take away your wife, and sell [her]”. He stated that he had lost his temper and had shot her for the sake of his honour and children.
57. In a final judgment dated 26 March 2008, the Diyarbakır Assize Court convicted H.O. of murder and illegal possession of a firearm. It sentenced him to life imprisonment. However, taking into account the fact that the accused had committed the offence as a result of provocation by the deceased and his good conduct during the trial, the court mitigated the original sentence, changing it to fifteen years and ten months’ imprisonment and a fine of 180 Turkish liras (TRY). In view of the time spent by the convict in pre-trial detention and the fact that the judgment would be examined on appeal, the court ordered the release of H.O.
58. The appeal proceedings are still pending before the Court of Cassation.
59. In a petition dated 15 April 2008, the applicant filed a criminal complaint with the Kemalpaşa Chief Public Prosecutor’s Office in İzmir, for submission to the Diyarbakır Chief Public Prosecutor’s Office, and asked the authorities to take measures to protect her life. She noted that her exhusband, H.O., had been released from prison and that in early April he had gone to see her boyfriend M.M., who worked at a construction site in Diyarbakır, and had asked him about her whereabouts. Since M.M. refused to tell him her address, H.O. threatened him and told him that he would kill him and the applicant. The applicant claimed that H.O. had already killed her mother and that he would not hesitate to kill her. She had been changing her address constantly so that H.O. could not find her. Finally, she asked the prosecuting authorities to keep her address, indicated on the petition, and her boyfriend’s name confidential and to hold H.O. responsible if anything untoward happened to her or her relatives.
60. On 14 May 2008 the applicant’s representative informed the Court that the applicant’s husband had been released from prison and that he had again started issuing threats against the applicant. She complained that no measures had been taken despite the applicant’s request. She therefore asked the Court to request the Government to provide sufficient protection.
61. In a letter dated 16 May 2008, the Registry transmitted the applicant’s request to the Government for comments and invited them to inform the Court of the measures to be taken by their authorities.
62. On 26 May 2008 the Director of the International Law and Relations Department attached to the Ministry of Justice faxed a letter to the Diyarbakır Chief Public Prosecutor’s Office in relation to the applicant’s complaints to the European Court of Human Rights. He informed the Chief Public Prosecutor’s Office of the applicant’s pending application before the Court and asked them to provide information on the current state of execution of H.O.’s sentence, the state of proceedings with regard to the applicant’s criminal complaint filed with the Kemalpaşa Chief Public Prosecutor’s Office in İzmir and the measures taken to protect the applicant’s life.
63. On the same day, a public prosecutor from the Diyarbakır Chief Public Prosecutor’s Office wrote to the Diyarbakır Governor’s Office and asked him to take measures for the protection of the applicant.
64. By a letter of 28 May 2008 from the Diyarbakır Chief Public Prosecutor’s Office to the Şehitler Central Police Directorate in Diyarbakır, the Public Prosecutor (A.E.) asked the police to summon H.O. to his office in relation to an investigation.
65. On 29 May 2008 A.E. questioned H.O. in relation to the criminal complaint filed by the applicant. H.O. denied the allegation that he had issued threats against the applicant and claimed that she had made such allegations in order to disturb him following his release from prison. He maintained that he did not feel any enmity towards the applicant and that he had devoted himself to his family and children.
66. On 3 June 2008 A.E. took statements from the applicant’s boyfriend, M.M. The latter stated that H.O. had called him and asked him for the applicant’s address, and had told him that he would kill her. M.M. did not meet H.O. Nor did he file a criminal complaint against H.O. He had, however, called the applicant and informed her about the threats issued by H.O.
67. In a letter dated 20 June 2008, the Government informed the Court that the applicant’s husband had not yet served his sentence but that he had been released pending the appeal proceedings in order to avoid exceeding the permissible limit of pre-trial detention. They also stated that the local governor’s office and the Chief Public Prosecutor’s Office had been informed about the applicant’s complaint and that they had been instructed to take precautions for the protection of the applicant.
68. Finally, on 14 November 2008 the applicant’s legal representative informed the Court that his client’s life was in immediate danger since the authorities had still not taken any measures to protect her from her former husband. The Registry of the Court transmitted this letter on the same day to the Government, inviting them to provide information about the measures they had taken to protect the applicant.
69. On 21 November 2008 the Government informed the Court that the police authorities had taken specific measures to protect the applicant from her former husband. In particular, the photograph and fingerprints of the applicant’s husband had been distributed to police stations in the region so that they could arrest him if he appeared near the applicant’s place of residence. The police questioned the applicant in relation to the allegations. She stated that she had not been threatened by her husband over the past month and a half.
70. The relevant domestic law provisions relied on by the judicial authorities in the instant case are set out below.
“Whoever by use of force or threats compels another person to do or not to do something or to obtain the latter’s permission to do something ... will be sentenced to between six months’ and one year’s imprisonment, and a major fine of between one thousand and three thousand liras ...”
“Whoever, apart from the situations set out in law, threatens another person with severe and unjust damage will be sentenced to six months’ imprisonment.”
“If the act of homicide is:
(a) committed against a wife, husband, sister or brother, adoptive mother, adopted child, stepmother, stepfather, stepchild, father-in-law, mother-in-law, son-in-law, or daughter-in-law ... the offender will be sentenced to life imprisonment ...”
“Whoever torments another person physically or damages his or her welfare or causes cerebral damage, without intending murder, will be sentenced to between six months’ and one year’s imprisonment.
Where the act constitutes a danger to the victim’s life or causes constant weakness in one of the organs or senses, or permanent difficulty in speech or permanent injuries to the face, or physical or mental illness for twenty or more days, or prevents [the victim] from continuing his regular work for the same number of days, the offender will be sentenced to between two and five years’ imprisonment.
...
If the act did not cause any illness or did not prevent [the victim] from continuing his regular work or these situations did not last for more than ten days, the offender will be sentenced to between two and six months’ imprisonment or to a heavy fine of twelve thousand to one hundred and fifty thousand liras, provided that the injured person complains ...”
“If the acts mentioned in Article 456 are committed against the persons cited in Article 449 or if the act is committed by a hidden or visible weapon or harmful chemical, the punishment shall be increased by one-third to a half of the main sentence.”
“In situations mentioned under Articles 456 and 459, where commencement of the prosecution depends on the lodging of a complaint [by the victim], if the complainant waives his/her claims before the pronouncement of the final judgment the public prosecution shall be terminated.”
