Content Regulation / Censorship, Hate Speech, National Security
Government of Kazakhstan v. Respublika
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Hasan Bayar and Ali Gürbüz, the owner and the editor-in-chief of a Turkish newspaper, alleged before the European Court of Human Rights (ECtHR) that the Turkish courts had violated their rights right to a fair hearing and to freedom of expression under Articles 6 and 10 of the European Convention on Human Rights (ECHR). The ECtHR found that by fining the Bayar and Gürbüz for publishing statements made by an illegal, armed organization, Turkey had violated Article 10, and by dismissing their appeal without considering the merits, Turkey had violated Article 6.
Hasan Bayar and Ali Gürbüz are, respectively, the owner and the editor-in-chief of Ülkede Özgür Gündem, a Turkish newspaper based in Istanbul. Bayar and Gürbüz were prosecuted and fined for the publication of statements in their newspaper by the Kurdistan Workers’ Party (“PKK”), an illegal, armed organization. The trial court fined Bayar and Gürbüz a sum amounting to the equivalent of roughly 300 USD and left open the possibility of an appeal on points of law. However, because the appellate court considered the fine too small to warrant review, it dismissed the case without considering its merits.
In an effort to avoid overloading Turkey’s Court of Cassation with cases of lesser importance, the Turkish Criminal Code allows automatic dismissal at the appellate level if a fine falls below a certain amount. Article 305 of the Turkish Criminal Code states that the publication of statements or leaflets made by an illegal, armed organization (i.e., a terrorist organization) is punishable by one to three years’ imprisonment. Although Bayar and Gürbüz were fined less than the statutory amount that would require consideration of the merits on appeal and were not sentenced to imprisonment, they argued that the fact that their conviction arose from an offense that could have resulted in imprisonment meant that the conviction did not concern a “petty offense,” and, therefore, their Article 6 right to a fair hearing had been violated. They argued that the Turkish courts must hear appeals from convictions that carry the potentiality of imprisonment, even if the actual sentence is a fine that falls below the Court of Cassation’s legitimate cut-off.
Bayar and Gürbüz also argued that by fining them in their capacity as owner and editor of Ülkede Özgür Gündem, the Turkish courts had suppressed their Article 10 right to freedom of expression. Although the Turkish Criminal Code restricts publications from terrorist organizations for the legitimate purpose of protecting the integrity of national territory, Bayar and Gürbüz argued that the restriction in question was not “necessary in a democratic society” because the regulation did not consider the context of the statements in question. Significantly, the statements in question concerned a PKK leader’s desire for non-violent resolutions to political tensions.
In a unanimous decision, the ECtHR found that the Turkish courts had deprived Bayar and Gürbüz of their ECHR Article 6 right to a fair hearing and their ECHR Article 10 right to freedom of expression.
In considering Bayar and Gürbüz’s Article 6 claim, the ECHR considered several factors: (1) their case had only been examined at one level of jurisdiction (the trial level); (2) unlike many courts of appeal, the Turkish Court of Cassation can review questions of fact decided at the trial level to determine their compliance with the law; and (3) the Turkish Constitutional Court’s finding on Article 305 of the Turkish Criminal Code stating “‘in the event of imposition of a fine of less than a given amount, the fact of restricting the defendant’s right to appeal on points of law, without taking account of the characteristics of the sentence or any harmful consequences that it may have, cannot be regarded as compatible with Articles 2 and 36 of the Constitution.’” The ECtHR found that the offense at hand, in light of the potentiality of imprisonment, could not be considered “petty” enough to forgo the appeal requirements set out by the Turkish Constitutional Court.
In considering the Article 10 claim made by Bayar and Gürbüz, the ECtHR considered whether the speech restriction imposed by the Turkish Criminal Code could be considered “necessary in a democratic society.” The ECtHR found that the Turkish courts should have considered the context of the statement. Although restricting terrorist messages is a legitimate aim in a democratic society, the statements in question contained no provocation or call to violence. Rather, the statements expressed a desire to find peaceful resolutions to political differences. As such, by suppressing the statements, the Turkish courts had violated Article 10 of the ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By declaring that Turkish courts must consider the context of statements made by illegal, armed organizations when determining whether their publication is criminal, the ECtHR expanded freedom of expression. The ECtHR’s decision makes clear that a statement’s purpose should be considered in deciding whether its censorship is “necessary in a democratic society.” If the statement does not further a terrorist objective or insight violence, its publication should not be criminalized.
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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