CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 16 mars 2000

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color:#0069d6 }     FOURTH SECTION             CASE OF ÖZGÜR GÜNDEM v. TURKEY   (Application no. 23144/93)                     JUDGMENT     STRASBOURG   16 March 2000       In the case of Özgür Gündem v. Turkey, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Mr   M. P ellonpää , President ,   Mr   G. R ess,   M r   A . Pastor R idruejo,   M r   L. Caflisch,   M r   J. Makarczyk,   M r   V. Butkevych, judges ,   Mr   F. G ölcüklü, ad hoc judge , and Mr V. Berger , Section Registrar , Having deliberated in private on 10 November 1999 and 3 February 2000, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 8 March 1999, within the three-month period laid down by former Articles 32 § 1 and 47 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no. 23144/93) against the Republic of Turkey lodged with the Commission under former Article   25 by three Turkish nationals, Gurbetelli Ersöz, Fahri Ferda Çetin and Yaşar Kaya, and by Ülkem Basın ve Yayıncılık Sanayı Ticaret Ltd, a company having its head office in Istanbul, on 9 December 1993. The first two applicants were, respectively, the editor-in-chief and the assistant editor-in-chief of the newspaper Özgür Gündem of which the third and fourth applicants were the owners. The Commission later decided not to pursue the examination of the application in so far as it concerned the first applicant, since she had died in 1997. The application concerned the applicants' allegations that there had been a concerted and deliberate assault on their freedom of expression through a campaign of targeting journalists and others involved in Özgür Gündem . The applicants relied on Articles 10 and 14 of the Convention and on Article 1 of Protocol No. 1. The Commission declared the application admissible on 20 October 1995. In its report of 29 October 1998 (former Article 31 of the Convention), it expressed the opinion that there had been a violation of Article 10 (unanimously), that there had been no violation of Article 14 (fifteen votes to two) and that it was not necessary to examine separately whether there had been a violation of Article 1 of Protocol No. 1 (unanimously) [1] . 2.     Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998, and in accordance with the provisions of Article 5 § 4 thereof read in conjunction with Rules 100 § 1 and 24 § 6 of the Rules of Court, a panel of the Grand Chamber decided on 31 March 1999 that the case would be examined by a Chamber constituted within one of the Sections of the Court. 3.     In accordance with Rule 52 § 1, the President of the Court, Mr   L.   Wildhaber, assigned the case to the Fourth Section. The Chamber constituted within that Section included ex officio Mr R. Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 26 §   1 (a)), and Mr M. Pellonpää, President of the Section (Rule 26 § 1 (a)). The other members designated by the latter to complete the Chamber were Mr G. Ress, Mr A. Pastor Ridruejo, Mr L. Caflisch, Mr J. Makarczyk and Mrs N. Vajić (Rule 26 § 1 (b)). 4.     On 1 June 1999 Mr Türmen withdrew from sitting in the Chamber (Rule 28). The Turkish Government (“the Government”) accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1). 5.     On 13 July 1999 the Chamber decided to hold a hearing. 6.     Pursuant to Rule 59 § 3 the President of the Chamber invited the parties to submit memorials on the issues raised in the application. The Registrar received the applicants' and Government's memorials on 5 and 20   October 1999 respectively. 7.     In accordance with the Chamber's decision, a hearing took place in public in the Human Rights Building, Strasbourg, on 10 November 1999.   There appeared before the Court: (a)     for the Government Mr   M. Özmen ,   Co-Agent , Mr   F. Polat , Mr   F. Çalişkan , Ms   M. Gülsen , Mr   E. Genel , Mr   F. Güney , Mr   C. Aydın ,   Advisers ; (b)     for the applicants Mr   W. Bowring ,   Counsel , Mr   K. Yıldız ,   Adviser .   The Court heard addresses by Mr Bowring and Mr Özmen. 8.     On 3 February 2000 Mrs Vajić, who was unable to take part in the further consideration of the case, was replaced by Mr V. Butkevych (Rule   26 § 1 (c)). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     Özgür Gündem was a daily newspaper the main office of which was located in Istanbul. It was a Turkish-language publication with an estimated national circulation of up to 45,000 copies and a further unspecified international circulation. It incorporated its predecessor, the weekly publication Yeni Ülke , which was published between 1990 and 1992. Özgür Gündem was published from 30 May 1992 until April 1994. It was succeeded by another newspaper, Özgür Ülke . 10.     