Content Regulation / Censorship, National Security
The Sunday Times v. United Kingdom (No. 2)
Closed Expands Expression
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The Grand Chamber in the European Court of Human Rights (“ECtHR”) found that the conviction of Mr. Arslan (“applicant”) for publishing a book which contained criticism of the Turkish government’s actions violated his right to freedom of expression under Article 10 of the European Convention on Human Rights (“the Convention”). The applicant was first convicted in 1991 on grounds that his book, History in Mourning, 33 Bullets, encouraged separatism and incited violence. With the passing of a new law, his conviction was invalidated. Shortly thereafter, his book was republished, and he was charged again under different criminal provisions for propaganda against the unity of the state. The applicant was convicted, and his appeals were unsuccessful. On complaint to the European Commission, it was held that his conviction amounted to a form of censorship and was violative of his Article 10 rights. On reference to the Grand Chamber, the applicant’s conviction was considered a breach of his rights under Article 10 of the Convention. The Court noted the importance of political speech in a democratic society and the limited reach of the book because of its mode of publication, and concluded that the tone did not incite violence. Furthermore, the penalties against the applicant were considered particularly severe seeing as he was convicted twice. Thus, the conviction was found to be an unnecessary interference in a democratic society.
The applicant, Mr Günay Arslan, is a Turkish National who authored the Yunus Nadi Prize winning book – “History in Mourning 33 Bullets”. The first edition was published in December 1989, and a second one in July 1991. The preface of the book was written by the pro-Kurdish politician Musa Anter.
On 29 December 1989, during a criminal investigation, the public prosecutor successfully obtained an interim order from the Court to seize Mr. Arslan’s book. Thereafter, on 22 January 1990, Mr. Arslan was charged for dissemination of separatist propaganda under Article 146 § 3 and 6 of the Criminal Code. The public prosecutor had reasoned that the applicant in his book glorified the acts of insurgents in south-east Turkey, had contended that there were various nations within the Republic of Turkey, that the Turkish nation was barbarous and that the Kurds were victimised and oppressed. Before the National Security Court, Mr. Arslan contended instead that he was not responsible for the content of Mr. Anter’s preface, and that his intention was not to be separatist, but to represent his views on incidents which had occurred in his native province.
On 29 March 1991, Mr. Arslan was sentenced to six years and three months of imprisonment, along with the confiscation of his book. The Court reasoned that he had not represented the facts objectively because he wanted to criticize state policy, and he had maintained that the Kurds were being oppressed. While the Court recognized the importance for such events to be related to the public, the applicant’s book nevertheless had a separatist theme founded on racial considerations which went beyond that aim and weakened patriotic sentiment.
On 12 April 1991, the Prevention of Terrorism Act (Law no. 3713) came into force, which effectively repealed the law which formed the basis of the applicant’s conviction. Therefore, on 3 May, 1991, the National Security Court nullified his conviction and returned the confiscated copies of the book.
On 21 July 1991, Mr. Arslan’s book was republished. Thereafter, the prosecutor again filed for the seizure of the book on grounds that it was propaganda against the “indivisible unity of the state” prohibited by section 8 of Law no. 3713. While the initial attempts in convicting Mr. Arslan failed, before the National Security Court, on 28 January 1993, the applicant was once more held guilty for disseminating propaganda. The Court clarified that the declaration that the applicant’s earlier conviction as null and void did not bar his conviction under a new criminal provision. Regarding the merits, the Court also concluded, on similar lines of reasoning as before, that the applicant intended to incite Kurdish citizens to rebel against the state. He was sentenced to one year and eight months of imprisonment in addition to fine of 41, 666, 666 Turkish liras.
The applicant appealed the decision in the National Security Court in March 1993, arguing inter alia that a conviction for his criticism of the Kurdish oppression threatened his freedom of expression. His appeal in the National Security Court was held inadmissible on procedural grounds, but a subsequent appeal before the Court of Cassation, on similar grounds, yielded a judgement against him. Mr. Arslan’s appeal was rejected based on assessment of evidence.
