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Archive for the ‘ECHR’ Category

English: Minister Yıldırım: YouTube or any Other Ordinary Person… – Bianet

In the context of the access ban for the YouTube website, Transport Minister Yıldırım addressed YouTube officials, ‘You will be treated just the same way as the ordinary people are treated in the Turkish Republic.

Erol ÖNDEROĞLU
hukuk@bianet.org
Ankara – BİA News Center
30 June 2010, Wednesday

Transport Minister Binali Yıldırım joint the discussion on the access ban imposed to the video sharing site YouTube two years ago. ‘Everybody in this country is obliged to abide by the laws. We do not meddle with anybody’s freedom to do internet commerce. Turkey is a state of law. Everybody should be tied to the force of law’, the minister said.

Yıldırım had a message for the people protesting the internet censorship as well, ‘They might be willing representatives and passionate advocators; that is not of our concern’.

Yıldırım reminded the fact that the Turkish government initiated the process to become a member of the European Convention on Cyber Crimes. Member states of the convention correspond with each other whether legal exchange should be carried out regarding any incident, he argued.
YouTube treated like any ordinary person…

During a speech delivered at the award ceremony of the ‘IT 500′ survey carried out by the Interpromedia Research Service, Yıldırım said, ‘YouTube is treated just like any other ordinary person’.

As reported by the news channel CNN Türk, Yıldırm stated that ’shortcuts have already become a tradition’ in Turkey. He continued, ‘This is a global brand, blah blah blah… ‘Sir, how can you stick up to this huge company’. If you believe in universal law and if you respect the sovereignty of the countries, you have to stick to the country’s rules regardless of who you are dealing with. A citizen from the country ‘X’ does not have priority in country ‘Y’. This conception is incompatible with democracy and modernity’.

‘Unfortunately, there are people in our country defending this issue on behalf of modernity. That hurts. Everybody is obliged to abide by the law of this country. Nobody has priority. This can be a willing representative or a passionate advocator, it does not concern us’.

‘We say, ‘go ahead, if you do business in this country, you will be treated before the law just as any other ordinary person in the Turkish Republic. We are not concerned with anybody’s freedom regarding internet commerce. Turkey is a state of law. Everybody should be tied to the force of law’.
‘Informatics does not get on well with the legislation’

Minister Yıldırım indicated that informatics and legislation do not get on well with each other. He argued that informatics is an area that ruins memorization, abolishes conservatism and creates a change of attitude. Legislation on the other hand pursued to keep everything under control, he said.

Assoc. Prof. Dr Mustafa Akgül, president of the Internet Technologies Association İNETD, filed a criminal complaint against restrictions of certain Google services. He also applied to the administrative court in respect to the ‘temporary access ban’ imposed on YouTube on 5 May 2008 which is still in effect today.

The file concerned with the access ban to the YouTube side has also been forwarded to the European Court of Human Rights. (EÖ/VK)

Erotik romanın AİHM zaferi – Avrupa- ntvmsnbc.com:

AİHM Guillaume Apollinaire’in ‘On Bir Bin Kırbaç’ kitabının ‘cinsel arzuları tahrik ve istismar ettiği’ gerekçesiyle Türkiye’de yasaklanmasını gereksiz buldu.

Kayhan KARACA, ntvmsnbc
Güncelleme: 16:09 TSİ 16 Şubat. 2010 Salı

STRASBOURG – Avrupa İnsan Hakları Mahkemesi (AİHM), Fransız yazar ve şair Guillaume Apollinaire’in erotik öğeler içeren ‘On Bir Bin Kırbaç’ adlı romanına Türk mahkemeleri tarafından getirilen yasağı Avrupa İnsan Hakları Sözleşmesi’ne aykırı buldu.

AİHM, Avrupa edebiyat mirasının bir eseri olarak nitelediği romanın toplatılması kararı için ‘demokratik bir toplumda gereksiz bir uygulama’ hükmünde bulundu.

