Judgment (Merits and Just Satisfaction) of Court (Grand Chamber), July 08, 1999 (case CASE OF SÜREK v. TURKEY (No. 2))

Judge:N\/A
Defense:TURKEY (No. 2)
Resolution Date:July 08, 1999
Issuing Organization:Court (Grand Chamber)
SUMMARY

Violation of Art. 10 Preliminary objections rejected (non-exhaustion of domestic remedies estoppel) Violation of Art. 6-1 Pecuniary damage - financial award Non-pecuniary damage - financial award Costs and expenses partial award - domestic proceedings Costs and expenses partial award - Convention proceedings

 
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CASE OF SÜREK v. TURKEY (No. 2)

(Application no. 24122/94)

JUDGMENT

STRASBOURG

8 July 1999

This judgment is subject to editorial revision before its reproduction in final form in the official reports of selected judgments and decisions of the Court.

In the case of Sürek v. Turkey (no. 2),

The European Court of Human Rights, sitting, in accordance with Article 27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) as amended by Protocol No. 11[1] to the Convention and the relevant provisions of its Rules of Court2, as a Grand Chamber composed of the following judges:

             Mr              L. Wildhaber, President,              Mrs              E. Palm,              Mr              A. Pastor Ridruejo,              Mr              G. Bonello,              Mr              J. Makarczyk,              Mr              P. Kūris,              Mr              J.-P. Costa,              Mrs              F. Tulkens,              Mrs              V. Strážnická,              Mr              M. Fischbach,              Mr              V. Butkevych,              Mr              J. Casadevall,              Mrs              H.S. Greve,              Mr              A. B. Baka,              Mr              R. Maruste,              Mr              K. Traja,              Mr              F. Gölcüklü, ad hoc judge,

and also of Mr P.J. Mahoney and Mrs M. de Boer Buquicchio, Deputy Registrars,

Having deliberated in private on 4 March and 16 June 1999,

Delivers the following judgment, which was adopted on the last‑mentioned date:

PROCEDURE

  1. The case was referred to the Court, as established under former Article 19 of the Convention[3], by the European Commission of Human Rights (“the Commission”) on 17 March 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no.24122/94) against the Republic of Turkey lodged with the Commission under former Article 25 by a Turkish national, Mr Kamil Tekin Sürek, on 9 March 1994.

    The Commission’s request referred to former Articles 44 and 48 of the Convention and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6 § 1 and 10 of the Convention.

  2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of the former Rules of Court A[1], the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (former Rule 30). Mr R. Bernhardt, President of the Court at the time, subsequently authorised the applicant’s lawyer to use the Turkish language in the written procedure (former Rule 27 § 3). At a later stage, Mr L. Wildhaber, President of the new Court, authorised the applicant’s lawyer to use the Turkish language in the oral proceedings (Rule 36 § 5).

  3. As President of the Chamber which had originally been constituted (former Article 43 of the Convention and former Rule 21) in order to deal in particular with procedural matters that might arise before the entry into force of Protocol No. 11, Mr Bernhardt, acting through the Registrar, consulted the Agent of the Turkish Government (“the Government”), the applicant’s lawyer and the Delegate of the Commission on the organisation of the written procedure. Pursuant to the order made in consequence, the Registrar received the applicant’s and the Government’s memorials on 23 September and 14 October 1998 respectively. On 8 September 1998 the Government filed with the Registry additional information in support of their memorial and on 22 November 1998 the applicant filed further details of his claim for just satisfaction. On 26 February 1999 the Government filed observations on the applicant’s claims for just satisfaction.

  4. After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. On 22 October 1998 Mr Wildhaber had decided that, in the interests of the proper administration of justice, a single Grand Chamber should be constituted to hear the instant case and twelve other cases against Turkey, namely: Karataş v. Turkey (application no. 23168/94); Arslan v. Turkey (no. 23462/94); Polat v. Turkey (no. 23500/94); Ceylan v. Turkey (no. 23556/94); Okçuoğlu v. Turkey (no. 24246/94); Gerger v. Turkey (no. 24919/94); Erdoğdu and İnce v. Turkey (nos. 25067/94 and 25068/94); Başkaya and Okçuoğlu v. Turkey (nos. 23536/94 and 24408/94); Sürek v. Turkey no. 1 (no. 26682/95); Sürek and Özdemir v. Turkey(nos. 23927/94 and 24277/94); Sürek v. Turkey no. 3 (no. 24735/94) and Sürek v. Turkey no. 4 (no. 24762/94).