The case concerns the allegations of the applicants that Özgür Gündem was the subject of serious attacks and harassment which forced its eventual closure and for which the Turkish authorities are directly or indirectly responsible. A.     Incidents of violence and threats against Özgür Gündem and persons associated with it 11.     The applicants made detailed submissions to the Commission, listing the attacks made on journalists, distributors and others associated with the newspaper (see paragraphs 32-34 of the Commission's report). The Government, in their submissions to the Commission, denied that some of these attacks occurred (see paragraphs 43-62 of the Commission's report). In their submissions to the Court, neither party has made any comment on the Commission's findings in this respect (see paragraphs 141-42 of the Commission's report). 12.     The following incidents are not contested. Seven persons connected with Özgür Gündem were killed in circumstances originally regarded as killings by “unknown perpetrators”: (1)   Yahya Orhan, a journalist shot dead on 31 July 1992; (2)   Hüseyin Deniz, a staff member of Özgür Gündem , shot dead on 8 August 1992; (3)   Musa Anter, a regular columnist for Özgür Gündem , shot dead on 20 September 1992; (4)   Hafız Akdemir, a staff member of Özgür Gündem , shot dead on 8   June 1992; (5)   Kemal Kılıç, the Şanlıurfa representative of Özgür Gündem , shot dead on 18 February 1993 (application no. 22492/93 lodged by Cemil Kılıç concerning alleged State responsibility for this killing is pending before the Court – see the Commission's report of 23 October 1998); (6)   Cengiz Altun, a reporter for Yeni Ülke , shot dead on 24 February 1992; (7)   Ferhat Tepe, the Bitlis correspondent for Özgür Gündem , abducted on 28 July 1993 and found dead on 4 August 1993. The following attacks occurred: (1)   on 16 November 1992 an arson attack on the news-stand of Kadir Saka in Diyarbakır; (2)   an armed attack on Eşref Yaşa, also a newsagent, on 15 January 1993 in Diyarbakır; (3)   an armed attack on the newsagent Haşim Yaşa on 15 June 1993 in Diyarbakır (this incident and that concerning the attack on Eşref Yaşa were the subject of an application under the Convention – see the Yaşa v. Turkey judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI); (4)   on 26 September 1993 Mehmet Balamir, a newspaper boy, was attacked with a knife in Diyarbakır as he was selling Özgür Gündem ; (5)   in 1993, in Ergani, boys selling the newspaper were attacked by a person with a knife; (6)   an arson attack on a newsagent's in Mazidagı; (7)   in Bingöl, on 17 November 1992 the car of a newsagent was destroyed by fire; (8)   in Yüksekova, in October 1993, a bomb explosion damaged a newsagent's; (9)   a bomb exploded at the Istanbul office of the newspaper's successor Özgür Ülke on 2 December 1994, killing one employee and injuring eighteen others. 13.     The applicants listed a large number of other incidents (arson attacks, attacks and threats on newsagents, distributors and newspaper boys) which the Government stated either did not occur or concerning which they stated that they had received no information or complaint (see paragraphs   32-34 and 43-62 of the Commission's report). They also referred to the disappearance of the journalist Aysel Malkaç on 7 August 1993 and to the detention and ill-treatment of many journalists, one of whom, Salih Tekin, was found, upon his application to Strasbourg, to have been subjected to inhuman and degrading treatment while in custody (see paragraph 37 of the Commission's report and the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1517-18, §§ 53-54). 14.     The applicants, and others acting on behalf of the newspaper and its employees, addressed numerous petitions to the authorities concerning the threats and attacks which they claimed had occurred. These are listed in the Commission's report (paragraph 35) and include letters from the applicant Yaşar Kaya to the governor of the state of emergency region, the Minister of the Interior, the Prime Minister and Deputy Prime Minister, informing them of the attacks and requesting investigations to be opened and measures of protection to be taken. There was no reply to the vast majority of these letters. 15.     Written complaints were made by persons from the newspaper about specific attacks, incidents and threats concerning which the Government stated that they had received no information or complaint, including the attacks on children distributing the newspaper in Diyarbakır during 1993, the death of newsagent Zülküf Akkaya in Diyarbakır on 27 September 1993 and attacks on distributors by persons with meat axes, also in Diyarbakır, in September 1993 (see paragraph 35   (s) of the Commission's report). A written request for protective measures made on 24 December 1992 to the governor of Şanlıurfa on behalf of the persons involved in the newspaper in Şanlıurfa was refused shortly before the journalist Kemal Kılıç was shot dead on 18 February 1993 (see paragraph   35   (l) of the Commission's report). 