Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Mixed Outcome
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The European Court of Human Rights (“ECtHR”) held that the conviction by the Turkish courts of a politician based on published comments in support of an illegal armed group, did not violate his freedom of expression rights under Article 10 of the European Convention on Human Rights (ECHR). Mr. Mehdi Zana (“the applicant”) was a former mayor of the largest city in south-eastern Turkey. In 1987, he was accused of defending an act punishable by law as a serious crime, for his remarks supporting the Workers’ Party of Kurdistan (“PKK”) made during an interview and subsequently published on August 30, 1987. The applicant was later sentenced to prison. The majority of the Grand Chamber held that, given the serious disturbances in south-east Turkey at the time when the applicant made the statements, the publication of his interview was likely to exacerbate an already explosive situation in Turkey. Consequently, the Court held that the conviction of the applicant answered a pressing social need and was proportionate to the legitimate aims pursued. Bearing in mind the State’s margin of appreciation, the ECtHR held that there was no violation of the applicant’s right to freedom of expression under Article 10 of the ECHR. However, a dissenting opinion and a partially dissenting opinion joined by seven judges would have found a violation of article 10. However, two dissenting opinions found the interference disproportionate and not necessary in a democratic society.
The applicant in this case was Mr. Mehdi Zana, a Turkish national who was formerly the mayor of Diyarbakir (the largest Kurdish-majority city in Turkey). Diyarbakir and south-east Turkey were witnessing serious disturbances since 1985 due to the confrontation between security forces and members of the Workers’ Party of Kurdistan (“PKK”). In this context, in August 1987, while the applicant was in custody in a military prison, he made the following remarks during an interview: “I support the PKK (Workers’ Party of Kurdistan) national liberation movement; on the other hand, I am not in favour of massacres. Anyone can make mistakes, and the PPK kill women and children by mistake…”. That statement was published in a national daily newspaper on August 30, 1987.
Because of it, the Istanbul public prosecutor’s office accused the applicant of “defending an act punishable by law as a serious crime” [p. 9]. His case was then transferred from the civil courts to the National Security Court, then to the Military Court and finally back to the National Security Court, going from Istanbul to Diyarbakir, then to Eskisehir and Aydin and finally back to Diyarbakir again. On July 28, 1988 the applicant was transferred from Diyarbakir military prison to Eskisehir civilian prison and subsequently, on August 2, 1989 he was transferred to the high-security civilian prison at Aydin.
At a hearing held on June 20, 1990 by the Aydin Assize Court, Mr. Zana refused to speak Turkish and stated that he wished to defend himself in his mother tongue, Kurdish. The Assize Court pointed out to him that, if he persisted in his refusal to defend himself, he would be deemed to have waived his right to do so. He nevertheless continued to speak in Kurdish, so the court noted in the record of the hearing that he had not put forward a defence.
The proceedings then continued before the Diyarbakir National Security Court, where the applicant was represented by his lawyers. On March 26, 1991, the Diyarbakir National Security Court sentenced the applicant to twelve months’ imprisonment for endangering public safety, having to serve one-fifth of the sentence in custody and four-fifths on parole. The court also held that Mr. Zana’s statement to the journalists, the exact terms of which had been established during the judicial investigation, amounted to an offence under Article 312 of the Criminal Code. On June 19, 1991, the National Security Court’s judgment was upheld by the Court of Cassation.
Mr. Zana’s application was lodged with the European Commission of Human Rights on September 30, 1991. Relying on Articles 6, 9 and 10 of the ECHR, he complained of an interference with his freedom of thought and expression and of an infringement of his right to a fair trial, in that he had not been able to appear before the court which convicted him and had not been able to defend himself in his mother tongue.
The case was referred to the European Court of Human Rights (ECtHR) by the Commission on May 28, 1996 and by the Turkish Government on July 29, 1996.
The Grand Chamber of the ECtHR delivered the judgment of the Court. The ECtHR began by considering whether Mr. Zana’s conviction and sentence by the Turkish courts for remarks made to journalists indisputably amounted to an “interference” with the exercise of his freedom of expression under Article 10 of the ECHR.
Article 10 of the Convention prescribes the right to freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The scope of the right under Article 10 is limited, inter alia, to the extent necessary in a democratic society, in the interests of national security, territorial integrity or public safety and for the prevention of disorder or crime. Article 6, on the other hand, guarantees every individual a right to fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
The Court considered that the applicant’s complaint related to Article 9 of the ECHR, regarding his freedom of thought and expression, was bound up with the one made under Article 10 and thus, decided to consider them together. The ECtHR went on to apply the three-part test to determine whether the interference was (i) prescribed by law, (ii) pursued a legitimate aim and (iii) was necessary in a democratic society, as required under Article 10(2) of the ECHR.
Before the Court, the government raised two preliminary objections, based on lack of jurisdiction and on the failure of the applicant to exhaust domestic remedies. Both were, however, rejected by the Court. On merits, the Court noted that the applicant’s conviction and sentence had been based on Articles 168 (offence to form an armed gang or an organization or assume control or special responsibility within that organization) and Article 312 (offence to publicly praise or defend an act punishable by law as serious crime) of the Turkish Criminal Code and accordingly, considered that the impugned interference had been “prescribed by law”.
In determining whether the interference had pursued a legitimate aim, the Court gave special consideration to the serious disturbances raging in south-east Turkey at the time when the applicant indicated to the journalists that he supported the PKK national liberation movement. Given his stature as a well-known political figure, the Court concluded that it could have had an impact such as to justify the measure taken by national authorities to maintain national security and public safety. The interference was, thus, held to have pursued legitimate aim under Article 10(2).
