PERIHAN AND MEZOPOTAMYA BASIN YAYIN A.S. v. TURKEY - 21377/03 - Chamber Judgment [2014] ECHR 67 (21 January 2014)

In the case of Perihan and Mezopotamya Basın Yayın A.Ş. v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Guido Raimondi, President,
          Işıl Karakaş,
          Peer Lorenzen,
          Dragoljub Popović,
          András Sajó,
          Paulo Pinto de Albuquerque,
          Helen Keller, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 17 December 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 21377/03) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Zübeyir Perihan and by a Turkish company, Mezopotamya Basın Yayın A. Ş. (hereinafter referred to as “Mesopotamia Publishing”) on 23 May 2003. The applicants were represented by Mr M. İriz, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

2. On 23 November 2006 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

3. The first applicant was born in 1966 and lives in Istanbul. The second applicant is a joint-stock company incorporated in Turkey in 1991 and dissolved in 2001 (see below). The first applicant was appointed as Director General of Mesopotamia Publishing on 24 December 2001.

A. Background to the case

As regards the Şanlıurfa branch office

4. On 26 October 1997 Mesopotamia Publishing inaugurated a branch office in Şanlıurfa. On the same day, police officers from the Şanlıurfa Security Directorate conducted a search of that office, confiscating certain newspapers, magazines, books, cassettes and documents, which were allegedly illegal.

5. On 27 October 1997 the Deputy Governor of Şanlıurfa requested the Ministry of Industry and Trade to institute proceedings against Mesopotamia Publishing with a view to its dissolution.

6. On 30 October 1997 the public prosecutor instituted proceedings against Mr Murat Gökdağ, the manager of the Şanlıurfa branch office, and Ms Nuray Şen, the then Director General of Mesopotamia Publishing. They were accused of storing banned books at the branch office.

7. On 6 June 2000 the Şanlıurfa Magistrate’s Court held that the criminal proceedings should be discontinued since the prosecution was time-barred under Article 102 of the Criminal Code.

As regards the Diyarbakır Branch Office

8. On 13, 14, 20, 25, 27 and 28 December 1997, the Diyarbakır office of Mesopotamia Publishing was searched by police officers. Various books and publications, including a calendar published by Mesopotamia Publishing, were confiscated.

9. On 14 January 1997 the Diyarbakır office was closed on the order of the Diyarbakır Governor.

10. On 10 February 1998 the Diyarbakır Governor requested the Ministry of Industry and Trade to institute proceedings against Mesopotamia Publishing with a view to its dissolution under the relevant provisions of the Commercial Code.

11. On an unspecified date criminal proceedings were instituted in the Istanbul State Security Court against members of Mesopotamia Publishing’s board of directors for publishing a calendar which was allegedly used to disseminate propaganda in favour of the illegal Kurdistan Workers’ Party (“the PKK”).

12. On 17 September 1999 the Istanbul State Security Court suspended the proceedings, pursuant to Law No. 4454 on the suspension of pending cases and penalties in media-related offences.

As regards the Izmir branch office

13. On 26 December 1997 the Izmir office of Mesopotamia Publishing was searched by police officers. Certain publications, which were allegedly illegal, and a satellite decoder were seized.

14. On 30 December 1997 the Izmir Governor asked the Ministry of Industry and Trade to institute dissolution proceedings against Mesopotamia Publishing, alleging that the company had been disseminating propaganda in favour of the PKK.

15. On an unspecified date, criminal proceedings were instituted in the Izmir Magistrate’s Court against Ms Hatice Çoban, the manager of the Izmir branch.

16. On 14 May 1998 the court acquitted Ms Çoban of the charges against her.

B. Dissolution proceedings against the applicant company

17. Following complaints lodged by the Şanlıurfa Governor and the Diyarbakır Governor respectively, on 24 February 1998 the Ministry of Industry and Trade (“the plaintiff”) instituted proceedings against Mesopotamia Publishing in the Istanbul Beyoğlu Commercial Court, with a view to its dissolution on account of its activities against public order. On 27 February 1998 the Istanbul Beyoğlu Commercial Court registered the case against Mesopotamia Publishing. It decided, inter alia, to notify the parties of the date of the hearing fixed for 3 April 1998, in accordance with Articles 509 and 510 of the Code of Civil Procedure, which provided a warning that if one of the parties failed to appear before it or to submit observations, the court would not be precluded from determining the merits of the case. It further decided to notify Mesopotamia Publishing of the plaintiff’s written submissions and evidence.