Apollinaire’in romanı 1999 yılında Hades yayınları tarafından basılmış, ancak İstanbul Savcılığı ‘cinsel arzuları tahrik ve istismar ettiği’ gerekçesiyle Türk Ceza Kanunu’nun 426 ve 427′inci maddelerine dayanarak, yayınevi sahibi Rahmi Akdaş hakkında suç duyurusunda bulunmuştu. Akdaş, açılan dava sonunda ağır para cezasına mahkum edilmiş ve kitap da toplatılmıştı.
Haberin devamı ↓reklam

Davacı, Yargıtay’ın da kararı onamasının ardından, ifade özgürlüğü ile adil yargılanma ve mülkiyet haklarının ihlal edildiği gerekçesiyle 2004 yılında AİHM’ye başvurmuştu.

AİHM; ahlaki konularda devletlerin geniş takdir yetkisine sahip olduklarını kabul etse de, bu yetkinin Avrupa edebiyat mirasının parçası olan bir romanın Türk okurlara erişmesini engellemeye kadar gidemeyeceği sonucuna vardı.

Mahkeme, davacı hakkında Türk mahkemeleri tarafından hükmedilen cezanın, sosyal bir ihtiyaçtan kaynaklanmadığı, hedeflenen amaçla orantılı olmadığı ve demokratik bir toplumda gereksiz bir uygulama olduğunu vurgulayarak, Avrupa İnsan Hakları Sözleşmesi’nin ifade özgürlüğüyle ilgili 10′uncu maddesinin ihlal edildiğine hükmetti.

Davacının adil yargılanma ve mülkiyet haklarıyla ilgili taleplerini incelemeyi gereksiz gören AİHM, davacı talep etmediği için herhangi bir tazminata da hükmetmedi.

Apollinaire’in tartışmalı romanı ilk olarak 1907 yılında Fransa’da yayımlanmıştı. Roman, cinsel ilişkiyi sado-mazoşizm, vampirizm ve pedofili uygulamalarıyla abartılı ve metaforik biçimde anlattığı için ilk yayımlandığı tarihlerde ’skandal’ olarak nitelenmişti. Ancak roman, o tarihten bu yana onlarca dile çevrildi ve bugün internette de kolaylıkla bulunabiliyor.

Bianet: Censorship Costs Turkey 43,000 Euro at ECHR – Bianet: “Censorship Costs Turkey 43,000 Euro at ECHR

The European Court of Human Rights sentenced Turkey to a € 36,000 compensation fine for closing five newspapers because of their focus on the Kurdish question. Aziz Özer, who had been silenced for describing prison operations as ‘barbaric attacks’ receives € 3,423 in compensation.

Erol ÖNDEROĞLU, hukuk@bianet.org
Strabourg – BİA News Center
28 January 2010, Thursday

The European Court of Human Rights (ECHR) sentenced Turkey to a total fine of slightly more than € 43,400 in compensation in two cases concerned with one-month bans of five newspapers and the punishment of criticism related to prison operations respectively.

The applicants were journalists from Gündem, Yedinci Gün, Haftaya Bakış, Yaşamda Demokasi and Gerçek Demokrasi newspapers and owner and editor-in-chief of the monthly Yeni Dünya İçin Çagrı (‘Call for a new world’) magazine Aziz Özer.

Turkey protects Anti-Terror Act, ECHR bases conviction on it

The 20 applicants claim a violation of freedom of expression and that Turkey did not fulfil the responsibilities evolving from the European Convention on Human Rights. In both cases the ECHR unanimously decreed on 26 January that a violation of article 10 on freedom of expression had occurred.

Istanbul High Criminal Courts had suspended the publication of the five newspapers mentioned above for one month each between October and December 2007. The bans were issued on charges of ’spreading propaganda for the PKK’, the illegal Kurdistan Workers’ Party, and were based on article 6/2 last paragraph of the Anti-Terror Law (TMY).

