Case Summary and Outcome

The Grand Chamber of the European Court of Human Rights (ECtHR) ruled that the conviction of a journalist for writing a political speech critical of the government was a violation of Article 10 of the European Convention on Human Rights (ECHR) by Turkey. The government accused the applicant of promoting separatism and he was convicted under the Prevention of Terrorism Act. The ECtHR found that this conviction was adequately prescribed by law and pursued the legitimate aim of protecting national security and public order. However, it still violated Article 10 because it was unnecessary. The applicant had engaged in political speech which was specially protected and critical to holding a democratic government in check. He had also in no way incited violence through words or context. Furthermore, a disproportionate sentence was handed down to the applicant, particularly considering that due to a change in domestic law, he was sentenced twice for the same offence. The Court further found a violation of the Article 6 right to a fair trial because the National Security Court which convicted the applicant had a military judge on the bench, which impugned the impartiality and independence of the bench.

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Facts

The applicant was Mr. Haluk Gerger, a Turkish journalist. He was asked to speak at the memorial in May 1993 that was held for three persons in Ankara who were executed for beginning an extreme left-wing movement among university students in the 1960s. Since the applicant was unable to attend, he asked the organizing committee to read out a message he had composed. The message mentioned, inter alia, that the Turkish Republic was “based on negation of the rights of workers and Kurds” and criticized the rulers for militarism and imperialism [p. 4]. He further praised the revolutionary movements of the 1960s and the three people who had been sentenced to death.

On 6 August 1993, relying on the message from the memorial ceremony, the Public Prosecutor of the Ankara National Security Court accused the applicant of spreading propaganda attacking the unity and territorial integrity of Turkey under section 8(1) of the Prevention of Terrorism Act (Law no 3713). The applicant contested the charges but was found guilty on 9 December 1993 in a judgement of two to one. He was sentenced to one year and eight months of prison and a fine. The lone dissenting judge was a military judge who believed the applicant’s conduct fell under section 8(1) of Law no. 3713 because it was non-public incitement to commit a crime. The applicant’s appeal was dismissed by the Court of Cassation on 22 April 1994. Although the applicant’s sentence ended on 23 September 1995, it was extended till 26 October 1995 which was when he finished paying the fine amount. Pursuant to a change in law in 1995, the applicant’s sentence was reviewed by the National Security Court which then imposed an additional fine on 17 November 1995. It was suspended but became final on 15 March 1996.

The applicant first applied to the Commission on 22 June 1994 alleging that his conviction amounted to a violation by Turkey of his rights under Articles 9 and 10 of the ECHR, and his rights under Article 6 § 1 had also been violated through the failure of the National Security Court to provide sufficient reasoning in its judgement. He further alleged that his rights under Articles 15, 5 § 1 and 6 § 1, were violated through discrimination against him in matters of parole. On 11 December 1997, the Commission declared violations of Articles 9 and 10, Article 14 read with Article 5 § 1(a), and Article 6 § 1.

The Commission referred the case to the Grand Chamber of the Court on 17 March 1998.

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Decision Overview

Alleged Article 10 violation

The principal freedom of expression issue brought before the Court pertained to Articles 9 and 10, namely, that the applicant’s conviction under section 8 of the Prevention of Terrorism Act violated these provisions. However, the Court agreed with the government and the Commission that the complaint was framed from an Article 10 perspective alone. Further, since both parties agreed that the conviction constituted an interference with the applicant’s freedom of expression, it was left to the Court to examine the compatibility of this interference with the three-part test of validity. Accordingly, the Court examined the conviction’s prescription following the three-part test of by law, legitimacy of aim, and necessity in a democratic society.

1. Prescription by law: Although the applicant argued section 8 of the Prevention of Terrorism Act was too vague to make the offense foreseeable, the Court found itself inclined to agree with the Commission’s finding that the section met the foreseeability requirements demanded by law.
2.  Legitimacy of aim: The government submitted that the conviction was in the interests of territorial integrity and national unity. The Commission had found that it served the maintenance of national security and prevention of public disorder. The Court assessed the situation in Southeast Turkey and was mindful of the importance of the authorities being sensitive to any conduct capable of worsening violence because separatist forces at that time were employing such means. Therefore, the Court concurred with the government that the conviction did seek to protect national security, territorial integrity, and public order.
3. Necessity in a democratic society: The applicant had argued that his conviction suppressed his freedom of expression on the Kurdish issue and his criticism of governmental ideology. Furthermore, the National Security Court had failed to demonstrate how his message incited violence or attacked the “indivisibility of the State”. He also complained of conviction twice for the same crime.

