Contracts Expression

The first point is that for over two decades, when considering whether a restriction on freedom of expression is consistent with Article 10, the Court has consistently applied a fundamental standard of review: the Court (a) ‘has to determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient’, and (b) ‘has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10’. It is a simple, but powerful, principle: the European Court must determine whether national courts provided sufficient reasons to justify a restriction of free expression, and the European Court must satisfy itself that national courts applied standards consistent with Article 10. Crucially, this is not a discretionary standard of review, but mandatory: the Court ‘has to determine’ and ‘has to satisfy itself’ of these elements.

And this is not some fringe principle, gathered from a hodgepodge of obscure admissibility decisions from the 1970s. It is a fundamental principle that has been applied consistently by the Court since Jersild v. Denmark; and by the 17-judge Grand Chamber in many of its landmark Article 10 judgments (e.g., Cumpănă and Mazăre v. Romania; Von Hannover v Germany (No. 2), Morice v. France; Delfi AS v. Estonia; and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland). As such, where national courts do not provide reasons which are relevant and sufficient; or do not apply standards which are in conformity with Article 10, it necessarily follows that there has been a violation of Article 10, as found recently in judgments such as Kablis v. Russia or Brzeziński v. Poland (see here and here). This approach was recently confirmed in Aydemir and Karavil v. Turkey, where the Court observed that the domestic court’s judgment ‘does not contain any information as to the reasons why the applicants were found guilty of disseminating propaganda in support of the PKK. Besides, the first-instance court did not examine whether the text of the petition could be construed as encouraging violence, armed resistance or an uprising, or being capable of inciting to violence, which are essential elements to be taken into account’. The Court found that the reasons adduced by the national courts to justify the applicants’ criminal conviction under the Prevention of Terrorism Law no. 3713 were not ‘relevant and sufficient’ for the purposes of Article 10 ECHR. Without analysing itself the text of the statements by the PKK the Court concluded that Article 10 was violated.

And yet, the majority in Gürbüz and Bayar have utterly upended this Article 10 standard of review, by holding that, in effect, it does not matter that the national courts did not adduce sufficient reasons justifying a newspaper editor’s conviction under terrorism legislation; and it is completely irrelevant that the national courts did not even attempt to apply standards that were in conformity with Article 10 principles. The majority openly admit that the Turkish courts’ reasoning was ‘insufficient’ and ‘even completely absent’. But rather than simply finding a violation of Article 10 based on the total absence of the Article 10 principles applied by the Turkish courts, the Second Section majority did something quite extraordinary: it stated that ‘the Court itself will analyse the statements’, then concluded they constituted ‘incitement to violence’ (even though this was not even the offence involved), and there was thus no violation of Article 10.

The Court offered two authorities for its approach, namely paragraph 34 of Falakaoğlu and Saygılı v. Turkey; and paragraph 28 of Saygılı and Falakaoğlu v. Turkey (no. 2); stating that in these cases the Court itself examined the articles at issue, even though the domestic court reasoning was ‘manifestly insufficient’. But neither of these paragraphs, nor indeed, the entire judgments, say anything about the proposition that the Court has authority to itself determine statements as incitement to violence where domestic courts fail to adduce reasons or apply standards in conformity with Article 10. And nowhere in these judgments does the Court say the domestic courts’ reasoning was ‘manifestly insufficient’. Indeed, in Saygılı and Falakaoğlu (No. 2), the Turkish courts explicitly applied principles from Article 10 case law, including Zana v. Turkey; and the European Court explicitly held that the ‘reasons adduced by the authorities for the applicants’ conviction are “relevant and sufficient”’. Nowhere in these judgments does the Court hold that it is departing from the fundamental principle of Article 10 review that the Court (a) ‘has to determine whether the reasons adduced by the national authorities to justify it are relevant and sufficient’, and (b) ‘has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10’. Thus, the majority’s approach in Gürbüz and Bayar is very questionable under Article 10 case law. The Court should simply have found a violation of Article 10.