16.     Following a request for security measures received by the Diyarbakır police on 2 December 1993, police escorted employees of the two companies dealing with the distribution of newspapers from the border of the province of Şanlıurfa to the distribution stores. Measures were also taken with respect to deliveries of the newspaper from the stores to newsagents. The Government submitted to the Commission that no other requests for protection were received. Following the explosion at the Özgür Ülke office on 2 December 1994 and a request from the owner, security measures, including patrolling, were taken by the authorities. B.     The search-and-arrest operation at the Özgür Gündem premises in Istanbul 17.     On 10 December 1993 the police conducted a search of the Özgür Gündem office in Istanbul. During the operation, they took into custody those present in the building (107 persons, including the applicants Gurbetelli Ersöz and Fahri Ferda Çetin) and seized all the documents and archives. 18.     Two search-and-seizure documents dated 10 December 1993 record that the police found two guns, ammunition, two sleeping bags and twenty-five gas masks. In a further search-and-seizure document dated 10   December 1993, it is stated that the following items had been found: photographs (described as kept in envelopes with a label “PKK Terrorist Organisation”), a tax receipt stamped with the name ERNK (a wing of the Workers' Party of Kurdistan (PKK)) for 400,000,000 Turkish liras (TRL), found in the desk of the applicant Yaşar Kaya, and numerous printed and hand-written documents, including an article on Abdullah Öcalan. A document dated 24   December 1993, signed by a public prosecutor at the Istanbul National Security Court, listed the following material as having been seized: in a sealed envelope the military identification of Muzaffer Ulutaş killed in Şırnak in March 1993, in a sealed box 1,350 injection kits, one typewriter, one video-cassette and one audio-cassette, and forty books found at the house of the applicant Fahri Ferda Çetin. As a result of these measures, the publication of the newspaper was disrupted for two days. 19.     In an indictment dated 5 April 1994, charges were brought against the editor Gurbetelli Ersöz, Fahri Ferda Çetin, Yaşar Kaya, themanager Ali   Rıza   Halis and six others, alleging that they were members of the PKK, had assisted the PKK and made propaganda in its favour. The Government have stated that Gurbetelli Ersöz and Ali Rıza Halis were convicted of aiding and abetting the PKK, by judgment of the Istanbul National Security Court no. 5 on 12 December 1996. Gurbetelli Ersöz had previously been convicted of involvement with the PKK in or about the end of December 1990 and had been released from prison in 1992. C.     Prosecutions concerning issues of Özgür Gündem 20.     Numerous prosecutions were brought against the newspaper (including the relevant editor, the applicant Yaşar Kaya as the owner and publisher, and the authors of the impugned articles), alleging that offences had been committed by the publication of various articles. The prosecutions resulted in many convictions, carrying sentences imposing fines and prison terms and orders of confiscation of issues of the newspaper and orders of closure of the newspaper for periods of three days to a month. The prosecutions were brought under provisions rendering it an offence, inter alia , to publish material insulting or vilifying the Turkish nation, the Republic or specific State officers or authorities, material provoking feelings of hatred and enmity on grounds of race, region of origin or class, and materials constituting separatist propaganda, disclosing the names of officials involved in fighting terrorism or reporting the declarations of terrorist organisations (see “Relevant domestic law” below). 21.     On 3 July 1993 Özgür Gündem published a press release announcing that the newspaper was charged with offences which, cumulatively, were punishable by fines totalling TRL 8,617,441,000 and prison terms ranging from 155 years and 9 months to 493 years and 4 months. 22.     During one period of sixty-eight days in 1993, forty-one issues of the newspaper were ordered to be seized. In twenty cases, closure orders were issued, three for a period of one month, fifteen for a period of fifteen days and two for ten days. 23.     The applicants have further stated, and this was not contested by the Government, that there have been prosecutions in respect of 486 out of 580 issues of the newspaper and that, pursuant to convictions by the domestic courts, the applicant Yaşar Kaya has been fined up to TRL 35 billion, while journalists and editors together have had imposed sentences totalling 147 years' imprisonment and fines reaching TRL 21 billion. D.     Material before the Commission 1.     