Myanmar v. The Bi Mon Te Nay Journalists
Closed Mixed Outcome
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The European Court of Human Rights found a violation of the right to freedom of expression where a navy commander had been convicted for insulting the memory of the founder of the Republic of Turkey, Atatürk, during a ship inspection. The navy commander had used the slang term “kelle” to refer to a depiction of Atatürk, this term could be interpreted as referring to the head of an animal. The European Court of Human Rights found that the sixteen-year criminal proceedings, and eventual sentence of one year imprisonment commuted to a suspended fine, was a disproportionate restriction on the navy commander’s right to freedom of expression. In doing so, the European Court of Human Rights criticised the Turkish courts’ failure to take into account the context in which the statements were made and the limited impact they could have had on the memory of Atatürk.
Ömer Fuat Özçelebi, a navy commander, was charged before a military court for insulting the memory of Atatürk, the founder of the Republic of Turkey. The charges followed from a ship inspection Mr. Özçelebi conducted in November 1997. During this inspection, he used the word “kelle” when referring to a portrait of Atatürk. Four officers heard the statement.
In June 1998, he was sentenced to one year’s imprisonment under Article 1 of the Code on the Crimes Against Atatürk (No. 5816). This provision states that “[a]ny person who insults or defames Atatürk’s memory shall be sentenced to a penalty of imprisonment for a term of one year to three years.” When convicting Mr. Özçelebi, the military court noted that the term “kelle” usually referred to the head, but was also slang for the head of an animal. The military court then stated that the words “head” or “bust” should have been used rather than the term “kelle”. The military court held that Mr. Özçelebi had deliberately used the term with the intention of insulting the memory of the founder of the Republic of Turkey.
The decision was later reversed by the Military Court of Cassation and sent back to the military court. In December 2000, the military court referred the case to the Izmir Criminal Court of General Jurisdiction because Mr. Özçelebi had retired and was no longer a member of the military. Under these circumstances, the military court lacked jurisdiction to hear the case.
Before the Izmir Criminal Court, the applicant had pleaded that he had not intended to insult Atatürk’s memory and he used the word “kelle” in an angry state of mind. Having examined the case, Izmir Criminal Court sentenced the applicant to one year’s imprisonment. This decision was subsequently approved by the Court of Cassation in March 2005.
In June 2005, the new Criminal Code of Turkey came into force which provided for alternative sanctions in place of short sentences of imprisonment (Article 50 and 51 of the Criminal Code). In light of this, the applicant applied to the Izmir Criminal Court seeking his sentence to be commuted to alternative sanctions because it had yet to be enforced.
After rehearing the case, in October 2005, the Izmir Criminal Court upheld its sentence of one year’s imprisonment but commuted the sentence to a two-year ban on political activity. The Court of Cassation subsequently reversed the decision on the grounds that the Izmir Criminal Court had failed to hold a hearing and it had not examined the case in light of the criminal procedure law that allowed for suspended sentences in cases where there was a term of imprisonment under two years.
In July 2009, Izmir Criminal Court of General Jurisdiction sentenced the applicant again to one year of imprisonment. The court then commuted the sentence to a fine of 7,300 Turkish liras (approx. €3,400 at the time of the decision) in accordance with the Articles 50 and 51 of the Criminal Code. The Izmir Criminal Court decided not to apply the law on suspended sentences because it had not reached the belief that the accused would not commit further crime.
In April 2013, the Court of Cassation approved the decision on appeal, but decided to suspend the sentence for three years. Izmir Criminal Court later conformed with this decision in August 2013.
The European Court of Human Rights (ECtHR) examined the case under the Article 10 (right to freedom of expression) and Article 6 (right to a fair trial) of the European Convention of Human Rights (ECHR).
The ECtHR held that the State had interfered with the applicant’s right to freedom of expression by convicting him for using the term “kelle” to refer to depictions of Atatürk. The ECtHR went on to state that the interference was “prescribed by the law” and had a legitimate aim of protecting the rights and reputations of others. It was left for the ECtHR to determine whether the interference was “necessary in a democratic society”.
The ECtHR recalled that Atatürk had been a significant figure representing modern Turkey, and that the Turkish Parliament had chosen to penalise certain conduct which it considered to be insulting to Atatürk’s memory and detrimental to Turkish society’s values.
The ECtHR went on to note that although the word “kelle” could have an insulting connotation in Turkish, national courts had not specified why they had considered the statement to be an insult to Atatürk’s memory under the circumstances of the case. The ECtHR noted that the national courts had failed to examine the context of the statements. In particular, they had not taken into consideration the fact that the applicant made statements aloud in a confined place with only a few people able to hear him. Moreover, there was no indication that the applicant had a demonstrated willingness or intention to make his statements public. The ECtHR concluded that the impact of the statements were limited due to the circumstances and, on their own, could not be regarded as an attack of any gravity to Atatürk’s memory.
The ECtHR also took into account that Mr. Özçelebi was sentenced to one year of imprisonment commuted to a suspended fine, following lengthy proceedings lasting approximately sixteen years and involving several conflicting judgments. Although none of the sentences had been executed, the applicant remained under the threat of imprisonment twice during the proceedings. Accordingly, the interference was disproportionate to the legitimate aim pursued. Besides this, the grounds that the national courts asserted to justify the interference had not been sufficient. The applicant’s conviction for insult had not been “necessary in a democratic society” and therefore constituted a violation of the right to freedom of expression under Article 10 of the ECHR.
With regards to Article 6 of the ECHR, the ECtHR found no violation because the assessment of evidence by the national courts was not arbitrary or manifestly unreasonable.
Concurring Opinion of Judges Kūris and Vučinić
Judge Kūris, in his concurring opinion which was also accepted by Judge Vučinić, agreed that a criminal measure as a response to defamation cannot in itself be considered disproportionate to the pursuit of a legitimate aim under Article 10(2) of the ECHR. However, the judges noted that it was established jurisprudence of the ECtHR that the imposition of a prison sentence for defamation can only be considered compatible with Article 10 of the ECHR in “exceptional circumstances”. He expressed concern that this principle appeared to be abandoned by the ECtHR in its judgments since 2012.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision has a mixed outcome. The decision expands the right to freedom of expression by recognizing that the criminal prosecution of an individual for using a slang term to refer to a significant historical figure was a disproportionate restriction on free speech. In doing so, it also emphasizes the need for courts to take into account the context in which statements are made when handing down decisions in response to such statements. However, as noted by Judges Kūris and Vučinić, in some respects the decision did not go far enough and appeared to abandon the European Court of Human Right’s own consistent case law stating that the imposition of a custodial sanction for speech can only be considered compatible with Article 10 of the ECHR in “exceptional circumstances”.
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