Case Summary and Outcome

The European Court of Human Rights held that a Turkish publisher’s conviction in respect of a book about a communist leader was a violation of the right to freedom of expression. Criminal charges for spreading communist propaganda and for inciting hatred and hostility were brought against the author and the publisher, and copies of the books were confiscated and destroyed. After the author was acquitted, the publisher approached the Court, arguing that there was no “pressing social need” for his conviction. The Court found that there was no evidence that the content of the book threatened disorder in Turkey, and that given the importance of protecting political speech, the interference in the publisher’s right was not proportionate or necessary.

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Facts

In 1988, the Turkish publishing house Yurt Kitap-Yayın, owned by Ünsal Öztürk, published the book A testimony to life – Diary of a death under torture (Hayatın Tanıklığında – İşkencede Ölümün Güncesi), by N. Behram. The book discussed the life of İbrahim Kaypakkaya, one of the founders of Turkey’s Marxist-Leninist Communist Party (“TKP-ML”) in 1973 – an illegal organization. The book had 24 chapters, each prefaced by a poem written by either the author himself, one of three other Turkish poets or the Chilean writer P. Neruda. The book’s first edition was published in October 1998 and republished in November after the first edition was sold out immediately after it went on sale.

In December 1988, the public prosecutor from the Ankara National Security Court (“NSC”) brought separate proceedings against Behram and Öztürk. Following a request from the prosecutor, the NSC issued an interim order to seize all copies of the second edition. Öztürk appealed this order, but his appeal was dismissed in January 1989.

In February 1989, Öztürk was charged with two offences under the then article 142(4) and (6) and article 312(2) and (3) of the Criminal Code: for spreading communist propaganda; and for inciting hatred and hostility in people by distinguishing between social classes. The prosecutor said that in his role as head of TKP-ML, Kaypakkaya had “carried out armed raids with a view to overthrowing the constitutional order of the State in order to set up a communist regime” [para. 14]. The prosecutor argued that the poems in the book constituted communist propaganda and were “contemptuous of the security forces” and that this justified Öztürk’s conviction, in his capacity as responsible publisher under section 16(4) of the Press Act and the confiscation of the books under Article 36 § 1 of the Criminal Code [para. 14]. Öztürk argued that he did not consider that the book’s content could justify repressive measures and that the passages cited in the indictment could not be taken for separatist propaganda. He submitted, in the alternative, that every citizen had a right to criticize the State. On March 30, 1989, the NSC found Öztürk guilty, holding that there was no need to subject the book to an examination by experts because it was evident that it incited people’s hatred and hostility. The NSC sentenced Öztürk to 328,500 and 285,000 Turkish liras (TRL) fines and ordered the confiscation of the book.

In September 1989, the Court of Cassation upheld the appeal on the charges of inciting hatred and hostility but remitted Öztürk’s conviction for spreading communist propaganda back to the NSC on the grounds that “it was unlawful to establish the accused’s guilt merely by referring to the indictment without stating, with reasons, how and in what parts the book was an apologia of communism” [para. 17]. On January 9, 1990, Öztürk paid the fine for the incitement charges.

The NSC confirmed its previous decision, but this time based on an expert report about the content of the book. This decision was again quashed by the Cassation Court on the grounds that the expert opinion had not been provided by experts under oath and again remitted to the NSC. In these proceedings, the prosecutor sought the acquittal of Öztürk on the charge of disseminating communist propaganda as the article of the Criminal Code upon which the decision was based had been repealed. In June 1991, the NSC accepted this submission but stated that as the March 1989 decision was now final, the confiscation order remained operative and 2,845 confiscated copies of the book at issue were destroyed.

In May 1991, in the separate case against Behram, the NSC acquitted him, on the grounds that an expert report issued by three criminal law professors had found that the book did not contain anything that could constitute an offence.

