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Archive for the ‘Strasbourg Court’ Category

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16.02.2010

Press release issued by the Registrar

Chamber judgment1

Akdas v. Turkey (no 41056/04)

SEIZURE OF THE NOVEL Les ONZE MILLE verges BY Guillaume Apollinaire and conviction of the publisher hindered public access to a work belonging to the european literary heritage

Unanimously:

Violation of Article 10 (freedom of expression)

of the European Convention on Human Rights

Principal facts

The applicant, Mr Rahmi Akdaş, was born in 1958 and lives in Bandırma. He is a publisher and in 1999 published the Turkish translation of the erotic novel Les onze mille verges by the French writer Guillaume Apollinaire (“The Eleven Thousand Rods” – On Bir Bin Kırbaç in Turkish), which contains graphic descriptions of scenes of sexual intercourse, with various practices such as sadomasochism or vampirism.

Mr Akdaş was convicted under the Criminal Code for publishing obscene or immoral material liable to arouse and exploit sexual desire among the population. The applicant argued that the book was a work of fiction, using literary techniques such as exaggeration or metaphor, and that the postface to the edition in question was written by specialists in literary analysis. He added that the book did not contain any violent overtones and that the humorous and exaggerated nature of the text was more likely to extinguish sexual desire.

The seizure and destruction of all copies of the book was ordered and the applicant was given a “heavy” fine – a fine that may be converted into days of imprisonment – of 684,000,000 Turkish liras (equivalent to approximately 1,100 euros). In a final judgment of 11 March 2004 the Court of Cassation quashed the part of the judgment concerning the order to destroy copies of the book, in view of a 2003 legislative amendment. It upheld the remainder of the judgment.

Mr Akdaş paid the fine in full in November 2004.

Complaints, procedure and composition of the Court

Relying on Article 10, the applicant complained about his conviction as publisher of the novel Les onze mille verges by Guillaume Apollinaire and about the seizure of the book.

The application was lodged with the European Court of Human Rights on 2 September 2004.

Judgment was given by a Chamber of seven judges, composed as follows:

Françoise Tulkens (Belgium), President,
Ireneu Cabral Barreto (Portugal),
Vladimiro Zagrebelsky (Italy),
Danutė Jočienė (Lithuania),
Dragoljub Popović (Serbia),
András Sajó (Hungary),
Işıl Karakaş (Turkey), Judges,

and also Françoise Elens-Passos, Deputy Section Registrar.

Decision of the Court

It was not disputed that there had been an interference, that the interference had been prescribed by law and that it had pursued a legitimate aim, namely the protection of morals. The Court further reiterated that those who promoted artistic works also had “duties and responsibilities”, the scope of which depended on the situation and the means used.

The requirements of morals varied from time to time and from place to place, even within the same State. The national authorities were therefore in a better position than the international judge to give an opinion on the exact content of those requirements, as well as on the “necessity” of a “restriction” intended to satisfy them.

Nevertheless, the Court had regard in the present case to the fact that more then a century had elapsed since the book had first been published in France (in 1907), to its publication in various languages in a large number of countries and to the recognition it had gained through publication in the prestigious “La Pléiade” series. Acknowledgment of the cultural, historical and religious particularities of the Council of Europe’s member States could not go so far as to prevent public access in a particular language, in this instance Turkish, to a work belonging to the European literary heritage.

Accordingly, the application of the legislation in force at the time of the events had not been intended to satisfy a pressing social need. In addition, the heavy fine imposed and the seizure of copies of the book had not been proportionate to the legitimate aim pursued and had thus not been necessary in a democratic society, within the meaning of Article 10. There had therefore been a violation of that provision.

The Court considered that it was not necessary to examine the applicant’s other complaints.

Since the applicant did not submit a claim for just satisfaction within the time allowed, there was no need to make any award on that account.

***

The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website (http://www.echr.coe.int).

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

1 Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.

Report of the OSCE Representative on Freedom of the Media on Turkey and Internet Censorship (PDF file)

Prepared by Dr. Yaman Akdeniz, Associate Professor, Human Rights Law Research Center, Faculty of Law, Istanbul Bilgi University.