18. On 12 March 1998 the above documents were served on Mesopotamia Publishing, as recorded in the Trade Commercial Registry. They were picked up by a certain Mr M.B., who signed the notification record as an authorised representative (şirket yetkilisi).

19. In the meantime, the plaintiff submitted a number of pieces of evidence to the case file in support of its claim, including official documents, such as incident and seizure reports relating to the above-mentioned searches. They were admitted to the case file on 17 March 1998.

20. At a hearing on 3 April 1998 the court noted the absence of Mesopotamia Publishing, but observed that the notification had been duly served. The evidence provided by the plaintiff was read out. The court decided to compile further information and documents regarding the accusations against Mesopotamia Publishing from the Şanlıurfa, Izmir and Diyarbakır public prosecutors’ offices.

21. The court held regular hearings. At the hearing held on 28 July 1999 the court decided to stay the proceedings pending the outcome of the cases before the criminal courts.

22. On 19 October 2001 the court decided to dissolve Mesopotamia Publishing, pursuant to Article 274 § 2 of the Commercial Code. In its decision, it noted that, despite due notification, the company had failed to attend the hearings and had not submitted any observations. It took into account the incidents which had taken place at the Şanlıurfa and Diyarbakır branch offices, and held that the company was responsible for them. It considered that the activities of those branches had breached public order and that therefore the company had to be dissolved. A liquidator was assigned. The decision of the court was served on Mesopotamia Publishing, as recorded in the Trade Commercial Registry.

23. On 28 March 2002 Mesopotamia Publishing appealed against the decision of the first-instance court. In its procedural grounds of appeal, it contended, inter alia, that the court had failed to duly notify it of the case because the notification had been served on a certain Mr M.B., who was not a member of the board of directors at that time. In addition, Mesopotamia Publishing argued that it had not been notified of the evidence admitted in the course of the proceedings. In its substantive grounds of appeal, it claimed that the court had decided on the basis of two incidents in connection with which the company had not been convicted.

24. At a hearing on 15 October 2002 the Court of Cassation, having heard the parties, decided to adjourn the deliberations.

25. On 17 October 2002 the Court of Cassation, having examined the case file, the parties’ submissions to it and the documents contained therein, dismissed Mesopotamia Publishing’s objections.

26. On 10 December 2002 Mesopotamia Publishing requested the Court of Cassation to rectify its judgment. It repeated its earlier submissions regarding what it described as “substantial grounds for appeal”.

27. On 24 January 2003 the Court of Cassation dismissed the above-mentioned rectification request.

II. RELEVANT DOMESTIC LAW

28. Under sections 12 and 13 of the Notification Act (Law no. 7201), in force at the material time, notification must be made to the authorised representatives of legal entities. If there is more than one authorised representative, only one of them need be notified. If persons who are authorised to receive the notification are not present at the office of the legal entity for any reason or are not available to receive the notice at that time, the notification must be served on the officer or employee who is present at the office of the legal entity.

29. Under Article 274 § 2 of the Commercial Code, in force at the material time, the Ministry of Industry and Trade could bring an action for the dissolution of any company proven to be responsible for acts and operations that were against law, public order and its articles of association, without prejudice to the provisions of private laws.

THE LAW

I. VICTIM STATUS OF THE FIRST APPLICANT

30. At the outset the Court notes that, in the instant case, the parties to the domestic proceedings were Mesopotamia Publishing and the Ministry of Industry and Trade. The first applicant, even though he became director general of the company on 24 December 2001, was not a party to those proceedings, and the contested decision concerned the applicant company rather than the first applicant as a private individual. In this connection, the Court further observes that, since both in the application form and the subsequent observations submitted to the Court the applicants’ complaints centred essentially on the dissolution of the company, the first applicant has not been shown to have been subjected to any separate or further interference with his rights (see, Kaya and Diri v. Turkey (dec.), no. 60813/00 and 61317/00, 11 December 2007).

