Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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The European Court of Human Rights found criminal proceedings brought against a journalist for an article that was critical of high-ranking members of the armed forces to be a violation of that journalist’s right to freedom of expression, despite the fact there had been no final conviction. The journalist was accused of having damaged hierarchical relations within the army (Article 95 of the Military Criminal Code), and of having denigrated the Turkish armed forces (Article 159 of the Penal Code) by writing his article. The Turkish courts eventually found the prosecution of the journalist to be statute-barred following six and a half years of criminal proceedings. The European Court of Human Rights found that the journalist’s right had been interfered with because the criminal proceedings had a negative impact on his ability to perform his role as a political commentator. The European Court of Human Rights concluded that this interference could not be justified in a democratic society because the criminal proceedings had evidently been an attempt to suppress opinions and ideas that were considered disruptive or shocking, and therefore did not meet any overriding social need. Accordingly, the criminal proceedings were found to have violated the journalist’s right under Article 10 of the European Convention of Human Rights.
Abdurrahman Dilipak was a journalist who had been charged with damaging hierarchical relations within the army and undermining confidence in commanding officers for having written an article that criticised high-ranking military officials. The article was published in August 2003, and criticised the officers of sounding false alarms concerning a fundamentalist, anti-secular threat for apparently strategic purposes. In doing so, he alleged that the officers were inappropriately interfering in the country’s politics. The charges were brought under Articles 95 (4) and (5) of the Military Criminal Code, which penalised any person who publicly commits acts of denigration with the aim of deteriorating hierarchical links and undermining confidence in superiors or commanders.
The case was referred to the Bakırköy Assize Court due to the fact that the issue was non-military in nature and the case should be tried before non-military courts. Furthermore, the charges should have been brought under the former Article 159 of Turkish Penal Code, which penalized denigration of “Turkishness” and the Turkish armed forces. The decision to refer the case was appealed to the Military Court of Cassation, which quashed the decision declining jurisdiction and referred the case back to the military court. The Military Court of Cassation stated that the two provisions, Article 95(4) of the Military Criminal Code and the former Article 159 of the Penal Code, shared the same substantive and moral elements but differed in providing protection for individuals (Article 95(4)) and the institution of the military itself (Article 159). In this case, the Military Court of Cassation held that the article was levelled against two specific generals, undermining the lower ranks’ confidence in them.
In March 2006, the military court once again declined jurisdiction in favour of non-military courts. The military court noted that new legislation had come into force giving non-military courts jurisdiction to hear and determine offences committed by the press. In June 2006, further amendments were made to the Military Criminal Code, abolishing military courts jurisdiction to try the applicant. In November 2006, after the case was referred back to the military court from the Military Court of Cassation a second time, the military court declined jurisdiction and referred the case to Bağcılar Criminal Court. Between November 2006 and June 2010, the case was transferred between various courts which declined jurisdiction to hear the case. Eventually, in June 2010, the Bakırköy Criminal Court declared the proceedings statute-barred.
The applicant filed an application with the European Court of Human Rights on the basis that these criminal proceedings violated his right to freedom of expression under Article 10 of the European Convention on Human Rights.
The European Court of Human Rights (ECtHR) had to first determine whether there had been an interference with Mr. Dilipak’s right to freedom of expression where he had not been convicted or sentenced for his article. The ECtHR noted that the criminal proceedings against Mr. Dilipak lasted six and a half years. The ECtHR reasoned that, on previous occasions, it had found an interference in cases where an applicant had not been finally convicted. The ECtHR went on to reiterate that “where criminal prosecutions based on specific criminal legislation are discontinued for procedural reasons but the risk remains that the party concerned will be found guilty and punished, that party may validly claim to be the victim of a violation of the Convention”. [para. 45] The ECtHR also noted that an individual is entitled to challenge a law where he or she is required either to modify his/her conduct or risk being prosecuted, or where he is a member of a class of people who risk being directly affected by the legislation. Applying these principles to the present case, the ECtHR noted that (i) the criminal charges were pending against Mr. Dilipak for a considerable length of time, and (ii) Mr. Dilipak could not be sure that he would not face further legal consequences if he, as a journalist and political columnist, wrote further articles on the subject of the armed forces interfering in politics. Accordingly, the criminal proceedings constituted an interference with Mr. Dilipak’s right to freedom of expression.
The ECtHR went on to consider whether the interference was “prescribed by law”, in pursuit of a “legitimate aim”, and “necessary in a democratic society”. The ECtHR had doubts about whether the interference was “prescribed by law”. Nonetheless, it decided that it was unnecessary to reach a determination on this point. The ECtHR accepted that the interference pursued the legitimate aims of national security and defence of law and order, but held that the interference was not “necessary in a democratic society”.