Following Behram’s acquittal, Öztürk asked the Minister of Justice to refer his case to the Court of Cassation, highlighting the differences between the judgments made against him and against Behram. The Minister of Justice instructed the Principal State Counsel to appeal but the Court of Cassation dismissed the appeal on March 30, 1989, holding that “there is no evidence that the assessment of the content of the book A testimony to life – Diary of a death under torture made in the judgment at first instance is bad and must be invalidated” [para. 26].

Öztürk then approached the European Court of Human Rights. Öztürk argued that his conviction – when the author of the book had been acquitted – was an infringement of his right to freedom of thought, protected by article 10 of the European Convention on Human Rights, and that the confiscation of the books infringed his right to the peaceful enjoyment of his possession under article 1 of Protocol1.

Article 10 states: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”

At the time of the Court’s decision the book was being sold by a different publishing house.

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Decision Overview

The European Court of Human Rights delivered a unanimous decision. The central issue for the Court’s determination was whether Öztürk’s conviction was an unjustifiable limitation of his right to freedom of expression.

The Turkish government argued that Öztürk’s conviction was not a violation of his right to freedom of expression because the real beneficiary of this right was the author, and Behram’s rights had not been infringed because he had been acquitted and his book was being published. It submitted that the law criminalizing incitement addressed conduct likely to create “imminent danger to the public order” and so was clear and precise. The government argued that the acquittal of Behram in a separate case had no bearing on the present case. In addition, the government stated that at the time of the book’s publication TKP-ML was a real risk to national security and so it was “legitimate for dissemination of terrorist and separatist propaganda and incitement of the people to crime to have been made criminal offences” [para. 62]. The government reiterated that there is a broad margin of appreciation given to states to determine what conduct threatens the safety of the country, and that there was a pressing social need for Öztürk’s conviction and the confiscation of the books.

Öztürk argued that the provision under which he had been charged did not constitute a “law” in terms of article 10 as the elements of the offence were not sufficiently clear. He submitted that the inconsistent application of the offence to him and to Behram demonstrated that the officials were abusing the law to target certain individuals, and that there was no justification for the infringement to his right and it was therefore unnecessary.

Both parties accepted that the provision had the legitimate purpose of protecting national security.

The Court held that there had been an interference with Öztürk’s right. It emphasized that article 10 applies to “everyone” and, with reference to Autronic AG v. Switzerland, Series A no. 178, 1990, “applies not only to the content of information but also to the means of dissemination” [para. 49]. The Court acknowledged that publishers need not associate with the content of the material they publish but that “by providing authors with a medium they participate in the exercise of the freedom of expression, just as they are vicariously subject to the ‘duties and responsibilities’ which authors take on when they disseminate their opinions to the public” [para. 49].

In examining whether the infringement was “prescribed by law”, the Court emphasized that the test is to determine the “foreseeability of the measure concerned” [para. 54]. It held that the provision included an exhaustive list of criteria to determine whether there had been incitement to hatred as well as of the types of publication and dissemination that was prohibited. Accordingly, the Court held that the infringement to Öztürk’s rights was prescribed by law.

The Court confirmed the importance of the right to freedom of expression and that it applies to ideas that “offend, shock or disturb” [para. 64]. It added that in determining whether an interference to the right was justifiable it must determine whether it was proportionate and that the State applied reasoning that conformed with article 10.

The Court described the book as providing a “politicised version” of Kaypakkaya’s life and that Behram had intended to criticize the Turkish government and to give “moral support to the ideology which [Kaypakkaya] had espoused” [para. 65]. It stressed that article 10 provides little scope for infringement of the expression of political views, and that citizens must be able to criticize their governments while governments must “display restraint in resorting to criminal proceedings” [para. 66]. It referred to the finding in Behram’s acquittal that there was nothing in the book which could incite hatred and held that it was “not convinced that in the long term the November 1988 edition could have had a harmful effect on the prevention of disorder and crime in Turkey” [para. 69].

The Court held that Öztürk’s publication of the book did not contribute to terrorist activity in Turkey and the use of criminal sanctions against him was not justifiable, and awarded Öztürk USD10 000 for pecuniary damages.

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