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case of Aydoğan & Dara Radyo Televizyon Yayıncılık Anonim Şirketi v/s Turkey

    Application No. 12261 of 06

    Decided On, 13 February 2018

    At, European Court of Human Rights

    By, THE HONOURABLE MR. PRESIDENT OBERT SPANO
    By, THE HONOURABLE MR. JUSTICE PAUL LEMMENS
    By, LEDI BIANKU
    By, THE HONOURABLE MR. JUSTICE IŞIL KARAKAŞ
    By, THE HONOURABLE MR. JUSTICE VALERIU GRIŢCO
    By, THE HONOURABLE MR. JUSTICE JON FRIDRIK KJØLBRO & THE HONOURABLE MR. JUSTICE STÉPHANIE MOUROU-VIKSTRÖM

    For the Appearing Parties: ---------



Judgment Text

PROCEDURE

1. the original of-matter in an application (no 12261/06) against the Republic of Turkey which M me Trkan Aydoğan, a national of that State ("the first applicant") and DARA Radyo-Televizyon Yayıncılık Anonim Şirketi, a joint-stock company established under Turkish law ("the applicant company"), applied to the Court on 13 March 2006 under Article 34 of the Convention for the Protection of Human Rights. human rights and fundamental freedoms ("the Convention").

2. The applicants were represented by M e M. Taşkıran, a lawyer in Diyarbakir. The Turkish Government ("the Government") was represented by its agent.

3. The applicants alleged, in particular, that the rejection of their application for the authorization of audiovisual broadcasting constituted an unjustified infringement of their right to freedom of expression.

4. On 21 March 2011, the petition was communicated to the Government.

IN FACT

I. THE CIRCUMSTANCES OF THE SPEECH

5. The first applicant, born in 1962 and resident in Mardin, is chairman of the board of directors of the applicant company, an audiovisual broadcasting company whose head office is in Mardin (Turkey).

6. The facts of the case, as submitted by the parties, may be summarized as follows.

7. On 24 January 2000, the applicant company filed its articles of incorporation under the reference 8893 with the Higher Council for Radio and Television (Radyo ve Televizyon st Kurulu - "RTK") with a view to obtaining authorization from diffusion. It intended to broadcast television programs also in the Kurdish language in order to benefit from a pioneering position in a potential market of several million television viewers.

8. On 23 February 2000, the applicant company also submitted to the Security Directorate the Office of the Prime Minister (Başbakanlık Gvenlik İşleri Başkanlığı) ("the Office of the Prime Minister") a request for a national security certificate for its members. and its officers - the prerequisite for the obtaining of a broadcasting authorization.

9. Following an assessment of the applicant's reliability in terms of national security, the Office of the Prime Minister informed the applicant company in a letter of 22 August 2000 that its application had been examined and that a new review would be conducted if it substituted before 11 September 2000, three members of the executive-team, namely the president of the board of directors-M me Trkan Aydoğan, the circulation manager, M e AK, a lawyer at the Bar of Mardin, and a member of the supervisory board, Mr İ.B., president of the sports club of the local administration.

10. On 11 September 2000, the applicant company objected to this decision, stating that no legal impediment prevented the above-mentioned persons from representing it and being part of its team.

11. In the absence of a reply from the Prime Minister's Office, the applicant company applied to the Administrative Court of -Ankara ("the Administrative Court") on 20 October 2000 for an action for annulment of the decision of the 22 August 2000. She criticized the Office of the Prime Minister for not having indicated why he had requested the replacement of three of its leaders. It considered that there was no legal reason for such a request since the three persons in question had not committed any act likely to lead the administration to a negative evaluation of them at least. Deissue of the security investigation. She added in this connection that, while being a mere member of the "Human Rights Association", in her view

12. On 25 October 2000, the Administrative Court asked the defendant to submit its defense and the original and a copy of the files of the administrative acts relating to the case under Articles 16 5 and 20 3 of law n o 2577 on the adminis

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trative litigation procedure. He said that defenses based on information and documents not submitted to the court would not be taken into account.