“If a spouse or a child or another family member living under the same roof is subjected to domestic violence and if the magistrate’s court dealing with civil matters is notified of the fact by that person or by the Chief Public Prosecutor’s Office, the judge, taking account of the nature of the incident, may on his or her own initiative order one or more of the following measures or other similar measures as he or she deems appropriate. The offending spouse may be ordered:
(a) not to engage in violent or threatening behaviour against the other spouse or the children (or other family members living under the same roof);
(b) to leave the shared home and relinquish it to the other spouse and the children, if any, and not to approach the home in which the other spouse and the children are living, or their workplaces;
(c) not to damage the property of the other spouse (or of the children or other family members living under the same roof);
(d) not to disturb the other spouse or the children (or other family members living under the same roof) through the use of communication devices;
(e) to surrender any weapons or similar instruments to law-enforcement officials;
(f) not to arrive at the shared home when under the influence of alcohol or other intoxicating substances, or not to use such substances in the shared home.
The abovementioned measures shall be applied for a period not exceeding six months. In the order, the offending spouse shall be warned that in the event of failure to comply with the measures imposed, he or she will be arrested and sentenced to a term of imprisonment. The judge may order interim maintenance payments, taking account of the victim’s standard of living.
Applications made under section 1 shall not be subject to court fees.”
“The court shall transmit a copy of the protection order to the Chief Public Prosecutor’s Office. The Chief Public Prosecutor’s Office shall monitor implementation of the order by means of the law-enforcement agencies.
In the event of failure to comply with the protection order, the law-enforcement agency shall conduct an investigation on its own initiative, without the victim being required to lodge a complaint, and shall transmit the documents to the Chief Public Prosecutor’s Office without delay.
The Chief Public Prosecutor’s Office shall bring a public prosecution in the magistrate’s court against a spouse who fails to comply with a protection order. The location and expeditious holding of the hearing in the case shall be subject to the provisions of Law no. 3005 on the procedure governing in flagrante delicto cases.
Even if the act in question constitutes a separate offence, a spouse who fails to comply with a protection order shall also be sentenced to three to six months’ imprisonment.”
71. These regulations, which were drawn up to govern the implementation of Law no. 4320, set out the measures to be taken in respect of the family members perpetrating violence and the procedures and principles governing the application of those measures, in order to protect family members subjected to domestic violence.
72. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted in 1979 by the United Nations General Assembly and ratified by Turkey on 19 January 1986.
73. The CEDAW defines discrimination against women as “... any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” As regards the States’ obligations, Article 2 of the CEDAW provides, in so far as relevant, the following:
“States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:
...
(e) to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise;
(f) to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women;
...”
74. The Committee on the Elimination of All Forms of Discrimination Against Women (hereinafter “the CEDAW Committee”) has found that “gender-based violence is a form of discrimination that seriously inhibits women’s ability to enjoy rights and freedoms on a basis of equality with men” and is thus prohibited under Article 1 of the CEDAW. Within the general category of gender-based violence, the CEDAW Committee includes violence by “private act” and “family violence”. Consequently, gender-based violence triggers duties in States. General Recommendation No. 19 sets out a catalogue of such duties. They include a duty on States to “take all legal and other measures that are necessary to provide effective protection of women against gender-based violence”, “including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence”. In its Concluding Comments on the combined fourth and fifth periodic report of Turkey (hereinafter “the Concluding Comments”), the CEDAW Committee reiterated that violence against women, including domestic violence, is a form of discrimination (see UN doc. CEDAW/C/TUR/4-5 and Corr.1, 15 February 2005, § 28).
75. Furthermore, in its explanations of General Recommendation No. 19, the CEDAW Committee considered the following:
“... 6. The Convention in Article 1 defines discrimination against women. The definition of discrimination includes gender-based violence, that is, violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty. Gender-based violence may breach specific provisions of the Convention, regardless of whether those provisions expressly mention violence.
7. Gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of Article 1 of the Convention.
Comments on specific Articles of the Convention
...
Articles 2 (f), 5 and 10 (c)
11. Traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriage, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them the equal enjoyment, exercise and knowledge of human rights and fundamental freedoms. While this comment addresses mainly actual or threatened violence the underlying consequences of these forms of gender-based violence help to maintain women in subordinate roles and contribute to the low level of political participation and to their lower level of education, skills and work opportunities.”
76. In the case of A.T. v. Hungary (decision of 26 January 2005), where the applicant had alleged that her common-law husband and father of her two children had been physically abusing and threatening her from 1998 onwards, the CEDAW Committee directed Hungary to take measures “to guarantee the physical and mental integrity of the applicant and her family”, as well as to ensure that she was provided with a safe place of residence to live with her children, and that she received child support, legal assistance and compensation in proportion to the harm sustained and the violation of her rights. The Committee also made several general recommendations to Hungary on improving the protection of women against domestic violence, such as establishing effective investigative, legal and judicial processes, and increasing treatment and support resources.
77. In the case of Fatma Yıldırım v. Austria (decision of 1 October 2007), which concerned the killing of Mrs Yıldırım by her husband, the CEDAW Committee found that the State Party had breached its due diligence obligation to protect Fatma Yıldırım. It therefore concluded that the State Party had violated its obligations under Article 2 (a) and (c) to (f), and Article 3 of the CEDAW read in conjunction with Article 1 of the CEDAW and General Recommendation No. 19 of the CEDAW Committee and the corresponding rights of the deceased Fatma Yıldırım to life and to physical and mental integrity.
78. The United Nations General Assembly Declaration on the Elimination of Violence against Women (1993), in its Article 4 (c), urges States to “exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or private persons”.
79. In his third report, of 20 January 2006, to the Commission on Human Rights of the United Nations Economic and Social Council (E/CN.4/2006/61), the special rapporteur on violence against women considered that there is a rule of customary international law that “obliges States to prevent and respond to acts of violence against women with due diligence”.
80. In its Recommendation Rec(2002)5 of 30 April 2002 on the protection of women against violence, the Committee of Ministers of the Council of Europe stated, inter alia, that member States should introduce, develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims, support and assistance, adjustment of the criminal and civil law, raising of public awareness, training for professionals confronted with violence against women, and prevention.
81. The Committee of Ministers recommended, in particular, that member States should penalise serious violence against women such as sexual violence and rape, abuse of the vulnerability of pregnant, defenceless, ill, disabled or dependent victims, as well as penalising abuse of position by the perpetrator. The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings, make provisions to ensure that criminal proceedings can be initiated by the public prosecutor, encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest, ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children’s rights are protected during proceedings.
82. With regard to violence within the family, the Committee of Ministers recommended that member States should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order, inter alia, to enable the judiciary to adopt interim measures aimed at protecting victims, to ban the perpetrator from contacting, communicating with or approaching the victim, or residing in or entering defined areas, to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police, medical and social services.
83. In Velazquez-Rodriguez v. Honduras, the Inter-American Court of Human Rights stated:
“An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of an act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.”
84. The legal basis for the ultimate attribution of responsibility to a State for private acts relies on State failure to comply with the duty to ensure human rights protection, as set out in Article 1 § 1 of the American Convention on Human Rights. The Inter-American Court’s case-law reflects this principle by repeatedly holding States internationally responsible on account of their lack of due diligence to prevent human rights violations, to investigate and sanction perpetrators or to provide appropriate reparations to their families.
