Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The Grand Chamber in the European Court of Human Rights (“ECtHR”) found that the conviction of Mr. Incal (“applicant”), for participating in the preparation of a political leaflet containing criticism of the Turkish government’s actions against Kurdish street traders and stall keepers violated his right under Article 10 (freedom of expression) and 6 (right to an independent and impartial tribunal) of the European Convention on Human Rights (“the Convention”). The applicant, as a member of the executive committee of the Izmir section of the People’s Labor Party (“the HEP”), had decided to distribute pamphlets criticizing measures by local authorities which affected the rights of Kurdish people. However, the applicant and the members of the executive committee were accused of inciting hatred and hostility through use of racist words and charged under domestic terrorism laws. After the domestic court found the applicant guilty as charged, the applicant applied to the ECtHR. The Court noted that freedom of expression is particularly important for political parties and their active members since they represent their electorate, draw attention to their preoccupations and defend their interests. It did not discern anything which warranted the conclusion that Mr Incal was responsible for the problems of terrorism in Turkey, and more specifically in Izmir. In conclusion, the applicant’s conviction was held to be disproportionate to the aim pursued, and therefore unnecessary in a democratic society.
The applicant of this case was Mr. Ibrahim Incal, a Turkish national and member of executive committee of the Izmir section of the People’s Labor Party (“the HEP”). On July 1, 1992, the executive committee decided to distribute in the Izmir constituency pamphlets criticizing the measures taken by the local authorities against street traders, stallkeepers and mussel sellers spread across the city. According to the leaflet, the campaign was aimed at “driving the Kurds out of the cities” and impose an economic blockade on Kurdish citizens who made their living through these activities. The measures by local authorities, thus, interfered with the rights of the Kurdish people. Citizens were encouraged to oppose the acts of local authorities and set up “neighborhood committees” in order to combat the municipality’s police. [para. 10]
On July 2, 1992, the chairman of the HEP informed the Izmir prefecture of the executive committee’s decision and asked for permission to implement it. The local police accused them of disseminating separatist propaganda and reported the organizers to the Public Prosecutor at the National Security Court, who was asked to opine if the leaflet contravened with the law. The next day, a substitute judge of the National Security Court, on the request of the public prosecutor, prohibited the distribution of the pamphlets and ordered their confiscation, which were handed over by the party leaders to the police. The public prosecutor’s office subsequently opened up a criminal investigation and initiated proceedings against the HEP local leaders and members of the executive committee, including the applicant. The applicant and the members of the executive committee were accused of inciting hatred and hostility through use of racist words. Accordingly, they were charged under Articles 312 § 2 and 3 of the Criminal Code, section 5 of the Prevention of Terrorism Act (Law no. 3713) and section 4 of the Press Act (Law no. 5680).
On February 9, 1993 the National Security Court, comprising of two civilian judges and one military judge, found the applicant guilty as charged, ordered confiscation of leaflets and sentenced him to six months and twenty days’ imprisonment and a fine. Furthermore, as a result of his conviction of a “public order” offence, Mr. Incal was debarred from the civil service and forbidden to take part in a number of activities within political organizations, associations or trade unions. The National Security Court noted in particular that the leaflet suggested recourse to resistance against the police and the establishment of “neighborhood committees”, which it held to be illegal forms of protest. It further held that the offence had been intentionally committed.
On March 9, 1993, the applicant appealed from the decision to the Court of Cassation. On July 6, 1993, the Court of Cassation dismissed the appeal without holding a hearing.
Mr. Incal thereafter applied to the European Commission of Human Rights (“Commission”), on September 7, 1993. In his application, he complained of interferences with his freedom of thought and expression guaranteed by Articles 9 and 10 of the European Convention on Human Rights (“ECHR” or “Convention”). He further alleged that he had not had a fair trial in the National Security Court, firstly because it could not be regarded as an independent tribunal, and secondly because the Court of Cassation had rejected his request for a hearing (Article 6 (1) of the Convention). The Commission, by a decision dated October 16, 1995, expressed the opinion that there had been a violation of Article 10 (unanimously) and that, contrary to Article 6 (1), the applicant had not had a fair hearing by an independent and impartial tribunal (unanimously).
On April 16, 1997, The case was referred to the European Court of Human Rights (“ECtHR”) by the Commission. The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6(1) and 10 of the Convention.
The Grand Chamber delivered the judgment of the European Court of Human Rights (“ECtHR”). The primary issue before the Court was to determine whether the interference with Mr. Incal’s freedom of expression breached Article 10 of the Convention and was “necessary in a democratic society” to achieve the aim or aims concerned.
Article 10 of the Convention prescribes the right to freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Section 2 of the provision restricts the scope of such rights to the extent necessary in a democratic society, in the interests of national security, territorial integrity or public safety and for the prevention of disorder or crime. Whereas, Article 6 of the Convention guarantees a right to fair and public hearing by an independent and impartial tribunal.