13. On 12 January 2001, the Office of the Prime Minister submitted its defense. He stated that, following the applicant company's request for a national security certificate, investigations had been carried out by the authorities concerned, that the results of these investigations had been evaluated by the commission for the evaluation of the national security certificate and that, by letter of 22 August 2000, a request had been made for the replacement of certain officers of the applicant company. He stated that the applicant company had asked the Administration to provide him with the reasons for the decision of 22 August 2000 and that he had been told that it was not possible to communicate these reasons on the grounds that the confidentiality of investigations relating to the national security certificate. The Office of the Prime Minister added that no administrative act relating to the "refusal of a national security certificate" had been adopted in the present case. He stated that the failure of the applicant company to comply with the request for change of leadership led to the dismissal of his application. He submitted as an annex to his defense the applicant's application for a national security certificate and the letter of 22 August 2000.

14. On 20 June 2001, the Administrative Court asked the Office of the Prime Minister to provide him with all the information and documents that had been gathered at the end of the security investigation into the three leaders in question. Applicant company and which were at the origin of the decision to refuse the national security certificate.

15. On 28 August 2001, the Office of the Prime Minister presented the requested information and documents in a confidential envelope and under the name "ultrasecret". In addition, he asked the administrative court to return these documents to him at the end of their examination. These documents were neither entered in the record of the case nor disclosed to the plaintiff.

16. On 27 September 2001, the Administrative Court delivered its judgment on the merits. He first recalled the provisions of the Regulation of 3 February 1999 on administrative and financial conditions, the respect of which is required for the creation of private radio and television channels. He further found that the applicant company had applied for a national security certificate in accordance with the provisions of that regulation, that the information relating to the partners and directors of the applicant company had been evaluated by the National Security Certificate Assessment Committee in accordance with Article 7 of the principles established by the latter and that it had been requested the applicant company to replace some of its officers because of the negative evaluation of them by the evaluation committee. He found that the disputed administrative act, by which the applicant company was refused the national security certificate following an investigation by the defendant administration in accordance with established principles and who had informed him of the reconsideration of the application, subject to the replacement of the partners and managers in question, was not unlawful.

17. On 2 January 2002, the Administrative Court sent the defendant the confidential documents relating to the applicant company.

18. On 22 January 2002, the applicant company appealed against the judgment of 27 September 2001 to the Conseil d'Etat. Arguing that confidentiality should not allow the administration to carry out arbitrary acts, it contended that the disputed administrative decision had to be based on legal grounds. She also complained that the administrative court had failed to consider her arguments and had merely referred to the provisions of the Regulation of 3 February 1999.

19. In a judgment of 21 February 2005, the Council of State dismissed the appeal brought by the applicant company and upheld the judgment under appeal, finding that in this case there was no ground for cassation was provided for by law.

20. On 9 May 2005 the applicant company brought an action for the rectification of the stay for the same reasons as those previously stated. She also invoked freedom of expression and, in particular, freedom of the press.

21. On 13 September 2005, the Council of State rejected the applicant company's complaint of correction on the ground that the examination of the file did not reveal any legal reason likely to lead to the rectification sought.

22. As a result of RTK's subsequent refusal to grant it an audiovisual broadcasting license on the ground that, since it did not have the relevant national security certificate, it did not fulfill the formal requirements to obtain such a license, the applicant company could never broadcast television broadcasts. Kurdish television broadcasts were later broadcast in 2009 by Turkey's public radio and television channels.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. The status and composition of RTK

23. The RTK was established by Act o 3984 of 12 April 1991 on the establishment and the organization of audiovisual-chains (Law n o 3984 was subsequently replaced by Law n o6112, promulgated on March 3, 2011). It was an independent administrative authority whose composition, statutes and jurisdiction were provided for by the above-mentioned law. According to the relevant provisions of that law, RTK's role was to regulate the activities of radio and television stations. The RTK consisted of nine members appointed by the National Assembly. Among its regulatory powers was the right to grant private operators the authorization of audiovisual broadcasting, to allocate channels for audiovisual broadcasting and to determine and publish the conditions to be met in order to obtain the authorization of broadcasting. diffusion (Article 8 b and f of the law n o 3984).

B. Legislation relating to the national security certificate

24. Regulations of 3 February and 23 March 1999, enacted under Article 4 of the Additional Act no o 3984, established the conditions for the authorization-diffusion, whose one-required the presentation to RTK by audiovisual broadcasting establishments of a positive assessment of their reliability in terms of national security, issued by the Security Directorate of the Office of the Prime Minister, and certifying that the exercise of the functions of -associates, chairman and members of the board of directors and directors of the services by the persons designated in the application for the broadcast authorization did not pose any risk to national security.

