Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
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The Grand Chamber of the European Court of Human Rights found no violation of a publisher’s freedom of expression for disseminating separatist propaganda. Kamil Tekin Sürek, a majority shareholder of a weekly review in Istanbul, was convicted under the Prevention of Terrorism Act 1991 for publishing two letters submitted by readers which contained political speech criticizing the Turkish government and promoted the cause of a Kurdish rebel movement. The Court based its reasoning on the adequate prescription by law of the conviction, its pursuance of the legitimate aims of protection of national security, territorial integrity and public order in Turkey in light of the violent separatist movement in the south-east, and necessity in a democratic society. The measures were found necessary mainly because the letters had used inflammatory language intended to incite hostilities, they had been published in a sensitive security context, and the letters had named persons responsible for atrocities, thus endangering them. The Court found that the owner was vicariously responsible for their publication because as a partial owner he should have had editorial control over the direction of the review. Therefore, the Court held that the Article 10 rights of the applicant had not been violated. However, three partially dissenting opinions would have found a violation of article 10 on the grounds that there was insufficient evidence of incitement and it was inconsistent with previous rulings. In conclusion the Court found Sürek’s Article 6 § 1 rights were violated because the domestic court that convicted him had a military judge on the bench which cast into doubt the independence and impartiality of the bench.
The applicant, Mr. Kamil Tekin Sürek, was a Turkish national and majority shareholder in the limited liability company Deniz Basin Yayin Sanayi ve Ticaret Organizasyon. The compay opened Haberde Yorumda Gerçek (“The Truth of News and Comments”), a weekly review in Istanbul.
On 21 September 1992, the applicant was indicated as owner of the review for “disseminating propaganda against the indivisibility of the State and provoking enmity and hatred among the people” [para. 12]. The charges under Article 312 of the Criminal Code and section 8 of the Prevention of Terrorism Act 1991 pertained to the publication of two letters from readers in the review in the 30 August 1992 issue. These were titled “Silahlar Özgürlüğü Engelleyemez” (“Weapons cannot win against freedom”) and “Suç Bizim” (“It is our fault”). The letters spoke about the national liberation war for Kurdistan and the Turkish army’s reaction to the war as well as its brutalities. The National Security Court convicted the applicant under section 8 of the 1991 Act and sentenced him to pay a fine, on the grounds that the letters were separatist in that they did refer to parts of Turkey as an independent Kurdistan, and also depicted the PKK as a “national independence war” against the State of Turkey. The Court also found the letters racially discriminatory.
The applicant appealed to the Court of Cassation, denying the charges of separatism, challenging the constitutional validity of section 8 of the 1991 Act, and arguing that his conviction violated his rights under Articles 6 and 10 of the Convention because he had not been given a chance to present at his hearing. The court found the sentence excessive and remitted the case to the National Security Court on 26 November 1993. On 13 April 1994, the National Security Court sentenced the applicant to a lower fine, and reiterated its earlier reasoning for his conviction. This was appealed by the applicant, but the Court of Cassation dismissed his appeal this time, and upheld the reasoning in the judgement of the lower court.
Thereafter, Law no. 4126 came into effect in 1995, and the applicant’s sentence was automatically re-examined. The court confirmed the first sentence which had been imposed on him.
The applicant complained to the European Commission of Human Rights on 20 February 1995, alleging first, that Turkey had violated his right to freedom of expression under Article 10 of the Convention, and second, that his rights under Article 6 § 1 had also been breached because he had not been given a hearing by an “independent and impartial” tribunal. On 11 December 1997, the Commission, through a close majority of nineteen to thirteen votes, found that there was no violation of the Article 10 right. However, through a thirty-one to one vote, it found a violation of the Article 6 § 1 right.
The Commission referred the case to the Court on 17 March 1998, seeking a determination of whether Turkey had violated the applicant’s Convention rights under Articles 6 § 1 and 10.