Domestic court proceedings 24.     Both parties provided the Commission with copies of judgments and decisions by the courts relating to the proceedings brought in respect of the newspaper. These involve 112 prosecutions brought between 1992 and 1994. Details of the articles in issue and the judgments given in twenty-one cases are summarised in the Commission's report (paragraphs 161-237). 2.     The Susurluk report 25.       The applicants provided the Commission with a copy of the so-called “Susurluk report” [2] , produced at the request of the Prime Minister by Mr   Kutlu Savaş, Vice-President of the Board of Inspectors within the Prime Minister's Office. After receiving the report in January 1998, the Prime Minister made it available to the public, although eleven pages and certain annexes were withheld. 26.     The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report. It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south-east Turkey and which tended to confirm the existence of unlawful dealings between political figures, government institutions and clandestine groups. 27.     The report analyses a series of events, such as murders carried out under orders, the killings of well-known figures or supporters of the Kurds and deliberate acts by a group of “informants” supposedly serving the State, and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that have been formed as a result, particularly in the drug-trafficking sphere. The passages from the report that concern certain matters affecting radical periodicals distributed in the region are reproduced below. “... In his confession to the Diyarbakır Crime Squad, ... Mr G. ... had stated that Ahmet Demir [ [3] ] [p. 35] would say from time to time that he had planned and procured the murder of Behçet Cantürk [ [4] ] and other partisans from the mafia and the PKK who had been killed in the same way ... The murder of ... Musa Anter [ [5] ] had also been planned and carried out by A. Demir [p. 37]. ... Summary information on the antecedents of Behçet Cantürk, who was of Armenian origin, are set out below [p. 72]. ... As of 1992 he was one of the financiers of the newspaper Özgür Gündem . ... Although it was obvious who Cantürk was and what he did, the State was unable to cope with him. Because legal remedies were inadequate Özgür Gündem was blown up with plastic explosives and when Cantürk started to set up a new undertaking, when he was expected to submit to the State, the Turkish Security Organisation decided that he should be killed and that decision was carried out [p. 73]. ... All the relevant State bodies were aware of these activities and operations. ... When the characteristics of the individuals killed in the operations in question are examined, the difference between those Kurdish supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms. ... The sole disagreement we have with what was done relates to the form of the procedure and its results. It has been established that there was regret at the murder of Musa Anter, even among those who approved of all the incidents. It is said that Musa Anter was not involved in any armed action, that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake. (Information about these people is to be found in Appendix   9 [ [6] ] ). Other journalists have also been murdered [p. 74] [ [7] ] .” 28.     The report concludes with numerous recommendations, such as improving coordination and communication between the different branches of the security, police and intelligence departments; identifying and dismissing security-force personnel implicated in illegal activities; limiting the use of “confessors” [8] ; reducing the number of village guards; terminating the use of the Special Operations Bureau outside the south-east region and incorporating it into the police outside that area; opening investigations into various incidents; taking steps to suppress gang and drug-smuggling activities; and recommending that the results of the Grand National Assembly Susurluk inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken. II.     RELEVANT DOMESTIC LAW A.     The Criminal Code 29.     The relevant provisions of the Criminal Code read as follows: Article 36 § 1 “In the event of conviction, the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence ...” Article 79 “A person who infringes various provisions of this Code by a single act shall be punished under the provision which prescribes the heaviest punishment.” Article 159 § 1 “Whoever overtly insults or vilifies the Turkish nation, the Republic, the Grand National Assembly, or the moral personality of the Government, the ministries or the military or security forces of the State or the moral personality of the judicial authorities shall be punished by a term of imprisonment of one to six years.” Article 311 § 2 “Where incitement to commit an offence is done by means of mass communication, of whatever type – whether by tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled ...” Article 312 “A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months' and two years' imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras. A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years' imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half. The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.” 