  5. The Grand Chamber constituted for that purpose included ex officio Mr R. Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), Mr Wildhaber, the President of the Court, Mrs E. Palm Vice-President of the Court, and Mr J.‑P. Costa and Mr M. Fischbach, Vice-Presidents of Sections (Article 27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr A. Pastor Ridruejo, Mr G. Bonello, Mr J. Makarczyk, Mr P. Kūris, Mrs F. Tulkens, Mrs V. Strážnická, Mr V. Butkevych, Mr J. Casadevall, Mrs H.S. Greve, Mr A.B. Baka, Mr R. Maruste, and Mrs S. Botoucharova (Rule 24 § 3 and Rule 100 § 4).

    On 19 November 1998 Mr Wildhaber exempted Mr Türmen from sitting after his withdrawal from the case having regard to the decision of the Grand Chamber in the case of Oğur v. Turkey taken in accordance with Rule 28 § 4. On 16 December 1998 the Government notified the registry that Mr F. Gölcüklü had been appointed ad hoc judge (Rule 29 § 1).

    Subsequently, Mr K. Traja replaced Mrs S. Botoucharova, who was unable to take part in the further consideration of the case (Rule 24 § 5 (b)).

  6. Pursuant to the invitation of the Court (Rule 99), the Commission delegated one of its members, Mr D. Šváby, to take part in the consideration of the case before the Grand Chamber. The Commission subsequently informed the Registry that the Commission would not be represented at the oral hearing. On 16 February 1999 the Delegate filed his written pleadings on the case with the Registry.

  7. In accordance with the President’s decision, a hearing took place in public in the Human Rights Building, Strasbourg, on 3 March 1999, the case being heard simultaneously with the case of Sürek and Özdemir v. Turkey. The Court had held a preparatory meeting beforehand.

    There appeared before the Court:

    (a)              for the GovernmentMr              D. Tezcan,              Agent,Mrs              D. Akcay,              co-Agent,Mr              B. Çalışkan,Miss              G. Akyüz,Miss              A. Günyaktı,Mr              F. Polat,Miss              A. Emüler,Mrs              I. Batmaz Keremoğlu,Mr              B. Yıldız,Mr              Y. Özbek,              Advisers;

    (b)              for the applicantMr              H. Kaplan, Istanbul Bar,               Advocate.

    The Court heard addresses by Mr Tezcan and Mr Kaplan.

    AS TO THE FACTS

    I.              the CIRCUMSTANCES OF THE CASE

    A.              The applicant

  8. The applicant is a Turkish citizen who was born in 1957 and lives in Istanbul.

  9. At the material time, the applicant was the major shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish limited liability company which owns a weekly review entitled Haberde Yorumda Gerçek (“The Truth of News and Comments”), published in Istanbul.

    B.              The impugned news report

  10. The issue dated 26 April 1992 contained a news report providing information given at a press conference by a delegation - which included two former Turkish parliamentarians Leyla Zana and Orhan Doğan, Lord Avebury and a member of the Anglican Church - on its visit to Şırnak village, in the wake of tensions in the area.

    The news report included an article reporting the Governor of Şırnak as having told the delegation that the Şırnak Chief of Police had given an order to open fire on the people.

    It further rendered a dialogue between Leyla Zana, Orhan Doğan and İsmet Yediyıldız, a Gendarme Commander.

    The relevant part of the report read:

                

                 “Gendarmerie Regiment Commander İsmet Yediyıldız:

                 ‘Your blood would not quench my thirst…’

                 While the British delegation and Diyarbakır MP Leyla Zana, Şırnak MP Orhan Doğan and Bismil District Governor Mehmet Kurdoğlu managed to persuade the people of Tepe village, which was blockaded by the security forces, after talking to them for a while and telling them that permission had been obtained for them to get the bodies of their dead, an interesting conversation took place between Diyarbakır Security Director Ramazan Er and Gendarmerie Regiment Commander İsmet Yediyıldız.

                 The conversation between the MPs Leyla Zana and Orhan Doğan on the one hand and Colonel İsmet Yediyıldız on the other hand was recounted by Leyla Zana as follows:

                 Colonel Yediyıldız: What business do you have here? There had been nobody here until you arrived. You have come and stirred things up again.

                 Leyla Zana: No, Sir. The situation had been extremely tense before we arrived. We have come with the District Governor and are trying to calm down the tension here. Here is the District Governor.

                 Colonel Yediyıldız: No, that’s not true. We saw when we were flying by helicopter that there was nobody here before. People gathered when you arrived.

                 Orhan Doğan: No, you can ask the District Governor if you like. (Meanwhile, District Governor Mehmet Kurdoğlu was also being told off.)

                 Colonel Yediyıldız: Do you know who these dead people are

                 Orhan Doğan...

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