25. On 23 March 1999, the Office of the Prime Minister promulgated a circular entitled "Principles (Esaslar) to be complied with for the delivery of the national security certificate" (" Principles"). Article 4 of this circular required verification of the following: identity, nationality, criminal record, the existence or otherwise of a warrant to be brought by the security forces reports from law enforcement and intelligence agencies regarding probable connections with criminal or terrorist circles, or links with current or potentially hostile state representatives. The aim was to prevent persons linked to active or dissolved entities or associations from broadcasting programs against the independence of the State and against its territorial or national unity, against democratic principles and individual freedoms,

26. Furthermore, according to Article 6 of that circular, the procedures followed in order to draw up a national security certificate and the conclusions relating thereto were confidential. According to Article 7 of the same circular, the Office of the Prime Minister had the right to request the replacement of persons who had been the object of a negative assessment.

27. The new law n o 6112, promulgated on 3 March 2011 and on radio and television broadcasts, had suppressed the national security certificate in the procedure for issuing broadcasting licenses. However, the Legislative Decree o 680, issued January 2, 2017, has amended Article 19 of Law n o6112: RTK can now reject applications for broadcasting licenses for reasons relating to the protection of national security or public order or for reasons of public interest. RTK is also obliged to reject audiovisual broadcasting license applications from companies which, according to the National Intelligence Service or the General Directorate of Security (the police), the managers (chairman or members of the board of directors) or the associates have been involved in terrorist activities or have links with such organizations.

C. Provisions of the Law on the Administrative Litigation Procedure

28. The Article 12 of Law n o 2577 of 6 January 1982 on the Administrative Procedure, entitled "Action for annulment and full remedy actions," reads:

"Interested parties may bring an action for annulment, a full appeal or both simultaneously before the Council of State or the administrative or fiscal courts against an administrative act (...). They may also first bring an action for annulment and, at the end of this procedure, (...) an appeal in full contentious."

Article 16 of the same law provides as follows:

"1. A copy of the introductory statement of the case and its annexes shall be notified to the defendant and the defense of the defendant shall be notified to the plaintiff.

2. The respondent's reply shall be notified to the defendant and the defendant's rejoinder shall be notified to the plaintiff (...)

3. The parties may reply to the [submissions] notified within 30 days of the date of notification (...)

(...)

5. The original and a copy of the files of the administrative acts relating to the dispute shall be sent to the court together with the defense of the defendant administration."

Article 20 of the same law reads as follows:

(...)

However, if the information and documents requested relate to the security and the higher interests of the State taken alone or to the security and the higher interests of the State in its relations with foreign States, the Prime Minister or concerned may, stating the reasons [for its refusal], not to present the information or documents concerned. It can not be decided by taking into account defenses based on information or documents not presented.

(...)

IN LAW

I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

29. The applicants complain that their request for the national security certificate necessary to obtain the authorization of audiovisual broadcasting was rejected by a decision for which they could not have known the reasons and that they have not been able to usefully challenge in the national courts. They contend that the said decision constituted an unjustified infringement of their right to freedom of expression, including the right to broadcast local television programs. They cite in this regard Articles 10, 11, 13 and 14 of the Convention as well as Article 1 of Protocol No 1 to the Convention.

30. The Court, mistress of the legal characterization of the facts of the case (see, for example, Sderman v. Sweden [GC], no 5786/08, 57, ECHR 2013, and Tarakhel v. Switzerland [GC], no 29217/12, 55, ECHR 2014 (extracts)), finds that these complaints should be examined under the angle of the single article 10 of the Convention. This provision reads as follows:

"1. Everyone has the right to freedom of expression. This right includes freedom of opinion and the freedom to receive or impart information or ideas without interference from public authorities and without regard to frontiers. This article does not prevent States from subjecting broadcasting, film or television undertakings to a licensing regime.

2. The exercise of these freedoms, including duties and responsibilities, may be subject to certain formalities, conditions, restrictions or sanctions provided for by law, which constitute necessary measures in a democratic society, to national security, to -territorial integrity or public safety, the defense of order and the prevention of crime, the protection of health or morals, the protection of reputation or the rights of others, to prevent the disclosure of confidential information or to guarantee the authority and impartiality of the judiciary."

