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ALTUC TANER AKCAM v. TURKEY - 27520/07 [2011] ECHR 1799 (25 October 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1799.html
Cite as:
(2016) 62 EHRR 12,
[2011] ECHR 1799,
62 EHRR 12
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SECOND
SECTION
CASE OF ALTUĞ TANER AKÇAM v. TURKEY
(Application
no. 27520/07)
JUDGMENT
STRASBOURG
25 October 2011
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 Altuğ Taner Akçam v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
David
Thór Björgvinsson,
Dragoljub Popović,
András
Sajó,
Işıl Karakaş,
Guido
Raimondi, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 4 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 27520/07) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish and German national, Mr Altuğ
Taner Akçam (“the applicant”), on 21 June
2007.
The
applicant was represented by Mr P. Akhavan, a lawyer practising in
Montreal, Canada. The Turkish Government (“the Government”)
were represented by their Agent.
The
applicant alleged that the provision of Article 301 of the Turkish
Criminal Code had led to an ongoing threat of prosecution for
insulting “Turkishness” in connection with his academic
work on the Armenian issue. He complained of a violation of Articles
7, 10 and 14 of the Convention.
On
21 October 2008 the Court decided to give notice of the application
to the Government. It also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The facts as submitted by the parties
The
applicant was born in 1953 and lives in Ankara.
He
is a professor of history who researches and publishes extensively on
the subject of the historical events of 1915 concerning the Armenian
population in the Ottoman Empire.
On
6 October 2006 the applicant published an editorial opinion in AGOS,
a bilingual Turkish-Armenian newspaper, entitled “Hrant Dink,
301 and a Criminal Complaint”. In this editorial opinion the
applicant criticised the prosecution of Hrant Dink, the late editor
of AGOS, for the crime of “denigrating Turkishness”
under Article 301 of the Turkish Criminal Code. He also requested, in
an expression of solidarity, to be prosecuted on the same ground for
his opinions on the Armenian issue.
On
12 October 2006 a complaint was lodged against the applicant with the
Eyüp public prosecutor. The complainant, R.A., alleged that the
applicant’s defence of Hrant Dink in the editorial published in
AGOS violated
Articles 301, 214 (incitement to commit an offence), 215 (praising a
crime and a criminal) and 216 (incitement to hatred and hostility
among the people) of the Turkish Criminal Code. Following this
complaint, the applicant was summoned to the Şişli public
prosecutor’s office to make a statement. He was informed that
he would be brought to the public prosecutor’s office by force,
in accordance with Articles 145 and 146 of the Criminal Code, if he
did not comply with the summons.
On
5 January 2007 the applicant went to the Şişli public
prosecutor’s office to submit his defence statement in relation
to the criminal complaint against him. The applicant stated, in the
presence of his two lawyers, that he had indeed written the said
article published in AGOS.
He explained that the policy of the Ittihad
ve Terakki
towards the Armenians in 1915 could well be defined as genocide
within the meaning of the Convention on
the Prevention and Punishment of the Crime of Genocide of the
United Nations of 1948. He had written the said article in order to
express his opinion on the Armenian issue in the context of freedom
of the press. He pointed out that he was a professor of history who
had been working on this subject for almost twenty years and that he
had expressed his opinion several times in his books and articles. He
had not written the impugned article in order to serve any
association, organisation, race or ethnic group, or to denigrate a
nation. The applicant’s two lawyers also argued that the
applicant’s statements did not amount to a crime.
On
30 January 2007 the investigation against the applicant was
terminated by the Şişli public prosecutor, who noted that
at all the scientific seminars he had taken part in and in his
publications the applicant had expressed the opinion that the events
that took place between 1915 and 1919 could be described as genocide.
Having examined the applicant’s article published in AGOS,
the public prosecutor concluded that the applicant’s statements
in his capacity as a professor of history came within the realm of
protected expression under Article 10 of the European Convention on
Human Rights and that as such they did not constitute denigration of
Turkishness. Nor did they amount to incitement to commit a crime, or
to praising a crime or criminal, or incitement to hatred and enmity
amongst the people.
On
6 July 2007 the complainant, R.A., filed an objection against the
above-mentioned decision of non-prosecution.
On
30 October 2007 the Third Chamber of the Beyoğlu Assize Court
dismissed the complainant’s objection. Having examined the
investigation carried out and the reasons given by the Şişli
public prosecutor, the court held that the decision of
non-prosecution was in accordance with procedure and law.
On
11 October 2007 a judgment was issued by the Şişli Criminal
Court against Arat Dink (the editor of AGOS)
and Serkis Seropyan (the owner of AGOS)
whereby both were sentenced to one year’s imprisonment under
Article 301 of the Turkish Criminal Code for accusing the Turkish
nation of genocide via the press. Although the applicant was not a
party to those proceedings, the court decided of its own motion that
the Şişli public prosecutor had erred in discontinuing the
investigation against the applicant on 30 January 2007 and held that
this matter should be duly investigated by the prosecutor’s
office.
On
26 November 2007 another complaint was lodged against the applicant,
by a certain A.P., with the Chief Public Prosecutor’s office in
Şişli. The complainant alleged that the applicant’s
statements published in AGOS on
6 October 2006 violated Article 301 of
the Turkish Criminal Code.
On
28 November 2007 the Şişli Public Prosecutor issued a
decision of non-prosecution. He noted that a similar complaint by
another complainant had been examined and dismissed by a
non-prosecution decision on 30 January 2007.
On
10 January 2008 the applicant made an urgent request for interim
measures under Rule 39 of the Rules of Court. He also requested that
the respondent Government be notified of the introduction of the
application in accordance with Rule 40 of the Rules of Court and that
the case be given priority under Rule 41 of the Rules of Court.
