Hate Speech, Political Expression, Press Freedom, Violence Against Speakers / Impunity
Gaši and Others v. Serbia
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The European Court of Human Rights found that the Republic of Turkey had violated Article 10 of the Convention. The applicants were the editor and journalist of monthly the review Demokrat Muhalefet!. They were convicted by national courts for disseminating separatist propaganda through a controversial interview they published. The interview was with a sociologist and analysed the impact of the insurgent group Workers’ Party of Kurdistan (‘PKK’) in Turkish Society. The Court held that the conviction was a disproportionate interference with the applicants’ right to free speech protected under Article 10. The content of the interview did not incite violence or advocate for PKK in its role in the Kurdish struggle for independence. The Court concluded that the domestic authorities failed to have sufficient regard to the right of the press to criticize the government and the public’s right to be informed of perspectives different to those of the government.
The case developed in the context of serious disturbances in south-east Turkey between State security forces and members of the PKK.
The January 1992 issue of the monthly review Demokrat Muhalefet! (“Democratic Opposition!”) published an interview with a Turkish sociologist Dr İ.B. The article presented the sociologist’s views on insurgent group PKK’s contribution to the revival of the Kurdish State and its impact on the Turkish society.
Following the publication of the interview, the public prosecutor at the Istanbul National Security Court charged the applicants (the editor and interviewee of the magazine) under section 8 of the Prevention of Terrorism Act, 1991 with having disseminated propaganda against the indivisibility of the State.
The national security court allowed the application, sentencing the editor and interviewer to five months and twenty months of imprisonment respectively, along with a hefty fine.
The applicants appealed to the Court of Cassation which upheld the lower court decision, dismissing the appeal.
Following amendments to penalties under the Prevention of Terrorism Act 1991, the lower court re-examined the case to reduce imprisonment but increase fines imposed on the interviewer. On appeal, the Court of Cassation struck down the judgment on procedural grounds. It held that the sentence against the editor Mr. Erdoğdu was unlawful since the sentence should have been converted into a fine. Further, the lawyers of the interviewer Mr. İnce had not been properly notified about the date of the hearing.
The lower court held a hearing and decided to defer the imposition of a final sentence on Mr. Erdoğdu, whilst maintaining Mr. İnce’s sentence, however, this sentence was suspended in light of his good conduct during the trial.
On August 20, 1994, the applicants applied to the Commission under Article 7, 9 and 10 of the Convention, arguing that the conviction interfered with their freedom of expression. In its decision dated December 11, 1997, the Commission allowed the application, holding that there had been a violation of Article 10, but no violation of Article 7 of the Convention. The Commission found the content to be analytical in nature. The applicants made no comments to indicate their support of violence and the measures against the applicant could deter public discussion on important political issues. The decision was referred to the Grand Chamber of the European Court of Human Rights.
In a unanimous decision, the Court allowed the application to hold that there had been a violation of Article 10. The central issue before the court was whether the conviction of the applicants was legitimate and necessary, or a disproportionate interference with the applicant’s right to publish the interview under Article 10.
Considering section 8 of the Prevention of Terrorism Act 1991 and the importance of maintaining security in South-East Turkey, the Court held that the interference was prescribed by law and had the legitimate aim of protecting territorial integrity, as required under article 10(2). However, the interference was not necessary in a democratic society.
The applicants stressed that their prosecution and conviction was a disproportionate interference with their right to freedom of expression. They argued that the article contained the opinion of a researcher and sociologist, taking the form of an analysis of the situation of the Kurds. As such, it did not aim to further violence.
Drawing attention to the mass killings and terrorism perpetrated by the PKK, the Government argued that the interview offered support to separatist propaganda. It could potentially incite violence across Turkey and endanger human rights. The applicants’ conviction fell under the Government’s margin of appreciation.
Referring to Zana v Turkey App No 69/1996/688/880 (November 25, 1997) the Court held that exceptions to Article 10 must be “construed strictly, and the need for any restrictions must be established convincingly.” The Court in reviewing a decision should “look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made” [para. 47].
Further, since the statements were made through the medium of the review, the case must be seen in the context of the essential role of the press in ensuring the proper functioning of a political democracy. Citing Lingens v Austria App No 9815/82 (July 8, 1986), the Court recognised that it is “incumbent on the press to impart information and ideas on political issues, including divisive ones…Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders” [para. 48].
Although Courts enjoy a wider margin of appreciation in cases where statements incite violence, article 10(2) provides little scope for restrictions on political speech or matters of public interest. “In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion” [para. 50].
Taking this into account, the Court noted that the content of the interview was analytical in nature. Without advocating for the PKK, it discussed the process by which PKK’s ideology was gaining support in Turkish society. The Court stressed that the State authorities failed to take into account that the public had a right to be informed of a different perspective on the situation in south-east Turkey, “irrespective of how unpalatable that perspective may be for them” [para. 52].
The Court concluded that the duties of the press “assume special significance in situations of conflict.” Where the press does not disseminate hate speech or promote violence, the speech cannot be restricted under the pretext of protecting national security. Thus, the conviction was not “necessary in a democratic society” and violated Article 10.
Absent any actual loss, the Court did not grant any pecuniary damages. However, it granted legal costs and non-pecuniary damages of 30,000 French francs for the distress caused.
Joint concurring opinion of Justice Palm, Justice Tulkens, Justice Fischbach, Justice Casadevall, and Justice Greve
In their concurring opinion the judges employed the contextual approach set out by Judge Palm in his dissenting opinion in Sürek v. Turkey (no. 1) App No. 26682/95, (July 8, 1999) which emphasized on an approach more focused on the contextual setting of the speech rather than the inflammatory nature of the words.
The judges observed that a more appropriate standard could have been to ask whether the language intended to inflame or incite to violence, whether there was a genuine risk that it might do so, whether the author occupied a position of influence in society, or whether their opinion was given a degree of prominence that enhanced the influence of the speech.
Concurring opinion of Justice Bonello
Justice Bonello employed a different test to conclude that there was an Article 10 violation. Adopting a more liberal view, he said that mere incitement was insufficient to restrict the right to free speech. Restriction would be proportionate only when there is a “clear and present danger.” “When the invitation to the use of force is intellectualised, abstract, and removed in time and space from the foci of actual or impending violence, then the fundamental right to freedom of expression should generally prevail” [p. 28].
Since the article posed no imminent threat to national order, Justice Bonello held that the interference was disproportionate to the applicants right under Article 10.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expanded the right to freedom of expression. The court highlighted the importance of press especially in situations of conflict. It stated that distribution of unpopular opinion is crucial in allowing the public make an informed choice. Although States enjoy a margin of appreciation in cases of national security, without the words causing an actual incitement to violence, the words are protected by Article 10 and should not be restricted.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.