On 7 January 1994, the applicant brought a complaint against the Republic of Turkey before the European Commission of Human Rights, alleging a violation of Article 10 of the Convention singularly, and in conjunction with Article 14. He also invoked Articles 6 (right to fair trial), 9 (freedom of thought, conscience and religion) and 10 (freedom of expression) to argue that his rights to freedom of thought and expression had been violated, and he had been discriminated against for his political opinion, violating his rights under Articles 10 and 14. The Commission ruled on 14 October 1996 that the applicant’s right under Article 10 (alone) had been violated, and no separate issue existed under Articles 10 and 14 read together.
The case was referred to the Grand Chamber on 1 November 1998.
Primarily, the applicant argued that his rights under Article 6 had been violated because he was convicted twice for the same offence and the National Security Court had not been independent and impartial. He also raised complaints under Articles 9 and 10, and Article 10 read with Article 14, seeking compensation under Article 41 of the Convention.
On the contrary, the government contended that the application was inadmissible because the applicant had not exhausted domestic remedies by failing to raise the claim in the Turkish Courts that the Prevention of Terrorism Act violated his freedom of expression. Besides, the applicant’s conviction was not in breach of Article 10 of the Convention because it was necessary in a democratic society and proportionate to the legitimate aim sought to be achieved by the law.
The Grand Chamber delivered the judgment of the European Court of Human Rights. Both the applicant and the respondent State agreed that the conviction of the applicant on the publication of the second edition of his book constituted an interference with his right under Article 10 alone. Therefore, the primary issue before the Court was to determine the legality of such interference under Article 10, para 2 of the ECHR.
Article 10 of the Convention prescribes the right to freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The scope of the right under Article 10 is limited, inter alia, to the extent necessary in a democratic society, in the interests of national security, territorial integrity or public safety and for the prevention of disorder or crime.
The preliminary objection of the Government of Turkey was failure of the applicant to exhaust domestic remedies, though the Court dismissed this claim by declaring that the applicant had sufficiently raised before national authorities his claim for violation of freedom of expression in principle and thus, satisfied the requirement for admissibility in substance. Since the parties had accepted that Mr. Arslan’s right to freedom of expression under Article 10 was interfered with, the Court instead analyzed if the interference satisfied the requirements under paragraph 2 of Article 10, in accordance with the three-part test of the interference’s prescription by law, pursuance of a legitimate aim, and the necessity in a democratic society.
Both the applicant and the respondent did not make submissions on this prong of the test. However, despite noting the Commission’s observation that the wording of section 8 of the Turkish Prevention of Terrorism Act was vague, the Court found the interference to be sufficiently prescribed by law.
While the government had argued that the applicant’s conviction was to maintain national security, public order, territorial integrity and national unity, the applicant did not make any submissions in this regard.
The Court accepted the government’s submissions, noting that the situation in south-east Turkey was sensitive and governmental authorities had to be vigilant for indications of further violence.
The applicant argued that his book concerned events which had transpired before the south-east conflict and the creation of the Kurdistan Workers’ Party (PKK) and therefore, there was no link between the publication of his book and the conflict that ensued. The Party is active in south-east Turkey and is recognised as a terrorist organisation by Turkey, the U.S. and the EU. Furthermore, his work did not constitute propaganda for rousing hatred against the government or the Republic, or claims for separatism or secessionism. In any case, his book was not akin to terrorism.
The government cited several extracts from the preface and the body of the book in support of its claims, inter alia, that the applicant had incited persons of Kurdish origin to use violence against the government which it described as an aggressor, and had further mounted a defense for the PKK which was a terrorist organisation. Additionally, the government also claimed that Article 10 conferred a wider margin of appreciation on the contracting states when it came to matters of terrorism and territorial integrity. Considering the PKK’s massacres in Turkey, the Turkish state had a duty to prohibit separatist works. In this context, the restriction was justified and not disproportionate to the aims pursued. Lastly, given the book was published at a sensitive time (when PKK was escalating operations in south-east Turkey taking advantage of the disorder created by the Gulf War), the applicant also had to abide by his duties and responsibilities in exercising his Article 10 right.
