Case Summary and Outcome

The European Court of Human Rights unanimously found that the conviction and sentence of the two Turkish nationals under the Prevention of Terrorism Act 1991 by Turkey was a violation of their right to freedom of expression of Article 10 of the European Union Convention on Human Rights.  Mr Fikret Başkaya, the author of an academic essay and the book’s publisher, Mr Mehemet Selim Okçuoğlu, were convicted for disseminating propaganda against the indivisibility of the State thereby vindicating the acts of the PKK (Workers’ Party of Kurdistan), a terrorist organization which threatened the interests of the State. The European Court of Human Rights ruled that although the Government took actions to furtherance the “legitimate aims”, the aim pursued was not “necessary in a democratic society”. The Court further held that although the passages in the book were strongly worded, however, they did not incite violence. Therefore, the applicants’ conviction constituted a violation of their freedom of expression. The Court awarded the applicants monetary compensation.

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Facts

Mr Fikret Başkaya, a professor of economics and a journalist, authored a book titled “Batılılaşma, Çağdaşlaşma, Kalkınma –Paradigmanın İflası/Resmi İdeolojinin Eleştirisine Giriş (“Westernisation, Modernization, Development – Collapse of a Paradigm/An Introduction to the Critique of the Official Ideology”).” The book describes Turkey’s socio-economic evolution since the 1920s and concludes that Turkish territory belongs to “Kurdistan” and has been annexed as a colony by the Turkish State. The public prosecutor at the Istanbul National Security Court on 2 August 1991 issued an indictment against Mr Fikret Başkaya and Mr Mehemet Selim Okçuoğlu,, owner of the publishing house, Doz Basin Yayin Ltd Sti. The applicants were charged under sections 8(1) and 8(2) respectively of the Prevention of Terrorism Act 1991 (“the 1991 Act”). The public prosecutor demanded the conviction of the applicants and the confiscation of all copies of the published book.

The first applicant canvassed that his book was academic in response to the indictments. As a professor, he had had the duty to conduct research, publish conclusions emanating from the study and should not be forced to accept the “official version of reality.” His book, an academic exercise, should not be subjected to a trial in Court, and no one should be convicted for expressing their opinion. The second applicant submitted that an assessment of the book solely on extracts from a single chapter was wrong. He concluded that section 8 of the 1991 Act was inconsistent with the Turkish Constitution and Turkey’s international obligations.

On October 14, 1992, the Istanbul National Security Court acquitted the applicants on the ground that the book as a whole was an academic work with no elements of propaganda. The public prosecutor appealed to the Court of Cassation to set aside the trial court’s verdict. The Court allowed the appeal and referred the case back to the National Security Courts for retrial.

The Istanbul National Security Court, on August 5, 1993, found the applicants guilty of the offences. However, it dismissed the order for confiscation of the book. Mr Fikret Başkaya was sentenced to two years imprisonment and 50,000,000 Turkish liras (TRL) fine. For exhibiting good conduct during the trial, the Court reduced his sentence to one year and eight months imprisonment and a fine of TRL 41,666,666. Mr Mehemet Selim Okçuoğlu was sentenced to five months imprisonment and a fine of TRL 41,666,666.

The Court of Cassation upheld the National Security Court’s verdicts on appeal. Thereafter, the applicants served their sentences in prison and paid the fines. Mr Fikret Başkaya was dismissed from his post as a lecturer at the University of Ankara and the sixth edition of his book was also confiscated.

The Istanbul National Security Court re-examined the second applicant’s case by the reason of the amendment to the Prevention of Terrorism Act of 1991. On April 19, 1996, the Court held that these amendments could not be applied to his case because he had already served his sentence.

Mr Başkaya and Mr Okçuoğlu, applied to the European Commission for violations of Articles 9 (right to freedom of thought and conscience), Article 10 (Right to freedom of expression), Article 7 (prohibition of retrospective punishment), Article 6 § 1 (right to a hearing before an independent and impartial tribunal). Article 6 § 2 (right to be presumed innocent until proved guilty) for the first applicant and a breach of Article 14 (prohibition of discrimination) taken in conjunction with Article 10 for the second applicant.

