Content Regulation / Censorship, Hate Speech, National Security
Government of Kazakhstan v. Respublika
Closed Expands Expression
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In a 12:5 decision, the Grand Chamber of the European Court of Human Rights held Turkey responsible for the violation of Article 10 of the European Convention on Human Rights. The case concerned the conviction of Mr. Hüseyin Karataş for publishing an anthology of poems containing passages that were particularly aggressive towards Turkish authorities. The applicant was accused of separatist propaganda and charged a hefty fine and sentenced to more than one year of imprisonment. Overturning the European Commission of Human Rights’ decision, the Court held that freedom of artistic expression merits protection under Article 10. Although the applicant’s poems had a political dimension, they were not meant to address a large audience and could not be presumed to be intended to call an uprising or incite outrage and strife against the government. The Court concluded that the applicant’s conviction was a disproportionate interference with the applicant’s right to free speech and unnecessary in a democratic society, resulting in a violation of Article 10 of the Convention.
The applicant Mr. Hüseyin Karataş was a Turkish psychologist. In November 1991, he published an anthology of poems called “The song of a rebellion – Dersim,” containing a set of passages referring to the Kurdish–Turkish conflict that glorified insurrectionary movements, comparing them to the Kurds’ fight for independence.
On 8 January 1992, the public prosecutor brought a suit against the applicant and his publisher before the Istanbul National Security Court, accusing them of disseminating separatist propaganda against Turkey under section 8 of the Prevention of Terrorism Act. He requested the confiscation of all copies of the concerned material.
The National Security Court, which featured a military judge, allowed the complaint. It considered the impugned material detrimental to the integrity of the Turkish territory and the unity of the State. The applicant was sentenced to twenty months imprisonment and charged a fine of 41,666,666 Turkish liras (TRL) under section 8(1) of the Prevention of Terrorism Act.
The applicant appealed against the decision to the Court of Cassation. On 1 July 1993, the Court of Cassation upheld the lower court decision. On 30 October 1995, implementation of Law No. 4126 reduced all the convictions pursued under section 8 of the Prevention of Terrorism Act. Consequently, on review, the National Security Court reduced the applicant’s sentence to thirteen months and ten days but increased the fine to 111,111,110 TRL. The applicant appealed against the decision, but the Court of Cassation dismissed the appeal.
On 27 August 1993, the applicant filed a complaint to the European Commission of Human Rights, arguing a breach of articles 6, 9 and 10 of the Convention. Through a decision dated 11 December 1997, the Commission found no violation of article 10. The Commission referred the case to the European Court of Human Rights, which was further referred to the Grand Chamber. At the time the complaint was submitted to the Commission, the applicant was still serving his sentence.
By twelve votes to five, the Court held that there had been a violation of article 10.
The parties agreed that the applicant’s conviction interfered with his freedom of expression. Assessing whether the interference would be justified under Article 10(2), the Court agreed that the interference was “prescribed by law,” and pursued the “legitimate aim” of protecting national security. The point of contention therefore was whether the interference was “necessary in a democratic society.”
Citing Fressoz and Roire v. France App No. 29183/95 (January 21, 1999), the Court stated that an interference is necessary in a democratic society when (i) the interference sought to respond to a pressing social need, (ii) was proportionate to the legitimate aim pursued, and (iii) if the reasons provided by national courts to convict the applicant were “relevant and sufficient.”
The applicant argued that the poem was “first and foremost a literary work” and the applicant had the artistic freedom to use colourful language to express thoughts and feelings [para. 45]
The government contended that the poems constituted separatist propaganda against the State’s independence, which broadened the margin of appreciation in interfering with the freedom of expression.
The majority agreed that a plain reading of the words could be construed to incite violence and hatred. However, “Article 10 protects not only the substance of the ideas and information expressed but also the form in which they are conveyed” [para. 50]. Since the impugned work was in the form of poetry, it appealed only to a minority of the readers.
The Court cited Müller and Others v. Switzerland App no. 10737/84 (May 24, 1988), to observe that “(t)hose who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society” [para. 49]. Although the poems had a political dimension, “there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest”, especially when the criticism relates to a government instead of a politician or a private person. Considering “the dominant position” that the government occupies, it should display restraint in resorting to criminal proceedings, especially when alternate means to handle the criticism are available [para. 50].
Although States enjoy a wider margin of appreciation in cases where the impugned material is said to incite violence, the Court was of the view that expressing views through poetry instead of mass media, “limited their potential impact on ‘national security’, ‘[public] order’ and ‘territorial integrity’ to a substantial degree” [para. 52].
The Court further emphasized that the applicant was convicted for disseminating separatist propaganda and not inciting violence. This, in addition to the nature and severity of the penalty imposed made the restriction a disproportionate interference with the rights protected by Article 10. While no pecuniary damages were granted, 40,000 French francs were awarded as non-pecuniary damages for the distress caused.
Joint concurring opinion of Justice Palm, Justice Tulkens, Justice Fischbach, Justice Casadevall, and Justice Greve
In a concurring opinion, the judges agreed with the majority that there had been a violation of article 10. However, citing the dissenting opinion of Judge Palm in Sürek v. Turkey (no. 1) App No. 26682/95, (July 8, 1999) the judges employed a contextual approach in arriving at the conclusion, rather than focusing on the form of the expression. They observed that the intention and risk of inciting violence should be measured against factors such as the “position of influence” held by the author and “degree of prominence” given to enhance the influence of the impugned speech. According to the judges, only a careful examination of the context will allow for a “meaningful distinction between language which is shocking and offensive – which is protected by Article 10 – and that which forfeits its right to tolerance in a democratic society” [p. 32].
Concurring opinion of Justice Bonello
Justice Bonello also shared the majority’s conclusion in finding a violation of article 10 of the Convention. However, he disagreed with the test implemented by the Court to assess whether the interference was justifiable in a democratic society. He considered that freedom of expression should generally prevail unless the incitement creates “a clear and present danger” to encourage violence [p. 33]. As per Justice Bonello’s opinion, expressions advocating for the use of violence must not be suppressed by States parties without prior examination of whether the impugned expression could actually incite or have the effect of producing imminent violence.
Joint partly dissenting opinion of Justice Wildhaber, Justice Ridruejo, Justice Costa, and Justice Baka
The judges held that in cases whereby the impugned expression incites violence, the State must be afforded a wider margin of appreciation.
Assessing the words of the poems, they were unable to agree with the majority in finding a breach of Article 10. They concluded that the majority attached more importance to the poetic form of the speech rather than its content and tone and that the poems “exhort readers to armed violence” through the use of expressions that are “insulting”, “alarmist” or “a call to insurrection” [p. 36].
Dissenting opinion of Justice Gölcüklü
Justice Gölcüklü agreed with the Commission that there was no violation of Article 10 of the Convention in the instant case. As per his opinion, the applicant’s conviction was necessary in a democratic society and proportionate to the legitimate aim pursued of protecting national security and public order. Citing the Commission’s decision, he stated that the expressions read in the context of the poems could create an impression amongst the readers that the applicant was encouraging an armed struggle against the Turkish State and was supporting violence. Hence, having due regard to Turkey’s margin of appreciation, the Commission considered that convicting the applicant “could reasonably be regarded as answering a pressing social need” [p.37].
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 by reaffirming that artistic expressions also merits protection under article 10 of the Convention. The Grand Chamber emphasized the importance of social, cultural, and political ideas in a democracy. Although States enjoy a margin of appreciation in cases of national security, such right must be exercised under the Court’s supervision. Due regard should be given to the form and context of expression in assessing an article 10 violation.
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.
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