Myanmar v. The Bi Mon Te Nay Journalists
Closed Expands Expression
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The European Court of Human Rights found that the conviction of the owner and chief editor of a newspaper for publishing an interview with a commander of the Kurdistan Workers’ Party violated the right to freedom of expression. The owner had been sentenced to a fine, and the editor to a fine and six months imprisonment. Notwithstanding the growing concern regarding the security situation in parts of the country, the Court held that mere publication of an interview with a designated hostile organization could not itself justify an interference with the applicants’ freedom of expression. It also found that Turkish courts had failed to have sufficient regard to the public’s right to be informed.
Kamil Tekin Sürek and Yücel Özdemir, the major shareholder and the chief editor of the Turkish weekly review Haberde Yorumda Gerçek, published an interview with the second-in-command of the Kurdistan Workers’ Party along with a joint declaration by four Kurdish organizations. At the material time, the PKK and the four organizations were designated as terror groups by Turkish Government.
The interview posed questions around the position of the United States with respect to the status of Kurdish people and the views of the PKK on the rapidly changing political environment in Turkey. The interviewer referred to the Turkish territory where the majority of Kurdish people reside as Kurdistan. The joint declaration, which was published in a later edition, read in part:
“Let us unite against State terrorism, against the repression and oppression of the Kurdish people, against the massacres, the street killings, the dismissals and unemployment; let us unite and step up our efforts for freedom, democracy and socialism!’ Such is the heading of the appeal in which it is stated that the only means of action for the ruling classes is that of force and violence … The State terrorism and street executions, carried out by the [State Intelligence Organization] agents, contra-guerrillas and special squads, must stop immediately and they must be called upon to account for the massacres and murders.” [para. 10]
In June 1992, the Istanbul National Security Court ordered the seizure of all copies of the relevant issues of the review. Soon after, Sürek and Özdemir were charged with having disseminated propaganda against the indivisibility of the State, under Turkish anti-terrorism laws. Both were found guilty; Sürek was sentenced to a fine and Özdemir was sentenced to a fine and six months imprisonment.
Following an unsuccessful appeal to the Court of Cassation, Sürek and Özdemir lodged an application with the European Court of Human Rights.
The Court focused on whether the prosecution and convictions of the applicants were “necessary in a democratic society”. The Court reiterated its jurisprudence that, in order to assess whether there is a pressing social need for a restriction on the right to freedom of expression, it “must look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made. In particular, it must determine whether the interference in issue was ‘proportionate to the legitimate aims pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient.’” [para. 57]
The Court went on to note the importance of the media in a democratic society, emphasizing that “while the press must not overstep the bounds set, inter alia, for the protection of vital interests of the State such as national security or territorial integrity against the threat of violence or the prevention of disorder or crime, it is nevertheless incumbent on the press to impart information and ideas on political issues, including divisive ones.” [para. 58] The Court furthermore recalled that there is little scope under Article 10 of the Convention for restrictions on “political speech or on debate on questions of public interest” and that “the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician.” [para. 60]
In light of these principles, the Court first noted that the mere fact that the interviews were given by a member of a designated terrorist organization could not in itself justify the prosecution. Secondly, the Court observed that while the PKK commander voiced hostility towards the Turkish government, the texts as a whole could not be considered to incite to violence or hatred. The Court further explained that while it was aware of the government’s concern over words and deeds that may exacerbate the security situation in the country, it should at the same time have due regard to “the public’s right to be informed of a different perspective on the situation in south-east Turkey, irrespective of how unpalatable that perspective may be for them.” [para. 61] Finally, the Court also held that the severe monetary sanctions as well as the six months’ imprisonment were disproportionate.
Based on the foregoing reasons, the Court found a violation of the right to freedom of expression.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This judgment of the European Court of Human Rights expands freedom of expression, in particular with respect to restrictions based on national security or public order concerns. The Court explicitly dismisses the assertion that mere publication of statements or declarations by a hostile organization can justify imposing sanctions. Furthermore, the Court emphasizes that the legitimate aim of protecting national security or territorial integrity with respect to controversial statements in or by the media must be balanced against the public’s right to be informed.
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