On
14 January 2008 the applicant’s requests under Rules 39, 40 and
41 of the Rules of Court were rejected.
The
Government submitted to the Court a decision of non prosecution
issued by the Şişli Chief Public Prosecutor’s office
on 17 February 2006. It appears from this decision that on 21
October 2005 a criminal complaint was lodged by a certain K.K., who
alleged that the applicant had attempted to denigrate the Republic
and to influence the trial of Hrant Dink by his editorial opinion
dated 14 October 2005 published in the AGOS
newspaper. The public prosecutor who examined the complaint concluded
that the alleged offence was time-barred and therefore issued a
decision of non-prosecution.
According
to the information provided by the applicant’s representative
on 6 May 2008, no further investigation had
been instigated against the applicant after the judgment of the Şişli
Criminal Court dated 11 October 2007.
B. The documents submitted by the parties
1. List of books published by the applicant
The
Government submitted a list of thirteen books published by the
applicant. It appears that these books are on sale in Turkey and that
they mainly concentrate on the Armenian question. A selection of the
books included is as follows:
– “The
Armenian question has been resolved; Ottoman documents concerning the
policies towards the Armenians during the war years”, 2008;
– Turkish
national identity and the Armenian question: “From the Ittihad
ve Terakki to the War of Independence”, 2001;
– “Lifting
the Armenian taboo, is there any solution other than dialogue”
2000; and
– “Human
Rights and the Armenian Question”, 1999.
The
Government further noted that, contrary to the applicant’s
allegations that he had been prevented from pursuing his research on
the Armenian issue, he had been given permission to conduct research
in the State Archives by the Directorate General of State Archives.
Between 27 June 2006 and 17 July 2007 the applicant personally
consulted the Ottoman archives and had been granted further
permission to photocopy 527 documents. On page 17 of his book
entitled “The Armenian question has been resolved” the
applicant thanked the State Archives for assisting him in his
research.
2. Sample decisions submitted by the Government
In
an annex to their observations, the Government have furnished the
Court with sample copies of non-prosecution decisions issued by
public prosecutors and judgments of acquittal given by criminal
courts in cases concerning prosecutions under Article 159/1 of the
former Criminal Code and Article 301 of the new Criminal Code. In
particular, the suspects were mainly accused of insulting or
denigrating the army, the security forces, the judiciary or the
Republic.
In
these decisions and judgments, given between 2005 and 2008, the
prosecuting authorities either dropped the charges against the
suspects, considering that the necessary elements of the crime in
question were not present, or terminated the proceedings on the
grounds that the Ministry of Justice had refused permission to
prosecute the suspects. In acquitting the suspects, the criminal
courts relied on the case-law of the European Court in cases
concerning Article 10 of the Convention.
The
above-mentioned documents furnished by the Government included two
judgments given by the Beyoğlu and Şişli Criminal
Courts in respect of two prominent writers, namely Elif Şafak
and Orhan Pamuk.
In
the criminal proceedings against Elif Şafak the Beyoğlu
Criminal Court had examined a criminal complaint filed by a group of
lawyers and an association called the Turkish World and Culture and
Human Rights Association of Izmir, who alleged that Elif Şafak
had denigrated “Turkishness” as a result of statements
about the Armenian issue in her book entitled “Baba ve Piç”
(“The Bastard of Istanbul” in English). In a judgment
dated 21 September 2006, the court acquitted Elif Şafak, holding
that the book in question was fiction and that the impugned
statements made by the characters in the novel could not be taken as
constituting an offence of denigrating Turkishness. Having examined
the novel written by the accused, the court concluded that the
statements contained in the book should be examined in the context of
freedom of expression. The court, however, observed that the limits
of the concept of “Turkishness” should be determined and
based on a solid ground by the legislator. It further remarked that
opinions should only be compared with opinions. Otherwise, one could
not talk of freedom of opinion and expression and would be forced to
adopt uniform thoughts.
In
the case brought against Orhan Pamuk, the Şişli Criminal
Court had examined a criminal complaint lodged by two individuals who
alleged that the writer had denigrated Turkishness in a speech he had
given abroad. In a judgment dated 20 January 2006, the court decided
to discontinue the proceedings on the ground that the requisite
permission to press charges against the accused had not been obtained
from the Ministry of Justice. It thus ruled that the lack of
permission should be considered as a refusal and that the proceedings
should be terminated.
3. Statistical information regarding prosecutions under
Article 301
The
Government submitted statistical information which indicated the
situation by 5 November 2008. They noted that following the
amendments made to Article 301 of the Criminal Code on 8 May 2008
there had been a significant decrease in prosecutions under Article
301. In this connection, of the seventy authorisation requests made
by public prosecutors to commence criminal proceedings under Article
301, the Ministry of Justice had granted only three.
The
Government further pointed out that between 2003 and 2007 the number
of sets of criminal proceedings instituted under Article 301
(Article 159/1 of the former Criminal Code) was 1,894. Of those,
744 cases had resulted in convictions and 1,142 in acquittals; 193
cases were still pending following the Court of Cassation’s
decisions to quash the first-instance courts’ judgments.
In
their supplementary observations dated 30 October 2009, the
Government noted that between 8 May 2008 and 30 September 2009 the
Ministry of Justice had received 955 requests for authorisation to
institute criminal proceedings under Article 301. The Ministry had
refused 878 of these requests but granted 77. In this connection, the
Government furnished the Court with sample copies of decisions of
refusal issued by the Ministry of Justice. It appears from these
decisions that the Ministry of Justice extensively relied on the
case-law of the Court in cases concerning Article 10 when
refusing public prosecutors’ requests for authorisation to
institute criminal proceedings under Article 301 of the Criminal
Code. The Government further noted that in 244 cases where the
Ministry of Justice refused authorisation to institute criminal
proceedings, the criminal complaints mainly concerned publications in
the press.