A. Admissibility

31. Noting that the application is not manifestly ill-founded within the meaning of Article 35 3 (a) of the Convention and that it is not otherwise inadmissible on any other ground of inadmissibility, the Court declares it admissible.

B. On the merits

1. Theses of the parties

32. The applicants state that the only common feature between the three members of the applicant company's team, whose replacement had been requested by the Prime Minister's Office, was that they were simply members of the association. human rights, which in their view did not preclude the obtaining of a national security certificate. They argue that failure to disclose even one of the grounds for which the three persons in question were to be removed from the management of the applicant company prevented them from effectively challenging that administrative decision. The applicants consider that, in the view of the applicants, of procedural safeguards in both administrative and judicial proceedings, they were the subject of the administration,

33. The Government denies that there has been a breach of the provisions of the Convention in this case. Referring to the rights of States to subject audiovisual broadcasting establishments to a system of authorization, he stated that the obtaining of a national security certificate was a formal requirement to be met in order to obtain -authorization of diffusion. It states that the rejection of the claim in question in this case was not final, the issue of such a certificate being conditional upon the replacement, within the applicant company, of the three persons identified by name.

2. Findings of the Court

a) Was there an interference?

34. The Court recalls that it has already held that the refusal to grant a broadcasting license constitutes an interference with the exercise of the rights guaranteed by Article 10 1 of the Convention (see, among others, Centro Europa 7 Srl and Di Stefano v. Italy [GC], no 38433/09, 136, ECHR 2012, and the cases cited therein).

35. The Court notes in this case that the refusal of the Office of the Prime Minister to issue a national security certificate to the applicant company as long as the three members of the applicant's management team did not was replaced as well as RTK's subsequent refusal to grant it a broadcasting license on the ground that it did not fulfill the formal requirements (in particular, on the ground that it did not have the license in question), taken together in their combined effects, constitute a substantial obstacle, and thus an interference, in the exercise by the applicants of their right to communicate information or ideas. The fact that the examination of the certificate application could be resumed once the replacement of the three mentioned persons has been carried out n- y changes nothing. What matters,

(b) Was the interference provided for by law?

36. The Court notes that the impugned interference was "prescribed by law", in particular by Article 4 of the Additional Act n o 3984 and regulations promulgated on February 3 and March 23, 1999, relating to media activities private audiovisual media (with regard to the need for a national security certificate) as well as Articles 4 and 7 of the Circular "The Principles" issued and distributed by the Office of the Prime Minister (for principles governing the issue of the certificate in question).

In particular, Article 4 of the circular listed the points to be verified before the issuance of a national security certificate, and Article 7 provided for the Prime Minister's Office to request changes within the national security certificate. -team or the statutes of the audiovisual broadcasting establishment.

(c) Did the interference pursue a legitimate aim?

37. The Court observes in this respect that Article 4 of the aforementioned circular provided for checks on the nationality of the persons concerned, the existence of links with States regarded as hostile or with criminal or terrorist circles. The controls were also intended to prevent the spread of speech that contradicted constitutional principles (the independence of the State, its indivisible unity, democracy, individual rights, the lack of -discrimination) and a speech of violence or hatred. The Court accepts that this review process may be viewed as inspired by the legitimate aims of protecting "national security" and "public order".

(d) Was interference necessary in a democratic society?

i. General principles

(α) On the freedom of expression

38. The general principles on the basis of which the "necessity in a democratic society" of interference with freedom of expression is well established are well established in the case-law of the Court and can be summarized as follows (see among recent judgments, Delfi AS v. Estonia [GC], no 64569/09, 131, ECHR 2015 Animal Defenders International v. United Kingdom [GC], no 48876/08, 100, ECHR 2013 (extracts)):

"I. Freedom of expression is one of the essential foundations of a democratic society, one of the most important conditions for its progress and the development of everyone. Subject to paragraph 2 of Article 10, it applies not only to "information" or "ideas" which are favorably received or considered harmless or indifferent, but also to those which offend, shock or disturb: pluralism, tolerance and the spirit of openness without which there is no "democratic society". As set out in Article 10, it is accompanied by exceptions which, however, require a narrow interpretation, and the need to restrict it must be convincingly established ...