31. In these circumstances, the Court considers that the first applicant cannot claim to be a victim of a violation of his rights under Article 34 of the Convention. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

32. The second applicant argued that it had been denied a fair hearing on account of the failure of the domestic courts to respect its rights of defence. In this connection, it maintained that it had not been duly informed about the case which had been brought against it, or about the evidence compiled in the case file. Thus it had been deprived of its right to submit evidence in its defence. The relevant part of Article 6 of the Convention reads as follows:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

33. The Government asked the Court to dismiss the above complaint as inadmissible for failure to comply with the requirement of exhaustion of domestic remedies, on the ground that no action for compensation had been brought against Mr M.B. for the damage he had allegedly caused to the company.

34. The Government maintained that the authorities had duly notified the second applicant of the case brought against it by serving notification on it, and that a person named Mr M.B., who was present and acting as a member of staff of the company, had picked it up. In this connection, they emphasised that it was the responsibility of the applicant company to keep control of who came to the office and received documents on its behalf. Moreover, they noted that, according to information on the internet, Mr M.B. had worked at the Mesopotamia Culture Centre, which was connected with the applicant company. The Government further considered that the applicant company could have been aware of the proceedings against it by examining the case files of the criminal proceedings, since there had been a considerable amount of correspondence between the courts during the collection of evidence. Lastly, they noted that the applicant company had had the right to submit evidence in its defence during the appeal procedure.

35. The second applicant maintained that, since it had not been notified of the case, all the procedures and hearings had been held in its absence. As a result, it claimed that it had been deprived of its right to defend itself by putting forward evidence and counter-arguments. In this connection, the applicants emphasised that Mr M.B. was neither the legal representative of the company nor a staff member.

36. The Court reiterates that applicants are not obliged to make use of remedies which do not provide redress for their complaints (see İhsan and Satun Önel v. Turkey, no. 9292/02, § 12, 21 September 2006). In the instant case it does not consider that an action for compensation would have remedied the second applicant’s complaints under Article 6 of the Convention. In view of the above, the Court rejects the Government’s objection.

37. However, the Court considers that the second applicant’s complaint under this head is inadmissible for the following reasons. As established in the Court’s case-law, Article 6 guarantees the right to adversarial proceedings. That right means in principle that the parties to a criminal or civil trial should have the opportunity to have knowledge of and comment on all evidence adduced or observations submitted (see Lobo Machado v. Portugal, judgment of 20 February 1996, Reports of Judgments and Decisions 1996-I, § 31). It includes the right not only to be present, but also to hear and follow the proceedings (see, inter alia, Ziliberberg v. Moldova, no. 61821/00, § 40, 1 February 2005). In this connection, the Court considers that the right to a public hearing would be devoid of substance if a party to the case were not apprised of the hearing in such a way as to have an opportunity to attend it, should he or she decide to exercise the right to appear established in the domestic law (see Yakovlev v. Russia, no. 72701/01, § 22, 15 March 2005).

38. In the instant case, the Court observes that the documents regarding the plaintiff’s request, the evidence submitted by it and the date of the hearing were served on the second applicant at its address, as recorded in the Trade Commercial Registry. This matter is not in dispute. However, the applicants claimed that the person on whom the documents had been served, namely Mr M.B., was neither a member of the board of directors nor an employee of the applicant company. In the absence of any relevant documents, the Court cannot speculate as to whether such a person had ever worked for the company. Even assuming that such a person did not work for the company, the Court finds that, in the circumstances of the present case, the authorities cannot be held solely responsible, since there was obviously a failure on the part of the applicant company to take appropriate measures to ensure effective receipt of any correspondence sent to it by the domestic courts at the address indicated by it.