85. The Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women 1994 (the Belém do Pará Convention) sets out States’ duties relating to the eradication of gender-based violence. It is the only multilateral human rights treaty to deal solely with violence against women.
86. The Inter-American Commission adopts the Inter-American Court of Human Right’s approach to the attribution of State responsibility for the acts and omissions of private individuals. In the case of Maria Da Penha v. Brazil, the Commission found that the State’s failure to exercise due diligence to prevent and investigate a domestic violence complaint warranted a finding of State responsibility under the American Convention on Human Rights and the Belém do Pará Convention. Furthermore, Brazil had violated the rights of the applicant and failed to carry out its duty (inter alia, under Article 7 of the Belém do Pará Convention, obliging States to condemn all forms of violence against women), as a result of its failure to act and its tolerance of the violence inflicted. Specifically, the Commission held that:
“... tolerance by the State organs is not limited to this case; rather, it is a pattern. The condoning of this situation by the entire system only serves to perpetuate the psychological, social, and historical roots and factors that sustain and encourage violence against women.
Given the fact that the violence suffered by Maria da Penha is part of a general pattern of negligence and lack of effective action by the State in prosecuting and convicting aggressors, it is the view of the Commission that this case involves not only failure to fulfil the obligation with respect to prosecute and convict, but also the obligation to prevent these degrading practices. That general and discriminatory judicial ineffectiveness also creates a climate that is conducive to domestic violence, since society sees no evidence of willingness by the State, as the representative of the society, to take effective action to sanction such acts.”
87. In eleven member States of the Council of Europe, namely in Albania, Austria, Bosnia and Herzegovina, Estonia, Greece, Italy, Poland, Portugal, San Marino, Spain and Switzerland, the authorities are required to continue criminal proceedings despite the victim’s withdrawal of complaint in cases of domestic violence.
88. In twenty-seven member States, namely in Andorra, Armenia, Azerbaijan, Belgium, Bulgaria, Cyprus, the Czech Republic, Denmark, England and Wales, Finland, “the former Yugoslav Republic of Macedonia”, France, Georgia, Germany, Hungary, Ireland, Latvia, Luxembourg, Malta, Moldova, the Netherlands, the Russian Federation, Serbia, Slovakia, Sweden, Turkey and Ukraine, the authorities have a margin of discretion in deciding whether to pursue criminal proceedings against perpetrators of domestic violence. A significant number of legal systems make a distinction between crimes which are privately prosecutable (and for which the victim’s complaint is a prerequisite) and those which are publicly prosecutable (usually more serious offences for which prosecution is considered to be in the public interest).
89. It appears from the legislation and practice of the above-mentioned twenty-seven countries that the decision on whether to proceed where the victim withdraws his/her complaint lies within the discretion of the prosecuting authorities, which primarily take into account the public interest in continuing criminal proceedings. In some jurisdictions, such as England and Wales, in deciding whether to pursue criminal proceedings against the perpetrators of domestic violence the prosecuting authorities (Crown Prosecution Service) are required to consider certain factors, including: the seriousness of the offence; whether the victim’s injuries are physical or psychological; if the defendant used a weapon; if the defendant has made any threats since the attack; if the defendant planned the attack; the effect (including psychological) on any children living in the household; the chances of the defendant offending again; the continuing threat to the health and safety of the victim or anyone else who was, or could become, involved; the current state of the victim’s relationship with the defendant; the effect on that relationship of continuing with the prosecution against the victim’s wishes; the history of the relationship, particularly if there was any other violence in the past; and the defendant’s criminal history, particularly any previous violence. Direct reference is made to the need to strike a balance between the victim’s and any children’s Article 2 and Article 8 rights in deciding on a course of action.
90. Romania seems to be the only State which bases the continuance of criminal proceedings entirely, and in all circumstances, on the wishes/complaints of the victim.
91. According to this report, Law no. 4320 (see paragraph 70 above) is not yet being fully implemented. In recent years there has been an increase in “protection orders” or injunctions issued by family courts. However, some courts, in response to applications made to them by women in mortal danger, are still setting hearings two or even three months ahead. Under these circumstances, judges and prosecutors treat an action under Law no. 4320 as if it were a form of divorce action, whereas the point of the Law is to take urgent action on behalf of women who are seeking to protect their own lives. Once the injunction has been issued, women are confronted with a number of problems with its implementation.
92. In the two years before the report was released approximately 900 women applied to the Mor Çatı Foundation and made great efforts to use Law no. 4320, but of this number only 120 succeeded. The Mor Çatı Foundation has identified serious problems with the implementation of Law no. 4320. In particular, it was observed that domestic violence is still treated with tolerance at police stations, and that some police officers try to act as arbitrators, or take the side of the male, or suggest that the woman drop her complaint. There are also serious problems in serving the injunction issued by a court under Law no. 4320 on the husband. In the case of a number of women wishing to work with the Mor Çatı Foundation, injunctions were not implemented because their husbands were police officers or had friendly relations with officers at the police station in question.
93. Furthermore, there are unreasonable delays in issuing injunctions by the courts. This results from the attitude of the courts in treating domestic violence complaints as a form of divorce action. It is considered that behind such delays lies a suspicion that women might be making such applications when they have not suffered violence. The allegations that women abuse Law no. 4320 are not correct. Since the economic burden of the home lies almost 100% with men, it would be impossible for women to request implementation of Law no. 4320 unless they were confronted with mortal danger. Finally, the injunctions at issue are generally narrow in scope or are not extended by the courts.
94. According to this report, a culture of violence has developed in Turkey and violence is tolerated in many areas of life. A survey of legal actions at a magistrate’s court dealing with civil matters (sulh hukuk mahkemesi) and three civil courts (asliye hukuk mahkemesi) in Diyarbakır identified 183 actions brought under Law no. 4320 from the date on which the Law entered into force in 1998 until September 2005. In 104 of these cases, the court ordered various measures, while in the remaining 79 actions the court held that there were no grounds for making an order, or dismissed the action, or ruled that it lacked jurisdiction.
95. Despite the importance of the problem of domestic violence, very few applications have been made under the said Law, because either the public is not generally aware of it or the level of confidence in the security forces is very low in the region. The most important problems were caused by the delay in issuing injunctions and the authorities’ failure to monitor the implementation of injunctions.
96. Moreover, the negative attitude of police officers at police stations towards victims of domestic violence is one of the obstacles preventing women from using this Law. Women who go to police stations because they are subjected to domestic violence are confronted with attitudes which tend to regard the problem as a private family matter into which the police are reluctant to interfere.
97. This report makes recommendations to improve the implementation of Law no. 4320 and to enhance the protection of victims of domestic violence.
