Defamation / Reputation, Digital Rights, Violence Against Speakers / Impunity
Andrea Lilian Uribe Peña v. Ministry of Labour and Carlos Alberto Merchán Espíndola
Closed Expands Expression
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The European Court of Human Rights held that the Turkish Government violated Articles 2 (Right to Life), 10 (Freedom of Expression), and 13 (Right to an effective remedy) of the European Convention on Human Rights when authorities failed to protect journalist Firat Dink, resulting in his murder. Dink was an outspoken member of the Armenian minority in Turkey and was murdered for his writings. Turkish authorities were aware of an assassination plot preceding Dink’s murder and did not act on the information. Further, the court found that states have a positive obligation to create a favorable environment for participation in public debate.
Fırat Dink was a Turkish journalist of Armenian origin. He was publication director and editor-in-chief of Agos, a bilingual Turkish-Armenian weekly newspaper published in Istanbul since 1996.
Fırat Dink published eight articles in Agos between November 2003 and February 2004 which expressed his views on the identity of Turkish citizens of Armenian origin. In his articles he wrote “that Armenians’ obsession with having their status as victims of genocide recognized had become their raison d’être, that this need on their part was treated with indifference by Turkish people, and that this explained why the traumas suffered by the Armenians remained a live issue. In his view, the Turkish element in Armenian identity was both a poison and an antidote.” [para. 14]
On January 19, 2007 Fırat Dink was killed and the suspected perpetrator was arrested in Samsun (Turkey). While the Istanbul public prosecutor’s office has instituted criminal proceedings against those accused, the proceedings are still pending.
The applicants in this case claimed that “the State had failed in its obligation to protect the life of Fırat Dink,” which they support with Article 2 of the European Convention on Human Rights (ECHR). Furthermore, they argued “that the criminal proceedings brought against the State agents concerned for failing to protect the journalist’s life had been ineffective,” as per Article 13. Finally, they also assert that under Article 10, the verdict holding Dink guilty of denigrating Turkish identity through his writing, “infringed his freedom of expression and made him a target for nationalist extremists.”
The European Court of Human Rights began by evaluating the alleged violations of article 2 of the ECHR and held that it was reasonable to believe that Turkish security forces were “aware of the intense hostility towards Fırat Dink in a nationalist circles.” [para. 66] In particular, authorities had been informed of “an assassination attempt and even of the identity of the suspected instigators.” [para. 67] However, the Court found that authorities did not take action to prevent these crimes. Therefore, the Court concluded that there had indeed “been a violation of Article 2 (in its ‘substantive aspect’).” [para. 75-76] The Court also found that Turkish authorities did not take the necessary measures to conduct an effective investigation into the assassination of Firat Dink. [para. 91]
As to the alleged violation of freedom of expression, the Court first examined whether the interference was prescribed by law. While recognizing that the prosecution and conviction of the applicant had a legal basis, in this case the denigration of “Turkishness” under article 301 of the Turkish Penal Code, the Court nevertheless questioned whether the wide scope of the term “Turkishness” as interpreted by the judiciary may restrict the accessibility and foreseeability of the relevant article. [para. 116]. The European Court examined the interpretation of this term by the Court of Cassation and found that the latter interpreted it to include the values and customs of only persons of Turkish ethnic origins, which is in contradiction with the term “Turkish” as it is used in the Turkish Constitution which includes all citizens of the Turkish Republic regardless of their ethnic or religious origins. According to the European Court, the differing interpretations of the terminology raise serious doubts as to the foreseeability of the legal provision employed to convict the applicant. However, in view of its conclusions on the necessity of the interference, the European Court did not further examine this question. [para. 116]