39. Moreover, the Court takes into account that Article 6 does not provide for specific forms of service of documents (see, for example, Weber v. Germany (dec.), no. 30203/03, 2 October 2007). Although it would have been another opportunity to inform the second applicant of the proceedings against it, the Court does not find any arbitrariness in the non-communication of the documents submitted to the case file by the plaintiff on 17 March 1998, since no such obligation is prescribed by the Civil Procedure Code, as applied to cases examined under the simple procedure followed in the present case.

40. Lastly, the Court reiterates that when determining whether Article 6 of the Convention has been complied with, it must take account of the proceedings as a whole, including the appeal procedures. In this connection, the Court observes that the second applicant was able to appeal against the first-instance court judgment and was able to put forward its arguments at a hearing before the Court of Cassation, which had the competence to review the case, particularly from a procedural point of view. In view of the above considerations, the Court considers that the second applicant had an adequate opportunity to advance its defence before the Court of Cassation. Moreover, the Court cannot ignore the fact that the second applicant merely argued before the Court of Cassation that Mr M.B. was not a member of the board of directors, in support of its claim that it had not been duly notified of the case before the first-instance court. There is no requirement under domestic law for notification to be served solely on members of the board of directors. The second applicant submitted no other arguments or documents to demonstrate that its complaint under this head was not manifestly devoid of merit. Nor did it pursue its complaint when it requested the Court of Cassation to rectify its previous judgment.

41. In these circumstances the Court cannot find that the second applicant was denied a fair hearing. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE CONVENTION

42. The second applicant submitted that its dissolution by a court decision had infringed its right to freedom of expression and of association, in breach of Articles 10 and 11 of the Convention.

43. The Court considers that these complaints should be examined from the standpoint of Article 10 alone, 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...

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 ...territorial integrity or public safety, for the prevention of disorder or crime...”

A. Admissibility

44. The Government asked the Court to dismiss this part of the application as inadmissible for failure to comply with the requirement of exhaustion of domestic remedies, on the ground that the second applicant had failed to raise, even in substance, its right under Article 10 of the Convention before the domestic courts.

45. The second applicant submitted that since it had not been duly informed of the hearings before the Istanbul Beyoğlu Commercial Court, it had not had the opportunity to invoke its rights under Article 10.

46. The Court reiterates that, while in the context of machinery for the protection of human rights, the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally requires also that the complaints intended to be made subsequently at the international level should have been aired before those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999-I).

47. The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address an allegation of violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI). Insofar as there exists at national level a remedy enabling the national courts to address, at least in substance, the argument that a Convention right has been violated, it is that remedy which should be used. If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it. It is not sufficient that the applicant may have, unsuccessfully, exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of violation of the Convention right. It is the Convention complaint which must have been aired at national level for there to have been exhaustion of “effective remedies”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument (see Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III).

48. In the present case, the Court notes that the second applicant is a publishing company and the domestic courts ordered its dissolution based on the alleged illegal activities of two of its branch offices. The Court observes from the case file that during the searches, conducted in the Diyarbakır and Şanlıurfa offices, certain newspapers, books, magazines, cassettes, documents and a calendar published by Mesopotamia Publishing had been confiscated. It further notes that in its pleading before the Court of Cassation, the second applicant stated that none of the investigations had resulted in criminal convictions.

49. In these circumstances, the Court holds that freedom of expression was in issue, if only implicitly, before the Court of Cassation and the second applicant’s complaint raised under Article 10 was thus at least in substance raised before the appeal court. The Court refers to paragraph 23 above, and recalls once again that in its appeal petition, the second applicant claimed that the first instance court’s decision had been delivered on the basis of two incidents as a result of which the company had not been convicted. In the Court’s view, the Government’s objection of failure to exhaust domestic remedies must therefore be dismissed (see Fressoz and Roire, cited above, §§ 37-39).

50. The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

51. The Court observes in the first place that the second applicant was a publishing company. Consequently, its dissolution by a court order, based on the alleged illegal activities of its two branch offices, undeniably constituted an interference with its rights under Article 10 of the Convention. Such interference will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. The Court must therefore determine whether the interference was “prescribed by law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve those aims.