98. This statistical information report was prepared following interviews conducted with 2,484 women. It appears that all of the complainants were subjected to psychological violence and approximately 60% were subjected to physical violence. The highest number of victims is in the 20-30 age group (43%). 57% of these women are married. The majority of victims are illiterate or of a low level of education. 78% of the women are of Kurdish origin. 91% of the victims who called the emergency helpline are from Diyarbakır. 85% of the victims have no independent source of income.
99. According to this report, statistical information about the extent of violence against women in Turkey is limited and unreliable. Nonetheless, it appears that a culture of domestic violence has placed women in double jeopardy, both as victims of violence and because they are denied effective access to justice. Women from vulnerable groups, such as those from low-income families or who are fleeing conflict or natural disasters, are particularly at risk. In this connection, it was found that crimes against women in south-east Turkey have gone largely unpunished.
100. It was noted that women’s rights defenders struggle to combat community attitudes, which are tolerant of violence against women and are frequently shared by judges, senior government officials and opinion leaders in society. Even after legislative reforms have removed the legal authorisation for discriminatory treatment, attitudes that pressure women to conform to certain codes of behaviour restrict women’s life choices.
101. The report states that at every level of the criminal justice system the authorities fail to respond promptly or rigorously to women’s complaints of rape, sexual assault or other violence within the family. The police are reluctant to prevent and investigate family violence, including the violent deaths of women. Prosecutors refuse to open investigations into cases involving domestic violence or to order protective measures for women at risk from their family or community. The police and courts do not ensure that men, who are served with court orders, including protection orders, comply with them. They accord them undue leniency in sentencing, on the grounds of “provocation” by their victim and on the flimsiest of evidence.
102. There are many barriers facing women who need access to justice and protection from violence. Police officers often believe that their duty is to encourage women to return home and “make peace” and fail to investigate the women’s complaints. Many women, particularly in rural areas, are unable to make formal complaints, because leaving their neighbourhoods subjects them to intense scrutiny, criticism and, in some cases, violence.
103. Furthermore, although some courts appear to have begun implementing the reforms, the discretion accorded to the courts continues to accord the perpetrators of domestic violence unwarranted leniency. Sentences in such cases are still frequently reduced at the discretion of the judges, who continue to take into account the “severe provocation” of the offence to custom, tradition or honour.
104. Finally, this report makes a number of recommendations to the Turkish government and to community and religious authorities with a view to addressing the problem of domestic violence.
105. This report was prepared in order to look into the judicial dimensions of the phenomenon of so-called “honour crimes”. A survey was carried out of judgments in cases before the Diyarbakır assize courts and children’s courts. The purpose of the survey was to identify the proportion of such unlawful killings referred to the courts, the judiciary’s attitude to them, the defendants’ lines of defence in these cases, the role of social structure (that is, family councils and custom) and the reasons for the murders. To that end, cases in the Diyarbakır assize courts and children’s courts between 1999 and 2005 were examined. In these seven years, 59 cases were identified in which a judgment was given. In these cases, there were 71 victims/persons killed, and 81 people were tried as defendants.
106. According to the researchers, in cases where the victim/person killed was male, it was observed that defendants claimed, in their defence, that the victim/person killed had raped, sexually assaulted, or abducted a relative of the defendant, or had attempted to draw a relative of the defendant into prostitution. In cases where the victim/person killed was a woman, defendants alleged, in their defence, that the victim/person killed had been talking to other men, had taken up prostitution, or had committed adultery. In 46 of the judgments, mitigating provisions concerning unjustified provocation were applied. In cases of 61 convictions, the provisions of Article 59 of the Turkish Criminal Code concerning discretionary mitigation were applied.
VIOLATED_ARTICLES: 14
2
3


ITEMID: 001-58753
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2000
DOCNAME: CASE OF ŞENER v. TURKEY
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Violation of Art. 6-1;No violation of Art. 18;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Feyyaz Gölcüklü
TEXT: 6. At the material time, the applicant was the owner and editor of a weekly review entitled Haberde Yorumda Gerçek (The Truth of News and Comments), published in Istanbul.
7. On 5 September 1993 the Istanbul State Security Court ordered the seizure of the twenty-third edition of the review, dated 4 September 1993, on the ground that an article therein entitled Aydın İtirafı contained separatist propaganda. The article read:
“Bir ulusun toptan yok edilmesini izliyoruz. Bir soykırım izliyoruz ki, bugüne kadar başka örneği görülmemiş desek yanlış olmaz.
Bir kirli savaşın dişlileri arasında inim inim inliyoruz. Savaşa karşı çıkmak gerektiğini bildiğimiz halde öfkemizi haykırmak, kirli savaş dişlilerini parçalamak yerine inim inim inliyoruz. Ağıt yakıyoruz sadece. Ölüme övgü dizmeye çalışıyoruz ölüm sessizliğinde. Havanın esintisinden, yaprak hışırtısından odalarımıza korku taşınıyor. Yüreklerimiz hop oturup hop kalkıyor. Ölüm korkusunda ölüme övgüler dizerken devlete teslim oluyoruz.
Klima esintisinde sıcak çaylarımızı yudumlarken yürüttüğümüz hararetli tartışmalarımızda, kavgacı kesiliyoruz birden. Ulusların kaderlerini tayin hakkı diyoruz. Bu hakkın kullanılması önünde hiçbir engelin olmaması gerektiğinden söz ediyoruz. Kürt realitesinin tanınmasının önemli bir adım olduğunu açıklamaya çalışıyoruz. Ortadoğu’da savaşın nedeni Amerikan emperyalizmidir. Ve biz savaşa karşı çıkmanın insanlığın bir gereği olduğunu düşünüyoruz. Namaz dağları, Tendürek ve Nurhak ve daha niceleri bombalanıyor bu sırada. Kürdistan alev alev yanıyor. Soykırım bütün hızıyla sürüyor. Renkli ekranlardan Bosna’da yaşanan vahşeti izliyoruz.
Öfkeleniyoruz birden. İnsan hakları savunucusu kesiliyoruz. Kimyasal silahlar kullanılıyor Nurhak dağlarında. “Taş üstünde taş bırakmayacağız” diyor askeri yetkili. Bir ulusu toptan yoketme isteklerindeki kararlılık çınlıyor kulaklarımızda. “Yalnız Güneydoğu’da değil batıda da operasyonların sürdürüleceğini, teröristlere yardımcı olanların haklarından gelineceğini” ekliyor konuşmasına ve tabii basının kulağını çekmeyi de ihmal etmiyor. İşte burada, bir kirli savaşın söylemlerimizdeki yenilgiye mahkum akibetini, savaşa karşı çıkmanın tek ama tek yolunun haklı savaşın yürütülmesi gerektiği doğrusunu unutuyoruz. Unutmak istiyoruz. Tendürek’e düşen bomba, yüreğimizde patlıyor. “Yazık” diyor içimizden biri. “Bunca kanın dökülmesi niye? Kürt ve Türk ulusları kardeş değil mi?” diye ekleyerek başlıyor bilinen konuşmasına.