Indeed, the Gürbüz and Bayar majority admitted that the Turkish courts imposed the convictions solely on the grounds that the newspaper had published statements by a terrorist organisation, and without carrying out any analysis of the article’s content or context. The majority even admitted that there was authority directly on this point: in Gözel and Özer v. Turkey the Court unanimously found a violation of Article 10 over similar convictions under the same provision of anti-terrorism legislation, holding that ‘such automatic repression, without taking into account the objectives of media professionals or the right of the public to be informed of another view of a conflict  situation, could not be reconciled with the freedom to receive or impart information or ideas’. And yet, the Second Section’s majority decided that it would not apply Gözel and Özer.

Second, even if it would be legitimate to review the newspaper article’s content, the majority arguably failed to apply the appropriate test for incitement to violence: the Court must be satisfied that (a) the ‘intent’ of the speaker was to incite hostility or violence; and (b) there was a ‘clear and imminent danger’ of violence resulting from the expression. Again, this is not some fringe test; it was unanimously applied by the Court only a few months ago in Savva Terentyev v. Russia (see here); and in other judgments such as Gül and Others v. Turkey (para. 42); and Kılıç and Eren v. Turkey (para. 29). It is the test applied not only under Article 10 standards, but also under international human rights standards, as reiterated by the UN Special Rapporteur on freedom of expression (see here). And yet, the considerations of intent and imminent danger of violence are completely absent from the majority’s judgment. It is difficult to see how the test would be satisfied, as the majority admit that the applicants had ‘not personally associated themselves’ with the statements.

Indeed, it was very relevant from a journalistic point to report on the differences of approach between the leaders of Kongra-Gel and PKK, without determining the newspaper itself had the intent to incite to violence by reproducing in particular the statements of Öcalan. The essence is that the Court showed insufficient attention to the role of journalism and media reporting by automatically considering that the dissemination of a statement coming from a terrorist group cannot serve as a pretext and is by itself to give ‘a forum’ to a terrorist organisation. This approach completely undercuts the Jersild principle that seeks to protects media interviewers, as also in the Jersild case the interviewed Greenjackets manifestly incited to hatred and violence, but the ECtHR in that landmark judgment rightly found that the intention of the journalist was not to incite to hatred or violence, but to report on an important issue of public interest. It is entirely unclear why the majority in Gurbuz and Bayar did not consider itself bound by the seminal Jersild judgment, which has been so central to Article 10 jurisprudence for over two decades, providing an important shield to journalists across Council of Europe member states, where prosecutors have sought to target the media for critical reporting on matters of public interest.

Importantly, it must be noted that there was clearly some unease within the Second Section on the approach taken. The concurring opinion by Judge Spano and Judge Bårdsen stressed the importance of ‘subsidiarity’, but then, in a complete about-turn, held that where it is ‘manifestly clear’ that content is incitement to violence or hate speech, the Court can adopt the majority’s approach. But the concurring opinion provided no authority for such a principle, and it smacks of the type of language used in heavily criticised German legislation (e.g., here and here). The concurring opinion is clearly aware of the danger in such an approach, and stated that in ‘borderline’ cases, the Court should not ‘come to the rescue’ where domestic court reasoning is deficient under Article 10. But again, the concurring opinion provides no authority for such a limiting principle. Finally, there was one dissenting opinion by Judge Pavli, built heavily around Article 10 case law, and finding a violation of Article 10. The opinion criticises the majority opinion for ‘revers[ing] the fundamental logic’ of Article 10 review, and that the approach invites national courts to ‘not take the trouble’ to carry out careful Article 10 review. And even if such an approach were adopted, the dissenting opinion robustly criticises the deficient Article 10 analysis applied by the majority under the Court’s case law on incitement to violence. Judge Pavli concluded that the majority’s opinion was based on a ‘triple pirouette’ that ‘ignores fundamental aspects of our well-established jurisprudence’.

Table of Authorities

Reports, Analysis, and News Articles:

• Strasbourg Observers: ECtHR engages in dangerous “triple pirouette” to find criminal prosecution for media coverage of PKK statements did not violate Article 10
  https://strasbourgobservers.com/2019/10/14/ecthr-engages-in-dangerous-triple-pirouette-to-find-criminal-prosecution-for-media-coverage-of-pkk-statements-did-not-violate-article-10/#more-4435

Attachments:

• Judgment (French)