Executive Summary

The following survey was commissioned by the office of the OSCE Representative on Freedom of the Media. It analyzes Law No. 5651, widely known as the Internet Law of Turkey which has served since 2007 as the basis of a mass blocking of websites in Turkey. The report offers recommendations on how to bring the law in line with international standards protecting freedom of expression. The aim of the survey is to provide a useful tool to the Turkish authorities in their current efforts to reform the much-debated legislation.

The Turkish government enacted Law No. 5651, entitled Regulation of Publications on the Internet and Suppression of Crimes Committed by means of Such Publication, in May 2007. The enactment of this law followed concerns about defamatory videos available on YouTube involving the founder of the Turkish Republic Mustafa Kemal Atatürk, combined with increasing concerns for the availability of child pornographic, and obscene content on the Internet, and websites which provide information about suicide, or about illegal substances deemed harmful or inappropriate for children.

Since then, up until December 2009, access to approximately 3700 websites have been blocked under Law No. 5651. This includes access to a considerable number of foreign websites- including prominent sites such as YouTube, Geocities, DailyMotion, and Google- that have been blocked in Turkey under the provisions of this law, by court orders and administrative blocking orders issued by the Telecommunications Communication Presidency (TIB). Similarly, websites in Turkish, or addressing Turkey related issues have been subjected to blocking orders since Law No. 5651 came into force. This is particularly prevalent in news sites dealing with south-eastern Turkey, such as Özgür Gündem, Keditör, and Günlük Gazetesi. However, Gabile.com and Hadigayri.com, which combine to form the largest online gay community in Turkey with approximately 225,000 users, were also blocked. Furthermore, access to popular web 2.0 based services such as Myspace.com, Last.fm, and Justin.tv have been blocked on the basis of intellectual property infringement.

This study therefore provides a review of the implementation and application of Law No. 5651, and includes an analysis of the current legal provisions under Law No. 5651, an analysis of the Law’s application by the courts and by TIB, an assessment of related Internet website blocking statistics, the identification of the legal and procedural defects of Law No. 5651, and an assessment with regards to Article 10 of the European Convention on Human Rights.

The detailed study shows that the impact of the current Turkish regime and related procedural and substantive legal deficiencies are widespread, affecting not only the freedom to speak and receive information, but also the right to receive a fair trial, so far as blocked websites are concerned.
The study further shows that lack of judicial and administrative transparency, with regard to blocking orders issued by the courts and TIB, continue to be a major problem. Furthermore, the fact that TIB has not published the blocking statistics since May 2009 is a step backwards.

As this study outlines, at least 197 court ordered blocking decisions were issued outside the scope of Article 8 of Law No. 5651. As of December 2009, the extent of this breach and blocking remains unknown, as TIB did not publish the blocking decisions beginning in May 2009.

The study argues that there could be a breach of Article 10 of ECHR if blocking measures or filtering tools are used at state level to silence politically motivated speech on the Internet, or the criteria for blocking or filtering is secret, or the decisions of the administrative bodies are not publicly made available for legal challenge. Based on such concerns, and ongoing censorship of the YouTube website since May 2008, an appeal has been lodged with the European Court of Human Rights by INETD (The Society for Internet Technology). INETD challenged the YouTube blocking order issued by the Ankara 1st Criminal Court of Peace having exhausted all the possible national legal remedies.

As will be argued in this study, blocking orders issued and enforced indefinitely on certain websites could result in “prior restraint”. In this connection, it is argued that prior restraint and bans imposed on the future publication of entire newspapers, or for that matter websites such as YouTube, are incompatible with the European Convention standards.

Based on legal and procedural deficiencies related to Law No. 5651 practice, the study will conclude that the government should urgently bring Law No. 5651 in line with OSCE commitments and other international standards on freedom of expression, independence and pluralism of the media, and the free flow of information. If kept in its present form, the law should be abolished. It will be argued that the government should commission a major public inquiry to develop a new policy which is truly designed to protect children from harmful Internet content while respecting freedom of speech, and the rights of Turkish adults to access and consume any type of legal Internet content.

