Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
Closed Expands Expression
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The European Court of Human Rights held that the right to freedom of expression of a Turkish historian had been violated by the permanent threat of prosecution caused by repeated laying of criminal charges against him. The Court held that the vague and broad wording of the criminal charge of “denigrating the Turkish nation” meant that there was a continuous risk for people expressing their opinion on contentious issues as individuals were not able to reasonably foresee the potential application of the offence.
On October 6, 2006 Altuğ Taner Akçam, a professor of history working specifically on the historical events of the 1915 Armenian genocide, published an article in AGOS, a bilingual Turkish-Armenian newspaper criticizing the prosecution of Hrant Dink under article 301 of the Turkish Penal Code which criminalized the “denigration of Turkishness”. Dink, an Armenian journalist had been murdered by ultranationalists following the prosecution and a campaign in the media to stigmatize him. An individual laid a complaint against Akçam and criminal charges were then brought against Akçam for violation of article 301 (denigration of Turkishness), article 214 (incitement to commit an offence), article 215 (praising a crime and a criminal) and article 216 (incitement to hatred and hostility among the people) of the Turkish Criminal Code. Akçam, in his statement before the Public Prosecutor of Şişli, argued that he had not written the article with the intention to denigrate the Turkish nation or to incite hatred or hostility but rather to support his colleague, Hrant Dink, and to express his opinion on the Armenian situation.
On January 20, 2007, the Şişli Public Prosecutor decided to terminate the proceedings on the grounds that the article written by Akçam in his capacity as a professor of history should be considered protected expression under article 10 of the European Convention on Human Rights. The individual who first brought the complaint against Akçam filed a objection to the decision not to prosecute but the objection was dismissed by the Third Chamber of the Beyoğlu Assize Court.
On October 11, 2007, the Şişli Criminal Court sentenced Arat Dink (the editor of AGOS and son of Hrant Dink) and Serkis Seropyan (the owner of AGOS) to a year’s imprisonment under article 301 for accusing the Turkish nation of genocide via the press. Although Akçam was not a party to those proceedings, the Şişli Criminal Court, on its own motion, ordered the reopening of the investigation against Akçam. On November 28 2007, another complaint lodged against Akçam by an individual, accusing him of denigrating Turkishness was rejected, and the prosecutor issued a decision of non-prosecution. No further investigation had been initiated against Akçam after the judgment of the Şişli Criminal Court of October 11 2007.
On January 14 2008, Akçam approached the European Court of Human Rights arguing that the numerous charges laid against him demonstrated he was under a permanent risk of prosecution even though none of the charges had led to a conviction. Akçam first requested an interim measure under Rule 39 of the Rules of Court arguing that there was an imminent risk of irreparable harm which required urgent interim measures, which was rejected by the Court, but the Court did later hear the merits of the case
The central issue for the European Court of Human Rights to determine was whether Akçam could be considered a “victim” of a rights violation and so whether the case was admissible, and then whether the threat of prosecution constituted an interference with Akçam’s right to freedom of expression.
Akçam argued that even though the criminal investigation opened against him did not result in prosecution, the fact that an investigation could potentially be brought against him under article 301 for his scholarly work on the Armenian issue caused him great stress, apprehension and fear of prosecution and thus constituted a continuous and direct violation of his rights under article 10 (para. 53). He argued that this continuous risk of being prosecuted under article 301 puts him under a constant pressure, which precluded him from working and writing on the Armenian issue. Akçam submitted cases where two writers had been convicted under article 301 for their articles and books published on the Armenian issue and he described the intimidation campaign conducted by some individuals and newspapers against him to illustrate the permanent risk of prosecution he faces.
The Turkish government submitted that Akçam did not meet the requirements of a “victim” under article 34 as he was not personally affected by a violation of the Convention and that the right to petition before the Court could not be used to prevent a potential violation of the Convention nor to allege the incompatibility of a national law in abstracto (para. 62-63). As part of their argument that Akçam’s rights were not being violated, the Government submitted samples of decisions of non-prosecution and judgments of acquittal given by criminal courts in cases concerning the prosecution under article 301, and also provided statistical information that showed a significant decrease in prosecutions under article 301.