In response to the arguments by both parties, the Commission submitted that while Article 10 did carry duties and responsibilities, it also granted the right to publicly discuss important issues, such as the one Turkey was going through. However, they did not find any incitements to violence in the content of the book, and thus the conviction amounted to “censorship”, violative of Article 10 [p. 16].
The Court referred to Zana v Turkey and Fressoz and Roire v France to emphasize that freedom of expression encompassed even shocking, disturbing and offensive information and ideas under the demands of pluralism and democracy. Furthermore, the adjective “necessary” in Article 10 § 2 alludes to a “pressing social need” which while subject to the state’s margin of appreciation, was also subject to the supervisory jurisdiction of the Court.
The Court did not find that the applicant’s description of the events in his book were neutral. It was clear that he intended to be vehemently critical of the Turkish government’s actions in the south-east of Turkey, and wanted to prompt opposition. Nevertheless, Article 10 § 2 provided little leeway for restricting political speech or discussion of public interest matters (Wingrove v United Kingdom), particularly if it was directed at the government. In a democratic society, governmental action required public scrutiny.
While the state is allowed to adopt criminal provisions, especially if they incite violence – and the Court in fact, did appreciate the state’s concerns about terrorism prevention and that the second edition was published at a time when many persons of Kurdish origin were present at the Turkish border – it nevertheless found the interference unnecessary. Firstly, the applicant was a private individual and his criticisms were made pubic through a book, not mass media. This limited its impact on national security, public order and the state’s territorial integrity. Secondly, the tone of the book did not incite violence against the state. Finally, the Court also factored the severity of penalties already inflicted on the applicant (particularly the fact that he was convicted twice, and was sentenced to one year and eight months’ imprisonment) when assessing the proportionality of the interference.
Thus, the Court found the conviction as violative of Article 10 since it was disproportionate and not necessary in a democratic society. In light of these findings, the Court did not find it necessary to examine separate claims under Article 10 read with Article 14.
Although the applicant claimed pecuniary damages, the Court could not find a sufficient link between the violation of his right and a loss of earnings. Nevertheless it awarded him non-pecuniary damages as compensation for distress, in addition to costs and expenses.
Joint Concurring Opinion of Judges Palm, Tulkens, Fischbach, Casadevall and Greve
The joint concurring opinion took a contextual approach in reaching the same conclusion as the majority opinion did. Judges Palm, Tulkens, Fischbach, Casadevall and Greve declared that the majority opinion focused inordinately on the form of words used, and paid less attention to the context of the words and their “likely impact”. In a democracy even “fighting” words are protected. It is the context of inflammatory language which can make it lose its protection, such as whether the language intended to incite violence, the influential position held by an author or the medium employed for publication of speech. The context draws a distinction between shocking or offensive language worthy and unworthy of protection under Article 10.
Concurring Opinion of Judge Bonello
While Judge Bonello voted with the majority in violation of Article 10, he did not approve of the test employed by the majority to determine justifiable interference in a democratic society. The common test employed by the majority was whether the writings incited the use violence. Judge Bonello found this as an insufficient yardstick, and instead endorsed a standard of punishment for incitement only where words created a “clear and present danger” [p. 24]. This is a test of imminent lawlessness pivoting on “proximity and degree”. Accordingly, he concluded that the applicant’s words did not have the necessary potential “of imminently threatening dire effects on the national order” [p. 25], nor did the instant suppression of those expressions was indispensable to save Turkey. Under such circumstances, any attempt to thwart expression would amount to subsidising the subversion of freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression by recognizing the importance of political speech, especially when it concerns criticism of the government. It also recognizes that different mediums of publication have varying levels of impact, and thus degrees of interference should also be calibrated. Importantly, the joint concurring opinion of Judges Palm, Tulkens, Fischbach, Casadevall and Greve identifies a vital test in the context of speech for distinguishing between protected shocking/offensive speech and unprotected speech.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Former Article 142 of the Criminal Code
Sec. 8, The Prevention of Terrorism Act (Law no. 3713)
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