The ECtHR noted that there is little scope under Article 10 of the European Convention on Human Rights (ECHR) for restrictions on political speech or debate of questions of public interest. The ECtHR observed that “[w]here the views expressed do not comprise incitements to violence – in other words unless they advocate recourse to violent actions or bloody revenge, justify the commission of terrorist offences in pursuit of their supporter’s goals or can be interpreted as likely to encourage violence by expressing deep-seated and irrational hatred towards identified persons – Contracting States must not restrict the right of the general public to be informed of them, even on the basis of the aims set out in [Article 10(2) of the ECHR], that is to say the protection of territorial integrity and national security and the prevention of disorder or crime.” [para. 62] In relation to a free press, the ECtHR emphasized that States should show restraint in their recourse to criminal law, especially when they have other means of replying to unjustified media attacks.
In relation to the present case, the ECtHR noted that Mr. Dilipak had levelled “severe” and “scathing” criticisms at the army generals’ political projects. Nevertheless, the ECtHR held that these views were indubitably a matter of public interest in a democratic society. Furthermore, when army officers or generals make public statements on political topics they expose themselves, like politicians, to criticism and contrary ideas or opinions. The ECtHR could not find the article “gratuitously offensive” or insulting, nor could it find that the article constituted incitement to violence or hatred. Moreover, the article did not contain defamatory statements based on erroneous data.
Under these circumstances, the ECtHR opined that the criminal proceedings appeared to amount to an attempt to suppress ideas or opinions considered disruptive or shocking. The ECtHR also opined that the length of the proceedings had a chilling effect on not only the applicant but also all other journalists who might have considered commenting on the actions and statements of members of the armed forces relating to general politics in the country. The ECtHR found that the criminal proceedings did not meet any overriding social need and were disproportionate to the legitimate aims being pursued. Accordingly, they amounted to a violation of Article 10 of the ECHR.
The ECtHR unanimously held that there had also been a violation of Article 6(1) of the ECHR (right to a fair trial) on account of the excessive length of the proceedings.
Concurring opinion of Judge Pinto de Albuquerque
Judge Albuquerque agreed that there had been a violation of Mr. Dilipak’s rights under Article 10 of the ECHR, but disagreed with the majority’s reasoning. He stated that the interference could not be justified because of the lack of “foreseeability” of the applicable laws. He also stated that a number of similar cases had come before the ECtHR concerning Turkey, and he believed it was time to express a “clear and solid position of principle” on the criminal policy adopted in Turkey in relation to the protection of the reputation of state bodies. [para. 1]
Judge Albuquerque noted that the reforms to Article 159 of the Penal Code continue to be aimed at “preventing criticism of State dysfunctions and wrongdoing by members of State bodies.” [par. 3] He stated that “protecting the reputation of State institutions by criminal-law measures is no longer acceptable as a means of defending the mythologised, monistic ‘ideal personality of the State’ […], but only as a wholly exceptional measure bound up with a criminal-law policy to protect a demythologised pluralistic State”. [para. 7] In relation to Article Article 95 (4) of the Military Criminal Code, Judge Albuquerque reasoned that “its objective and subjective scopes must be clarified in such a way that it applies solely to acts whereby military personnel denigrate their superiors, constituting a clear and imminent threat to national security and public safety.” [para. 15]
Partial dissenting opinions of Judges Raimondi and Spano
According to the Judges Raimondi and Spano, the ECtHR did not have jurisdiction ratione materiae to hear the complaint under Article 10 of the ECHR. Judges Raimondi and Spano reasoned that Article 10 of the ECHR could not be interpreted in such a way that the initiation of criminal proceedings against a journalist in itself would inherently have a dissuasive effect on his journalistic activity to the point of constituting an interference with his/her right to freedom of expression, irrespective of the outcome of the proceedings. With regard to the excessive length of the proceedings against Mr. Dilipak, they pointed out that this was due to procedural disagreements between the national courts and had nothing to do with his role as a journalist. Under these circumstances, the finding of a violation under Article 6(1) of the ECHR would be sufficient to respond to the psychological harm caused to Mr. Dilipak of having to deal with criminal proceedings for this length of time.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expands freedom of expression by upholding the media’s right to discuss matters of public interest concerning the armed forces. In doing so, the ECtHR appeared to emphasise that States should not restrict the right of the general public to be informed of matters of public interest unless the views comprise incitements to violence. The ECtHR also took a liberal approach to what State actions may constitute an interference with the right to freedom of expression. In this instance, the institution of criminal proceedings, even where there was no final sanction or penalty against the journalist, amounted to a violation of the right to freedom of expression under Article 10 of the ECHR.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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