The principal freedom of expression issue before the Court concerned a violation of Article 10 through the conviction and sentencing of the applicant under section 8 of the Prevention of Terrorism Act (1991). Both parties agreed that there had been an interference with the right of the applicant. The Court was left to determine the validity of the interference under the three-pronged test of legal prescription, legitimacy of aim and necessity of the measures in a democratic society.
1.Prescription by law
The applicant impugned the government’s use of section 8 of the 1991 Act, alleging that it was used to suppress criticisms by the opposition even when they did not advocate violence or separatism. The government countered this with the submission that section 8 had been designed to suppress separatist propaganda such as that for which the applicant was responsible. The Commission’s delegate argued that although section 9 could be seen as slightly vague, the Commission had found that it nevertheless met the requirements of prescription by law, and formed the basis of the applicant’s conviction.
2. Legitimacy of aim
The applicant reiterated that section 8 was being used by the government to suppress criticism, but the government maintained that section 8 espoused the legitimate aims of preventing the dissemination of propaganda that was separatist in nature and so attacked Turkey’s territorial integrity, national unity, public order and national security. The Commission noted that the applicant’s conviction pursued a legitimate aim under the government’s campaign against illegal terrorism.
The Court concurred that there was a legitimate aim here because the government needed to be responsive to security threats in the volatile south-eastern region of Turkey where separatist movements were resorting to violence. Thus, the legitimate aims of national security, territorial integrity, and the prevention of crime and disorder were validly invoked.
3. Necessity in a democratic society
The applicant argued that his prosecution and conviction were unjustified because as owner of the review he had no control over content, and in any case the two letters had not incited violence, terrorism or separatism.
The government stated that the letters had portrayed the State as a “criminal organisation” and the PKK as a movement for national liberation. Separatist propaganda was antithetical to democracy because it necessarily incites violence and hostility. As for the applicant’s responsibility, the State alleged he was responsible as owner of the review, and the measures against him had been taken within the State’s margin of appreciation.
The Commission found the actions of the respondent State to be justified under Article 10. Taking into consideration the volatile situation in Turkey, its assessment that the letter could be seen to incite violence, and the applicant’s duties and responsibilities as owner of the review, the State was entitled to prosecute, convict and sentence the applicant for threatening national security and public order.
The Court, decided that an interference must be assessed in light of the entire context of the case – the statements’ content, the situation in which it was made, and then the proportionality of the ultimate interference to the legitimate aims pursued. This further required an examination of the relevance and sufficiency of reasons proffered by the respondent State. In this regard the following observations became important:
First, paying regard to the relationship of the applicant with the magazine, the Court said that the role of the press in a democracy was pertinent to its assessment. While the press was duty-bound not to transgress the boundaries of national security, territorial integrity or public order of the State, they were entrusted with disseminating information and ideas on important even divisive matters to the public. This was crucial because it would serve as the basis of public opinion.
Second, the ‘State enjoys a constricted margin of appreciation for political speech or debates on matters of public interest. This margin is further attenuated when the criticism pertains to the government, as opposed to a private citizen or political figure, in the interests of maintaining public scrutiny in a democracy.
Third, the government should exercise restraint in initiating criminal measures when other means are available, because of its dominant position. It is nevertheless the mandate of the government to respond with appropriate criminal measures, particularly where there is incitement of violence.
In the present case, the two published letters submitted by readers had outlined the brutalities of the government against the Kurdish people, and reiterated the resolve of the Kurds to obtain freedom. The National Security Court had based its conviction of the applicant principally on the description within the letters of the PKK as a national liberation movement, and Kurdistan as an independent State. The Court found that the necessity of such an interference was established here because:
First, the language employed by the letters including “the fascist Turkish army”, “the TC murder gang”, “the hired killers of imperialism”, “brutalities” and “slaughter” were clearly intended to stigmatise the government, and incite violence by concretizing the prejudices underpinning violence.