30.     The conviction of a person under Article 312 § 2 entails further consequences, particularly with regard to the exercise of certain activities governed by special legislation. For example, persons convicted of an offence under that Article may not found associations (Law no. 2908, section 4(2)(b)) or trade unions, nor may they be members of the executive committee of a trade union (Law no. 2929, section 5). They are also forbidden to found or join political parties (Law no. 2820, section 11(5)) and may not stand for election to Parliament (Law no. 2839, section   11(f   3)). B.     The Press Act (Law no. 5680 of 15 July 1950) 31.     The relevant provision of the Press Act 1950 reads as follows: Section 3 “For the purposes of the present Law, the term 'periodicals' shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals. 'Publication' shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it. An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.” C.     The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) 32.     This law, promulgated with a view to preventing acts of terrorism, refers to a number of offences defined in the Criminal Code which it describes as “acts of terrorism” or “acts perpetrated for the purposes of terrorism” (sections 3 and 4) and to which it applies. The relevant provisions of the Prevention of Terrorism Act 1991 read as follows: Section 6 “It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person's ... identity is divulged, provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target. It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to print or publish declarations or leaflets emanating from terrorist organisations. ... Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no.   5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the sales of the previous issue if the periodical appears monthly or less frequently, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched [ [9] ] . However, the fine may not be less than fifty million Turkish liras. The editor of the periodical shall be ordered to pay a sum equal to half the fine imposed on the publisher.” Section 8 (before amendment by Law no. 4126 of 27 October 1995) “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years' imprisonment and a fine of from fifty million to one hundred million Turkish liras. Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched [ [10] ] . However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months' and not more than two years' imprisonment.” Section 8 (as amended by Law no. 4126 of 27 October 1995) “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years' imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine. Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months' and not more than two years' imprisonment. Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months' and not more than two years' imprisonment and a fine of from one hundred million to three hundred million Turkish liras ... ...” D.     Law no. 4126 of 27 October 1995 amending sections 8 and 13 of Law no. 3713 33.     The following amendments were made to the Prevention of Terrorism Act 1991 after the enactment of Law no. 4126 of 27 October 1995: Transitional provision relating to section 2 “In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment ... to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4 [ [11] ] and 6 [ [12] ] of Law no. 647 of 13 July 1965.” THE LAW I.     STanding of GURbetelli ERSÖZ 34.     The Court recalls that this application was lodged by four applicants, the first of which was Gurbetelli Ersöz, formerly the editor of Özgür Gündem . In its report of 29 October 1998, the Commission decided not to pursue its examination of the case in so far as it concerned Gurbetelli Ersöz as she had died in autumn 1997 and no information had been received that any heir or close relative wished to pursue her complaints. 35.     The parties have made no submissions on this aspect of the case. 36.     The Court considers, in accordance with Article 37 § 1 (c) of the Convention, that it is no longer justified to continue the examination of the application in so far as it concerns Gurbetelli Ersöz. Accordingly, this part of the case shall be struck out of the list. II.     ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 37.     