Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The European Court of Human Rights found that Turkey violated freedom of expression by convicting the applicant to 11 days’ solitary confinement for writing a letter that allegedly included a mark of respect for the imprisoned leader of PKK (Kurdish Workers’ Party), a terrorist organization according to Turkish authorities. Relying on its reasoning in the case of Yalçınkaya and Others v. Turkey, the Court said that the relevant passage in the letter did not express any support for or approval of the acts of Abdullah Öcalan nor did it incite either to violence or terror nor propaganda for a terrorist organization. In these circumstances the disciplinary sanction imposed on the applicant could not be considered “necessary in a democratic society” and could not justify the interference with his freedom of expression.
In 2008, while serving a prison sentence, the applicant wrote a letter to the Ministry of Justice, in which he employed the expression “sayın”, meaning “esteemed” in respect of the imprisoned leader of PKK, Abdullah Öcalan. In accordance with the regulations on the administration of penitentiary institutions, he was found guilty of breaching a prison order and sentenced to 11 days’ solitary confinement by the Prison Disciplinary Board.
On February 26, 2008 the applicant appealed to the Bolu Enforcement Judge for the annulment of the sentence. His objection was rejected and this decision was upheld by the Bolu Assize Court on March 11, 2008. The applicant lodged an application with the European Court of Human Rights on May 14, 2008 in respect of the violation of his right to freedom of expression.
The main issue before the Court was whether the disciplinary sanction imposed on the applicant pursuant to the regulations on the administration of penitentiary institutions had violated his freedom of expression. Referring to its previous judgment in the case of Yalçınkaya and Others v. Turkey, the Court applied the same legal reasoning without further examining the specific facts of the instant case.
In Yalçınkaya and Others v. Turkey, 19 applicants were convicted for sending letters to the State Prosecutor in which they had used the term “sayın” to refer to Abdullah Öcalan whereby they had sought to denounce the incrimination caused by use of this word. The Government argued that the applicants’ letter constituted part of a large campaign organized by the PKK and aimed to legitimize the activities of the latter by praising its leader. The applicants rejected this allegation and submitted that their conviction amounted to a violation of their right to freedom of expression.
Considering that the interference in issue was “prescribed by law” and pursued the legitimate aim of national security, the Court subsequently examined whether the interference with the freedom of expression of the applicants was necessary in a democratic society.
The Court first reiterated that “the freedom of expression constitutes one of the essential foundations of a democratic society” and is applicable not only to information and ideas that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”. While assessing necessity, the Court noted that the interference must answer to a pressing social need and that it is its duty to determine whether the measure in question was “proportionate to the legitimate aims pursued” and whether the reasons given by the national authorities to justify it appear “relevant and sufficient”.
The Court observed that the applicants’ conviction appeared to be based solely on their use of the expression “sayın Abdullah Öcalan”, which was interpreted by the domestic courts as a mark of respect and a praise for the PKK leader and the terrorist activities carried out by him. The Court further pointed out that the applicants did not appear to have expressed any support for the acts committed by Abdullah Öcalan or the PKK nor any approval in this respect. It noted moreover that the criminal court had considered that the relevant letters contained neither incitement to violence or terror nor propaganda for a terrorist organization.
Finally in the Court’s view, nothing indicated in the case-file that there was existed a clear and imminent danger capable of justifying the impugned interference. Therefore the Court concluded that the reasons given by the domestic courts to justify the applicants’ conviction were not sufficient to interfere with the right to freedom of expression and thus the interference in question was not necessary in a democratic society.
Based on the foregoing reasoning adopted in the Yalçınkaya and Others v. Turkey case, the Court unanimously concluded that the interference in the present case violated the applicant’s right to freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by affirming that Turkey’s claim that the use of the word ‘esteemed’ in a letter to the PKK leader was insufficient to justify an interference with the applicant’s freedom of expression
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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