CEDH · CASELAW;CLIN;ENG — 14 octobre 2014

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Turkey - 31736/04 Judgment 14.10.2014 [Section II] Article 10 Article 10-1 Freedom to impart information Prison sentence for candidate in municipal elections for disseminating press release before statutory electioneering period: violation Facts – The applicant was due to stand as a candidate in municipal elections to be held on 28   March 2004. In March 2003, while covering a demonstration in his capacity as a journalist, he handed out a written declaration, intended for the press, in which he set out the main themes of his programme for the 2004 municipal elections. In October 2003 the public prosecutor brought criminal proceedings against him for failing to comply with the statutory electioneering period for municipal elections. In December 2003 the criminal court of first instance sentenced him to three months’ imprisonment and a fine. The prison sentence was commuted to a large fine. The applicant appealed unsuccessfully. Moreover, he did not pay the fine as he did not have the necessary resources. In May 2004 the prosecutor’s office gave him a 27-day prison sentence in default, 13   of which were to be served and the remaining 14   suspended. The applicant was detained from 20   May to 2   June 2004. The candidates from the other political parties taking part in the municipal elections of March 2004 made themselves known from the end of June 2003 and, from August 2003 onwards, several candidates made the main themes of their programmes public. Law – Article 10: The applicant was prosecuted and convicted essentially for his failure to comply with the ten-day electioneering period laid down in section   49 of Law no.   298. It had not been established that the ten-day electioneering period had been laid down by the Turkish legislature in order to limit all forms of expression of opinions and ideas concerning the municipal elections outside that period. The amendments made to Law no.   298 in 2010 clearly specified that electioneering in the written press or via Internet could be carried out freely until the end of the period (without defining a starting point for the latter), and that the dissemination of pamphlets, brochures or other advertising material bearing the symbols of political parties was unrestricted during the electoral period (generally speaking, three months prior to the elections). However, prior to the changes introduced in 2010 and in the absence of any specific supplementary criterion, the judicial authorities were likely to apply the criminal law to any form of expression concerning municipal elections which occurred prior to the electioneering period. In the applicant’s case, the judicial authorities did not seem to have assessed whether the impugned prohibition was genuinely necessary for the proper conduct of the elections. They had interpreted the provision on the authorised electioneering period strictly, thereby preventing the applicant from expressing his views outside that period on questions concerning municipal public services, notwithstanding his intention to stand in the municipal elections scheduled for the following year. The examples of other candidates in the municipal elections who had discussed the reasons for their standing and their programmes almost six months before the elections showed that, in practice, the judicial authorities had not always interpreted the relevant law so strictly. In those circumstances, the Court could not consider it established that a pressing social need had made it necessary to restrict to ten days before the elections the period during which the applicant could freely express his views on an issue concerning municipal services, even though he was involved in the forthcoming municipal elections. In addition, the applicant had served 13   days of actual imprisonment with 14   days release on licence following his criminal conviction. By its nature and severity, the prison sentence imposed on the applicant had amounted to an interference that was disproportionate to the legitimate aims pursued by the domestic authorities. The fact that the prison sentence originally imposed had been commuted to a fine, which the applicant was unable to pay on account of a lack of means, did not alter the assessment of the seriousness of the penalty imposed on him. Conclusion : violation (unanimously). Article 41: claim made out of time.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes