Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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The Grand Chamber of European Court of Human Rights held that Turkey had violated the rights to freedom of expression of residents of northern Cyprus by censoring schoolbooks in the unrecognized territory of the Turkish Republic of Northern Cyprus. Cyprus brought numerous applications to international bodies, seeking declarations that Turkey had violated rights protected in the European Convention on Human Rights through their military operations and occupation of the region. The Court rejected the arguments that the right to freedom of expression was infringed by Turkey’s failure to provide information to relatives of missing persons, finding that this conduct was sufficiently addressed through a finding of the violation of other rights, and held that there was insufficient evidence of broad censorship of books and restrictions on access to Greek-language newspapers. However, the censorship of schoolbooks included the censorship of topics relevant to Cypriot history and culture, and did constitute a violation of the right to freedom of expression.
In July and August 1974, Turkey engaged in military operations in northern Cyprus and occupied the territory which culminated in the establishment of Turkish Republic of Northern Cyprus (the TRNC) in November 1983. Turkish troops had been stationed throughout northern Cyprus during the period under consideration, patrolling and controlling communications lines and access to domestic courts. The United Nations Security Council condemned these events under Resolution 541 of 18 November 1983, which refused to recognize the TRNC as a State and encouraged other countries to follow suit and which was supported by the Committee of Ministers of the Council of Europe. A United Nations Committee on Missing Persons (CMP) was created to investigates missing persons cases from July 1974.
The military occupation of the northern part of Cyprus by Turkish forces gave rise to three complaints previously filed by Cyprus against Turkey. In the first complaint (no. 6780/74), the European Commission of Human Rights (the Commission) issued a Report on July 10, 1976, holding Turkey responsible for the violation of Articles 2, 3, 5, 8, 13, and 14 of the Convention and Article 1 of Protocol No. 1. This report was supported by the Committee of Ministers of the Council of Europe as per Resolution DH (79), encouraging Cyprus and Turkey to “resume the talks under the auspices of the Secretary-General of the United Nations in order to agree upon solutions on all aspects of the dispute.” The second application (no. 6950/75) was also considered under the Commission’s report of July 10 1976, and the Resolution DH (79) drafted by the Committee of Ministers of the Council of Europe mentioned above. In the third application (no. 8007/77), the Commission concluded that Turkey had infringed Articles 5 and 8 of the Convention and Article 1 of Protocol No. 1.
On November 22, 1994, Cyprus filed a complaint with the Commission pursuant to former Article 24 of the Convention. On 4 June 1999, the Commission adopted a report on its recommendations concerning Cyprus’s complaints. Cyprus had argued that Turkish Cypriots and the Gypsy community in the northern area were arbitrarily detained, discriminated against, and subject to ill-treatment by Turkish officials. Cyprus maintained that its citizens’ human rights, such as access to a fair trial, freedom of expression, property, family life, and education, were infringed by the Turkish-Cypriot administration. The Commission concluded that “it was not established beyond reasonable doubt that there was in fact a consistent administrative practice of the ‘TRNC’ authorities, including the courts, of refusing protection to political opponents of the ruling parties” [para. 53].
Following the Commission’s report, the present complaint was referred to the Grand Chamber of the European Court of Human Rights on September 20, 1999. This application concerned four groups of complaints: “Alleged violations of the rights of Greek-Cypriot missing persons and their relatives; alleged violations of the home and property rights of displaced persons; alleged violations of the rights of enclaved Greek Cypriots in northern Cyprus; alleged violations of the rights of Turkish Cypriots and the Gypsy community in northern Cyprus” [para. 18].
The Court delivered a judgment, in which the central freedom of expression issue for its determination was whether there had been any violations of Article 10 through Turkey’s conduct in their occupation.
Cyprus submitted that Turkey’s failure to investigate and account for the fate of the missing persons amounted to a violation of their families’ right to receive information under Article 10. It also contended that the censorship of schoolbooks and the constraints imposed on importing and distributing Greek-language newspapers and books amounted to a violation of Article 10 as the wide-ranging censorship of printed material contrary to the Turkish authority’s opinion was an administrative practice to prevent Greek Cypriots from accessing and disseminating information. It added that the Commission had failed to assess evidence concerning other categories of Greek-language material censored by Turkey, such as books – other than schoolbooks – and newspapers. Cyprus also argued that Turkish Cypriots residing in northern Cyprus – particularly those whose political views were not aligned with the TRNC’s – were arbitrarily arrested and detained by Turkish authorities, and that Turkey’s failure to undertake appropriate steps to protect civilians’ right to freedom of expression when third parties interfered with such right constituted a breach of Article 10. Cyprus maintained that there was a violation of Article 10 as Turkey tolerated illegal interference with individuals’ freedom of expression in the form of threats, harassment, and refusals to hire a person based on their political views.
Turkey did not appear before the Court.
As regards the right to freedom of expression, the Grand Chamber examined Cyprus’s complaints in respect of three categories: (a) the right of the Greek-Cypriot missing persons’ relatives to receive information; (b) the violations arising out of the living conditions of Greek Cypriots in northern Cyprus; and, (c) the rights of the Turkish Cypriots, including members of the Gypsy community, living in northern Cyprus.