Second, the context of the letters was an unstable security situation in south-east Turkey, which since 1985 had been marked by extreme violence between the security forces and the PKK. In this context, the letters seemed capable of inciting violence against those deemed responsible for the alleged atrocities and brutalities, especially because they appeared to justify such violence as self-defense.
Third, one of the letters actually endangered persons by naming them as objects of hate.
Thus, the Court found the interference with the applicant’s right justified as here there was hate speech and a glorification of violence, and the applicant had offered the writers a medium to channel this. His commercial relationship with the review did not release him from criminal liability because he would still have control over the direction taken by the review. He held vicarious responsibility for editorial decisions, exacerbated by the conflict context, and his penalty was found to be proportionate in nature and severity.
Alleged Article 6 violation
The applicant’s claim was that the presence of a military judge on the bench of the National Security Court had rendered his hearing unfair under Article 6 § 1. This is because military judge are appointed by the executive and so their conditions of appointment and tenure fall within the control of the executive. This link with the government, and with commanding officers, made it impossible for them to judge independently and impartially.
The Court noted that the continuance of judges as officers in the army, their taking of orders from the executive, and the control of their appointments by the army and executive threw into doubt their independence and impartiality. The fears of unfairness through a military judge’s presence on the bench were not counterbalanced by an appeal to the Court of Cassation, because that court had only limited jurisdiction. Thus, the Court found a violation of the Article 6 § 1 right of the applicant.
Article 41 claim
Since the applicant’s Article 10 claim had failed, but his Article 6 § 1 claim had survived, the Court found that he was provided just satisfaction under Article 41 through the declaration of a violation of his Article 6 § 1 right.
Partially Dissenting Opinion of Judge Palm
Judge Palm stated that the majority had accorded too much importance to the kind of language used by the judges. However, Article 10 protected even “fighting” words in a democracy. It was the context of the statements which would render them unprotected. Here the applicant was not convicted for incitement to hatred, but for the dissemination of separatist propaganda, therefore, the majority had gone too far in examining the potential of the letters to incite hatred. Moreover, the applicant was only a shareholder, and not an editor, author, or influential political figure in Turkey. And finally, the letters had been published in Istanbul which was not close to the south-east of Turkey where the conflict was occurring. In light of these factors, Judge Palm supported the conclusion that the conviction had been based on the political message within the letters and so the applicant’s rights under Article 10 had been violated.
Partially Dissenting Opinion of Judge Bonello
Judge Bonello relied on American jurisprudence to uphold the test of a restriction being justified only if the incitement created a clear and present danger of imminent lawless action. Since on assessment of the facts, Judge Bonello did not find any imminent danger of unlawful action, he held that there had been a violation of Article 10.
Joint Partly Dissenting Opinion of Judges Tulkens, Casadevall and Greve
This joint partially dissenting opinion also ascertained a breach of Article 10 because the letters dd not directly provoke the commission of a serious crime. Furthermore, the finding in this case were inconsistent with the findings in other cases including Arslan v. Turkey and Ceylan v. Turkey, where the applicant was involved, and yet violations of the right to freedom of expression were found. The judges also noted that in contrast to Zana v. Turkey, here the applicant was not a political figure, was not the author of the controversial letters, and the issuance of the letters did not coincide temporally with any brutalities. Thus, the interference was unjustified.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case represents a setback in freedom of expression jurisprudence because it treats political speech differently from other cases where similar facts were brought before the Court. While the majority here treated the prosecution and conviction of the applicant as not violative of his rights, even the dissenting judges Tulkens, Casadevall and Greve noted that violations had been found in similar cases, and related cases where the applicant was involved. Crucially, they also observed that the applicant’s status (as not a political figure and not even the author of the controversial statements) had not been taken into consideration appropriately. Furthermore, the case widens the responsibility of shareholders and owners of publications for political speech, despite them not holding editorial or journalistic control over the publication.
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