4. Statistical and other information provided by the
applicant in respect of prosecutions under Article 301
The
European Commission’s 2008 Progress Report on Turkey stated:
“Following the adoption of the amendments to
Article 301, Turkish courts had forwarded, by September [2008], 257
cases to the Minister of Justice for prior authorisation. This
requirement concerns cases at the investigation stage or for which
judicial proceedings have started. By September, the Ministry had
reviewed 163 cases and refused to grant permission to proceed in 126
cases.
However, the wording of Article 301 remains largely the
same and the prior authorisation requirement opens up the possibility
that the article will become subject to political consideration. So
far, the Minister of Justice authorised the criminal investigations
to continue in 37 statements made by a Turkish writer on the Armenian
issue shortly after the assassination of the Turkish journalist of
Armenian origin, Hrant Dink. Furthermore, there is legal uncertainty
as regards cases which had been granted authorisation by the Minister
of Justice under the former Article 159 of the Turkish Criminal
Code”.
The
applicant highlighted examples of post-amendment Article 301 cases
with specific reference to the Armenian issue. He noted that in
October 2008 the Ministry of Justice had authorised the continuance
of the trial of Temel Demirer for stating that Hrant Dink had been
killed not only for being an Armenian, but also for raising the issue
of genocide. Another example was Ragıp Zarakolu’s
conviction and sentencing on 17 June 2007 to five months’
imprisonment (subsequently commuted to a fine) under Article 301
for translating and publishing a book about the Armenian genocide
entitled “The Truth Will Set Us Free”, written by George
Jerjian.
Furthermore,
according to the United States Department of State’s 2008 Human
Rights Report on Turkey, the Minister of Justice himself (Ali Şahin)
also made a statement that could be interpreted as instructions to
the judiciary: “I will not let someone call my state
‘murderer’. This is not freedom of expression. This is
exactly what the crime of insulting the person of the state is.”
The
applicant also submitted a report published by the Media Monitoring
Desk of the Independent Communications Network, for the period of
July-August-September 2008. According to this report a total of
116 people, 77 of whom were journalists, were prosecuted in 73
freedom of expression cases.
5. Intimidation campaign against the applicant and the
applicant’s response
(a) Media accusations that the applicant
was a traitor and a spy
In
its editions of 10 and 29 October 2000, 5 November 2000 and
31 December 2000 the magazine Aydınlık published
articles alleging that the applicant was a paid employee of the
German intelligence service and that he had been commissioned to
conduct research and write on the subjects “Violence in Turkish
history”, “Torture in Turkish history” and “the
Armenian Genocide”. These studies had been commissioned and
financed by the German intelligence service and had been published in
a book.
In
its edition dated 4 January 2001 the daily newspaper Hürriyet
published an article entitled “The German Intelligence
Chief and Tessa Hoffmann couple” containing allegations that
the applicant’s studies were determined and financed by the
German intelligence service.
In
its editions dated 21, 22 and 23 June 2007, the Hürriyet
newspaper published articles describing the applicant as an
individual who had betrayed Turkey and vomited hate towards Turkey in
all of his books and speeches.
(b) Statements by the applicant and his
family in response to the allegations in the media
By
press releases, the applicant and his family condemned the
allegations published by the Hürriyet newspaper and
called for apology. They referred to the killing of Hrant Dink and
said that the press should act with responsibility and sensibility
when publishing articles containing allegations labelling someone as
a “traitor”. They further warned against Turkey becoming
a country where citizens could be lynched with the help of the press.
(c) Defamation case brought against the
Aydınlık magazine
By
a judgment dated 8 November 2005 the Istanbul Civil Court of First
Instance dismissed the applicant’s claims for non-pecuniary
damage. The court held that even though the words used and
allegations made by the defendants were offensive they were within
the limits of permissible criticism. This judgment was confirmed by a
Court of Cassation decision dated 14 March 2007.
(d) The case against the Hürriyet
newspaper
On
26 July 2007 the applicant brought an action in the Ankara Civil
Court of First Instance requesting the court to order the Hürriyet
newspaper to publish a letter of correction in response to the
offensive articles published on 21, 22 and 23 June 2007. By a
decision dated 30 July 2007 the court dismissed the applicant’s
request. It held that even though the criticism contained in the
impugned articles was harsh in tone, it was covered by the right to
freedom of expression enjoyed by the press in a pluralist democracy.
On
24 November 2007 the Taraf newspaper published an article
criticising the attitude of the judiciary in regard to the media
campaign against the applicant.
(e) Hate mail and death threats against
the applicant
The
applicant claimed that he had received hate mail from unknown
persons. He submitted a copy of an e-mail sent by a person insulting
him and threatening him with death as a result of his views on the
Armenian issue.
(f) Media support for the applicant
Between
9 and 23 July 2007 a number of articles were published on internet
portals and in magazines and newspapers criticising the attacks
against the applicant and expressing support for him.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Former
Article 301 of the Turkish Criminal Code reads as follows:
“1. A person who publicly denigrates
Turkishness, the State of the Republic of Turkey or the Grand
National Assembly of Turkey shall be sentenced to a penalty of
imprisonment for a term of six months to three years.
2. A person who publicly degrades the
Government of the Republic of Turkey, the judicial bodies of the
State or the military or security organisations of the State shall be
sentenced to a penalty of imprisonment for a term of six months to
two years.
3. In cases where denigration of Turkishness
is committed by a Turkish citizen in another country the punishment
shall be increased by one third.
4. The expression of an opinion for the
purpose of criticism does not constitute an offence.”
The
new text of Article 301 of the Turkish Criminal Code, as amended on
29 April 2008, reads as follows:
“1. A person who publicly degrades the
Turkish nation, the State of the Republic of Turkey, the Grand
National Assembly of Turkey, the Government of the Republic of Turkey
or the judicial bodies of the State, shall be sentenced to a penalty
of imprisonment for a term of six months to two years.