ii. The "necessary" objective, within the meaning of Article 10 2, implies a "pressing social need". Contracting States enjoy a certain margin of appreciation in judging the existence of such a need, but it is coupled with a European control of both the law and the decisions They apply even when they emanate from an independent jurisdiction. The Court therefore has jurisdiction to rule in the last place as to whether a "restriction" is reconcilable with the freedom of expression protected by Article 10.

iii. The Court has no task, when exercising its control, to take the place of the competent domestic courts, but to review under Article 10 the decisions they have made under of their power of appreciation. It does not follow that it must confine itself to examining whether the respondent State has exercised that power in good faith, with care and in a reasonable manner: it must consider the contentious interference with the light of the entire case to determine whether it was "proportionate to the legitimate aim pursued" and whether the reasons given by the national authorities to justify it appear "relevant and sufficient" (...) In so doing, the Court must be convinced that the national authorities have applied rules in accordance with the principles enshrined in Article 10 and, in addition,

β) General principles relating to pluralism in the audiovisual media

39. The Court reiterates that freedom of the press and other information media provides the public with one of the best means of knowing and judging the ideas and attitudes of leaders. It is the responsibility of the press to provide information and ideas on issues discussed in the political arena, as well as on other areas of public interest. At its function is to disseminate s-adds the right of the public to-receive (see, for example, Handyside v. United Kingdom, 7 December 1976, 49, Series A n o 24, and Lingens v. Austria, 8 July 1986, 41-42, Series A no.

40. Audiovisual media, such as radio and television, have a particularly important role to play in this regard. Because of their ability to convey messages by sound and image, they often have more immediate and powerful effects than the print media (Jersild v. Denmark, 23 September 1994, 31, Series A no. o 298, and Pedersen and Baadsgaard v. Denmark [GC], n o 49017/99, 79, ECHR 2004-XI). The function of television and radio, familiar sources of entertainment in the heart of the privacy-viewer or the hearing officer reinforces their impact (Murphy v. Ireland, no 44179/98, 74, ECHR 2003-IX).

41. The Court also considers that in order to ensure genuine pluralism in the audiovisual sector in a democratic society, it is necessary to provide for effective access to the audiovisual market of several operators in order to ensure that the content of the programs taken together a diversity that reflects as much as possible the variety of opinion-currents in the society to which s-address these programs (Centro Europa 7 Srl and Di Stefano v. Italy [GC], no 38433 / 09, 130, ECHR 2012).

γ) Procedural guarantees of freedom of expression

42. In the Karcsony and Others case, the Court reiterated that the rule of law, one of the fundamental principles of any democratic society, was an inherent concept in all the articles of the Convention. (Karcsony and others v. Hungary [GC], no bones 42461/13 and 44357/13, 156 ECHR 2016 (extracts); see . Golder v United Kingdom, 21 February 1975, 34, series A n o 18, Amuur v. France, 25 June 1996, 50, Reports of judgments and decisions 1996-III, and Iatridis v. Greece [GC], n o 31107/96, 58, ECHR 1999-II). According to the Court, the rule of law implies, inter alia, that domestic law provides some protection against arbitrary interference by the public authorities with the rights guaranteed by the Convention (see, inter alia, Klass and Others v. Germany, 6 September 1978, para. 55, series A n o 28, and Malone v. the United Kingdom, 2 August 1984, 67, series A n o 82).

43. The Court recalls in this respect that the fairness of the procedure and the procedural safeguards afforded to individuals at national level are elements which sometimes also have to be taken into account when it comes to measuring need-a-interference in exercise of the right to freedom of-expression under Article 10 of the Convention (Ekin Association v. France, no 39288/98, 61, ECHR 2001-VIII, Steel and Morris v. the United Kingdom, no 68416/01, 95, ECHR 2005-II, Kyprianou v. Cyprus [GC], no 73797/01, 171 and 181, ECHR 2005-XIII Saygılı and Seyman v. Turkey, no 51041/99, 24-25, June 27, 2006, Kudechkina v. Russia, no. Russia, no 29492/05, 83, 26 February 2009, Lombardi Vallauri c. Italy, no 39128/05, 46, 20 October 2009, Sanoma Uitgevers BV v. Netherlands [GC], no 38224/03, 100, 14 September 2010, Cumhuriyet Vakfı et al. Turkey, no 28255/07, 59, October 8, 2013, Karcsony and other, 133, and Baka c. Hungary [GC], no 20261/12, 161, ECHR 2016).

