Case Summary and Outcome

The European Court of Human Rights (ECtHR) ruled that the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) of a Turkish writer had been violated by the State of Turkey when he was prosecuted and convicted under the Prevention of Terrorism Act for disseminating separatist propaganda and publishing a book that described historical events relating to the Kurdish rebel movement in Turkey. While the Court found that the conviction was prescribed by law and pursued the legitimate aim of protecting the national security and public order of Turkey, the writer’s imprisonment and payment of a fine was ultimately considered disproportionate and unnecessary by the Court. This was because the applicant had engaged in political expression which had heightened protection under the Convention. Furthermore, the applicant had not incited violence, and the effect of his speech was also likely to be limited because of his status as a private individual and the dissemination of his speech through a book – and not in mass media. Finally, the penalties imposed on him were considered disproportionate.

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Facts

The applicant was Mr. Edip Polat, was a Turkish national and writer. In May 1991, his book “We made each dawn a Newroz” (Nevrozladık Şafakları) was released which was an epic-styled, historical depiction of the Kurdish rebel movement in Turkey. It also narrated, factually and with his personal comments, the lives and ill-treatment of prisoners at the Diyarbakir Prison.

In November 1991, the book was republished. Shortly thereafter, on 31 December, the Ankara National Security Court ordered the seizure of copies of the book, as an interim measure during a criminal investigation that had been launched by the public prosecutor.

On 22 April 1992, the applicant was indicted for disseminating propaganda against the territorial integrity and indivisible unity of Turkey under section 8(1) of the Prevention of Terrorism Act (i.e., Law no. 3713). The prosecutor’s accusations were based, inter alia, on the applicant’s depiction of PKK (Worker’s party of Kurdistan) and other rebel groups as “Kurdish patriots”, and the 1925 governmental regime as a “fundamentalist dictatorship of the bourgeoisie” [p. 4]. The applicant was also accused of violating section 6(1) of Law no. 7313 for revealing the identities of staff at Diyarbakir Prison and forensic pathologists, and thus endangering them.

The applicant defended himself against all allegations by stating that he had merely commented on problems for the Kurds which had already been spoken about in the media, the book was simply his interpretation of historical events, and that the extracts relied on by the prosecution had to be read in the book’s context. Further, the style of writing demonstrated he had no ideological motivations. Finally, it was inconceivable that a few sentences could affect the integrity or unity of the State.

Nevertheless, on 23 December 1992, the applicant was convicted under sections 8(1) and 6(1) of Law no. 3713 and sentenced to two years of imprisonment and a fine, as well as confiscation of all his books. The court based its decision on the applicant’s inaccurate representation of historical events, and alleged that he had supported separatism within the nation. The opening phrase of the book and certain other discussions within it, indicated that he had sought to support the existence of a separate Kurdish state within Turkey. Furthermore, the applicant should not have represented incidents where the government found it necessary to use force against persons in Diyarbakir as acts of torture and as instances of discrimination.

The applicant challenged this decision in the Court of Cassation, stating that his intention had been to criticize the way certain historical events had been handled, in the exercise of his freedom of expression. He had not had any separatist intentions. He also argued that the judgement had stemmed from the personal views of the judges and was political in nature, rendering it unfair. The court dismissed the applicant’s appeal on 27 May 1993 on the grounds that the court of first instance had provided reasons consistent with the evidence adduced to it.

The applicant was imprisoned in July 1993 and released in January 1995 when he paid his fine. In October 1995, Law no. 4126 of 1995 simultaneously reduced the prison term under section 8 of Law no. 3713 while increasing the fines applicable. The law also provided for re-examination of cases which had been brought under Law no. 3713. Therefore, the applicant’s case was re-examined on merits, and he was sentenced to an additional fine on 14 December 1995. This new sentence was upheld by the Court of Cassation in May 1997.

The applicant made an application to the European Commission of Human Rights on 18 November 1993 for a declaration that Turkey had violated his rights under Article 9 of the Convention for the conviction and Article 1 of Protocol No. 1 for the confiscation of his books. The Commission found that the applicant’s rights under Article 10 (Freedom of expression) – examined with Article 9 (Freedom of thought, conscience and religion) – had been violated on 11 December 1997.