2. A person who publicly degrades the
military or security organisations of the State shall be sentenced to
a penalty in accordance with paragraph 1 above.
3. The expression of an opinion for the
purpose of criticism does not constitute an offence.
4. The conduct of an investigation into such
an offence shall be subject to the permission of the Minister of
Justice.”
In
the criminal proceedings against Hrant Dink (see Dink v. Turkey,
nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 28, ECHR
2010 ... (extracts)), the Grand Chamber of the Court of
Cassation interpreted the term Turkishness as follows (Yargıtay
Ceza Genel Kurulu, E.2006/9-169, K.2006/184, judgment of 11 July
2006):
“... [T]he term “Turkishness”
(Türklük) refers to the human element of the State; that is
to say, the Turkish Nation. Turkishness is constituted by the
national and moral values as a whole, that is, human, religious and
historical values as well as the national language and national
feelings and traditions ...”
III. RELEVANT INTERNATIONAL MATERIAL
The
European Commission’s 2009 Progress Report on Turkey stated the
following, insofar as it concerns the use of Article 301 of the
Criminal Code in cases concerning freedom of expression:
“...[t]he Turkish legal framework still fails to
provide sufficient guarantees for exercising freedom of expression
and, as a result, is often interpreted in a restrictive way by public
prosecutors and judges. There are still some prosecutions and
convictions based on Article 301...”
The
European Commission’s 2010 Progress Report on Turkey stated,
insofar as relevant, the following:
“...As regards freedom of expression, an
increasingly open and free debate continued on a wide scale in the
media and public on topics perceived as sensitive, such as the
Kurdish issue, minority rights, the Armenian issue and the role of
the military.
There are few cases initiated on the basis of Article
301 of the Turkish Criminal Code (TCC) after it was amended in May
2008.
According to the Ministry if Justice, since the
amendment to Article 301 of the Turkish Criminal Code, a decrease in
the number of cases opened has been observed. The figures below cover
examinations concluded between 1 January 2010 and 31 July 2010:
369 files examined, 270 files for which permission was denied, 10
files for which permission was granted, 3.57% file for which
permission was granted...”
In
his report dated 12 July 2011 Thomas Hammarberg Commissioner for
Human Rights of the Council of Europe, stated the following:
“17. Following his visit to Turkey in 2009, the
Commissioner expressed his concern regarding Article 301,
notwithstanding an amendment adopted in 2008 which led to a decrease
in the number of proceedings brought under this article. On 14
September 2010 the Court delivered its judgment in the case of
Dink v. Turkey in which it found a violation of
Article 10 ECHR on account of Hrant Dink’s conviction based on
Article 301. The Court held that Hrant Dink’s conviction
for denigrating Turkish identity prior to his murder did not
correspond to any “pressing social need” which is one of
the major conditions on which interference with one’s freedom
of expression may be warranted in a democratic society. The
Commissioner considers that the amendment adopted in 2008, which
subjects prosecution to a prior authorisation by the Ministry of
Justice in each individual case, is not a lasting solution
which can replace the integration of the relevant ECHR standards into
the Turkish legal system and practice, in order to prevent similar
violations of the Convention.”
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
The
Government submitted that the applicant did not have victim status
within the meaning of Article 34 of the Convention. They noted that
the prosecuting authorities had never instituted criminal proceedings
against the applicant under Article 301 of the Criminal Code. On the
contrary, they had issued a non-prosecution decision in regard to a
criminal complaint lodged against the applicant holding that the
applicant’s views were protected by his right to freedom of
expression under Article 10 of the Convention.
The
applicant claimed that he qualified as a victim under Article 34
of the Convention because he had been the subject of an investigation
and threatened with prosecution for expressing his opinions. He
contended that he ran the risk of being directly affected by Article
301 and other provisions of the Turkish Criminal Code for expressing
such opinions.
The
Court considers that the Government’s objection concerning the
applicant’s victim status is inextricably linked to examination
of the question whether there has been an interference with the
applicant’s right to freedom of expression under Article 10,
and therefore to the merits of the case. Accordingly, the Court joins
this question to the merits and will examine it under Article 10 of
the Convention (see Dink, cited above, § 100).
The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. Nor is it
inadmissible on any other grounds. It must therefore be declared
admissible.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
The
applicant complained that the existence of Article 301 of the Turkish
Criminal Code interfered with his right to freedom of expression. He
maintained that the mere fact that an investigation could potentially
be brought against him under this provision for his scholarly work on
the Armenian issue caused him great stress, apprehension and fear of
prosecution and thus constituted a continuous and direct violation of
his rights under Article 10 of the Convention, which reads as
follows:
“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 and regardless of frontiers. ...
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, in the interests of
national security, territorial integrity or public safety, for the
prevention of disorder or crime ...”
The
Government contested that argument.
A. Whether there has been an interference with the
applicant’s right to freedom of expression
1. The parties’ submissions
(a) The applicant
The
applicant alleged that there had been an interference with his rights
under Article 10 and that he could claim to be the victim of a
violation of his rights under the Convention since he had been
directly affected by the investigation which was opened against him
notwithstanding that it eventually resulted in a non prosecution.
He was still directly affected by the ongoing risk that he would be
subject to further investigation or prosecution under Article 301 for
his opinions on the Armenian issue.
The
applicant maintained that individuals had been successfully
prosecuted in the past under Article 301 and other provisions of the
Turkish Criminal Code for describing the massacre of Armenians as
“genocide”. The Government could not guarantee that in
the future he would not face the harassment of investigation or the
threat of prosecution under Article 301 or other provisions for
expressing that opinion.