δ. On national security and the guarantees provided for in Article 6 of the Convention

44. In its recent judgment in Regner v. Czech Republic ([GC], no 35289/11, 19 September 2017) relating to a case concerning procedural safeguards under Article 6 of the Convention in the case of revocation of the national security certificate of a senior official, the Court examined the question of if the limitations on the adversarial principle and the principle of equality of arms had been sufficiently compensated by other procedural safeguards. In fact, at the national level, the Czech Supreme Administrative Court had found that "classified documents" (...) contained concrete, complete and detailed information on the behavior and way of life of the applicant, that he "did not fulfill the legal conditions to be held incommunicado,Regner, cited above, 20, 156). It had also stated that this information had nothing to do with the applicant's refusal to cooperate with the military intelligence service, contrary to what he claimed (ibid . 158). The Supreme Administrative Court had also considered that the communication of such information "could have resulted in the disclosure of the working methods of the intelligence service, the disclosure of its sources of information" or attempts to influence it. possible witnesses. The Court observed, inter alia, that the applicant had subsequently been the subject of criminal proceedings for association with organized crime, complicity in abuse of public authority, complicity in wrongdoing in public procurement procedures. and public invitation to tender as well as complicity in breach of the mandatory rules on economic relations". She found "understandably that when such suspicions exist,Regner, cited above, 157) .

Finally, the Court held in the Regner case that, having regard to the procedure as a whole, the nature of the dispute and the margin of appreciation available to the national authorities, the limitations on the applicant's enjoyment of rights derived from the adversarial and equal principles of arms had been compensated in such a way that the proper balance between the parties had not been so affected as to affect the very substance of the his right to a fair trial (Regner, cited above, 161).

ii. Application in this case of the above principles

the need to reject the application for a security certificate necessary for the audiovisual broadcasting license as submitted by the applicants. The question whether the applicants enjoyed adequate guarantees in the national proceedings is an integral part of that European supervision. Although the guarantees in question can not always be fully applied in state security cases (Regner, cited above, 146-149), they remain essential guarantees and must be sufficiently compensated in the procedure followed when they have only been partially granted.

46. ​​With regard to the administrative phase, the Court observes that when the Office of the Prime Minister refused to provide a national security certificate to the applicant company as long as it did not replace three members of the his management team, he did not indicate to him the reasons for this refusal, and this for reasons of confidentiality of the investigation carried out in this respect. It also notes that RTK's rejection of the applicant company's application for broadcasting authorization was supported only by a simple reference to the refusal of the Office of the Prime Minister to issue the national security certificate, without no indication of the reasons for this refusal.

47. The applicants' argument as to the possible ground for dismissal of these three persons, which in their view could be the fact that they were all three of the members of the des Association des man, has not received any response from the authorities (compare, on the contrary, with Regner, 20 in fine and 154).

48. With regard to the review exercised by the administrative courts, the Court notes that the statement of reasons given in the administrative court's judgment did not contain any assessment of the substance of the issue at issue, and that it was limited to the mere fact that the applicant company was refused the national security certificate following an investigation by the defendant administration and the mere mention that it was in accordance with the law.

49. The Administrative Court, before rendering its judgment, had access to the confidential documents concerning the investigation conducted by the Office of the Prime Minister for the purposes of the evaluation in question. These documents were not entered in the file and were not communicated, even in summary form, to the applicants. Even if access by the applicants to all the documents in the file could not be required for reasons of State security (Regner, cited above, 148), such access should not be granted. it was none the less one of the important procedural safeguards, the absence of which was to be sufficiently compensated by other procedural measures.

50. Although the administrative court's approach may be viewed as a positive step in order not to leave the question of whether the applicant company was fit to receive a broadcasting license to the satisfaction of the administration alone, -It did not change the fact that the main reason for the refusal at issue remained totally unknown to the applicants, which definitely prevented the applicants from formally making any defense before the administrative courts. In sum, assuming that national security requirements could prevent the transmission to the applicants of certain sensitive information,

The Court also notes that the Conseil d'Etat, a court of cassation in the context of administrative proceedings, has not been able to fill the gap found in the proceedings before the lower court.

