Case Summary and Outcome

The Grand Chamber of the European Court of Human Rights (ECtHR) held that Turkey had violated Article 10 of the European Convention on Human Rights (ECHR) for convicting a lawyer for the dissemination of separatist propaganda based on comments he had made during a round-table discussion that was subsequently covered by a magazine. The Court held that although the conviction was prescribed by law and pursued the legitimate aim of protecting national security, territorial integrity, public order, and national unity, it was not a necessary interference with his rights in a democratic society. This was because political speech deserved heightened protection, and the press had an essential role of keeping the public informed. Translated into the context of the case, it had to be appreciated that the applicant’s comments, although not neutral, did not amount to incitements to violence. Further, the magazine in which they had been published had a low circulation, limiting the potential impact. Moreover, the punishment meted out to the applicant – a prison term along with a fine that was later increased – was disproportionate. The Court also held that the applicant’s rights under Article 6 were violated because the tribunal which convicted him had a military judge on the bench which impeached its impartiality and independence; there was the credible fear that extraneous considerations would unduly influence the bench.

---

Facts

The applicant was Mr. Ahmet Zeki Okçuoğlu, a Turkish lawyer of Kurdish origin. He lived and worked in Istanbul. In May 1991, the 12^th issue of the magazine Demokrat ran an article on a round-table debate in which the applicant had taken part, titled “The past and present of the Kurdish problem”. The applicant had spoken on “the Kurdish question” and the problems faced by the Kurds in the international sphere.

On June 10, 1991, the Public Prosecutor of the Istanbul National Security Court bought a case against the applicant under section 8(1) of the Prevention of Terrorism Act (Law No. 3713) for the dissemination of propaganda against the state’s indivisibility. The applicant was convicted on March 11, 1993 and sentenced to one year and eight months imprisonment, as well as payment of a fine and confiscation of the publications with his comments. The court based its conviction for separatism on the grounds that the applicant, in his comments, had alleged that the Kurds had been deprived of their rights and that their territory had been regionally apportioned among the States. Therefore, the Kurds were only fighting for their rights.

On September 24, 1993, the applicant’s appeal was dismissed by the Court of Cassation. However, on February 20, 1995, the applicant’s sentence was reduced through a deduction of time he had spent in pre-trial detention. Thereafter, on October 30, 1995, Law no. 4126 reduced prison sentences for section 8 crimes but increased fines. The law also provided for automatic review of cases decided under section 8 of Law no. 3713. Pursuant to such a review, the applicant’s prison sentence was reduced, but his fine was increased. The applicant approached the Commission on March 15, 1994 alleging that his right to a fair trial under Article 6 § 1 of the Convention had been violated because the National Security Court had not been independent and impartial. Further, his rights under Articles 9 (Freedom of thought, conscience and religion) and 10 (Freedom of expression) separately or in conjunction with Article 14 (Prohibition of discrimination) were also violated because of his conviction. The Commission found violations of Articles Article 6 § 1, and 10 along with 9, but no violation of Article 14. The case was referred to the Court by the Commission on March 18, 1998.

---

Decision Overview

The present case was one of a total of thirteen other cases against Turkey at the material time relating to activities of the Kurdish separatist movement, or the so-called “Turkish question.”[1] Due to the number of cases, a single Grand Chamber was constituted to hear them together.  The main issue before the Grand Chamber in the present case was whether the criminal conviction of a lawyer for the dissemination of alleged separatist propaganda was a necessary and proportionate restriction of his freedom of expression.

Articles 9 and 10

The applicant alleged that his conviction violated his rights under Articles 9 and 10. However, it was agreed that his complaint would only be looked at in terms of Article 10. Thus, the Court examined the interference with Article 10 under the three-part test for validity:

1. Prescription by law

The Court found that since the applicant’s conviction was based on article 8 of law no. 3713, so it was sufficiently prescribed by law.

2. Legitimate aim

The government cited protection of national security, public order, territorial integrity, and national unity as the reasons for the conviction. The Court accepted this assessment based on the prevailing situation in Southeast Turkey where there was separatist violence and the need of the government to be sensitive to developments in the region.