1. Whether it was prescribed by law and pursued a legitimate aim

52. The Court notes that the impugned measure was based on Article 247 § 2 of the Commercial Code and pursued the legitimate aim of protecting national security and preventing disorder and crime. It therefore remains to be determined whether the interference complained of was “necessary in a democratic society”.

2. Whether it was necessary in a democratic society

53. The Court has frequently held that “necessary” implies the existence of a “pressing social need” and that the Contracting States have a margin of appreciation in assessing whether such a need exists, but that this goes hand in hand with European supervision (see Zana v. Turkey, 25 November 1997, § 51, Reports 1997-VII). In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole. In particular, it must determine whether the interference in question was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Fressoz and Roire, cited above, § 45).

54. In the instant case, in its very brief decision, the Istanbul Beyoğlu Commercial Court held that Mesopotamia Publishing was responsible for the allegedly illegal activities of its two branch offices, namely the Şanlıurfa and Diyarbakır branches, and ordered its dissolution for breaching public order. Nevertheless, in the present case, the Court is unable to glean from the decision of the Commercial Court how and why the applicant company had breached public order. It notes in this connection that criminal proceedings had been initiated against these two branch offices. It further observes that during a search conducted in the Şanlıurfa branch office, the police had confiscated certain newspapers, books, cassettes and documents which were allegedly illegal. However, the subsequent criminal proceedings, which had been initiated for storing banned books, had been discontinued since the prosecution had become time-barred pursuant to Article 102 of the Criminal Code. Furthermore, various books and publications, including a calendar prepared by Mesopotamia Publishing, had been confiscated from the Diyarbakır branch office; nevertheless, similarly, the ensuing criminal proceedings, which had been instituted against the Diyarbakır branch office, for disseminating propaganda of an illegal organisation, had been suspended pursuant to Law no. 4454. As a result, no criminal convictions had been delivered in respect of Mesopotamia Publishing. At this point the Court recalls that under Turkish law, civil courts are not bound by the conclusions of criminal courts. However, as stated above, the brief reasoning of the Commercial Court cannot be regarded as sufficient and relevant justification for the interference with Mesopotamia Publishing’s right to freedom of expression.

55. Having regard to the fact that the second applicant has not been shown to have been engaged in activities breaching public order, and taking into account particularly the severe consequences of the dissolution order for a publishing company, the Court concludes that the interference in question was not proportionate to the legitimate aim pursued and could not be regarded as necessary in a democratic society.

56. There has therefore been a violation of Article 10 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

57. The second applicant further claimed under Articles 6, 14 and 18 of the Convention that the proceedings conducted by the Istanbul Beyoğlu Commercial Court had not been independent and impartial, and that the national courts’ decisions had not been reasoned and that they had taken into account prosecutions which had not resulted in criminal convictions. Thus the dissolution of Mesopotamia Publishing had not been justified. The dissolution decision had been made because the company had supported Kurdish rights, and the restrictions on its rights and freedoms had been applied for purposes which were not permitted under the Convention.

58. However, in the light of all the material in its possession, the Court finds that the second applicant’s submissions do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

59. The second applicant requested to be awarded non-pecuniary damage and legal fees but left the amounts to the discretion of the Court.

60. As regards non-pecuniary damage, the Court considers that the applicant company must have sustained some non-pecuniary damage. Accordingly, ruling on an equitable basis, it awards the second applicant 5,000 euros (EUR) in respect of non-pecuniary damage.

61. As regards the costs and expenses, according to the Court’s case-law an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that the applicant failed to submit any supporting documents. The Court therefore does not award any sum under this head.

62. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Declares, by a majority, the complaint concerning Article 10 admissible in respect of the second applicant;

2. Declares, unanimously, the remainder of the application inadmissible;

3. Holds, by four votes to three, that there has been a violation of Article 10 of the Convention in respect of the second applicant;

4. Holds, by four votes to three,

(a) that the respondent State is to pay the second applicant, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses, unanimously, the remainder of the second applicant’s claim for just satisfaction.

Done in English, and notified in writing on 21 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Guido Raimondi
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Raimondi, Karakaş and Lorenzen is annexed to this judgment.

G.R.A.
S.H.N.

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