FT.com / Media – Turkey to face European Court on YouTube ban

By David O’Byrne in Istanbul
Published: November 30 2009 16:57 | Last updated: November 30 2009 16:57

Turkey’s controversial censorship of the internet video sharing site YouTube is to be challenged in the European Court of Human Rights, a Turkish internet users group announced on Monday.

According to Mustafa Akgul, head of Turkey’s Society for Internet Technology, the society has taken the step having exhausted all legal avenues in Turkey to force the lifting of the ban, which was imposed in May 2008.

‘Our first case asking for the ban to be lifted was rejected on the grounds that we should have opened it within one week of the ban being applied, a ruling which was repeated by a higher court,’ said Mr Akgul.

‘Neither court actually listened to our objections to the ban, which are that it infringes freedom of expression and that the process is completely arbitrary,’ he said, adding that most bans have been imposed simply as a result of random complaints to Turkey’s Telecommunications Authority.

Mr Akgul explained the authority then automatically imposes the ban via an extra-judicial process in which no one is invited to submit a defence, and no details are published of the reasoning behind the ban which is indefinite and not subject to appeal.

Mr Akgul said expects the European Court process to take around three years but confirms that the ban inconveniences few internet users in Turkey as most have discovered that all banned sites can easily be accessed by changing their computer’s internet access settings or by using internet proxy sites such as Vtunnel.com.

Those using such ruses apparently include Recip Tayyip Erdogan, Turkey’s Prime Minister, who last year responded to a question from a journalist concerning the ban by pointing out that if he could access the site, so could everyone else in Turkey.

YouTube was first blocked in Turkey in 2007 when a court ordered the telecommunications authority to ban the site for hosting videos insulting the founder of modern Turkey Mustafa Kemal Ataturk, a crime which carries stiff penalties in Turkey.

YouTube’s owners Google responded by agreeing to block access to any videos in breach of Turkish law to anyone accessing them from a Turkish IP address – a move which saw the ban temporarily lifted.

However the ban was re-imposed when Google refused to accede to the courts demands that the videos should be blocked throughout the world in order to ‘protect the sensitivities’ of Turks living in other countries.

As Turkey’s telecommunications authority publishes no details of its rulings no one is sure exactly how many web sites have been banned in Turkey.

But YouTube is far from alone with some estimates of the number of banned sites running into the tens of thousands.

Banned sites include those accused of sharing recorded music, those accused of hosting child pornography, sites hosting blogs accused of containing material which breaches Turkish law and, curiously, the home page of English comedian and folk singer Richard Digance, whose crime may or may not be having penned a poem entitled ‘The Turkey’, lamenting the fate of the Christmas Turkey.

No violation of Article 10 with regards to a cartoon which was published on 13 September, 2001. The European Court of Human Rights held that the publication of a drawing (cartoon) representing the attack on the twin towers of the World Trade Centre, with a caption which parodied the advertising slogan of a famous brand: “We have all dreamt of it… Hamas did it” provoked a certain public reaction, capable of stirring up violence and demonstrating a plausible impact on public order in a politically sensitive region, namely the Basque Country. The drawing was published in the Basque weekly newspaper Ekaitza on 13 September, 2001, two days after the attacks of September 11.

The European Court of Human Rights on 02.10.2008 notified in writing its Chamber judgment in the case of Leroy v. France (application no. 36109/03).

The Court held unanimously that there had been

· no violation of Article 10 (freedom of expression) of the European Convention on Human Rights in respect of the applicant’s conviction for complicity in condoning terrorism;

· a violation of Article 6 § 1 (right to a fair hearing within a reasonable time) of the Convention on account of the failure to communicate to the applicant the reporting judge’s report to the Court of Cassation.

Under Article 41 (just satisfaction), the Court concluded unanimously that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by Mr Leroy and awarded him 1,000 euros (EUR) for costs and expenses. (The judgment is available only in French.)
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