European Court of Human Rights

Information Note on the Court’s case-law 186

June 2015

Selahattin Demirtaş v. Turkey - 15028/09

Judgment 23.6.2015 [Section II] See: [2015] ECHR 604

Article 2

Positive obligations

Alleged failure of authorities to prosecute a journalist in respect of a newspaper article that was alleged to have put applicant’s life at risk: no violation

Facts - At the material time the applicant was a member of the DTP, a former pro-Kurdish political party, and a member of Parliament. In November 2007 he requested a criminal investigation against the author of an article entitled “Turk, here is your enemy” on the grounds that it was insulting and constituted incitement to violence. In the article, the author had listed a series of terrorist related deaths and accused DTP members of being the “real murderers”, mentioning the applicant by name. On 7 December 2007 the public prosecutor decided not to bring criminal proceedings after noting in his decision that the article had been published as a result of terrorist acts carried out by the PKK, an internationally recognised terrorist organisation, that it expressed the author’s opinion while offering proposals with a view to eradicating the terrorist group and that it fell within the freedom of the media. The applicant challenged that decision pointing out that DTP members mentioned by name in the article had been marked as targets on account of their political opinions. Although the applicant’s challenge was unsuccessful, the Ministry of Justice applied to the Court of Cassation for the prosecutor’s decision to be quashed on the grounds that the article should not have been protected as it did not fall within the scope of the right to freedom of expression. That application was dismissed by the Court of Cassation.

Law - Article 2 (substantive aspect): The Court recalled that not every claimed risk to life can entail a Convention requirement for the authorities to take operational measures to prevent that risk from materialising. It had to be established whether there was a real and immediate risk to the life of the applicant, which was known or ought to have been known to the Turkish authorities and whether in response they had done all that could reasonably be expected of them to avoid that risk.

The Court noted that in his first petition to the public prosecutor’s office the applicant’s representative had not alleged that the applicant had faced a real immediate risk to his life or that he had received actual threats from third parties following the publication of the impugned article. Nor was it claimed that there had been a campaign of violence or intimidation in respect of which the national authorities had failed to take measures to protect the applicant. The applicant had not referred to any actual or attempted physical violence placing his life in danger. There was no indication that the national authorities should have taken operational measures to protect the applicant without him having requested such protection. The applicant’s complaint concerned the failure of the national authorities to punish the author of the impugned article, not the lack of operational measures to prevent a real and immediate risk to his life. Consequently, the State’s positive obligation under Article 2 of the Convention was not engaged.

Conclusion: no violation (six votes to one).

(See also Osman v. the United Kingdom, 23452/94, 28 October 1998; and Dink v. Turkey, 2668/07 et al., 14 September 2010, Information Note 133)

 

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