In respect of the right of the Greek-Cypriot missing person’s relatives to receive information, the Court noted that the Commission had narrowed its analysis of this complaint to its applicability under Article 3 of the Convention – which prohibits torture and inhuman or degrading treatment or punishment. The Court agreed with the Commission that the essence of the complaint was connected to the treatment the relatives received when searching for their family members’ whereabouts and so held that it was unnecessary to examine the complaint under Article 10.
In respect of the complaints that Turkey had censored books and constrained the distribution of Greek-language newspapers and books, the Court endorsed the Commission’s decision that the censorship of schoolbooks infringed Article 10. It held that “although the vetting procedure was designed to identify material which might pose a risk to inter-communal relations and was carried out in the context of confidence-building measures recommended by UNFICYP …, the reality during the period under consideration was that a large number of school-books, no matter how innocuous their content, were unilaterally censored or rejected by the authorities” [para. 252]. It also noted that Turkey provided no contrary element in refutation of the allegations and failed to justify its behavior. The Commission had held that, concerning the extensive censorship of schoolbooks, “Turkish-Cypriot authorities had, during the period under consideration, censored or rejected the distribution of a considerable number of school-books on the ground that their content was capable of fostering hostility between the ethnic communities in northern Cyprus” [para. 250]. The Commission noted that the topics of the books included “Greek language, English, history, geography, religion, civics, science, mathematics, and music” and so included elements of Cypriot history and culture and so violated Article 10. It had also noted that no judicial remedy was available for the victims to challenge the censorship.
The Court also accepted that Cyprus had not provided sufficient evidence of censorship of other forms of books or restrictions of access to Greek-language newspapers. It noted that the Commission had found that the evidence gathered did not demonstrate beyond doubt that the TRNC restricted the importation of Greek-language newspapers and books and had found no restrictions preventing Greek Cypriots from establishing a Greek-language newspaper distribution system in Karpas.
The Court held that the evidence submitted by the parties was not robust enough to conclude that an administrative practice of suppressing the rights of Turkish Cypriots opposing the TRNC existed. The Court also noted that aggrieved individuals did not file complaints before TRNC’s domestic courts and so held that “it has not been established that, during the period under consideration, there has been an administrative practice of violation of the rights of Turkish Cypriots who are opponents of the regime in northern Cyprus under Articles 3, 5, 8, 10 and 11 of the Convention” [para. 348].
In addition to the finding of the violation of Article 10 through the censorship of school books, the Court held Turkey responsible for violating the following provisions of the Convention: (i) Articles 2 and 5 were violated as a result of Turkey’s failure to conduct an effective investigation of the missing Greek-Cypriots cases; (ii) Article 3 was infringed for the families of the missing victims and the Greek Cypriots residing in Karpas who were subjected to discrimination; (iii) Article 6 was breached given the military trials of civilians; (iv) Article 8 was infringed by virtue of Turkey’s refusal to allow displaced Greek-Cypriot back into their homes; (v) Article 9 was violated against Greek Cypriots living in northern Cyprus; and, (vi) Article 13 was breached on the account of Turkey’s failure to provide national remedies to redress any interference with Greek Cypriots’ rights under Articles 3, 8, 9 and 10 of the Convention and Articles 1 and 2 of Protocol No. 1. The Court also found a violation of Article 1 of Protocol No. 1 by reason of refusing Greek Cypriots to enjoy, have access, and control their properties. Likewise, Turkey breached Article 2 of Protocol No. 1 due to the lack of suitable secondary schools for Greek Cypriots residing in northern Cyprus.
Judge Palm, joined by Judges Jungwiert, Levits, Pantîru, Kovler and Marcos-Helmons, delivered a partly dissenting judgment. He disagreed with the majority that the courts established by TRNC constituted true “domestic courts,” and noted that “the Court cannot examine the remedies of the ‘TRNC’ in a vacuum, as if it were a normal Contracting Party, where it can be assumed that courts are ‘established by law’ or that judges are independent and impartial (absent evidence to the contrary)” [p.101].
Judg Costa delivered a partly dissenting judgment, disagreeing with the majority’s finding that it was unnecessary to examine a violation under Article 14 (religious discrimination) once a violation of Article 3 had been found.
Judge Fuad delivered a partly dissenting judgment. He disagreed with the majority’s finding that Article 1 of Protocol 1 had been violated (that Greek Cypriots were prevented from peacefully enjoying and accessing their properties without payment of compensation), noting that given the magnitude of the conflict of 1974, it would be unrealistic for Turkey to allow all Greek Cypriots to resume ownership of their properties. Judge Fuad also disagreed with the majority’s opinion on the violations related to missing Greek Cypriots and their relatives, noting that there was nothing to suggest that an international investigation into the allegations “would satisfy anyone” [para. 21].
Judge Marcus-Helmons delivered a partly dissenting judgment, and would have held that courts established after the Turkish invasion of 1974 were illegal.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Although the decision expanded the right to freedom of expression by condemning the censorship of schoolbooks, by not testing the alleged banning of Greek-language newspapers against Article 10’s international standards and holding that there was insufficient evidence for broader censorship, the Court failed to expand the protection of the right.
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