The ECHR once more handed down a sentence referring to article 6/2 last paragraph of the TMY, which provides the possibility to silence newspapers for up to one month. Against the opinion of 10th President Ahmet Necdet Sezer, the Constitutional Court did not perceive the TMY as contrary to the Constitution.

ECHR: Such penalties are redundant in democratic societies

The courts did not leave it with the publication bans. Furthermore, newspaper executives Lütfi Ürper, Ali Turgay, Hüseyin Aykol and Hüseyin Bektaş were facing imprisonment in the trials opened against them.

Özer was tried before the Beyoğlu (Istanbul) High Criminal Court for criticizing prison operations carried out in December 2000, leaving almost 30 inmates dead. In the magazine’s February issue in 2001, the journalist described the operations as ‘barbaric attacks’. On 20 February 2001, the Beyoğlu Magistrate Criminal Court seized that month’s issue of the magazine.

‘In order to determine interferences with the right to freedom of expression and to decide whether these are compatible with the Convention, it was not sufficient for them to be prescribed by law and to pursue legitimate aims. They also needed to be ‘necessary’ in a democratic society’, the ECHR reasoned the decision.

ECHR: publication ban means censorship

Regarding the full publication ban imposed on the newspapers, the ECHR declared: ‘This went beyond any necessary restraint and amounted to censorship’. Concerning the publications in Özer’s magazine about the prison operations, the ECHR indicated that they were ‘of great interest to public opinion’. The court stated that ‘the limits of permissible criticism are wider with regard to the government than in relation to private citizens’.

The ECHR awarded € 1,800 in compensation for non-pecuniary damage to each newspaper employee, together with €2000 for cost and expenses. In the case of Özer, Turkey was sentenced to reimburse the magazine owner for the fine he paid, namely €423. Additionally, the court awarded Özer € 3000 in compensation for non-pecuniary damage and another € 2000 for cost and expense.

On 20 October 2009, the ECHR handed down another heavy compensation fine to Turkey regarding 26 employees of Ülkede Özgür Gündem, Gündem, Güncel and Gerçek Demokrasi newspapers. (EÖ/VK)

AGİT Medya Özgürlüğü Temsilcisi Miklos Haraszti’nin ofisi için hazırladığım 36 sayfalık Türkiye’de Internet sansürü raporu bugün yayınlandı. Haraszti, Medya Özgürlüğü konusunda İstanbul Bilgi Üniversitesi, Dolapdere Kampüsü, Mahkeme Salonunda 13 Ocak 2010 Çarşamba günü 14:00–17:00 arasında bir konuşma yapacak. Konuşması sırasında bu raporu da tanıtacak.

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.

Demirel and Ateş v. Turkey (No. 3) (no. 11976/03)

The applicants are two Turkish nationals who live in Germany: Hıdır Ateş who was born in 1951 and lives in Berlin; and, Hünkar Demirel who was born in 1979 and lives in Neu Isenburg. They are the owner and editor of a weekly newspaper, Yedinci Gündem.

Relying on Article 10 (freedom of expression) and Article 1 of Protocol No. 1 (protection of property), the applicants complained about their conviction in June 2002 for publishing statements by Öcalan and the ensuing closure of their newspaper for seven days. Further relying on Article 6 § 1 (right to a fair trial), they also complained that they were not notified of the principal public prosecutor’s written opinion on their case on appeal.

The Court held unanimously that there had been a violation of Article 10 concerning the infringement of the applicants’ right to freedom of expression, and a further violation of Article 6 § 1 on account of the non-communication of the written opinion of the principal public prosecutor at the Court of Cassation. It further held unanimously that it was not necessary to examine separately the applicants’ complaint under Article 1 of Protocol No. 1. The Court awarded the applicants, jointly, EUR 4,000 in respect of non-pecuniary damage and EUR 1,000 for costs and expenses. (The judgment is available only in English.)