Istanbul publisher wins case against Turkey for the fifth time

By Emil Weber

Istanbul based publisher Fatih Taş has won a fifth freedom of expression case against Turkey at the European Court of Human Rights (ECtHR).

Disappeared journalist Nazım Babaoğlu and the book cover (photo: http://platform24.org)

Back in 2004, Taş’s company Aram Publishing House was publishing a book with the title “Kayıpsın diyorlar” (They say you disappeared) about the presumed death of journalist Nazım Babaoğlu in 1994 who was at that time working for the pro-Kurdish daily “Ozgur Gundem”.

The book claims that Babaoğlu was abducted by town guards and anti-guerrilla forces while working on an investigative report in Siverek, a small town near Urfa. It also criticised Turkey for, amongst other things, a “state-mafia-criminal gang relationship”, supposedly implying the state was cooperating with members of the organised crime and gangs against the Kurdish guerrilla.

ARTICLE 46: binding force and execution of judgments

1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

3. If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two-thirds of the representatives entitled to sit on the committee.

4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two-thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph1.

5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case.

Nearly two months after the publication, a public prosecutor, authorised by the Ministry of Justice, charged the publisher for slander of the Republic of Turkey under Article 159/1 of the Criminal Code. The following year, in October 2005, the Istanbul Criminal Court sentenced the publisher to six months in prison under article 301/1 of the new Criminal Code, which entered into force in June 2005.

The Court of Cassation, however, quashed the case for not applying more favourable provisions under the old Criminal Code, subsequently the Istanbul Criminal Court ordered Taş to pay a fine based on Article 159/1 of the Criminal Code. When Taş appealed against the court’s decision that the book amounted to slander, the case was taken off the list for being time-barred.

The top European court now said that the domestic conviction amounted to a violation of Article 10 of the European Convention on Freedom of Expression. It ordered Turkey to pay Taş 2,500 euros compensation for non-pecuniary damages.

The court added that the book’s concern about the circumstances of the journalist’s disappearance was “unquestionably a matter of public interest”. It also said that while some of the criticism of the Turkish state in the book was exaggerated, the criticism wasn’t unnecessarily offensive or insulting, and that it didn’t incite violence or hatred.

The ECtHR said further that the lengthy criminal procedure against the publisher could have had a chilling effect on his willingness to express views on matters of public interest.

Also, according to the court, Article 301 of Turkey’s Criminal Code "did not satisfy the requirement of quality of the law" since it contains "unacceptably broad terms" threatening "the exercise of freedom of expression". It expressed a similar view on Article 159 of the old Criminal Code stressing that the requirement of authorisation from the Ministry of Justice “could open the way for arbitrary prosecutions”.

Referring to Article 46 of the European Convention on binding force and execution of judgments, the court said the problem was a consequence of applying the domestic provisions in incompatibility with ECtHR’s case law. It urged Turkey to comply with it saying it would “constitute an appropriate form of execution which would make it possible to put an end to the violations found”.

Media lawyer Ronan Ó Fathaigh, says in a blog published at Strasbourg Observers, that the application of Article 46 of the European Convention in the judgement is notable: "This is the first time the Court has applied Article 46 relating to Article 159/301 [of Turkey’s Criminal Code],” he wrote. “And it is hoped that the Court’s judgment […] will bring about a much-needed reform of Article 301, and indeed will end its ‘continuing threat to the exercise of the right to freedom of expression’”.

Ó Fathaigh added that the court’s ruling was “a great victory for Fatih Taş” since he “had been forced to bring five applications before the European Court, over multiple and lengthy prosecutions targeting (his) publishing house”.

In the most recent of the rulings on publisher Taş, the ECtHR had ruled that he was wrongfully convicted of disseminating propaganda through one editorial in favour of the Kurdistan Workers' Party (PKK) which is considered a terrorist organisation by Turkey and several international organisations.

Case of Fatih Taş v. Turkey, application no. 6810/09. 4 September 2018