Case Summary and Outcome

The Grand Chamber of the European Court of Human Rights (ECtHR) held that the State of Turkey had violated Article 10 for convicting Mr. Ceylan under the Criminal Code for “non-public incitement to hatred and hostility” after he published an article on the Turkish question. The conviction was found to be sufficiently prescribed by law, and in pursuance of the legitimate aims of national security, territorial integrity, and public order. However, it was considered not necessary in a democratic society because the applicant had engaged in political speech in a political position – as a trade union leader – which deserved heightened protection. He had not incited any violence or hostility, and as a result of his conviction, had lost his position as leader and several civil and political rights. Thus, the Court found his conviction and sentencing disproportionate and awarded him non-pecuniary damages.

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Facts

The applicant was Mr. Münir Ceylan, a Turkish national and president of the petroleum workers union (Petrol-İş Sendikası). In the 28 July 1991 issue of the weekly Istanbul newspaper, Yeni Ülke (“New Land”), he wrote an article “The time has come for the workers to speak out – tomorrow it will be too late” (“Söz işçinin, yarın çok geç olacaktır”) in which he spoke about the “State terrorism” against the Kurdish people. He also spoke about the difficulties faced by the Kurdish people and termed it “genocide in Turkey”. In particular, he highlighted the Prevention of Terrorism Act and how it was aimed at suppressing the Kurdish people and the working class. He therefore called on the proletariat to oppose the State laws and terrorism.

The public prosecutor bought charges of “non-public incitement to hatred and hostility” against the applicant, under the Turkish criminal code, Article 312 §§ 1 and 2 on September 16, 1991. The applicant argued he had no intention of promoting separatism. He argued that had spoken about human rights violations in Southeast Turkey which he should have been able to do in a democracy, especially in his role as a trade-union leader. However, the National Security Court found him guilty on May 3, 1993, and sentenced him to one year and eight months imprisonment and a fine on the grounds that he had incited hatred and hostility by constructing ethnic, regional, and social class distinctions. The applicant’s appeal to the Court of Cassation failed on December 14, 1993, and he had to serve his sentence in full. He also lost his post as president of the petrol workers’ union, as well as several civil and political rights by virtue of Article 312 which dictated that a convicted person would no longer be able to establish associations or trade unions, be members of their executive committees, establish or join political parties, or stand for Parliamentary elections.

The applicant applied to the European Commission on Human Rights on February 10, 1994. He complained that his rights under Articles 9 (Freedom of thought, conscience and religion) and 10 (Freedom of expression) had been violated; and he was discriminated against on the basis of his political views, breaching his Article 14 right (Prohibition of discrimination) read with Article 10. The Commission held hat his right under Article 10 had been violated due to his conviction. It further held that no separate issue arose under Article 14.

The case was referred by the Commission to the Court on March 17, 1998.

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Decision Overview

Article 10 (read with Article 9)

Since the applicant did not object to the proposition, the Court examined this claim only under Article 10. The applicant, respondent, and commission all agreed that the conviction of the applicant for his publication was an interference with his rights under Article 10. Therefore, the Court only examined the issue under the three-part test of validity.

1. Prescription by law

The applicant’s conviction under Article 312 §§ 2 and 3 of the Turkish Criminal Code was held to be sufficiently prescribed by law.

2. Legitimacy of aim

The government submitted that the interference sought to maintain national security, public order, and territorial integrity. The Court noted that Article 312 of the Criminal Court punished incitement to hatred on grounds of distinctions for social class, race, religion, denomination, or region, with an increased penalty for incitements that endangered public safety. In light of this and the volatile situation in Southeast Turkey, the Court accepted that the government needed to be sensitive to security threats. Thus, the applicant’s conviction was in line with those goals.

3. Necessity in a democratic society

The applicant argued that his article did not promote secessionism, incite violence, or allude to illegal entities. Article 314 of the Criminal Code had been abused.

The government argued, firstly, that other States in the Council of Europe had provisions similar to Article 312 to preserve their democracies. Secondly, the ECtHR was not to substitute the State’s assessment of “danger” with its own.

The Commission submitted that freedom of expression entailed the right to discuss problems like those in Turkey. Therefore, the applicant’s conviction amounted to censorship because he had discussed the situation in Turkey in moderate terms and had not called for violence or illegal recourse.

The Court referred to general principles of freedom of expression, specifically that it constituted the foundation of democratic societies and individual progress and was essential to pluralism. Further, that “necessity” arose when there was a pressing social need subject to both State discretion and the Court’s supervision. Finally, the Court had to assess the proportionality of the interference to its legitimate aims, and the relevance and sufficiency of any justifications for it.

More specifically, the Court noted that the article was political speech. In explaining the renewed violence in Turkey, it used a “virulent” and “acerbic” style, deploying terms such as “State terrorism” and “genocide”. However, Article 10 allowed only limited restrictions on public interest or political speech, especially if it concerned the government. Furthermore, the Court observed that the applicant had written in his role as trade-union leader and had not advocated violence. The penalty imposed on him had been severe, and he had lost his political office as well as civil and political rights due to his conviction. Therefore, his conviction was considered disproportionate and a violation of Article 10.

Article 14 (read with Article 10)

The applicant said he had been prosecuted only because he was of Kurdish origin and had expressed his views on the Kurdish question. Thus, he was subjected to discrimination. The Court did not consider it necessary to examine this issue in light of its finding on the previous issue.

Article 41

The Court awarded the applicant non-pecuniary damages.

Joint Concurring Opinion Of Judges Palm, Tulkens, Fischbach, Casadevall And Greve

The concurring Judges found that the overall assessment of the gravity of the speech at issue must consider the “context in which the words were used and their likely impact.” [p. 17 ] In their opinion “[i]t is only by a careful examination of the context in which the offending words appear that one can draw a meaningful distinction between language which is shocking and offensive – which is protected by Article 10 – and that which forfeits its right to tolerance in a democratic society.” [p. 17]

Concurring Opinion by Judge Bonello

Judge Bonello issued a concurring opinion in favor of finding a violation of article 10, but he argued that the primary test employed by the European Court when considering alleged incitement by ethnic Turks against the State was “insufficient.” In his view much of the expression subject to criminal conviction by the national authorities was “abstract” or “intellectualized” and to “condone” such convictions would be tantamount to “subsidising the subversion of freedom of expression.” [p. 18-19] Judge Bonello found the higher threshold of a “a clear and present danger” test established by U.S. case law necessary to protect political speech in a democracy.

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