In
the instant case, the tangible fear of prosecution not only cast a
shadow over the applicant’s professional activities, but also
caused him considerable stress and anxiety, and seriously constrained
his activities. In fact, since the submission of the present
application in June 2007, the applicant had effectively stopped
writing on the Armenian issue. The pressures faced by him had also to
be considered having regard to the fact that his colleague and close
friend Hrant Dink, a journalist who had been prosecuted and convicted
under Article 301 for his opinion on the massacre of Armenians, had
later been murdered by an extreme nationalist. It was widely believed
that Hrant Dink had been targeted by extremists because of the stigma
attached to his criminal conviction for “insulting
Turkishness”.
Although
the Government had attempted to demonstrate that the risk of
prosecution was slight in their estimation, they had not denied that
a continuing risk existed. That estimation depended wholly upon the
exercise of discretion by the public prosecutors and/or the Ministry
of Justice in respect of prosecutions under Article 301. Yet despite
the amendment of Article 301 in May 2008, legal proceedings
against those affirming the Armenian “genocide” had
continued unabated. The Government’s policy on prohibiting such
characterisation of the massacre of Armenians had not substantially
changed and could not be predicted with any certainty in the future.
Relying
particularly on the Court’s judgments in the cases of Campbell
and Cosans v. the United Kingdom (25 February 1982, Series A
no. 48), Times Newspapers Ltd v. the United Kingdom (nos. 1
and 2),
(nos. 3002/03 and 23676/03, ECHR 2009 ...), Marckx
v. Belgium (13 June 1979, § 330, Series A no. 31),
Norris v. Ireland (26 October 1988, Series A no. 142),
Bowman v. the United Kingdom (no. 24839/94, Reports of
Judgments and Decisions 1998-I), the applicant submitted that
Article 34 entitled individuals to contend that a law violated
their rights in and of itself in the absence of an individual measure
of implementation if they ran the risk of being directly affected by
it. He pointed out that, in the aforementioned cases, the finding of
a violation had not been based on a potential future breach as such,
but on the state of affairs existing at the time of the complaint. In
each case, the provisions of domestic law had been alleged, by their
very existence, to have had a direct effect on the applicants, and
therefore to have violated their rights to privacy and freedom of
expression.
(b) The Government
The
Government asserted that there had been no interference with the
applicant’s rights under Article 10 of the Convention since he
did not qualify as a victim, and that his complaint amounted to actio
popularis.
They
noted firstly that the impugned legal provision, namely Article 301
of the Criminal Code, had never been applied against the applicant.
Secondly, the proceedings in the instant case had not been initiated
by the public prosecutor, but as the result of a criminal complaint
lodged by an individual. Thirdly, the proceedings in question had
been terminated by a definitive non prosecution decision by the
public prosecutor. Fourthly, the latter had clearly stated in his
decision that the applicant’s opinions were protected by his
right to freedom of expression under Article 10 of the Convention.
Finally, the applicant was unlikely to suffer prejudice in the future
because certain safeguards had been introduced since the amendment of
Article 301 to ensure that prosecutions were compatible with the
right to freedom of expression under Article 10 of the
Convention.
The
Government argued that a complaint which consisted of alleging the
incompatibility of a national law in abstracto should be
inadmissible in the Convention system since this would amount to an
actio popularis (see Noël Narvii Tauira and 18 others
v. France, no. 28204/95, Commission decision of 4 December 1995,
Decisions and Reports (DR). 83-A, p. 130). In the instant case,
bearing in mind that there had been no interference with the
applicant’s right to freedom of expression, the applicant had
essentially requested the Court to carry out a scrutiny, in
abstracto, of Article 301 of the Turkish Criminal Code. Indeed,
the applicant’s principal claim, which reads “...That
Article 301 is in its relevant part in conflict with and in violation
of Turkey’s obligations under Articles 7, 10 and 14 of the
Convention :..” had been formulated in such a way that it
referred to the notion of “actio popularis”.
The
Government noted that the victim-status requirement was closely
linked to the subsidiary nature of the control system under the
Convention. The exercise of the right of individual petition could
not be used to prevent a potential violation of the Convention: in
theory, the Convention system did not allow the examination - or, if
applicable, finding – of a violation other than a
posteriori, once that violation had occurred (see Noël
Narvii Tauira and 18 others, cited above; Federation
Chrétienne des Témoins de Jehovah v. France (dec.),
no. 53430/99, 6 November 2001; and Décision Est Video
Communication SA and others v. France (dec.), no. 66286/01,
8 October 2002). Although the Court recognised that there could
be exceptions to this rule, the applicant’s circumstances did
not fall within the said exceptions. The applicant had not produced
reasonable and convincing evidence of the likelihood that a violation
affecting him personally would occur; mere suspicion or conjecture
was not sufficient in this regard (see Ada Rossi and Others v.
Italy (dec.), nos. 55185/08, 55483/08, 55516/08, 55519/08,
56010/08, 56278/08, 58420/08 and 58424/08, ECHR 2008 ... , and
Arabadjiev and Stavrev v. Bulgaria (dec.), no. 7380/02,
14 February 2006).
Finally,
the Government claimed that the victim status of an applicant should
persist throughout the proceedings before the Court. In other words,
that the Court required the existence of an interference against the
applicant on the basis of a domestic decision (see Ahmet Kenan Er
v. Turkey (dec.), no. 21377, 18 November 2008, and
Selahattin Humartaş v. Turkey (dec.), no, 38714/04,
18 November 2008). In the instant case, however, the applicant had
never had victim status.
2. The Court’s assessment
The
Court notes that the question concerning the alleged interference
with the applicant’s right to freedom of expression hinges upon
the prior establishment of whether the applicant has been affected by
a measure which renders him a victim of a violation of his rights
under Article 10 of the Convention.