On 22 February 1994 Mr Başkaya, and later on 9 June Mr Okçuoğlu,, applied to the European Commission for violations of Articles 9 (right to freedom of thought and conscience), Article 10 (Right to freedom of expression), Article 7 (prohibition of retrospective punishment), Article 6 § 1 (right to a hearing before an independent and impartial tribunal). Article 6 § 2 (right to be presumed innocent until proved guilty) for the first applicant and a breach of Article 14 (prohibition of discrimination) taken in conjunction with Article 10 for the second applicant.

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Decision Overview

The main issue before the consideration of the European Court of Human Rights was whether the conviction of the applicants for the publication of the book violated article 6(1) [right to a fair trial], article 7 [no punishment without law], article 9 [freedom of thought, conscience and religion] and article 10 [freedom of expression] of the European Convention on Human Rights.

Article 7 – Prohibition of Retrospective Punishment

The applicants submitted that the wording of section 8 of the 1991 Act and the vagueness of the notion of “dissemination of propaganda against the indivisibility of the State” was not foreseeable at the material time that the publication constituted an offence. As such, the measures imposed upon them were unlawful.

The Government disputed these allegations and stressed that the application of section 8(2) to publishers would typically entail a more favourable sentence than under section 8(1).

The Court specified that by Article 7, the law must clearly define an offence and its sanctions. This requirement is satisfied where an individual can know from the wording of the relevant provision. In the present case, section 8 set out the offence and the penalties that gave pointers that the offence covered publications and who might incur liability. The book fell within the category of publications contemplated in the provision, and at the material time, the provision specifically mentioned “printed matter other than periodicals.” The Court found no violation of Article 7 with respect to Mr Fikret Başkaya conviction and sentence. There was also no violation of Article 7 on Mr Okçuoğlu, conviction. However, there was a violation on account of his sentence to a term of imprisonment. The prison term applied to the sentencing of editors and not to publishers. The imposition of a prison sentence on Mr Okçuoğlu, was incompatible with the principle in Article 7.

Article 6(1) – Right to a Hearing before an Independent and Impartial Tribunal

To ascertain how the Istanbul National Security Court infringed Mr Başkaya’s and Mr Okçuoğlu’s, right to a fair trial, in particular, whether, viewed objectively, they had a legitimate reason to fear that the Court which tried them lacked independence and impartiality. The applicants argued that their right to a fair hearing was denied by the presence of a military judge on the bench of the National Security Court. The Minister of Defence and the Prime Minister appoints military judges subject to the approval of the President of the Republic. Their appointment was dependent on the executive. These considerations impaired the independence and impartiality of the Istanbul National Security Court and prevented them from receiving a fair trial, in violation of Article 6(1).

The Government maintained that the Applicants failure to raise the issue that an independent and impartial tribunal had not heard their case had failed to exhaust domestic remedies as required by Article 35. Furthermore, the rules governing the appointment of military judges to the National Security Courts ensure full compliance with the requirements of independence and impartiality within the meaning of Article 6(1). The Government disputed the applicants’ argument that military judges were accountable to their superior officers. It stressed that a military judge acting in a judicial capacity was assessed exactly as a civilian judge. The State further averred that the members of the National Security Court, including the military judge, voted for the applicants’ acquittal in the first round of proceedings. The applicants had only been convicted in the second round (see paragraphs 17-20 above). The Government concluded that as a result of the anti-terrorism campaign, the authorities considered it necessary to strengthen courts by including experienced military judges to provide the courts with the expertise and knowledge needed to deal with threats to the security and integrity of the State.

The Court upheld the government argument that the military judges sitting as members of National Security Courts provided some level of independence and impartiality. The Court, however, held that military judge in the present case still take orders from the executive as servicemen, being subject to military discipline, and their appointment is subject to the administrative authorities and the army. The above considerations make their independence and impartiality questionable.

The Court noted that the Commission, however, in their findings concurred with the applicants fear about being prosecuted in a court with an army judge for disseminating propaganda aimed at undermining the state integrity and national unity. Hence, the Commission found a breach of Article 6(1) irrespective of being acquitted in the first round of proceedings. In light of that conclusion, the Commission found it unnecessary to examine the allegations  under Article 6(2) [Right to be Presumed Innocent Until Proved Guilty] and Article 14 [Prohibition of Discrimination].