51. The Court considers that the facts of the present case differ in these respects from the Regner case, in which the applicant was able to challenge to a certain extent the main reason for the decision withdrawing him from the necessary security certificate. for maintaining a senior civil servant position: the Czech Supreme Administrative Court stated that classified documents did not allow the applicant to fulfill the legal requirements to be held incommunicado and that the risk was related to his behavior, which undermined his credibility and his ability to keep the secret. Moreover, in his ruling Regnerthe Court found it understandable that the Czech authorities did not wish to communicate the file of the administrative inquiry to the interested party, in view of the need to act quickly without waiting for the outcome of the investigation. Criminal investigation concerning the same irregularities, while avoiding the revelation, at an early stage, of the suspicions hanging over the applicant, which would have risked invalidating the criminal investigation. In the present case, however, it is not apparent from the decisions of the Turkish courts that they did so, as in the case of Regner(cited above, 154-158), for an in-depth examination to answer questions as to whether the documents and information relied upon by the Office of the Prime Minister were indeed confidential, if the three named persons could reasonably be regarded as presenting risks. for national security and if the reasons given by the Office of the Prime Minister could not be communicated to the applicants, even if only summarily.

52. In those circumstances, the Court can only find that the national courts, having failed to examine, in the light of any observations by the applicants, the veracity of the considerations submitted by the administrative authorities, were unable to fulfill either their task of balancing the different interests at stake in the present case within the meaning of Article 10 of the Convention and their obligation to prevent any abuse by the administration when it takes contentious measure restricting freedom of expression. At the very least, they have not shown how they would have fulfilled the said task and obligation.

53. The same shortcomings also prevent the Court from effectively exercising its European control over whether the national authorities have applied the standards established by case-law relating to Article 10 of the Convention, in addition to based on an acceptable assessment of the relevant facts. The Court does not know the main reason for the restriction on the applicants' freedom of expression and their freedom to give information, the freedoms recognized by Article 10, and finds that it can not the decisions of the national courts show how they have, on the one hand, fulfilled their task of balancing the different interests at stake in the present case and, on the other hand,

54. In those circumstances, the Court considers that the judicial review of the application of the contested measure was not sufficient in the present case.

There has therefore been a violation of Article 10 of the Convention.

II. ON THE APPLICATION OF ARTICLE 41 OF THE CONVENTION

55. According to Article 41 of the Convention,

"If the Court declares that there has been a violation of the Convention or of its Protocols, and if the domestic law of the High Contracting Party does not permit the consequences of the violation to be unduly effected, the Court to the injured party, if any, just satisfaction. "

A. Damage

56. The applicants claimed material damages of 3,993,837 euros (EUR) for loss of profits and 38,960 euros in respect of tax expenses, application fees for the broadcasting license and the remuneration of accounting staff.

The applicants also claim, for non-pecuniary damage, an amount corresponding to half those amounts.

57. The Government challenges these requests. It states in particular that the applicant company has never broadcast and that it has not incurred any expenses.

58. The Court does not perceive a causal link between the violation found and the alleged pecuniary damage, and rejects this part of the claim. In addition, it considers that the applicants should be awarded jointly EUR 1,500 for non-pecuniary damage.

B. Costs and expenses

59. The applicants also claimed a total of EUR 5,000 for the costs and expenses they would have incurred for the purposes of the proceedings before the national courts and the proceedings before the Court.

60. The Government challenges this request.

61. Having regard to the documents before it and to its case-law, the Court considers the sum of EUR 3 000, all costs to be reasonable, to be reasonable and to the applicants.

C. Default interest

62. The Court considers it appropriate to model the default interest rate on the rate of interest on the European Central Bank's marginal lending facility by three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the request admissible;

2. Holds that there has been a violation of Article 10 of the Convention;

3. said

(a) that the respondent State is to pay jointly to the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 2 of the Convention, the following amounts to be converted into the the currency of the respondent State, at the rate applicable on the date of settlement):

i. EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, for non-pecuniary damage,

ii. EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicants in respect of costs and expenses;

(b) that from the expiry of that period and until payment, those amounts shall be increased by one simple interest at a rate equal to that of the marginal lending facility of the applicable European Central Bank. during this period, increased by three percentage points;

4. Rejects the claim for just satisfaction for the remainder.

Done in French, then notified in writing on 13 February 2018, pursuant to Rule 77 2 and 3 of the Rules of Court.
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