In
this connection, the Court reiterates its established jurisprudence
that in order to claim to be the victim of a violation, a person must
be directly affected by the impugned measure (see Ireland v. the
United Kingdom, 18 January 1978, §§ 239-240, Series A,
no. 25; Eckle, cited above; and Klass and Others v.
Germany, 6 September 1978, § 33, Series A no. 28).
The Convention does not, therefore, provide for the bringing of an
actio popularis for the interpretation of the rights set out
therein or permit individuals to complain about a provision of
national law simply because they consider, without having been
directly affected by it, that it may contravene the Convention (see
Norris, cited above, § 31).
However,
the Court has concluded that an applicant is entitled to “(claim)
to be the victim of a violation” of the Convention, even if he
is not able to allege in support of his application that he has been
subject to a concrete interference (see, mutatis mutandis,
Klass and Others, cited above, § 38). In such
instances the question whether the applicants were actually the
victims of any violation of the Convention involves determining
whether the contested legislation is in itself compatible with the
Convention’s provisions (for the compatibility of Article 301
of the Turkish Criminal Code see under B. below). While the present
case refers to freedom of expression and not to surveillance as in
the Klass and Others case, where the difficulties of knowing
that one is under surveillance are a factor to be considered in the
determination of victim status, the applicant has shown that he is
subject to a level of interference with his Article 10 rights (see
paragraph 80 below) The applicant has shown that he is actually
concerned with a public issue (the question whether the events of
1915 qualify as genocide), and that he was involved in the generation
of the specific content targeted by Article 301, and therefore he is
directly affected.
Furthermore,
it is also open to a person to contend that a law violates his
rights, in the absence of an individual measure of implementation, if
he is required either to modify his conduct because of it or risk
being prosecuted (see Dudgeon v. the United Kingdom, 22
October 1981, § 41, Series A no. 45; Norris,
cited above, § 31, and Bowman, cited above) or if he is a
member of a class of people who risk being directly affected by the
legislation (see Johnston and Others v. Ireland, 18 December
1986, § 42, Series A no. 112, and Open Door and
Dublin Well Woman v. Ireland, 29 October 1992, Series A
no. 246-A). The Court further notes the chilling effect that the fear
of sanction has on the exercise of freedom of expression, even in the
event of an eventual acquittal, considering the likelihood of such
fear discouraging one from making similar statements in the future
(see, mutatis mutandis, Lombardo and Others v. Malta,
no. 7333/06, § 61, 24 April 2007; Association Ekin
v. France (dec.), no. 39288/98, 18 January 2000; and Aktan
v. Turkey, no. 20863/02, §§ 27-28, 23 September 2008).
Turning
to the circumstances of the instant case, the Court notes that the
applicant claimed that he had directly been affected by the
investigation which was opened against him and that there was an
ongoing risk that he would be subject to further investigation or
prosecution under Article 301 for his opinions on the Armenian
issue. The Government, for their part, asserted that the
investigation in question had been terminated by a non prosecution
decision by the local public prosecutor and that, given the
legislative amendment to the text of Article 301 in 2008, there was
no risk of prosecution for the expression of opinions such as those
held by the applicant.
In
view of the above, the Court must ascertain whether the investigation
commenced against the applicant for his views on the Armenian issue
and the alleged ongoing threat of prosecution under Article 301
of the Criminal Code constituted interference in the circumstances of
the present case.
The
Court observes that the applicant is a history professor whose
research interest includes the historical events of 1915 concerning
the Armenian population. He has published numerous books and articles
on the Armenian issue, a subject which is considered sensitive in
Turkey. He thus belongs to a group of people who can easily be
stigmatised for their opinions on this subject and be subject to
investigations or prosecutions under Article 301 of the Criminal Code
as a result of criminal complaints that can be lodged by individuals
belonging to ultranationalist groups who might feel offended by his
views (see, mutatis mutandis, Johnston and Others,
cited above, § 42).
Indeed,
in the instant case, the investigation against the applicant was
commenced as the result of a criminal complaint by an individual who
alleged essentially that the applicant had committed the offence of
denigrating Turkishness under Article 301 of the Criminal Code by his
editorial opinion in the AGOS newspaper (see paragraph 8
above). The applicant was summoned to the local public prosecutor’s
office and asked to answer the criminal complaints against him (see
paragraph 9 above). Even though the public prosecutor in charge of
the investigation issued a decision of non-prosecution holding that
the applicant’s views were protected under Article 10,
this did not necessarily mean that the applicant would be safe from
further investigations of that kind in the future. It appears that
two other criminal complaints were lodged by individuals alleging
that the applicant had denigrated Turkishness under Article 301 by
his articles in the AGOS newspaper and that the investigations
were terminated by decisions of the local public prosecutors not to
prosecute (see paragraphs 14, 15 and 18 above).
The
Court refers to its findings in the Dink case (cited above),
where the first applicant was prosecuted following a criminal
complaint lodged by an extremist group of individuals and convicted
under Article 301 for his opinion on the Armenian issue, that is, for
denigrating Turkishness. In the eyes of the public, particularly
ultranationalist groups, Mr Dink’s prosecution and
conviction was evidence that he was an individual who insulted all
persons of Turkish origin. As a result of this perception or stigma
attached to him Mr Dink was later murdered by an extreme nationalist
(see Dink, cited above, § 107).
The
Court notes that, as in the case of Mr Dink, the applicant has been
the target of an intimidation campaign which presented him as a
“traitor” and a “spy” to the public on
account of his research and publications on the Armenian issue (see
paragraphs 34-36 above). Following this campaign, the applicant
received hate mails from a number of individuals who insulted and
threatened him with death (see paragraph 41 above).