Hep bu konuşmayı bekliyormuşuz da, birbirimizden haberimiz yokmuş meğer. Her birimiz ayrı ayrı ve sanki farklı şeyler söylüyormuşuz gibi korkularımızı açığa vuruyoruz. Askeri yetkilinin hizmetinde kusur etmemeye itina gösteriyoruz. Türk şovenizminin asla onaylanmadığını ama, Kürt şovenizminin de onaylanamayacağını anlatıyoruz hep bir ağızdan. Ezilen ulusun şovenizminin olmayacağını bile bile lades yapmaya çalışıyoruz. Kürt meselesinin çözümünde barışçıl yolların denenmesi gerektiğini vaaz ediyor, çözümün ne olabileceğini tartışıyoruz, büyük pişkinlikle.
Gazetelerimizin sayfalarını Sündüz yaylasını basan “teröristlerin”, kadınları, çocukları nasıl öldürdüklerini anlatan düzmece haberlerle dolduruyoruz. Basına verilen brifingden kamuoyunun bilgisi olmadığı bilgisizliğiyle köşe yazılarımızda Kürt ve Türk vatandaşların yüzyıllar boyunca kardeşçe bir arada yaşadığını, oysa “teröristlerin” emellerinin bu kardeşliği yıkmak olduğunu anlatıyoruz demokratça! Ve kara çalıyoruz özgürlük yürüyüşüne geçen Kürt köylüsünün tavrına.
Biz aydın insanlarız. Demokratlığı elden bırakmayız. Ama yalandan kim ölmüş? Devlete hizmeti de esas alırız. İnsanları aptal biliriz. Onca yıl mürekkep yalamışlığımız bizi onlardan farklı kılar.
Bu bir itiraftır.
Biz aptalız.”
<translation>
“We are watching the wholesale extermination of a nation. We are watching a genocide on such a scale that it is not a mistake to call it unprecedented.
We are groaning between the cogwheels of a dirty war. We know we should take a stand against the war, but instead of shouting out our anger and smashing the cogwheels, we are groaning. We only wail. We try to praise death in the deathly silence. Fear seeps into our rooms from the whisper of the breeze and the rustle of leaves. Our hearts jump in our throats. We surrender to the State while we praise death in fear of death.
We suddenly become quarrelsome during our feverish discussions and while sipping our hot tea in the cool breeze of the air conditioner. We talk about the right to selfdetermination of nations. We are saying that there should be no impediment to the exercise of this right. We try to explain that recognition of Kurdish reality is an important step. The reason for war in the middle-east is American imperialism and we think that to stand up against this war is a requirement for being a human being. The Namaz mountains, the Tendürek, the Nurhak and many others are being bombed at this moment. Kurdistan is blazing. The genocide pounds on. We watch the terror in Bosnia on our colour TV screens.
Suddenly we are full of anger. We become human rights advocates. Chemical weapons are being used on the Nurhak mountains. ‘We will not leave a stone standing’ says a military authority. Their determination to exterminate a whole nation echoes in our ears. ‘Operations will be conducted not only in the south-east but also in the west. We’ll deal with the people who help the terrorists’ he adds, and of course makes sure to tip off the press. Here we forget that in our own words a dirty war can only end in defeat. We [also] forget the axiom that the only way to oppose a war is to wage a just war. We want to forget it. The bomb falling on Tendürek explodes in our hearts. ‘What a pity’ says one of us. ‘Why shed so much blood? Aren’t Kurdish and Turkish nations brothers?’ And he begins his usual speech.
We seem to have been waiting for that speech all the time, but we were not aware of one another. We each confess our fears as if we are saying different things. We take great care to serve the army officer faultlessly. We chorus that we have never approved of Turkish chauvinism but cannot approve of Kurdish chauvinism either. We turn a blind eye to the fact that an oppressed nation cannot be chauvinistic. We brazenly preach the necessity of trying peaceful methods to resolve the Kurdish problem and discuss what the solution might be.
We fill the pages of our newspapers with bogus news of the terrorists’ raid on the Sündüz plateau and details of how they killed women and children. Oblivious of the fact that the public at large knows nothing of the briefing given to the press, we democratically explain in our newspaper columns that Kurdish and Turkish citizens have lived together in brotherhood for centuries and that the terrorists’ aim is to undermine that brotherhood. And we denigrate the attitude of the Kurdish peasants who started a freedom march.
We are intellectuals. We shall not give up the democrat’s way of life. But who ever died of a lie? We also make it our rule to serve the State. We consider people stupid. Our many years of ink-licking make us different from them.
This is a confession.
We are stupid.”
8. In an indictment dated 29 September 1993 the Public Prosecutor at the Istanbul State Security (İstanbul Devlet Güvenlik Mahkemesi) charged the applicant with having disseminated propaganda against the indivisibility of the State by publishing the above article. The charges were brought under section 8 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act”, see paragraph 18 below).
9. In the proceedings before the State Security Court, the applicant denied the charges. She pleaded that the article did not contain separatist propaganda. She alleged that the institution of criminal proceedings against her, as the owner and the responsible editor, was aimed at punishing the review since no investigation was opened against the author of the impugned article whose picture appeared above it. The applicant referred to Article 10 of the Convention on Human Rights and argued that section 8 of the 1991 Act restricted her right to freedom of expression in contravention of both the Turkish Constitution and the Convention.
10. In a judgment dated 5 July 1994 the Istanbul State Security Court, composed of three judges including a military judge, found the applicant guilty of an offence under section 8 § 1 of the 1991 Act. The court sentenced the applicant to six months’ imprisonment and a fine of 50,000,000 Turkish liras (“TRL”), to be paid in ten monthly instalments. It also ordered confiscation of the offending publication.
11. In its reasoning, the court held that the impugned article had referred to a certain part of Turkish territory as “Kurdistan”, had asserted that people living there were Kurdish citizens, that the Kurdish nation wanted to be exterminated, that genocide had taken place, that the territory defined as “Kurdistan” had been bombed and burned and that chemical weapons had been used. On these grounds, the court found that the article, as a whole, disseminated propaganda against the indivisibility of the State.
12. The applicant appealed against her conviction. On 30 November 1994 the Court of Cassation dismissed her appeal. It upheld the Istanbul State Security Court’s assessment of the evidence and its reasons for rejecting the applicant’s defence. On 2 January 1995 the judgment was served on the applicant.
13. Following the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act (see paragraph 19 below); the Istanbul State Security Court ex officio re-examined the applicant’s case. On 8 March 1996 the court imposed the same sentence on the applicant. The applicant appealed.