The government referred to the context of the speech – a memorial for persons convicted of terrorist acts. The government also alluded to the content of the speech, arguing that the applicant had incited citizens to take up arms against the Turkish state, had supported violence for separatism, and the cause of Kurdish independence. This, in the opinion of the government was a call to terrorism. It was further argued that states were afforded a broad margin of appreciation under Article 10, and Turkish authorities were bound by their duty to suppress separatist propaganda which would worsen hostility and violence in Turkey. The context also justified the proportionality of the applicant’s conviction.

The Commission argued that while Article 10 imposed duties on the person exercising his right to refrain from promoting “unlawful political violence”, a person was still entitled to discuss political issues to analyze them and find solutions. The Commission submitted that the applicant had criticized Turkey, but referred to guerrilla movements only factually and did not incite any violence.

The Court reiterated that freedom of expression was a foundation of democracy and involved protection of information or ideas that may seem offensive. Although there are exceptions, the need for these exceptions had to be established in light of a pressing social need. The Court therefore assessed the interference in its whole context, to determine the proportionality of the restriction to its legitimate aims, and the relevance and sufficiency of reasons justifying it.

The Court did not agree with the Government’s assessment that the applicant’s speech indicated his endorsement of the legitimacy of the Kurdish independence cause. Rather, the Court viewed the applicant’s speech as political criticism of the Turkish government. Referencing Wingrove v. United Kingdom ECtHR [1996] 17419/90, the Court noted that political speech was liable to limited restrictions especially if it pertained to a democratic government as opposed to a private citizen. Furthermore, the Government was obliged to exercise restraint in the institution of criminal proceedings, especially when other means were available to reply to attacks by opponents, due to its position of power.

In this case, the Court did not find the Government’s actions justifiable in the context of escalating tensions in Southeast Turkey because the applicant’ speech was read out long after the referenced incidents on the border with Iraq. Furthermore, the “commemorative” nature of the memorial attenuated the potential effects of the speech on national security, public order, and the territorial integrity of Turkey. The mere use of words such as “resistance” “struggle” and “liberation” did not amount to an incitement to violence.

Alleged Article 6 § 1 violation 

The applicant alleged that the Ankara National Security Court had not been an independent and impartial tribunal and had failed to sufficiently provide reasons for its judgement.

The Government submitted that the rules on appointment of judges to the courts and their functioning secured their independence and impartiality. Article 112 made it an offence for public officials to influence military judges, and military judges had been included on National Security Court benches on purpose because of the security situation in the country. The Government also contended that the military judge’s dissent attested to his impartiality towards the applicant.

The Court determined that a violation would be ascertained on the basis of whether the manner of the court’s functioning had infringed the applicant’s right and whether he could legitimately fear that the court lacked independence and impartiality. Here, the Court found that the applicant reasonably feared that a military judge would introduce considerations that were not relevant to the case. Therefore, his right under Article 6 had been violated.

The Court did not examine the complaint as to lack of reasoning in the judgement because a violation under Article 6 had already been found.

Claim as to a violation of Article 14 of the Convention read with Article 5 § 1

The applicant alleged that his sentencing under Law no. 3713 was discriminatory because he was not entitled to automatic parole on completion of half of his sentence, as prisoners convicted under ordinary criminal law were entitled. The Court examined this claim under Article 14 (which is a non-discrimination provision) read with Article 5 § 1 (which pertained to deprivation of liberty in accordance with the law). It was held that while these provisions do not guarantee a right to automatic parole, if a sentencing policy affected individuals disparately, a charge of discrimination could be upheld. However, here the Law no. 3713 offered different penalties on the basis of a different offence (i.e., terrorism) and not based on differences among groups of people. Therefore, the court did not find these provisions violated.

Article 41 claims

Finally, the Court found the nature and severity of the penalty disproportionate, rendering the applicant’s conviction disproportionate to the stated aims, and violative of Article 10. The Court awarded the applicant non-pecuniary damages.

Joint Concurring Opinion of Judges Palm, Tulkens, Fischbach, Casadevall and Greve

While the Judges in the concurring opinion agreed with the majority decision, they nevertheless distinguished their reasoning on weightage accorded to the form of words used in the protected expression. According to the concurring opinion, the context of a speech was more important to assessing its ability to incite violence than the kind of inflammatory words used.

Concurring Opinion of Judges Bonello

Judge Bonello reasoned that the majority test of finding a restriction justified if the speech instigated violence was insufficient. Instead, he relied on the test of “clear and present danger” derived from US Supreme Court jurisprudence, holding that only an incitement which created such danger could be justifiably restricted. It depended on “proximity and degree”.

Dissenting Opinion of Judge Gölcüklü

Taking into consideration the content and context of the statements, as well as the state’s margin of appreciation, Judge Gölcüklü found the restriction on the applicant’s rights in the form of the conviction justified.

 

 

 

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