This
being so, the Court considers that while the applicant was not
prosecuted and convicted of the offence under Article 301, the
criminal complaints filed against him by extremists for his views on
the Armenian issue had turned into a harassment campaign and obliged
him to answer charges under that provision. It can therefore be
accepted that, even though the impugned provision has not yet been
applied to the applicant’s detriment, the mere fact that in the
future an investigation could potentially be brought against him has
caused him stress, apprehension and fear of prosecution. This
situation has also forced the applicant to modify his conduct by
displaying self restraint in his academic work in order not to
risk prosecution under Article 301 (see, mutatis mutandis,
Norris, cited above, § 31, and Bowman, cited
above).
As
regards the future risk of prosecution, the Government contended that
the applicant was unlikely to suffer prejudice in the future because
certain safeguards had been introduced by the amendment of Article
301 which had significantly reduced prosecutions under this
provision. In this regard, they attached great importance to the fact
that in order to commence prosecutions under Article 301 public
prosecutors needed to obtain authorisation from the Ministry of
Justice. With reference to statistical data, the Government pointed
out that the large majority of these requests were refused by the
Ministry of Justice, who applied the principles established in the
Court’s jurisprudence in Article 10 cases (see paragraphs 27-29
above).
In
the Court’s opinion, however, the measures adopted by the
Government to prevent largely arbitrary or unjustified prosecutions
under Article 301 do not seem to provide sufficient safeguards.
It transpires from the statistical data provided by the Government
that there are still significant number of investigations commenced
by public prosecutors under Article 301 and that the Ministry of
Justice grants authorisation in a large number of cases: according to
the Government’s contention, between 8 May 2008 and 30
November 2009 the Ministry of Justice received 1,025 requests
for authorisation to institute criminal proceedings under Article 301
and granted prior authorisation in 80 cases (approximately 8% of the
total requests). The Court notes that the Government did not explain
the subject matter or nature of the cases in which the Ministry of
Justice granted authorisation. However, the statistical information
provided by the applicant indicates that the percentage of prior
authorisations granted by the Ministry of Justice is much higher and
that these cases mainly concern the prosecution of journalists in
freedom of expression cases (see paragraphs 30 33 above).
Moreover, as noted by the Human Rights Commissioner of the Council of
Europe, a system of prior authorisation by the Ministry of Justice in
each individual case is not a lasting solution which can
replace the integration of the relevant Convention standards into the
Turkish legal system and practice, in order to prevent similar
violations of the Convention (see paragraph 48 above).
In
any event, the Court considers that even though the Ministry of
Justice carries out a prior control in criminal investigations under
Article 301 and the provision has not been applied in this
particular type of case for a considerable time, it may be applied
again in such cases at any time in the future, if for example there
is a change of political will by the current Government or change of
policy by a newly formed Government (see, mutatis mutandis,
Norris, cited above, § 33). Accordingly, the applicant
can be said to run the risk of being directly affected by the
provision in question.
Moreover,
the Court observes that the established case-law of the Court of
Cassation must also be taken into consideration when assessing the
risk of prosecutions under Article 301. In this connection, the Court
reiterates its criticism in the Dink judgment in regard to the
interpretation of Article 301, particularly the concepts of
“Turkishness” or the “Turkish nation”, by the
Court of Cassation (cited above, § 132). In that case the Court
found that the Court of Cassation sanctioned any opinion criticising
the official thesis on the Armenian issue. In particular, criticism
of denial by State institutions of genocide claims in relation to the
events of 1915 was interpreted as denigration or insulting
“Turkishness” or the “Turkish nation”
(ibid.).
Likewise,
the Şişli Criminal Court’s
conviction of the editor and owner of the AGOS
newspaper of an offence under Article 301 of the Turkish Criminal
Code for accusing the Turkish nation of genocide confirms the stance
of the judiciary (see paragraph 13 above).
The
Court further observes that thought and opinions on public
matters are of a vulnerable nature. Therefore the very possibility of
interference by the authorities or by private parties acting without
proper control or even with the support of the authorities may impose
a serious burden on the free formation of ideas and democratic debate
and have a chilling effect.
In
view of the foregoing, the Court concludes that the criminal
investigation commenced against the applicant and the standpoint of
the Turkish criminal courts on the Armenian issue in their
application of Article 301 of the Criminal Code, as well as the
public campaign against the applicant in respect of the
investigation, confirm that there exists a
considerable risk of prosecution faced by persons who express
“unfavourable” opinions on this matter and indicates that
the threat hanging over the applicant is real (see Dudgeon,
cited above, § 41). In these circumstances, the Court considers
that there has been an interference with the
exercise of the applicant’s right to freedom of expression
under Article 10 of the Convention.
For
the above reasons, the Court dismisses the Government’s
preliminary objection concerning the applicant’s alleged lack
of victim status.
Such interference will infringe the Convention if it
does not satisfy the requirements of paragraph 2 of Article 10. It
should therefore be next determined whether it was “prescribed
by law”.
B. Whether the interference was prescribed by law
The
applicant alleged that Article 301 of the Criminal Code did not
provide sufficient clarity and failed to provide adequate protection
against arbitrary interference.
The
Government did not comment on this point since they considered that
there had been no interference in the present case. However, they
provided explanations regarding the concepts of “Turkishness”
and the “Turkish nation”. They maintained that following
the amendment of the text of Article 301 the concept of “Turkishness”
had been replaced by that of the “Turkish nation”.
Yet these concepts did not have any racial or ethnic connotations.
They should instead be understood as referring to Turkish citizenship
as defined by Article 66 of the Turkish Constitution.
The
Court reiterates that the relevant national law must be formulated
with sufficient precision to enable the persons concerned – if
need be with appropriate legal advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail (see, among many other authorities,
Grigoriades v. Greece, 25 November 1997, § 37,
Reports 1997-VII). Those consequences need not be foreseeable
with absolute certainty: experience shows this to be unattainable.
