European Court of Human Rights: Thirteen Judgments on Freedom of Expression and Information (8 July 1999)

IRIS 1999-8:1/5

Dirk Voorhoof

Human Rights Centre, Ghent University and Legal Human Academy

On 8 July 1999 the European Court of Human Rights delivered judgments in thirteen cases against Turkey involving Article 10 of the Convention. In eleven of the thirteen cases the Court held that there was a violation of the freedom of expression as guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. All the cases concerned various criminal convictions of the applicants arising from separatist propaganda against the Turkish nation and the territorial integrity of the State or (pro-Kurdish) propaganda against the indivisibility of the State contrary to the Prevention of Terrorism Act 1991. In all of the cases the European Court reiterated the fundamental principles underlying its former judgments relating to Article 10, according to which freedom of expression constitutes one of the essential foundations of a democratic society (see also IRIS 1999-6: 3, IRIS 1999-2: 4, IRIS 1998-10: 4, IRIS 1998-9:3, IRIS 1998-7: 4, IRIS 1998-4:3). The Court emphasised once again that Article 10 of the Convention also protects information and ideas that "offend, shock or disturb" and 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. At the same time, the limits of permissible criticism are wider with regard to the government than in relation to a private citizen: in a democratic society the actions or omissions of the government must be subject to the close scrutiny of public opinion. According to the Court, the dominant position which the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries. It is incumbent on the press to impart information and ideas on political issues, including divisive ones and the public has also a right to receive such information and ideas. On the other hand, the Court recognised the competence of state authorities to take measures to guarantee public order and hence to interfere with freedom of expression in cases of incitement to violence against individuals, public officials or a sector of the population. It was also emphasized that the duties and responsibilities which accompany the exercise of the right of freedom of expression by media professionals assume special significance in situations of conflict and tension and that particular caution is required when the views of representatives or organisations which resort to violence against the State are published. Such interviews involve a risk that the media might become a vehicle for the dissemination of hate speech and the promotion of violence.

After a thorough examination of the wording and the content of the publications concerned, and after considering the context of the political and the security situation in south-east Turkey, the Court in eleven of the cases came to the conclusion that the conviction and sentencing of the applicants was not necessary in a democratic society and that accordingly there had been a violation of Article 10 of the Convention. In all of these cases the Court was of the opinion that the impugned articles, news reporting, books or speeches could not be said to incite to violence. In most cases, the Court was also struck by the severity of the sanctions imposed (20 months imprisonment, substantial fines, seizures of books...): the nature and severity of the penalties were also factors which lead to the conclusion that the interferences were disproportionate. The Court also underlined that some of these convictions and sentences were capable of discouraging the contribution of the press to open discussion on matters of public concern.

In most of the cases the Court also found a violation of Article 6 of the Convention. The applicants had been denied the right to have their cases heard before an independent and impartial tribunal as they had been tried by the National Security Courts, in which one member of the bench of three judges was a military judge. In two cases the Court found no violation of Article 10 of the Convention. The Court was of the opinion that the impugned letters and the news commentary in a weekly review must be regarded as capable of inciting to further violence in the region. Hence, the conviction of the applicant in these two cases (Sürek n°1 and n°3) could be regarded as answering a "pressing social need". The Court was of the opinion that what was at issue in these cases was "hate speech and the glorification of violence" and "incitement to violence". The two judgments that found no violation of Article 10 are also important from another point of view. It must be underlined that Sürek was convicted while he was the owner/publisher of the weekly review in which the readers' letters and the news commentary were published. Although he did not write the articles personally and only had a commercial and not an editorial relationship with the review, this could not exonerate him from criminal liability. Sürek was the owner and "as such he had the power to shape the editorial direction of the review", according to the Court, who held "that for that reason, he was vicariously subject to the "duties and responsibilities" which the review's editorial and journalistic staff undertake in the collection and dissemination of information to the public and which assume an even greater importance in situations of conflict and tension". The general importance of the judgments of 8 July 1999 lies in the fact that the Court again strongly emphasised the relation between freedom of expression, democracy and pluralism. In other case law of the Court it was underlined "that one of the principal characteristics of democracy is the possibility it offers of resolving a country's problems through dialogue, without recourse to violence, even when they are irksome. Democracy thrives on freedom of expression".