Violence Against Speakers / Impunity
Restrepo Barrientos v. El Colombiano Newspaper
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The Fourth Section of the European Court of Human Rights (ECtHR) concluded that the Turkish authorities failed to fulfill their positive obligation under Article 10 of the European Convention of Human Rights (ECHR) to protect the newspaper Özgür Gündem in its exercise of freedom of expression. Based on an assertion that the newspaper was aligned with the Workers’ Party of Kurdistan (PKK), a designated terrorist organization, the State imposed measures on the newspaper, such as a search-and-arrest operation and numerous prosecutions and convictions relating to the newspaper’s reporting. As a result of these sustained measures by the authorities, the newspaper ceased publication. The Court found that the newspaper’s link to the PKK was not a sufficient justification for failing to provide protection against unlawful acts and failing to provide an effective investigation on alleged violations of their rights. Hence, the Court ruled that the majority of the State’s actions were disproportionate, unjustified in the pursuit of any legitimate aim, and not necessary in a democratic society.
Özgür Gündem was a daily newspaper with a main office located in Istanbul. The applicants were four individuals that worked for Özgür Gündem (respectively the editor-in-chief, the assistant editor-in-chief and the owners of the newspaper). Özgür Gündem was succeeded by Özgür Ülke. This case concerned the allegations made by the applicants that Özgür Gündem was subjected to serious attacks and harassment, which eventually resulted in its closure and for which the Turkish authorities were either directly or indirectly responsible [para. 10].
The applicants listed a large number of attacks made on persons associated with the newspaper. The Government denied that some of these attacks took place. The Government did not, however, contest that some of the other attacks had taken place, including amongst others the killing of seven persons connected with Özgür Gündem and violent attacks on persons selling the Özgür Gündem newspaper. The applicants, together with other persons working for the newspaper, had alerted the authorities numerous times about these threats and attacks, requesting measures to be taken. Most of these letters did not get a reply. The Government asserted that the authorities had taken security measures in different instances and that no other requests for protection had been received.
On 10 December 1993 the Özgür Gündem office in Istanbul was searched by the police. They took those present in the building into custody and seized all documents and archives. Charges were brought against different persons, alleging that they “were members of the PKK (Worker’s Party of Kurdistan), had assisted the PKK and made propaganda in the PKK’s favour” [para. 19]. Two persons were convicted, one of whom had previously been convicted for involvement with the PKK.
Different prosecutions were brought against the newspaper because of various published articles. These prosecutions resulted in a large number of convictions. Editions of the paper were ordered to be seized and closure orders were issued. There had been prosecutions in respect of 486 out of 580 issues of Özgür Gündem and large fines and imprisonment sentences were imposed. The prosecutions were brought “under provisions rendering it an offence, inter alia, to publish material insulting or vilifying the Turkish nation, the Republic or specific State officers or authorities, material provoking feelings of hatred and enmity on grounds of race, region of origin or class, and materials constituting separatist propaganda, disclosing the names of officials involved in fighting terrorism or reporting the declarations of terrorist organisations” [para. 20].
The main question before the Court was whether the authorities had failed to fulfill their positive obligation to protect the exercise of the right to freedom of expression under Article 10 ECHR. The Court assessed the case as follows.
Concerning the attacks on the newspaper and persons associated with it
The applicants asserted that the Turkish authorities sought to eventually render impossible the production of Özgür Gündem by encouraging or permitting unlawful killings, forced disappearances and harassment and intimidation of journalists and distributors and by failure to provide protection for journalists and distributors, despite requests for such protection.
The Government stated that Özgür Gündem was the instrument of the PKK, a designated terrorist organisation whose aim was “to destroy the territorial integrity of Turkey by violent means” [para. 39]. It disputed that the positive obligation extends to the protection and promotion of a propaganda instrument deployed by a terrorist organisation and asserted that in any event, necessary measures were taken when individual complaints had been made.
The Court observed that the Susurluk report, a report produced at the request of the Turkish Prime Minister, in which “acquiescence and connivance” by State authorities in illegal activities was described (some of which targeted Özgür Gündem and persons working for the newspaper), could be relied on to substantiate the concerns expressed by applicants that Özgür Gündem and persons associated with it were at risk from violence [para. 40]. The Court was convinced that there were various incidents of violence which targeted the newspaper and persons associated with it. The newspaper’s fear that it was the victim of a “concerted campaign permitted, if not approved by State officials” [para. 41], was brought to the attention of the authorities. However, no measures were taken to investigate these assertions.
The Court stressed that freedom of expression is one of the “preconditions for a functioning democracy” [para. 43]. In the present case, the authorities were aware that the newspaper and persons associated with it had been the victims of violent acts. The circumstance, whether true or not, that Özgür Gündem allegedly supported the PKK and acted as its propaganda tool, does not provide a justification for failing to provide protection against unlawful acts and failing to provide an effective investigation. The Court concluded that the authorities did not comply with their positive obligation under Article 10 ECHR to protect Özgür Gündem in the exercise of its right to freedom of expression.
Police operation at the Özgür Gündem premises in Istanbul on 10 December 1993
The applicants asserted that the search-and-seizure police operation, during which all the employees were detained, constituted an unjustified interference with the newspaper’s freedom of expression. The Government asserted that the materials seized during the operation were “proof of the links between the newspaper and the PKK” [para. 48]. The Court concluded that the operation, which resulted in the disruption of the production of the newspaper for two days, constituted a serious interference with the freedom of expression of the applicants. While the operation was “prescribed by law”, this measure was not proportionate to the aim of preventing crime and disorder within the meaning of the second paragraph of Article 10. There was no justification for the seizure of the different materials, nor for the fact that every person in the premises had been taken into custody. The search operation was not proven to be necessary in a democratic society [paras. 49-50].
Legal measures taken in respect of issues of the newspaper
The applicants asserted that the Government sought to render impossible the production and dissemination of the newspaper by means of “unjustified legal proceedings” [para. 51].
The Government stated that domestic court decisions concerning publications by Özgür Gündem were examined selectively by the European Commission of Human Rights. The Government asserted that not only words directly inciting to violence might be prohibited (the approach that the Commission had taken in examining the articles), but that “implied, covert and veiled messages” could also have a negative impact [para. 52]. The Government asserted that States must enjoy a wide margin of appreciation in this regard.
The Court found that four out of five prosecutions related to the impugned articles were not necessary in a democratic society. However, the prosecutions for reporting statements of the PKK were reasonably proportionate to the legitimate aims of preventing crime and disorder, and could be regarded as necessary in a democratic society, given also the relatively light penalties that were imposed [paras. 59-70].
Based on the above considerations, the Court concluded that Turkey failed to take adequate measures to protect Özgür Gündem in its exercise of its freedom of expression. Moreover, the Government imposed measures on the newspaper which were disproportionate and unjustified in the pursuit of any legitimate aim. As a consequence, Article 10 ECHR was violated.
The Court awarded TRL 9,000 million for pecuniary damages and GPB 5,000 for each applicant in non-pecuniary damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Expands freedom of expression. This judgment reiterates the positive obligation for states to protect freedom of expression and underlines that the circumstance, whether true or not, that the newspaper allegedly supported the PKK, a designated terrorist organization, does not mean that this positive State obligation can be set aside.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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