(Application no. 38991/02)
17 February 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Saygılı and Falakaoğlu v. Turkey (no. 2),
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Ann Power, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 27 January 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“As we fought off the 12 September Junta’s policies of controlling the prisons,
As the circulars of 1 August were torn off,
As the Eskişehir coffin house (prison) was forced to close down in 1991,
As we forced the authorities to close down the Eskişehir coffin house once again in 1996 by our hunger strikes and we set up a barricade against the attacks on the people, today we the revolutionary prisoners who have come across the same duties will fight off this attack as well. We will pay off whatever it costs. But we will not enter the cells. From now on the strong voice of the resistance will resonate in the prisons of our country. As detainees of the DHKP-C and TKP (ML) cases kept in various prisons, we start an indefinite hunger strike from 20 October 2000 until the F-type cell assault ends and our demands are met...
We will die but we will not enter the cells,
Long live our general resistance,
We will win...”
“...With these beliefs and determination, and together with the prisoners of DHKP-C and TKP (ML) cases, we started our hunger strike resistance for an indefinite period. We call on all revolutionary prisoners, including the prisoners of PKK cases, to unite under the resistance flag and to set up a stronger and indestructible barricade of revolutionist mind.
The fundamental requests of our resistance are as follows:
* Abolish F-type prisons immediately,
* Reinstate all rights seized in prisons,
* Abolish the Anti-Terrorism Law,
* Abolish the tripartite protocol,
* Abolish the state security courts and invalidate the outcome of all judgments delivered by these courts, and
* Try the torturers and perpetrators of massacres.
We call on the working class, labourers, all oppressed people and revolutionary people and ask them to support us in this resistance, for which we are ready to sacrifice our lives for human honour. We call on you to fight off the cell system which is the most critical chain of assault aiming at turning our lives into cells.
We will die but we will not enter the cells!
Long live resistance, long live victory!
In the name of TKIP detainees in all prisons.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“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...
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, ... for the prevention of disorder or crime, [or] for the protection of the reputation or rights of others...”
1. The applicants’ conviction and sentence under Article 6 § 1 of Law no. 3713
(a) The parties’ submissions
(b) The Court’s assessment
2. The temporary closure of the newspaper in accordance with Additional section 2 § 1 of Law no. 5680
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
FOR THESE REASONS, THE COURT
Done in English, and notified in writing on 17 February 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Gyulumyan and Power is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES POWER
The criminal prosecution of the applicants as owner and editor-in-chief of a daily newspaper, the imposition upon them of a heavy financial penalty and the closure of their newspaper for three days constituted, in our view, a violation of Article 10 of the Convention and we voted in favour of such a finding. Their newspaper published declarations of detainees who called for support and resistance in their campaign against what they regarded as an oppressive and dehumanising prison regime. In their unsuccessful appeal against conviction before the domestic courts, the applicants claimed that they exercised their duty to impart political opinions and that the declarations published did not incite violence or harm national security.
Freedom of the press is a value to be guarded, jealously, in a democratic society. For the flourishing of the common good of that social order, many journalists work in difficult situations and often at great personal risk. Whilst assassinations and disappearances of journalists who impart politically controversial opinion indicate the collapse of democratic order, their criminalisation undermines its very foundations. Given their critical function in the maintenance of democracy, the pre-eminent role of the press as “public watchdog” has been acknowledged, repeatedly, by this Court.1 Thus, it has held that due to its “chilling effect” upon the profession, there can be no justification whatsoever for the imprisonment of journalists who are alleged to have defamed within the context of a debate on matters of public interest.2 In certain cases, the fact alone of a criminal conviction of a journalist, even if minor, can be considered excessive.3
While the “closest scrutiny” of an impugned expression is required to see if it could be integrated within a public interest debate4 even a cursory examination of the declarations in this case demonstrates that the matters in question - the nature and conditions of prisoners’ detention - are issues of obvious public concern. The detainees’ “fundamental requests” included the abolition of “F” Type prison cells, the reinstatement of prisoners’ rights, the abrogation of an anti-terrorism law, the abolition of state security courts and the bringing to trial of torturers and perpetrators of massacres. Their grievances bear a remarkable resemblance to matters that come, not infrequently, before this Court. The potential vulnerability of prisoners, as a specific social group, is frequently acknowledged in Strasbourg and without the press one wonders how otherwise their voices might be heard?