3. Necessity in a democratic society

While the applicant argued he had merely been expressing his opinions on the “Kurdish question”, the government alleged that he had spread separatist propaganda in the debate, by calling on the people of Kurdish origin to form a separate State in the context of rising acts of violence perpetrated by the PKK (Worker’s party of Kurdistan). Turkey had a margin of appreciation to deal with terrorism, as well as a duty to suppress propaganda inciting violence and threatening human rights and democracy. Furthermore, since there was unrest at the border with Iraq, the government’s actions in that context were not disproportionate.

The Commission submitted that freedom of expression encompassed the right to debate publicly about issues faced by the country. The applicant had effectively been censored because his views had been moderately expressed and did not advocate violence.

The Court upheld basic principles relating to freedom of expression – recognizing its essential role in a democratic society and its extension to offensive ideas under a regime of pluralism and tolerance. Furthermore, the Court would assess the proportionality of the restrictions to the legitimate aim being pursued which involved an examination of the context and content of the statements.

More specifically, the Court focused on the importance of the press in a democratic polity and its duty to impart information on divisive political issues so as to enable the public to assess its political leaders. In this case, the applicant had attempted to explain the Kurdish situation through the lens of international relations. His analysis, albeit not neutral, was also not extreme in its language.

Furthermore, Article 10 allowed for only limited restriction on political speech or public interest issues. The scope of criticism is even wider for the government to keep it under check. While the Turkish government was concerned about the situation in Southeast Turkey, the applicant’s comments were published in a periodical with low circulation, attenuating its impact. Furthermore, even though the comments depicted Turks negatively, there was no incitement to violence. Finally, the penalty imposed was severe and disproportionate, considering the length of the prison sentence and the subsequent increase in fine. Therefore, the applicant’s conviction and sentencing were considered not necessary in a democratic society and deemed a violation of Article 10.

Article 6

The applicant alleged that the National Security Court included a military judge which breached his right to a fair hearing under Article 6 because such judges were appointed and controlled by the executive and army. The Court noted that the crux of the issue was whether the applicant had good reason to doubt the independence and impartiality of the tribunal because the military judge might introduce considerations unrelated to the case at hand and unduly influence the bench. The Court found this was the case, and so there was a violation of Article 6 § 1.

Article 41

In light of its findings, the Court granted the applicant non-pecuniary damages.

Joint Concurring Opinion Of Judges Palm, Tulkens, Fischbach, Casadevall And Greve

The concurring Judges found that the overall assessment of the gravity of the speech at issue must consider the “context in which the words were used and their likely impact.” [p. 17 ] In their opinion “[i]t is only by a careful examination of the context in which the offending words appear that one can draw 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. 17]

Concurring Opinion by Judge Bonello

Judge Bonello issued a concurring opinion in favor of finding a violation of article 10, but he argued that the primary test employed by the European Court when considering alleged incitement by ethnic Turks against the State was “insufficient.” In his view much of the expression subject to criminal conviction by the national authorities was “abstract” or “intellectualized” and to “condone” such convictions would be tantamount to “subsidising the subversion of freedom of expression.” [p. 18-19] Judge Bonello found the higher threshold of a “a clear and present danger” test established by U.S. case law necessary to protect political speech in a democracy.

[1] The thirteen cases comprised: Okçuoğlu v. Turkey (no. 24246/94); Karataş v. Turkey (application no. 23168/94); Arslan v. Turkey (no. 23462/94); Polat v. Turkey (no. 23500/94); Ceylan v. Turkey (no. 23556/94); Gerger v. Turkey (no. 24919/94); Erdoğdu and İnce v. Turkey (nos. 25067/94 and 25068/94); Başkaya and Okçuoğlu v. Turkey (nos. 23536/94 and 24408/94); Sürek and Özdemir v. Turkey (nos. 23927/94 and 24277/94); Sürek v. Turkey no. 1 (no. 26682/95); Sürek v. Turkey no. 2 (no. 24122/94); Sürek v. Turkey no. 3 (no. 24735/94) and Sürek v. Turkey no. 4 (no. 24762/94)

---