The applicants complained that the newspaper Özgür Gündem was forced to cease publication due to the campaign of attacks on journalists and others associated with the newspaper and due to the legal steps taken against the newspaper and its staff, invoking Article 10 of the Convention which provides: “1.     Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2.     The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A.     Concerning the alleged attacks on the newspaper and persons associated with it 38.     The applicants claimed that the Turkish authorities had, directly or indirectly, sought to hinder, prevent and render impossible the production of Özgür Gündem by the encouragement of or acquiescence in unlawful killings and forced disappearances, by harassment and intimidation of journalists and distributors, and by failure to provide any or any adequate protection for journalists and distributors when their lives were clearly in danger and despite requests for such protection. The applicants relied on the findings in the Commission's report that there was a disturbing pattern of attacks on persons concerned with Özgür Gündem and that the authorities, through their failure to take measures of protection and to conduct adequate investigations in relation to the apparent pattern of attacks on Özgür Gündem and persons connected with it, did not comply with their positive obligation to secure to the applicants their right to freedom of expression guaranteed under Article 10 of the Convention. 39.     The Government emphasised that Özgür Gündem was the instrument of the terrorist organisation PKK and espoused the aim of that organisation to destroy the territorial integrity of Turkey by violent means. They disputed that any reliance could be placed on previous judgments of the Court or on the Susurluk report in deducing that there was any official complicity in any alleged attacks. In particular, the Susurluk report was not a judicial document and had no probative value. The Government submitted that the Commission based its findings on general presumptions unsupported by any evidence and that the applicants had not substantiated their claims of a failure to protect the lives and physical integrity of persons attached to Özgür Gündem . Nor had they substantiated that the persons attacked were related to the newspaper. They disputed that any positive obligation extends to the protection and promotion of the propaganda instrument of a terrorist organisation but asserted that, in any event, necessary measures were taken in response to individual complaints, investigations being carried out by public prosecutors as required. 40.     The Court observes that the Government have disputed the Commission's findings concerning the pattern of attacks in general terms without specifying which are, or in what way they are, inaccurate. It notes that the Government deny specifically that any weight can be given to the Susurluk report and its description of acquiescence and connivance by State authorities in unlawful activities, some of which targeted Özgür Gündem and journalists, of whom Musa Anter is specifically named. In its judgment in the Yaşa case (Yaşa v. Turkey judgment of 2   September 1998, Reports 1998-VI, pp. 2437-38, §§ 95-96), in which it was alleged that the security forces had connived in an attack on Eşref Yaşa and his uncle who were both involved in the sale and distribution of Özgür Gündem in Diyarbakır, the Court found that the Susurluk report did not provide a basis for enabling the perpetrators of the attack on Eşref Yaşa and his uncle to be identified. It did find that the report gave rise to serious concerns and that it was not disputed in the Yaşa case that there had been a number of serious attacks on journalists, newspaper kiosks and distributors of Özgür Gündem . Furthermore, while the Susurluk report indeed may not be relied on for establishing to the required standard of proof that State officials were implicated in any particular incident, the Court considers that the report, which was drawn up at the request of the Prime Minister and which he decided should be made public, must be regarded as a serious attempt to provide information on and analyse problems associated with the fight against terrorism from a general perspective and to recommend preventive and investigative measures. On that basis, the report can be relied on as providing factual substantiation of the fears expressed by the applicants from 1992 onwards that the newspaper and persons associated with it were at risk from unlawful violence. 41.     Having regard to the parties' submissions and the findings of the Commission in its report, the Court is satisfied that from 1992 to 1994 there were numerous incidents of violence, including killings, assaults and arson attacks, involving the newspaper and journalists, distributors and other persons associated with it. The concerns of the newspaper and its fears that it was the victim of a concerted campaign tolerated, if not approved, by State officials, were brought to the attention of the authorities (see paragraphs 14-15 above). It does not appear, however, that any measures were taken to investigate this allegation. Nor did the authorities respond by any protective measures, save in two instances (see paragraph 16 above). 