It appears from the reasoning of the majority, that the problem is not with the prisoners’ goals per se but rather with “the wording of the overall message”, namely, their willingness to die for their convictions and their call for support in their resistance. The majority considers that the message conveyed by the newspaper was “not a peaceful one” and that it went beyond “a mere criticism” of the new prison system (§ 28). Such a consideration is disquieting. ‘Watchdogs’ are not meant to be peaceful puppies; their function is to bark and to disturb the appearance of peace whenever a menace threatens. A new and, in our view, a dangerous threshold in the protection of free speech has been reached if expression may be suppressed, lawfully, because it is neither “peaceful” nor confined to “mere criticism”. Such qualifications are new conditions precedent to the right to exercise such freedom and are not reflected in this Court’s case law.
There was nothing peaceful in the “virulent remarks” describing the Turkish government’s actions as “terror” and part of a “special war” against “the Kurdish people” in the case of Incal v Turkey. Nevertheless, the Court found that such words could not “be taken as incitement to the use of violence, hostility or hatred” (§ 50) and held that the criminal prosecution of the applicant was a disproportionate interference with the right to freedom of expression. By contrast, the majority in this case, without citing, by way of example, one violent word or any call to aggression, finds that the “overall message” was not peaceful and that the newspaper provided “an outlet to stir up violence and hatred”. The declarations were, undoubtedly, marked by a strong sense of passion, resolve, conviction and determination. They were, indeed, a rallying call for support and resistance but their authors (however well or misguided they may have been) did not advocate violence, injury or harm to any person. As such, there was no clear and pressing danger that required such a radical interference as the criminal prosecution of the applicants.
The majority rely upon what they describe as “a similar case” in which the Court has already expressed its concern about the making of such declarations “at a time when serious disturbances had taken place in several prisons”. The case cited as authority for their finding in this case is distinguishable on its facts, timing and context and on the proportionality of the interference involved. The Court in Falakaoğlu and Saygılı (cited in § 25 of the judgment) came to its conclusion that there was no violation of Article 10 because the impugned publication was made in the aftermath of what were then recent and serious disturbances in prisons. By contrast, the publication in the instant case took place two months before any such disturbances had occurred. The majority considers that “there were indeed reasons to fear for violent reactions and thus to be reticent in view of the events that had taken place in the prisons in less than two months after the publication of the impugned declarations” (§ 28). How, one wonders, were the publishers to know in October 2000 that there were reasons for them “to be reticent” in view of events that were to take place the following December?
In this regard, it should also be pointed out that the disturbances in question were not caused when the readership of Yeni Evrensel descended en masse upon the prisons inspired so to do by the rallying call in the published declarations. Rather, the events occurred when members of the security forces entered, simultaneously, into twenty penitential centres in which the hunger strikers were detained and violent clashes erupted between them and the protesting prisoners.
The threshold of the “necessity” test of state interference with freedom of expression is not equivalent to nor does it have the latitude associated with such notions as “tolerable”, “acceptable” or “reasonable”. Necessity implies the existence of a “pressing social need” not a “possible” one.1 Thus, the fact that social disturbances occur some two months after an article is published, cannot be used to justify radical state interference in a protected Convention right as exercised two months prior to such events.
The majority, through a process of retrospective reasoning, impute a causal connection between a publication in a daily newspaper in October 2000 and subsequent events in prisons the following December. The logic of their position would require the press not just to look over its shoulder to ensure that its publications do not add fuel to flaming fires. They must, in addition, look into the future to try to ascertain whether a fire might some day occur and, if so, whether their publication could be identified as one of a number of matches that may be accused of having caused it! Such a burden places an unworkable restriction upon the freedom of the press and jeopardises the protection of a fundamental value in a democratic society. There is nothing in the case law of this Court to justify the imposition of such a restriction.
Finally, the majority’s conclusion, in our view, is difficult to reconcile with this Court’s finding in Thoma v Luxembourg2 in which the Court reiterated that punishing a journalist for assisting in the dissemination of statements made by another person would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there were particularly strong reasons for doing so. We find no such reasons in this case.
1. Dalban v. Romania [GC], no. 28114/95, § 49, ECHR 1999 VI; Castells v. Spain, 23 April 1992, § 43, Series A no. 236.
2. Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 116, ECHR 2004 XI.
3. Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 32, ECHR 2003 XI.
4. Incal v. Turkey, 9 June 1998, § 46, Reports of Judgments and Decisions 1998 IV.
1. Lingens v. Austria, 8 July 1986, §§ 39-40, Series A no. 103; Sunday Times v. the United Kingdom (no. 2), 26 November 1991, § 50, Series A no. 217.
2. No. 38432/97, § 62, ECHR 2001 III.