ECHR Article 10-1
Freedom of expression
Freedom to impart information
Lack of procedural safeguards when issuing injunction against national newspaper: violation
Facts – The applicants were respectively the owner, publisher, editor-in-chief and chief editorial writer of a daily Turkish newspaper Cumhuriyet. In April 2007, in the run-up to the presidential elections, the newspaper published a political advertisement that reproduced a quote from a 1995 British newspaper article in which one of the candidates in the 2007 elections, Mr Abdullah Gul, was alleged to have said: ‘It is the end of the Republic of Turkey – we definitely want to change the secular system’. Mr Gul subsequently brought defamation proceedings against the applicants. In May 2007 a domestic court issued an injunction restraining re-publication of the quote published in Cumhuriyet and of any news related to the pending defamation proceedings. Mr Gul was elected President and, in view of his new status, decided not to pursue the matter. In March 2008 the case was dismissed and the interim injunction lifted.
Law – Article 10: The very general and unqualified terms of the ban set out in the injunction rendered its scope unclear and potentially extremely wide. In particular, the lack of clarity as to what material could and could not be published under the interim measure could be interpreted as forbidding coverage of any political statement made by Mr Gul relating to the subject of secularism in Turkey. In the Court’s view, the injunction was therefore vulnerable to abuse and could have had a chilling effect not only on the Cumhuriyet newspaper, but also on the Turkish media as a whole in the period concerned. The injunction had remained in force for over ten months, including during two stages of the Presidential elections, as a consequence of the lack of a time-limit and the absence of any periodic review as to its continuing necessity or of a prompt determination of the merits of the case. The length and breadth of the injunction therefore had the effect of preventing the newspaper from contributing to the public debate surrounding the elections and the candidature of Mr Gul at a critical time in Turkish political history. The unexplained delays in the procedure and the failure to limit the impugned measure to a reasonable period had thus rendered the restriction on the applicants’ freedom of expression unduly onerous. The domestic court had not provided any reasoning for its decisions to grant the injunction and to refuse the ensuing request for it to be lifted. This lack of reasoning not only deprived the applicants of an important procedural safeguard, but also prevented the Court from examining whether the domestic court had duly balanced the parties’ interests by taking into account specific issues inherent to the facts of the case. In addition, since the applicants had been unable to contest the interim injunction until over a month after it was first granted, they had been placed at a substantial disadvantage vis-a-vis their opponent, especially considering the perishable nature of news and the specific political environment in which the impugned measure had been applied.
In the light of these procedural deficiencies, and bearing in mind the severity of the punishment failure to comply with the interim measure would have entailed, the injunction had not constituted a justified or a proportionate interference with the applicants’ right to freedom of expression.
Conclusion: violation (unanimously)
Article 41: EUR 2,500 to each of the applicants in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
Updated: 26 November 2021; Ref: scu.518824