42.     The Court has long held that, although the essential object of many provisions of the Convention is to protect the individual against arbitrary interference by public authorities, there may in addition be positive obligations inherent in an effective respect of the rights concerned. It has found that such obligations may arise under Article 8 (see, amongst others, the Gaskin v. the United Kingdom judgment of 7 July 1989, Series A no.   160, pp. 17-20, §§ 42-49) and Article 11 (see the Plattform “Ärzte für das Leben” v. Austria judgment of 21 June 1988, Series A no. 139, p. 12, §   32). Obligations to take steps to undertake effective investigations have also been found to accrue in the context of Article 2 (see, for example, the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series   A no. 324, p. 49, § 161) and Article 3 (see the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998-VIII, p.   3290, § 102), while a positive obligation to take steps to protect life may also exist under Article 2 (see the Osman v. the United Kingdom judgment of 28 October 1998, Reports 1998-VIII, pp. 3159-61, §§ 115-17). 43.     The Court recalls the key importance of freedom of expression as one of the preconditions for a functioning democracy. Genuine, effective exercise of this freedom does not depend merely on the State's duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals (see mutatis mutandis , the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, p. 11, §   23). In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which is inherent throughout the Convention. The scope of this obligation will inevitably vary, having regard to the diversity of situations obtaining in Contracting States, the difficulties involved in policing modern societies and the choices which must be made in terms of priorities and resources. Nor must such an obligation be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities (see, among other authorities, the Rees v. the United Kingdom judgment of 17 October 1986, Series A no.   106, p. 15, § 37, and the Osman v. the United Kingdom judgment cited above, pp. 3159-60, § 116). 44.     In the present case, the authorities were aware that Özgür Gündem , and persons associated with it, had been subject to a series of violent acts and that the applicants feared that they were being targeted deliberately in efforts to prevent the publication and distribution of the newspaper. However, the vast majority of the petitions and requests for protection submitted by the newspaper or its staff remained unanswered. The Government have only been able to identify one protective measure concerning the distribution of the newspaper which was taken while the newspaper was still in existence. The steps taken after the bomb attack at the Istanbul office in December 1994 concerned the newspaper's successor. The Court finds, having regard to the seriousness of the attacks and their widespread nature, that the Government cannot rely on the investigations ordered by individual public prosecutors into specific incidents. It is not convinced by the Government's contention that these investigations provided adequate or effective responses to the applicants' allegations that the attacks were part of a concerted campaign which was supported, or tolerated, by the authorities. 45.     The Court has noted the Government's submissions concerning its strongly held conviction that Özgür Gündem and its staff supported the PKK and acted as its propaganda tool. This does not, even if true, provide a justification for failing to take steps effectively to investigate and, where necessary, provide protection against unlawful acts involving violence. 46.     The Court concludes that the Government have failed, in the circumstances, to comply with their positive obligation to protect Özgür Gündem in the exercise of its freedom of expression. B.     Concerning the police operation at the Özgür Gündem premises in Istanbul on 10 December 1993 47.     The applicants relied on the findings in the Commission's report that the search-and-arrest operation conducted on the premises of Özgür Gündem in Istanbul, during which all the employees were detained and the archives, library and administrative documents seized, disclosed an interference with the newspaper's freedom of expression for which there was no convincing justification. In their submissions to the Commission, they stated that there were innocent explanations for the allegedly incriminating material found on the premises (see paragraph 36 (i) of the Commission's report). 48.