The European Court went on to consider whether the impugned interference was necessary in a democratic society. It first observed that “an analysis of the full series of articles in which Fırat Dink used the impugned expression showed clearly that what he described as ‘poison’ had not been ‘Turkish blood’, as held by the Court of Cassation, but the ‘perception of Turkish people’ by Armenians and the obsessive nature of the Armenian diaspora’s campaign to have Turkey recognize the events of 1915 as genocide.” [para. 128] Fırat Dink had written these articles in the capacity of his role as a journalist on a matter that was of public interest. The European Court further examined how the Court of Cassation interpreted this expression in order to understand how the Court of Cassation justified convicting the applicant for denigrating Turkishness. According to the Court of Cassation, Turkishness refers to one of the constitutive elements of the State, namely the human element, which is the Turkish nation. Turkishness thus constitutes “all national and moral values, composed of human, religious and historical values as well as the national language, national feelings and traditions.” [para. 130] The European Court observed that this interpretation had a dual meaning for the interests protected by article 301: On the one hand, referring to “Turkish nation”, thus to one of the constitutive elements of the State, Turkishness was identified with the state itself as it is expressed in governmental policies and in the acts of its institutions. On the other hand, the Court of Cassation by confining Turkishness to the traditional Turkish religious, historical and linguistic identity, it excluded all religious, linguistic or ethnic minorities from the scope of Turkishness. [para. 131] Interpreted this way, the notions of Turkishness or of the Turkish nation became for the Court of Cassation the symbols of the state policy on the identity of the Armenian minority. Therefore, any criticism directed against this policy, namely against the official narrative on the 1915 events, could be regarded as “distorting, devaluating or despising” Turkishness or the Turkish nation. In the light of these observations, the Court held that by finding Fırat Dink guilty of denigrating Turkish identity because of his articles, the Turkish authorities had indirectly punished him “for criticizing the State institutions’ denial of the view that the events of 1915 amounted to genocide.” [para. 132]
Nevertheless, according to the Court, “article 10/2 of the Convention prohibits any restrictions on freedom of expression in the sphere of political debate or issues of public interest and the limits of permissible criticism are wider with regard to the Government than for a private individual or even for a politician.” [para. 133] The Court reiterated that “the dominant position which the Government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries or the media.” [para. 133]
As applied to the present case, by punishing Fırat Dink who, by expressing his resentment towards attitudes he regarded as a denial of 1915 events, did nothing but convey his ideas and opinions on an issue of public interest, the Government violated his freedom of expression guaranteed under the article 10 of the Convention. The Court thus concluded that there had been no pressing social need to condemn Fırat Dink of denigrating “Turkishness”. While reaching this conclusion, the Court particularly emphasized that the “the quest for historical truth is an integral part of freedom of expression and that it is not its task to arbitrate a substantive historical issue, which is part of an ongoing public debate”. [para. 135] The Court also noted that the impugned articles of Fırat Dink were not “gratuitously offensive” or insulting and they had not incited others to disrespect or hatred. [para. 135]
Finally, the Court addressed the State’s “positive obligation” in relation to freedom of expression. As such, the State must not only refrain from any interference with the individual’s freedom of expression, but is also under a “positive obligation” to protect the right to freedom of expression against attack, including by private individuals. [para. 106] This obligation also requires the creation of “an enabling environment by allowing for everyone to take part in public debate and express their thoughts and opinions free from fear even if such thoughts and opinions are contrary to those held by official authorities or a significant segment of the public and even if such opinions shock or disturb the public.” [para 137] The Court ultimately held that the failure of the Turkish security forces to protect the life of Fırat Dink against attacks by members of an ultranationalist group, together with the guilty verdict in the absence of a pressing social need, entailed a breach of Turkey’s positive obligation to protect the freedom of expression of the applicant. [para. 138]
In light of the above reasoning, the Court concluded that the confirmation of the verdict against Firat Dink and the failure of State authorities to take the appropriate measures to protect his life against the lethal attack by ultranationalist militants amounted to a violation of his freedom of expression under article 10 of the ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case ultimately expands freedom of expression because not only does it uphold Article 10 of the European Convention on Human Rights, but it also affirms the positive obligation of a state to take concrete measures in order to protect the freedom of expression of an individual against illegitimate attacks and to set necessary conditions for a favorable environment where dissident opinions can be freely expressed and where a free and participative public debate can flourish.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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