14. On 10 June 1997 the Court of Cassation quashed the judgment of 8 March 1996 on the ground that the Istanbul State Security Court had not commuted the applicant’s sentence of imprisonment to a fine.
15. On 25 September 1997 the Istanbul State Security Court decided to defer the imposition of a final sentence pursuant to section 1 of Law no. 4304 of 14 July 1997. The court held, under section 2 of the same law, that the criminal proceedings against the applicant would be suspended and a final sentence imposed should the applicant be convicted of a further intentional offence in her capacity as an editor within three years of this decision.
16. On 17 November 1995 the Istanbul State Security Court also found the author of the impugned article, Erhan Altun, guilty of an offence under section 8 § 1 of the 1991 Act. It sentenced him to 1 year, 1 month and 10 days’ imprisonment and a fine of 111,111,110 TRL. However, the court suspended the author’s sentence taking into account his good conduct in the past, the likelihood that he would not commit any further offence and the fact that he was not a recidivist.
17. A full description of the relevant domestic law may be found in the Sürek (No. 1) v. Turkey judgment ([GC], no. 26682/95, §§ 23-36, ECHR 1999-IV).
18. Section 8 of the Prevention of Terrorism Act 1991 (Law no. 3713 of 12 April 1991) creates the offence of undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation through written and spoken propaganda, meetings, assemblies and demonstrations, irrespective of the methods used and the intention. Any person who engages in such an activity may be sentenced to imprisonment or a fine, which for a press editor nowadays may be up to 2 years’ imprisonment and a fine of up to three hundred million Turkish lira.
19. Law no. 4126 of 27 October 1995 amended the Prevention of Terrorism Act 1991 to require the re-examination of the cases of persons convicted under the aforementioned Section 8 with a view to imposing substitute penalties or measures to imprisonment. Editors who had been convicted before 12 July 1997 of a Section 8 offence were later entitled to a suspended sentence for up to three years, provided that no further offences were committed, pursuant to Law no. 4304 of 14 August 1997.
20. Article 138 of the Constitution requires all judges to perform their duties independently. State Security Courts were established by Article 143 of the Constitution to try offences “against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.”
21. According to Sections 5 and 6 of Law no. 2845 on the creation and rules of procedure of the State Security Court, such courts shall be composed of a president, two other regular members and two substitute members, appointed for four-year renewable periods. At the material time, one regular member and one substitute were military judges of the first rank.
22. Appeals lie to the Court of Cassation against State Security Court decisions.
23. The careers of military judges, according to Section 7 of the Military Legal Service Act (Law no. 357), depend on assessments by the Minister of State in the Ministry of Defence, or the Minister of Defence. Section 8 of that Act provides that military judges are to be appointed “by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence… .” It is an offence under Article 112 of the Military Code for a public official to attempt to influence the performance by a military judge in the exercise of his judicial functions. Military judges are subject to officer salary scales and discipline by the Minister of Defence (Sections 18 and 29). Career disputes concerning military judges are ultimately determined by the Supreme Military Administrative Court (Section 22 of Law no. 1602 of 4 July 1972 on the Supreme Military Administrative Court).
24. Amendments made by Law no. 4388 of 18 June 1999 and Law no. 4390 of 22 June 1999 removed military judges from the bench of the State Security Courts.
25. The applicant alleged that the authorities had unjustifiably interfered with her right to freedom of expression guaranteed by 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
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, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
26. The Government maintained that the interference with the applicant’s right to freedom of expression was justified under the provisions of the second paragraph of Article 10. However, the Commission accepted the applicant’s allegation.
27. The Court notes that it is clear and undisputed that there has been an interference with the applicant’s right to freedom of expression on account of her conviction and sentence under section 8 of the Prevention of Terrorism Act 1991 (the “1991 Act”).
28. This interference would contravene Article 10 of the Convention unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 of Article 10, and was “necessary in a democratic society” for achieving such aim or aims. The Court will examine each of these criteria in turn.
29. The applicant did not comment on whether this requirement had been respected.
30. The Government maintained that the measures taken against the applicant were based on section 8 of the 1991 Act.
31. The Commission agreed with the Government and found that the interference was prescribed by law.
32. The Court, like the Commission, finds that since the applicant’s conviction was based on section 8 of the 1991 Act the resultant interference with her freedom of expression could be regarded as “prescribed by law”, all the more as the applicant has not disputed this (see, in this connection, Sürek (No. 1) v. Turkey [GC], no. 26682/95, § 48, ECHR 1999-IV).
33. The applicant did not express a view on this point.
34. The Government contended that the aim of the interference in issue had been to maintain “national security” and “public safety”. The Commission accepted this view.
35. The Court considers that, having regard to the sensitivity of the security situation in south-east Turkey (see the above-mentioned Sürek (No.1) v. Turkey judgment, § 52) and to the need for the authorities to be alert to acts capable of fuelling additional violence, the measures taken against the applicant can be said to have been in furtherance of certain of the aims mentioned by the Government, namely the protection of national security and public safety. This is certainly true where, as with the situation in southeast Turkey at the time of the circumstances of this case, the separatist movement had recourse to methods which relied on the use of violence.
36. The applicant pleaded that she should not have been punished for an article which she had not written. She further contended that the impugned article praised democracy and human rights and suggested that intellectuals should be more courageous in defending the latter. She maintained that the article did not advocate recourse to terrorism and violence but, on the contrary, it criticised the waging of terrorism against people. In the applicant’s submission the measures taken against her amounted to an unjustified and disproportionate interference with her Article 10 right.
37. The Government asserted that the applicant disseminated separatist propaganda since the article in issue encouraged terrorist violence against the State. In support of their assertion the Government highlighted certain extracts from the article and contended that the phrase, “we forget the axiom that the only way to oppose a war is to wage a just war” was a clear incitement and encouragement to violence. In the Government’s submission, the author criticised intellectuals for defining “innocent Kurdish peasants” as “terrorists” and denigrating their march to freedom.
In the Government’s opinion, the message which the article conveyed was that the only means for resolving the Kurdish problem was the maintenance of terrorist activities against the State, and that intellectuals should give the necessary support to such activities. The Government argued that, in the context of a virulent terrorism campaign, the applicant should have refrained from disseminating propaganda aimed at supporting terrorist violence. They further submitted that the applicant had rightly been convicted under section 8 of the 1991 Act and that the measures taken against her properly fell within the authorities’ margin of appreciation in this area. The interference was accordingly justified under Article 10 § 2 of the Convention.
The Government finally pointed out that the imposition of the final sentence on the applicant had been suspended, following the enactment of Law no. 4304 of 14 August 1997, which aimed at providing for more lenient sanctions for offences committed through the medium of the press.