Whilst certainty is highly desirable, it may entail excessive
rigidity and the law must be able to keep pace with changing
circumstances. Accordingly, many laws are inevitably couched in terms
which, to a greater or lesser extent, are vague and whose
interpretation and application are a question of practice (see Sunday
Times v. the United Kingdom (no. 1), 26 April 1979, §
49, Series A no. 30, and Flinkkilä and Others v. Finland,
no. 25576/04, § 65, 6 April 2010).
The
Court notes that in the above-mentioned Dink judgment, the
question arose whether the legal norms implied by the term
“Turkishness” were sufficiently accessible and
foreseeable for the applicant. While the Court expressed some doubts
on this question, it preferred not to examine it in the circumstances
of that case (see Dink, cited above, § 116).
However,
the Court considers that it is required to address this question in
the present case. It notes that Article 301 of the Criminal Code –
and Article 159 of the former Criminal Code – had been
subjected to several amendments since the adoption of the first
Turkish Criminal Code in 1926. It appears that the last amendment
introduced to the text of the impugned provision came after a number
of controversial cases and criminal investigations brought against
well known figures in Turkish society, such as prominent writers and
journalists like Elif Şafak, Orhan Pamuk and Hrant Dink, for
their unfavourable opinions on sensitive issues (see paragraphs 25
and 26 above). Thus, abusive or arbitrary applications of this
provision by the judiciary compelled the Government to revise it with
a view to bringing it into line with the requirements of Article 10
of the Convention as interpreted by the Court.
To
that end, three major changes were introduced to the text of
Article 301. Firstly, the terms “Turkishness” and
“Republic” were replaced by “Turkish Nation”
and “State of the Republic of Turkey”. Secondly, the
maximum length of imprisonment imposable on those found guilty was
reduced and considerations of aggravating circumstances were
excluded. Thirdly and lastly, an additional security clause was added
to the text, which now provides that any investigation into an
offence defined under that provision shall be subject to the
permission of the Minister of Justice (see paragraphs 43 and 44
above). It is clear from this last amendment that the legislator’s
aim was to prevent arbitrary prosecutions under this provision.
Be
that as it may, the Court must ascertain whether the revised version
is sufficiently clear to enable a person to regulate his/her conduct
and to foresee, to a degree that is reasonable in the circumstances,
the consequences which a given action may entail (see Grigoriades,
cited above, § 37).
In
this connection, the Court notes that despite the replacement of the
term “Turkishness” by “the Turkish Nation”,
there seems to be no change or major difference in the interpretation
of these concepts because they have been understood in the same
manner by the Court of Cassation (see paragraph 45 above).
Accordingly, the legislator’s amendment of the wording in the
provision in order to clarify the meaning of the term “Turkishness”
does not introduce a substantial change or contribute to the widening
of the protection of the right to freedom of expression.
In
the Court’s opinion, while the legislator’s aim of
protecting and preserving values and State institutions from public
denigration can be accepted to a certain extent, the scope of the
terms under Article 301 of the Criminal Code, as interpreted by the
judiciary, is too wide and vague and thus the provision constitutes a
continuing threat to the exercise of the right to freedom of
expression. In other words, the wording of the provision does not
enable individuals to regulate their conduct or to foresee the
consequences of their acts. As is clear from the number of
investigations and prosecutions brought under this provision (see
paragraphs 28-33 and 47 above), any opinion or idea that is
regarded as offensive, shocking or disturbing can easily be the
subject of a criminal investigation by public prosecutors.
As
noted above, the safeguards put in place by the legislator to prevent
the abusive application of Article 301 by the judiciary do not
provide a reliable and continuous guarantee or remove the risk of
being directly affected by the provision because any political change
in time might affect the interpretative attitudes of the Ministry of
Justice and open the way for arbitrary prosecutions (see paragraphs
75-77 above).
It
follows therefore that Article 301 of the Criminal Code does not meet
the “quality of law” required by the Court’s
settled case-law, since its unacceptably broad terms result in a lack
of foreseeability as to its effects (see Amann
v. Switzerland [GC], no. 27798/95, § 50, ECHR 2000 II;
and Vajnai v. Hungary, no. 33629/06, § 46,8 July 2008).
The
foregoing considerations are sufficient to enable the Court to
conclude that the interference in question was not prescribed by law.
There
has accordingly been a violation of Article 10 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant alleged a violation of Article 7 of the Convention in
that Article 301 of the Criminal Code was so vague and broad that an
individual could not discern from its wording which acts or omissions
might result in criminal liability. He
maintained, lastly, that the impugned provision also breached Article
14 of the Convention because of its highly discriminatory
consequences.
In
the light of all the material in its possession, the Court finds that
the applicants’ submissions do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
declared inadmissible as manifestly ill-founded, pursuant to Article
35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
Damage
The
applicant claimed 11,200 euros (EUR) in respect of pecuniary damage
and EUR 75,000 for non-pecuniary damage.
The
Government invited the Court not to make any awards in respect of
pecuniary damage on account of the applicant’s failure to
submit any evidence in support of his claims. The Government also
considered that the claim for non-pecuniary damage was excessive and
therefore unacceptable.
The
Court observes that the applicant has not submitted any evidence to
enable the Court to assess and calculate the damage suffered by him;
it therefore rejects this claim.
As
regards the applicant’s claim for non-pecuniary damage, the
Court considers that the finding of a violation constitutes
sufficient just satisfaction in the circumstances of the present
case.
As
to the legal costs and expenses, in the absence of any quantified
claim, the Court makes no award.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Joins to the merits the Government’s
objection concerning the applicant’s victim status and
dismisses it;
Declares the complaint under Article 10
admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
10 of the Convention;
Holds that the finding of a violation
constitutes sufficient just satisfaction in the circumstances of the
present case.
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 25 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens Registrar President