Addressing the issue of the application of article 34, the Court confirmed that in order to claim to be victim of a violation, a person must be directly affected by a measure. In that sense, the Convention does not grant a right to actio popularis (an action brought in the public interest) (para. 66). However, the Court noted that an applicant could claim to be a victim of a violation even if they were not able to submit a concrete interference to support their allegation which would lead the Court to examine whether the impugned legislation was in itself compatible with the Convention (para. 67). The Court added that a person could claim to be victim of a violation in absence of an individual measure of implementation if they were required to modify their conduct because of a law or risked being prosecuted or if they were a member of a class of people who risked being directly affected by the legislation. The Court also noted the chilling effect that the fear of sanction had on exercise of freedom of expression even in the case of an eventual acquittal, taking into account the possible fear discouraging one from expressing similar opinions in the future (para. 68).
As to the instant case, observing that Akçam was a history professor working and publishing on the Armenian issue, a sensitive subject in Turkey, the Court held that he, like Hrant Dink, belonged to a group of people who could easily be stigmatized for their opinions and be prosecuted under article 301. The Court noted that despite the decision of non-prosecution, Akçam continued to face the possibility of further investigation of this nature as a result of the criminal complaints by individuals alleging the violation of article 301 (para. 71-72). Taking into consideration the intimidation campaign presenting Akçam as a “spy” and a “traitor”, the Court also held that the criminal complaints lodged against him turned into a harassment campaign requiring him to display self-restraint in his academic work (para. 75).
The Court also examined the amendment to article 301 adopted by the Turkish Government on May 8, 2008. The amendment, aimed at preventing arbitrary applications of the article, followed sustained criticism from European institutions and the Turkish public after a number of controversial cases and criminal investigations were brought against prominent figures in Turkish society. These amendments included the replacement of the term “Turkishness” with “Turkish nation”; the maximum period of imprisonment was reduced from 3 to 2 years; and the investigation on the ground of article 301 was conditioned to an authorization by the Minister of Justice. Based on the statistics provided by the Government, the Court noted that there was still a significant number of prosecutions initiated by public prosecutors under article 301 for which the Ministry of Justice granted authorization. The Court commented that this system of prior authorization introduced by the amendment was not a lasting solution to replace the integration of Convention standards into Turkish legal system and practice (para. 77). The Court held that prior authorization for prosecution did not constitute an effective safeguard for similar cases since the impugned provision may be applied again at any time in the future, in case of a change of political will by current Government or change of policy by a new Government (para. 78).
Accordingly, the Court held that in the light of the circumstances of the case, Akçam was under a considerable risk of prosecution and the threat hanging over him was real and therefore had victim status in the meaning of the Convention (para. 82).
The Court assessed whether the interference with Akçam’s right to freedom of expression was prescribed by law, and so whether it would pass the first requirement of a legitimate limitation to the right. The Court accepted that the wording of article 301 had been amended by the Government to prevent arbitrary applications of the provision but held that despite this formal amendment, the concepts of Turkishness and Turkish nation were interpreted in the same manner by the Court of Cassation and so the amendment of the wording in the provision did not introduce a substantial change or contribute to the widening of the protection of the right to freedom of expression (para. 92). The Court held that the scope of the terms under article 301, as interpreted by the judiciary, was too wide and vague and did not allow individuals to regulate their conduct or to foresee the consequences of their acts (para. 93). The Court also concluded that the safeguards adopted to prevent the abusive application of article 301 by the judiciary – the requirement of a prior-authorization – did not provide a reliable and continuous guarantee or remove the risk of being directly affected by the provision because any political change in time might affect the interpretative attitudes of the Ministry of Justice and open the way for arbitrary prosecutions (para. 94).
Accordingly, the Court held that article 301 did not meet the “quality of law” required by the Court since the unacceptably broad terms of the provision did not allow for foreseeability of its effects. [para. 95]. The Court concluded that the interference with the right to freedom of expression of Akçam was not prescribed by law and was an infringement of article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The European Court of Human Rights emphasized that a criminal provision which contains vague and broad notions of conduct which therefore precludes the ability of individuals to foresee the application of the provision does not constitute a “law” and so cannot justifiably limit the right to freedom of expression. The Court also acknowledged that an individual who has been subject to criminal charges but has not been prosecuted or convicted may still meet the criteria of “victim” under article 34 (which requires that only “victims” of individual rights violations may approach the Court for relief) as the charges constitute a threat of prosecution which meets the standard of a rights infringement.
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