38. The Commission noted that the incriminated publication was an article by an intellectual whose statements contained sharp criticism of the policy and action of Turkey with regard to its population of Kurdish origin. The author expressed his view on the Kurdish question and did not associate himself with the use of violence in the context of the Kurdish separatist movement. In the Commission’s view, the measures taken against the applicant amounted to a kind of censorship, which was likely to discourage others from publishing similar opinions in the future. On this basis, the Commission found that there had been a violation of Article 10 of the Convention.
39. The Court recalls that in its Zana v. Turkey judgment of 25 November 1997 (Reports of Judgments and Decisions 1997-VII, pp. 254748, § 51) and the above-mentioned Sürek (No.1) v. Turkey judgment (cited above, § 58), it summarised the basic principles established in its case-law concerning Article 10 of the Convention:
(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.
(ii) The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.
(iii) In exercising its supervisory jurisdiction, the Court must look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”.
The Court notes in this connection that the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the interference (see the Ceylan v. Turkey judgment [GC], no. 23556/94, § 49, ECHR 1999-IV). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts.
40. The Court further observes that in the above-mentioned Sürek (No. 1) v. Turkey judgment (§ 61) it reiterated that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest. Furthermore, the limits of permissible criticism are wider with regard to the government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion.
Moreover, the dominant position which a government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries. Nevertheless, it certainly remains open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks (see the İncal v. Turkey judgment of 9 June 1998, Reports 1998-IV, p. 1567, § 54). Finally, where such remarks incite people to violence, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression.
41. Since the applicant was convicted of disseminating separatist propaganda through the review of which she was the editor, the impugned interference must also be seen in the context of the essential role of the press in ensuring the proper functioning of a political democracy (see among many other authorities, the Lingens v. Austria judgment of 8 July 1986, Series A, no. 103, p. 26, § 41, and the abovementioned Sürek (No. 1) judgment, § 59). While the press must not overstep the bounds set, inter alia, for the protection of vital State interests, such as national security or territorial integrity, against the threat of violence or the prevention of disorder or crime, it is nevertheless incumbent on the press to impart information and ideas on political issues, including divisive ones. Not only has the press the task of imparting such information and ideas, the public has a right to receive them. Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders (see the abovementioned Lingens judgment, p. 26 §§, 41-42).
42. The Court stresses that the “duties and responsibilities” which accompany the exercise of the right to freedom of expression by media professionals assume special significance in situations of conflict and tension. Particular caution is called for when consideration is being given to the publication of views which contain incitement to violence against the State lest the media become a vehicle for the dissemination of hate speech and the promotion of violence. At the same time, where such views cannot be so categorised, Contracting States cannot, with reference to the protection of territorial integrity or national security or the prevention of crime or disorder, restrict the right of the public to be informed of them by bringing the weight of the criminal law to bear on the media (see the Erdoğdu and İnce v. Turkey [GC], no. 25067/94, § 54, ECHR 1999-IV).
43. The Court takes into account, furthermore, the background to cases submitted to it, particularly problems linked to the prevention of terrorism (see Karataş v. Turkey [GC], no. 23168/94, § 51, ECHR 1999-IV). On that point, it takes note of the Turkish authorities’ concern about the dissemination of views which they consider might exacerbate the serious disturbances that have been going on in Turkey for some fifteen years.
44. The Court notes that the applicant’s review published an article which had been written by an intellectual who had expressed his views on the Kurdish problem. The impugned article contained a sharp criticism of the Government’s policy and of the action of their security forces with regard to the population of Kurdish origin. While alleging that intellectuals and the Turkish press are denigrating the “Kurdish peasants’ freedom march”, the author criticised their overall view of the Kurdish problem. The author further suggested that the Kurdish reality should be recognised and peaceful methods tried in order to resolve the Kurdish problem instead of having recourse to military action. He regretted the shedding of blood in the course of armed conflict between Kurds and Turks, since he considered them brother nations. He also expressed his disapproval of all types of chauvinism, including Turkish and Kurdish forms.
45. The Court notes in addition that, although certain phrases seem aggressive in tone, such as the one highlighted by the Government, the article taken as a whole does not glorify violence. Nor does it incite people to hatred, revenge, recrimination or armed resistance. On the contrary, the article is an intellectual analysis of the Kurdish problem which calls for an end to the armed conflict. In the Court’s view these are the essential factors which should be considered (see the Ceylan v. Turkey judgment, cited above, § 36).
Furthermore, the Court observes that the applicant was convicted by the Istanbul State Security Court not for incitement to violence, but for disseminating separatist propaganda by referring to a particular region of Turkey as “Kurdistan” and alleging that the population of Kurdish origin living in that region was subjected to oppression. In this regard, the Court considers that the domestic authorities in the instant case failed to give sufficient weight to the public’s right to be informed of a different perspective on the situation in south-east Turkey, irrespective of how unpalatable that perspective may be for them. As noted above, the views expressed in the incriminated article cannot be read as an incitement to violence, nor could they be construed as liable to incite violence. That being so, the reasons given by the Istanbul State Security Court for convicting the applicant, although relevant, cannot be considered sufficient to justify the interference with her right to freedom of expression.
46. The Court also observes that, notwithstanding the fact that the imposition of a final sentence on the applicant was suspended, she was nevertheless faced with the threat of a heavy penalty (see the Erdoğdu and İnce v. Turkey judgment, cited above, § 53). For the Court, a decision or measure favourable to an applicant is not sufficient in principle to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see the Öztürk v. Turkey judgment [GC], no. 22479/93, § 73, ECHR 1999-VI).
In the instant case, however, the Istanbul State Security Court suspended the imposition of a final sentence on the applicant on condition that she did not commit any further offence as an editor within three years of its decision (see paragraph 15 above). If the applicant fails to comply with that condition, she will automatically be sentenced for the original offence. In other words, the decision in question did not remove her status as a “victim”. On the contrary, the conditional suspended sentence had the effect of restricting the applicant’s work as an editor and reducing her ability to offer the public views which have their place in a public debate whose existence cannot be denied (see, Erdoğdu v. Turkey, no. 25723/94, § 72, to be published in ECHR 2000; see also, mutatis mutandis, the Hertel v. Switzerland judgment of 25 August 1998, Reports 1998-VI, p. 2331, § 50).
47. Having regard to the above considerations, the applicant’s conviction was disproportionate to the aims pursued and, accordingly, not “necessary in a democratic society”. There has therefore been a violation of Article 10 of the Convention.
48. The applicant complained that the presence of a military judge on the bench of the Istanbul State Security Court which tried and convicted her meant that she was denied a fair hearing, in breach of Article 6 § 1 of the Convention, the relevant part of which provides:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law...”
