Fikret ÝLKÝZ

ECHR, Grand Chamber’s “Sanoma-Netherlands” decision dated 14.9.2010 about disclosure of journalistic sources is very important.  The applicant company Sanoma Uitgevers B.V. claimed in its application (no. 38224/03) against Kingdom of Netherlands that their rights under Article 10 of the Convention were breached as a result of being enforced to disclose information which may particularly cause unveiling of the journalistic sources. Third Division of ECHR had decided in 2006 by four votes against three that Article 10 of the Convention was breached. The issue was brought before the Grand Chamber. According to the Grand Chamber’s decision taken on September 14th 2010 about Sanoma Uýtgevers B.V. – Netherlands (application no. 38224/03), freedom of expression was violated.

According to the decision, if there is not any legal arrangement that provides journalists with the “right of nondisclosure of journalistic news sources” procedurally and ensures the same by way of “auditing” by an independent organ, it means that the freedom of expression as imposed in Article 10 of the Convention is violated.  

There is a regulation about protection of journalistic news sources in Turkey in Article 12 of the Press Law. The owner, responsible director and author of a periodical cannot be enforced to disclose and witness against its news sources including information and documents. This is the principal written in the law. How will this regulation be actualized?

Is Article 12 of Press Law sufficient to ensure the required “protection” from procedural provisions aspect?  Is there enough legal protection or assurance or legal regulation in Turkey against seizure of journalistic news sources, information and documents?

In other words, is there a judicial supervision way or legal arrangement that assures protection of journalistic news, documents and information and news sources before the criminal investigations commenced or when they commenced or during trials?

No, there is not. If there is not any legal regulation, it means that freedom of press is violated. This is the situation in Turkey.

Now, let us go back to ECHR Grand Chamber’s decision. And let us have a look at the incidents that caused taking of this decision. This decision is one of the most important decisions taken on journalistic news sources.  What are the previous stages of the case?

Applicant company is publishing a weekly magazine named Autoweek for automobile fans. An illegal street race was held on January 12, 2022, at the industrial zone in the vicinity of Hoorn town. Autoweek’s reporters were present at this race upon invitation of organizers and taking photographs of the street race, participant cars and persons was allowed under an assurance agreement between the organizers and the magazine and on condition that their identifications are not disclosed. Street race ended due to the present policemen’s intervention and upon arrival of those who came later. Nobody was taken into custody. There is not any investigation about this race.

Autoweek magazine wanted to publish an article about illegal car races in its 7/2002 issue dated 6th February 2002. Photographs taken at the street race on February 12, 2002 were also going to be included in this article. But the photographs were published in a way so that the identifications of the cars and participants in the race are not disclosed. Genuine photographs were stored on a CD-ROM by the applicant company and kept at the editor’s office of the applicant company where different magazines (not Autoweek) are published.

The police and investigating authorities later suspected inclusion of one of the cars that had participated in the street race in a ram raid (that is, a kind of theft where a stolen car is rammed into the showcase of a store to steal the goods in that store) on February 1, 2002.  On February 1, 2002, a police officer calls the editor's office of Autoweek. And demands delivery of all photographs of the street race dated 12th January 2002 to the police. The editor in chief, with whom the police talked to on the phone, tells the police that this demand could not be met as the pictures were taken on condition that the identifications of the participants of the race would be kept confidential. Editor in chief also told them that he thought press was reasonably protected against such events and recommended them to contact the editor’s office in writing.

Two police detectives arrived editor’s office of Autoweek, demanded delivery of the photographs and upon failing to get the photographs, they served Autoweek’s chief editor a decision taken in accordance with Article 96a of Code of Criminal Procedure. This decision was taken by the Amsterdam Prosecutor. This decision ruled delivery of all photographs taken during the illegal car race on January 12, 2002 in Hoorn as well as all relevant documents within the scope of the investigation opened against unidentified persons regarding crimes regulated in articles 301-302 of the Criminal Code. Considering that it would be against the words given by the reporters about keeping the identifications of street race participants confidential, Autoweek’s chief editor declined delivery of the photographs. Upon this, office of prosecutor applied to the Regional Court’s examining magistrate on duty. Examining magistrate said that the need of executing the criminal investigation far overweighs the journalistic privileges of the applicant company and, agreeing that in fact he/she was not authorized in this dispute, that he/she would have taken a decision in accordance with this had he/she been authorized and even he/she would have ruled to search the office. Upon this decision, on 2nd February 2002 the company delivered the CD-ROM containing the photographs together with their objection to the prosecutor’s office and the prosecutor seized the CD-ROM.

Applicant company objected to this seizure decision. Regional Court ruled that seizure was not lawful. It ruled that in this case a publisher/journalist could not benefit from the privilege of nondisclosure of evidence and that the benefits in the criminal investigation far overweighs the right of intelligence collection freely, and also that, within the scope of protection of journalistic news sources, the mentioned investigation was not related to the illegal street races, but it was interested in other heavier crimes. Although the Regional Court revoked the seizure decision after delivery of the sample and obtaining the contents thereof and decided return of the CDs, it has the opinion that in this case protection of journalistic news sources was not possible, because as for overweighing benefit, the ongoing investigation is more advantageous in terms of general public benefits. 

Applicant company took the case to the Supreme Court. Supreme Court decided that as the seizure decision was revoked and returning of the CD-ROM was ruled by the Regional Court, applicant company had no further benefit in that appeal and therefore dismissed the case. 

The case then brought to the ECHR. (to be continued)

December 17th, 2012