Salihoğlu v. Turkey (1606/03)
| Date | 20081021 |
|---|---|
| Article | 6(1), 10 |
| Decision | violation |
Violation of Article 10
Violation of Article 6 § 1 (fairness)
Salihoğlu v. Turkey (no. 1606/03)
The applicant, Sevim Salihoğlu, is a Turkish national who was born in 1960 and lives in Muş (Turkey).
At the relevant time Ms Salihoğlu was president of the Muş Human Rights Association. During a search of the association’s premises a copy of the weekly newspaper Yedinci Gündem and a copy of its supplement were seized. The applicant was prosecuted for possession of publications banned by court orders; the relevant decisions were two seizure orders made by the Istanbul National Security Court on 16 and 29 September 2001, after publication of the material concerned. In April 2002 she was ordered to pay a fine, based on Article 526 of the former Criminal Code, which punished failure to comply with an order issued by a competent authority.
Relying on Article 10 (freedom of expression), the applicant complained that her conviction had infringed her right to the freedom to receive information and ideas. She also complained, under Article 6 (right to a fair trial), that the proceedings against her had not been fair. Lastly, she relied on Article 7 (no penalty without law).
The Court noted that the court orders pursuant to which the publications had been prohibited had not been issued in proceedings against the applicant and that there was absolutely no proof that she had ever been aware of them. Failure to comply with a court order could not be punishable if it had not been brought to the defendant’s attention. The applicant could not have foreseen with a reasonable degree of certainty that possession of the offending publications might leave her liable to criminal penalties under Article 526 of the former Criminal Code. Consequently, the requirement of foreseeability had not been met and the interference had not been prescribed by law, contrary to Article 10. The Court further held that it was not necessary to examine separately the complaint under Article 7.
Lastly, the Court observed that it had repeatedly found that an applicant who had not had a hearing before the national courts had not had a fair trial. It accordingly held that there had been a violation of Article 6 § 1. It awarded Mrs Salihoğlu EUR 1,000 for non-pecuniary damage. (The judgment is available only in French.)