49. The Government contested that allegation whereas the Commission accepted it.
50. In the applicant’s submission, under the rules applicable at the time, the military judges appointed to the State Security Courts, such as the Istanbul State Security Court, were dependent on the Executive and the army as regards their appointment and careers. Such ties made it impossible for military judges to discharge their functions on the bench in an independent and impartial manner. The applicant further stressed that the independence and impartiality of military judges, and hence of the courts on which they sat, were compromised since these judges were unable to take a position which might be contradictory to the views of their commanding officers.
The applicant stated that these considerations impaired the independence and impartiality of the Istanbul State Security Court and prevented her from receiving a fair hearing, in violation of Article 6 § 1.
51. The Government replied that the rules then in force governing the appointment of military judges to the State Security Courts and the guarantees which they enjoyed in the performance of their judicial functions on the bench were such as to ensure that these courts fully complied with the requirements of independence and impartiality within the meaning of Article 6 § 1. The Government disputed the applicant’s argument that military judges were accountable to their superior officers. In the first place, it was an offence under Article 112 of the Military Code for a public official to attempt to influence the performance by a military judge of his judicial functions (see paragraph 23 above). Secondly, the career assessments of military judges relate only to their non-judicial duties. Military judges have access to their assessment reports and are able to challenge their content before the Supreme Military Administrative Court (see paragraph 23 above). When acting in a judicial capacity, a military judge is assessed in exactly the same manner as a civilian judge.
52. The Government added that the fact that a military judge had sat in the State Security Court had not impaired the fairness of the applicant’s trial. Neither the military judge’s hierarchical superiors, nor the public authorities which had appointed him to the court had any interest in the proceedings or in the outcome of the case.
The Government also impressed upon the Court the need to have particular regard to the security context in which the decision to establish State Security Courts was taken, pursuant to Article 143 of the Constitution. In view of the experience of the armed forces in the antiterrorism campaign, the authorities had considered it necessary to strengthen these courts by including a military judge in order to provide them with the necessary expertise and knowledge to deal with threats to the security and integrity of the State.
53. The Government further submitted that, by Law no. 4388 of 18 June 1999 and Law no. 4390 of 22 June 1999, amendments had been made to remove military judges from the bench of the State Security Courts with a view to complying with the requirements of the Convention. The Government stated that State Security Courts are currently composed of civilian judges only.
54. The Commission concluded that the Istanbul State Security Court could not be regarded as an independent and impartial tribunal for the purposes of Article 6 § 1 of the Convention. The Commission referred in this respect to the İncal v. Turkey judgment of 9 June 1998 (Reports 1998IV) and the reasons supporting that judgment.
55. The Court takes note of the changes made to the State Security Court system by virtue of Law no. 4388 of 18 June 1999 and Law no. 4390 of 22 June 1999. However, for the purposes of the instant case it must confine its consideration to the legislation then in force and to the composition of the Istanbul State Security Court which tried and convicted the applicant.
56. The Court reiterates that in its above-mentioned İncal v. Turkey judgment of 9 June 1998 (p. 1547) and in its Çıraklar v. Turkey judgment of 28 October 1998 (Reports 1998-VII, p. 3071), it had to address arguments similar to those raised by the Government in the instant case. In those judgments the Court noted, on the one hand, that the status of military judges sitting as members of State Security Courts did provide some guarantees of independence and impartiality (see the above-mentioned İncal judgment, p. 1571, § 65). On the other hand, the Court found that certain aspects of these judges’ status made their independence and impartiality questionable (ibid. § 68): for example, the fact that they are servicemen who still belong to the army, which in turn takes its orders from the Executive; the fact that they remain subject to military discipline; and the fact that decisions pertaining to their appointment are to a great extent taken by the administrative authorities and the army (see paragraph 23 above). The applicant mentioned some of these shortcomings in her observations.
57. As in its İncal judgment, the Court considers that its task is not to determine in abstracto the necessity for the establishment of State Security Courts in the light of the justifications advanced by the Government. Its task is to ascertain whether the manner in which the Istanbul State Security Court functioned at the material time infringed the applicant’s right to a fair hearing, in particular whether, viewed objectively, she had a legitimate reason to fear that the court which tried her lacked independence and impartiality (see the abovementioned Incal judgment, p. 1572, § 70, and the above-mentioned Çıraklar judgment, p. 3072, § 38).
As to that question, the Court sees no reason to reach a conclusion different from that in the cases of MM. Incal and Çıraklar, both of whom, like the present applicant, were civilians. It is understandable that the applicant - prosecuted in a State Security Court for disseminating propaganda aimed at undermining the national security of the State and public safety - should have been apprehensive about being tried by a bench which included a regular army officer and member of the Military Legal Service. On that account she could legitimately fear that the Istanbul State Security Court might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. In other words, the applicant’s fears as to that court’s lack of independence and impartiality can be regarded as objectively justified. The proceedings in the Court of Cassation were not able to dispel these fears since that court did not have full jurisdiction (see the abovementioned Incal judgment, p.1573, § 72 in fine).
58. For these reasons the Court finds that there has been a breach of Article 6 § 1.
59. The applicant alleged that the restrictions on her right to freedom of expression, applied pursuant to section 8 of the Prevention of Terrorism Act 1991, were inconsistent with the legitimate aims set out in Article 10 § 2 and were thus contrary to Article 18 of the Convention, which provides:
“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
60. The Government did not address these allegations in their memorial.
61. The Commission found that the restrictions which were applied to the applicant’s right to freedom of expression were consistent with the legitimate aims contained in Article 10 § 2 of the Convention. Accordingly, there had been no violation of Article 18.
62. For its part, the Court does not see any reason for departing from the opinion of the Commission. It considers, therefore, that there has been no violation of Article 18 of the Convention.
63. The applicant sought just satisfaction under Article 41 of the Convention, which 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.”
64. The applicant did not seek reparation for pecuniary damage but claimed FRF 30,000 in respect of non-pecuniary damage. She alleged that she had to leave her country for Germany on account of the criminal proceedings against her, and was forced to live there as a refugee.
65. The Government did not comment on the applicant’s claim.
66. The Court considers that the applicant must have suffered a certain amount of distress, having regard to the circumstances of her prosecution, trial and conviction. Deciding on an equitable basis, it awards her the sum of FRF 30,000 which she claimed.
67. The applicant also claimed the sum of FRF 20,000 for her costs and expenses, comprising of FRF 5,000 for translations, postage fees and stationery, and FRF 15,000 for her lawyer’s fees. She did not supply any particulars in support of her claims.
68. The Government expressed no opinion on the claim.
69. In view of the lack of substantiation of the claim, offset by the fact that the applicant clearly incurred some expenses, the Court considers it reasonable to award the applicant FRF 10,000 by way of reimbursement of her costs and expenses.
70. According to the information available to the Court, the statutory rate of interest applicable in France at the date of adoption of the present judgment is 2.74 % per annum.
VIOLATED_ARTICLES: 10
6
VIOLATED_PARAGRAPHS: 6-1
NON_VIOLATED_ARTICLES: 18