Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
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The Court held that the conviction of Mr. Ahmet Sami Belek and Mr. İsmail Muzaffer Özkurt infringed on Article 10 of the European Convention on Human Rights (ECHR). Furthermore, the impugned writings contained no call for the use of violence, armed resistance or an uprising, and did not constitute hate speech.
Mr. Ahmet Sami Belek and Mr. İsmail Muzaffer Özkurt, the applicants, are Turkish nationals who are the owner and editor-in-chief respectively of a daily newspaper headquartered in Istanbul, Evrensel (The Universal). Between 2004 and 2005, the newspaper published articles with quotations from the Worker’s Park of Kurdistan (PKK). Because of these publications, the applicants were charged with publishing statements by an illegal armed organization. This behavior is punishable under the Prevention of Terrorism Act and violators can be fined up to TRY $2,000.
In response to these charges, the applicants asserted that such convictions were a violation on their right to freedom of expression, which is found in Article 10 of the European Convention on Human Rights. Furthermore, they also claimed that it was impossible for them to appeal their case to the Court of Cassation and this also violated their right to fair trial, which is found in Article 6 of the Convention.
On the matter regarding the impossibility of introducing an appeal, the Court recalled that it had already dealt with cases raising issues similar to those of the present case and found a violation of Article 6 of the Convention. In this case, it considered that the applicants suffered a disproportionate interference with their right of access to a court and that, accordingly, the right to a fair trial guaranteed by Article 6 of the Convention had been violated. The Court therefore saw no reason to depart from the conclusion it had reached in the case of Bayar Gürbüz. Accordingly, there had been a violation of Article 6 of the Convention in this regard.
The Court noted that it was undisputed between the parties that the interference in question was prescribed by law and pursued a legitimate aim under Article 10 of the Convention, namely the maintenance of public safety, the prevention of disorder, and crime prevention. The dispute, however, concerned the question of whether the interference was “necessary in a democratic society”. The Court considered it appropriate to pay particular attention to the words used in this article and the context of its publication, taking into account the circumstances surrounding the cases submitted to it, especially the difficulties associated with the fight against terrorism, such as in the case of Sürek v. Turkey (No. 4).
The Court noted that the statements contained no call for the use of violence, armed resistance, or insurrection and did not constitute hate speech, which, according to the Court, are the essential elements of the analysis. After reviewing the reasons given by the domestic court to find the applicants liable, the Court concluded that they can not be considered, as such, sufficient to justify the interference with freedom of expression of those concerned and therefore the publication of these statements should be considered a criminal offense.
The Court held that the respondent State was to pay the applicants monetary damages, costs, and expenses.
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