Since the parties had agreed that the applicant’s right to freedom of expression under Article 10 was infringed, the Court instead analyzed if the interference satisfied the requirements under section 2 of Article 10, in accordance with the three-part test of the interference’s prescription by law, pursuance of a legitimate aim, and the necessity in a democratic society. With regard to the first, there was an agreement that the interference was prescribed by law, whereas, no claims were made to argue pursuance of a legitimate aim (though the Court agreed that Mr. Incal’s conviction pursued the legitimate aim of “prevention of disorder” as set under Article 10. Consequently, the Court delved into the third prong to determine if the restrictions were necessary in a democratic society.
Before the Court, the applicant submitted that the opinions in the leaflet did not intend to advocate for separatism or foment disorder, were based on actual events and were limited to criticism of discriminatory administrative and economic pressure placed on Kurdish citizens. He also argued that the penalty imposed on him was severely disproportionate.
In response, the government of Turkey contested that the measures taken by the local authorities were aimed at prevention of disorder and protection of rights of others, which was instead presented by the applicant as destruction of houses to deprive Kurds’ of their means of subsistence. The government further argued that the aggressive and provocative language in the leaflet incited violence and had the potential to create an explosive situation, especially in southeastern Turkey, where there had been an intolerable increase in terrorism. Lastly, it was also claimed by the government that Mr. Incal overstepped the normal limits of political controversy by disregarding his duties and responsibilities, as required under Article 10, leaving the local authorities no choice but to seize leaflets and punish the applicant.
The ECtHR began by considering that Article 10 of the Convention is applicable not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb because such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.
The Court observed that freedom of expression is particularly important for political parties and their active members, while important for other groups as well. This is because they represent their electorate, draw attention to their preoccupations and defend their interests. Accordingly, interferences with the freedom of expression of a politician who is a member of an opposition party, like the applicant, called for the closest scrutiny on the Court’s part.
It then moved on to consider the leaflet’s content in order to determine whether it justified Mr Incal’s conviction. In that sense, the Court noted, contrary to the findings of the National Security Court, that the relevant passages in the leaflet criticized certain administrative and municipal measures taken by the authorities, and thus, reported actual events which were of some interest to the people of Izmir. According to the Court, while the use of phrases such as “terror”, “special war” and “opposition to the situation by means of neighbourhood committees” was virulent and urged Kurdish citizens to band together, such appeals in the pamphlets could not be taken as incitement to the use of violence, hostility or hatred between citizens. Remarkably, the Court underscored that it was not possible to rule out concealed intentions in the case, though there was no evidence which might belie the sincerity of the aim of the author’s of the leaflet.
Next, while considering if the applicant’s criminal conviction could be regarded as necessary in a democratic society, the ECtHR stated that in a democratic system the actions or omissions of the government must be subject to the close scrutiny of public opinion. Furthermore, 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.
In the present case, the Court noted that the nature of interference and its preventative aspect raised problems under Article 10. Not only were the leaflets seized, but the applicant was sentenced to six months and twenty days’ imprisonment, ordered to pay a hefty fine, was debarred from the civil service and forbidden to take part in a number of activities within political organisations, associations or trade unions. The authorities were in a position to require changes to the text of the leaflets instead of seizing them and bringing prosecutions against their authors.
The Court, therefore, did not discern anything which warranted the conclusion that Mr Incal was in any way responsible for the problems of terrorism in Turkey, and more specifically in Izmir. In conclusion, Mr Incal’s conviction was held to be disproportionate to the aim pursued, and therefore unnecessary in a democratic society. There was held to be a breach of Article 10 of the Convention.
Separately, the applicant also complained of an infringement of his right to freedom of thought, conscience and religion, guaranteed by Article 9, but the Court considered that this complaint was subsumed by the complaint under Article 10 and that it was not necessary to examine it separately.
Finally, the Court considered if there had been a breach of Article 6 (1) as regards the complaint relating to the independence and impartiality of the Izmir National Security Court. It held that in deciding whether there is a legitimate reason to fear that a court of law lacks independence and impartiality, what is decisive is if the doubts held by the applicant are objectively justified. In this case, ECtHR concluded that the applicant could have legitimately feared that because one of the judges of the National Security Court was a military judge who might have been unduly influenced by considerations which had nothing to do with the nature of the case.
Therefore, the ECtHR held unanimously that there has been a breach of Article 10 of the Convention and by twelve votes to eight, that there has been a breach of Article 6 (1).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment holds that freedom of expression is particularly important for political parties and their active members. Being prosecuted for planning to distribute virulent but non-violent pamphlets, which were confiscated before distribution, was disproportionate to the aim of preventing violence.
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