The case was referred to the ECtHR on 17 March 1998 by the Commission for a determination of whether Article 10 and Article 1 of Protocol No.1 were violated. The applicant asked the Court to find that there had been violations of Articles 10, 6 § 1 (Right to a fair trial), and 7 (No punishment without law), and for just satisfaction under Article 41 (Just satisfaction) in the form of a declaration by the State that his conviction was null and void, and a return of his confiscated books.

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Decision Overview

The Court was principally concerned with whether the interference with the applicant’s rights in the form of the conviction, was compliant with the three-part test of validity, i.e., whether it was prescribed by law, pursued a legitimate aim, and was necessary in a democratic society for the obtainment of those aims. The Court did not entertain claims under Articles 6 § 1, and 7 because these had not been raised before the Commission when it was examining admissibility.

1. Prescription by law

The applicant’s argument was that because section 8 offered scope for different interpretations by different judges across cases, its effects were unforeseeable. The government contended that Law no. 4126 had made the elements of a section 8 offence much clearer, and it had been applied accordingly to the applicant. The Court ultimately relied on the Commission’s finding that the applicant’s conviction had been sufficiently prescribed by law because it had been based on section 8 of Law no. 3713.

2. Legitimacy of the aim

The government listed the maintenance of national security, public order, territorial integrity, and national unity as the aims of the conviction. The Court accepted this considering the volatile situation in Southeast Turkey and the need for the government to be responsive to potential threats of violence in the face of the separatist movement employing violent means to its ends.

3. Necessity in a democratic society

The applicant argued that he was convicted because his book had not adhered to the official version of historical events. He claimed that speaking about Kurdistan and criticizing torture in Turkey did not in themselves amount to endorsing separatism.

The government argued that it was more adequately equipped to determine the necessity of the interference than the Court because of its familiarity with the facts. The 1925 revolt described in the book was the origin of the Kurdish separatist and terrorist movement. The applicant had supposedly sustained this threat by praising persons within the revolt. The government had been exercising its margin of appreciation, widened by the need to protect territorial integrity, in prohibiting propaganda capable of inciting violence.

The Commission submitted that while Article 10 had appended duties and responsibilities, it also provided for political discussions for issues like those in Turkey. The applicant had discussed important political issues and had not incited violence. Thus, his conviction was a form of censorship and violated Article 10.

The Court emphasized that freedom of expression was vital to democracies and involved tolerating ideas that were perceived as offensive as well. Restrictions on the right had to be established as necessary through the demonstration of a “pressing social need”. While examining the proportionality of measures to the aims, the Court would look to the relevance and sufficiency of the stated reasons.

In this case, the Ankara National Security Court had convicted the applicant for an inaccurate representation of historical events and for rendering support to Kurdish separatism. While the book was not neutral in its descriptions and did intend to criticize governmental action, the Court emphasized that political speech on matters of public interest were liable to less restrictions by the government, especially if they pertained to criticisms of the government. Furthermore, since the government is in a dominant position, it should employ criminal sanctions with caution.

Taking into consideration the context of the case – the government’s objective of preventing terrorism and the volatile situation in Turkey for fifteen years, as well as the private status of the individual and the literary medium of his speech compared to that of mass media – the Court found that the applicant’s speech was likely to have only a limited effect on national security, public order, and the territorial integrity of Turkey. Additionally, parts of the book that were critical of the government did not incite violence. Finally, considering the severity of the penalties imposed on the applicant – a prison term and two sets of fines – the conviction of the applicant was found to be disproportionate.

In light of these reasons, the interference with the applicant’s rights was found to be disproportionate.

While the court awarded the applicant non-pecuniary damages, it held that it was not empowered to direct the government to declare the applicant’s conviction null and void, or order the return of his confiscated books.

Joint concurring opinion of Judges Palm, Tulkens, Fischbach, Casadevall and Greve

The judges reiterated that Article 10 even protected words of a “fighting” nature. It was the context of speech which deprived it of protection if, for example, the intention was inflammatory or inciteful of violence, or if there was a genuine risk violence would happen. Context is what distinguished the protected or non-protected nature of shocking and offensive speech.

Concurring opinion of Judge Bonello

Relying on American jurisprudence, Judge Bonello said that the yardstick for determining that speech can be restricted is if it presents a “clear and present danger” of violence.

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