Articles 9 – Right to Freedom of Thought and Conscience), and Article 10 -Right To Freedom of Expression

The Court examined the 3-part test to determine the interference with the applicants’ right to freedom of expression based on their conviction and sentence under section 8 and whether the interference contravened Article 10.

Prescribed by law

The Court clarifies that Article 7 and 10 § 2 are the same. At the time the applicants committed the offence, the applicable law was sufficiently clear to meet the requirement of lawfulness. As such, the applicants’ conduct constituted an offence at the time. The first applicant’s conviction and sentence were prescribed by law.

At the second applicant conviction, the Constitutional Court had repealed the relevant provision he was convicted on. Hence, the provision applied at the Commission of the offence was no longer in force when the second applicant was convicted in the National Security Court. The Court, therefore, declares that the second applicant’s conviction and his sentence was in breach of Article 10.

Legitimate Aim

The applicants’ argued that the interference complained of was aimed at suppressing opinions and thoughts at variance with the “official ideology” of the State. In contrast, the Government argued that the measures taken against the applicants were in compliance with the 1991 Act to protect the state interests, integrity and the prevention of disorder and crime. The Court sustained the Government argument because of the sensitivity of the security situation in Turkey at the time. The separatist movement had recourse to violent means.

In justifying that the interference was unnecessary for a democratic society, the applicants canvassed that the incriminating book contained an academic analysis and the author’s personal opinions; their convictions amounted to censorship that was likely to discourage anyone from expressing themselves or publishing ideas of a similar kind in future.

The Government maintained that the convictions created a fair balance between the applicants’ right to freedom of expression and the public’s right to be protected. The book incited violence by describing Turkey as a colonialist power oppressing Kurdistan.

In assessing the issue relating to Article 10, the Court opined that there is little scope for restrictions on political speech and matters of public interest. The dominant position that the Government occupies subjects it to a higher level of criticism than a private citizen. Furthermore, the State in their capacity as guarantors of public order, measures, even of a criminal-law nature, should have resorted to other means to address the attacks or criticism than the criminal proceedings.

The Court considered the words used in the book and the background to which it was published and declared that though the book contained strongly-worded statements, the views expressed in the book could not be said to incite violence. Also, the State lacks adequate regard for the freedom of academic expression and the public’s right to be informed of a different perspective on the situation in south-east Turkey, no matter how unpalatable that may sound. The reasons submitted for convicting and sentencing the applicants, although relevant, cannot be regarded as sufficient to justify the interference with their right to freedom of expression.

The Court found that the nature and severity of the penalties imposed on the applicants that led to their conviction and sentencing were disproportionate to the aims pursued and, therefore, not necessary in a democratic society. Accordingly, there was a violation of Article 10 of the Convention to both applicants.

Article 41 Claim

The applicants claimed compensation for pecuniary, non-pecuniary damages and reimbursement of costs and expenses incurred in the domestic and the Convention proceedings.

Joint Concurring Opinion of Judges Palm, Tulkens, Fischbach, Casadevall and Greve

The five judges noted that the State attached too much weight to the words used in the publication rather than the general context in which the words were used and their likely impact. The language in question may be violent but protected by Article 10. The approach should be a careful examination of the context in which the offending words appear to draw a meaningful distinction between the offensive language protected by Article 10 and that which forfeits its right to tolerance in a democratic society

Concurring Opinion of Judge Bonello

Judge Bonello agreed that there was a violation of Article 10 but disagreed with the test applied to determine the interference of the applicants’ freedom of expression in a democratic society. The common test employed by the National courts to justify their conviction was insufficient to merely say that the writings published supported or instigated the use of violence. The punishment would only be justifiable in a democratic society if incitement created a clear and present danger. Meaning the words had no potential of imminently threatening national order or that the instant suppression of those expressions was indispensable for the salvation of Turkey. They created no peril.

Partly Dissenting Opinion of Judge Gölcüklü

Judge Gölcüklü disagrees that there has been a violation of Article 6 § 1. He found that a military judge’s presence did not affect the independence and impartiality of the National Security Courts. The Court comprises three judges, two of whom are civilian. Also, as a nonmilitary Court, its decisions are subject to review.

 

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