Finally, the Court assessed whether the interference complained of was “necessary in a democratic society”. Reiterating the fundamental principles emerging from its judgments relating to Article 10, the Court considered whether Mr. Zana’s conviction had answered a “pressing social need” and whether they were “proportionate to the legitimate aims pursued”. Mr. Zana had submitted before the Court that the government had misinterpreted his claims – in reality, he had conveyed to the journalists that he supported the national liberation movement but was opposed to violence. He maintained that as an activist in the Kurdish cause since the 1960s, he had always advocated non-violent action and condemned massacres of women and children. On the contrary, the government had claimed that the State, faced with a terrorist situation that threatened territorial integrity, had a higher margin of appreciation and was justified under Article 10(2) in convicting the applicant.
The Court sought to strike a fair balance between the applicant’s fundamental right to freedom of expression and the State’s legitimate right to protect itself against the activities of terrorist organisations. To that end, it considered that it was necessary to take into account the context in which the statement was made.
The interview had coincided with murderous attacks carried out by the PKK on civilians in south-east Turkey, where there had been extreme tension at the material time. In those circumstances, the support given to the PKK by the former mayor of the most important city in south-east Turkey, in an interview published in a major national daily newspaper, had had to be regarded as likely to exacerbate an already explosive situation in that region.
The Court also noted that the two statements made by the applicant in his interview were contradictory and ambiguous. In the first, the applicant expressed his support for the “PKK national liberation movement”, while going on to say that he is not “in favour of massacres”. In the second he said “Anyone can make mistakes, and the PKK kill women and children by mistake.”
In light of the above, the Court found that the penalty imposed on the applicant could reasonably be regarded as answering a “pressing social need” and that the reasons adduced by the national authorities were “relevant and sufficient”. It also noted that at all events, the applicant would serve only one-fifth of his sentence in prison.
Having regard to the aforementioned factors and to the margin of appreciation which national authorities had in such a case, the Court considered that the interference in issue was necessary in a democratic society and proportionate to the legitimate aims pursued. In conclusion, ECtHR held that there was no breach of Article 10 of the ECHR.
The ECtHR moved on to consider if there has been an infringement of Article 6 of the Convention. Mr. Zana had submitted that his absence from the hearing at the National Security Court had prevented him from defending himself effectively. Whereas, the government maintained that the applicant had, several times, appeared before the Court and had deliberately waived his right to defend himself on merits. The Court, however, noted that the fact that Mr. Zana had raised procedural objections or wished to address the court in Kurdish, in no way signified that he had implicitly waived his right to defend himself and to appear before the Diyarbakir National Security Court. Moreover, if the applicant had been present at the hearing, he would have had an opportunity, in particular, to say what his intentions had been when he had made his statement and under what circumstances the interview had taken place. Finally, it concluded that the applicant’s conduct, even if it might have slowed the proceedings to some extent, could not, on its own, explain such a length of time. Accordingly, the Court held that there was a breach of Article 6 of the ECHR.
Judge van Dijk, joined by Judges Palm, Loizou, Bonnici, Jambrek, Kūris and Levits, filed a partially dissenting opinion, stating that Article 10 of the ECHR was violated as the interference was not proportionate to the aim of maintaining national security and public safety. Even if, in the context of the circumstances prevailing at that time, it was accepted that the State pursued a legitimate aim in convicting the applicant, the Judges noted that the applicant’s conviction and imprisonment of 12 months was disproportionate. The fact that the applicant had to serve only one-fifth of the sentence (two months) in prison was not sufficient to hold otherwise.
Judge Vilhjálmsson dissented as he was of the opinion that the applicant’s statements neither endorsed criminal activities nor posed a danger to national security or public safety or territorial integrity. Hence, the restrictions and the penalty imposed did not pursue a legitimate aim and were not necessary in a democratic society and, therefore, were a violation of Article 10 of the Convention.
Finally, Judge Lopes Rocha disapproved of the majority’s finding on Article 6 of the ECHR, as Mr. Zana’s absence from the hearing of the Diyarbakır National Security Court, at which he could have indicated what his intentions had been when he had made his statement and in what circumstances the interview had taken place and summoned journalists as witnesses, was sufficient evidence that the applicant was not deprived of the opportunity of defending himself in person.
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In this judgment, the majority of the Court considered that, bearing in mind the state’s margin of appreciation, the interference in issue was proportionate to the legitimate aims pursued and there had been no breach of Article 10 of the convention. Notably, the statements had coincided with murderous attacks carried out by the PKK in south-east Turkey and the support of the former mayor of an important city in the region was regarded as likely to exacerbate an already explosive situation in the region. Two dissenting opinions found the interference disproportionate and not necessary in a democratic society.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The relevant provision of the Criminal Code at the material time provided: “It shall be an offence, punishable by six months’ to two years’ imprisonment and a ‘heavy’ [ağır] fine of 6,000 to 30,000 liras publicly to praise or defend an act punishable by law as a serious crime or to urge the people to disobey the law. It shall be an offence, punishable by one year’s to three years’ imprisonment and by a heavy fine of 9,000 to 36,000 liras, publicly to incite hatred or hostility between the different classes in society, thereby creating discrimination based on membership of a social class, race, religion, sect or region. Where such incitement endangers public safety, the sentence shall be increased by one-third to one-half….”
The relevant provisions of the Criminal Code at the material time provided: “It shall be an offence punishable by at least fifteen years’ imprisonment to form an armed gang or organisation or to assume control or special responsibility within such a gang or organisation with the intention of committing any of the offences referred to in Articles 125 …It shall be an offence punishable by five to fifteen years’ imprisonment to belong to such an organisation.”
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