FORMER SECOND SECTION

CASE OF DÄ°LÄ°PAK v. TURKEY

( Application no. 29680/05 )

JUDGMENT

(Extracts)

STRASBOURG

15 September 2015

FINAL

02/05/2016

This judgmen t will become final in the circ mstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Dilipak v. Turkey ,

The European Court of Human Rights ( former Second Section ), sitting as a Chamber composed of:

Guido Raimondi, President, Işıl Karakaş, András Sajó, Paulo Pinto de Albuquerque, Helen Keller, Paul Lemmens, Robert Spano, judges, a n d Abel Campos , Deputy Section Registrar ,

Having deliberated in private on 7 July 2015 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 29680/05) 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 national, Mr Abdurrahman Dilipak (“the applicant”), on 22 July 2005 .

2 . The applicant was represented by Mr S. Döğücü, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent .

3 . On 8 April 2009 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1949 and lives in Istanbul . He is a professional writer and journalist , and states that he is a human rights activist .

5 . He published an article on the front page of issue 84 of the weekly magazine Türkiye ’ de Cuma ( “ Friday in Turkey ” ), which came out on 29 August 2003. His article, which was entitled “ If the pashas [the generals ] refuse to obey ” , contained criti cisms of high-ranking officers who were about to retire . He h inted that some generals in the armed forces were wont to sound false alarms concerning an alleged advance of fundamentalism and anti- secularism , which they then used as a pretext for interfering in the countr y ’ s general politics , and that they appeared to have links with certain business circle s, the media, senior civil servants and even the M afia, endeavouring to create a politi cal atmosphere that tallied with their worldview . He sugg ested that th e high-ranking officers in question should set up a politi cal party on retirement and present their politi cal projects to the people , instead of “deciding on the future of the nation on their own , in the name of the nation ” . He added that in his view the arm y generals who he claimed were interfering in the country ’ s general politi cs were far removed from social realities and that in their approach to social affairs they lacked any empathy with and sensi tivity towards the various social strata .

6 . By an indictment of 9 January 2004, the Military Prosecutor ’ s Office with the Third A rm y Corps in Istanbul appli ed to the Military Court within th at C orps for the applic ant ’ s prosecution under A rticle 95 §§ 4 and 5 of the Military Criminal C ode, which, in the Prosecutor ’ s view , penalised acts vis-à-vis high-ranking military officers geared to damaging hierarchical relations within the army and undermining confi de nce in command ing officer s.

7 . The applic ant s ubmitted an objection as to the jurisdiction of the Military Court to try him , on the grounds of his civil ian status and relying on the Convention and his right to freedom of expression.

8 . By a decision of 12 July 2004 the Military Court declined jurisdiction in favour of the Bakırköy Assize Court on the grounds that the offence at issue was not military in nature and the applic ant should be tried by the non - military court s for denigration of the State armed forces , which offence was punishable under A rticle 159 of the former Criminal C ode. The Military Court not ed that by claiming that the armed forces were led by command ing officers who appeared to have links with certain business circles and even the M afia , and to be far removed from social realities , the applicant had tarnished the image of the whole armed forces . It emphasised that the commanding officers who had been criticised were plenipotentiary representatives of the armed forces empowered to act on behalf of th e latter .

9 . On 9 August 2004 the command ing officer of the Third Army Corps lodged an appeal on points of law against the aforementioned decision to decline jurisdiction . He submitted that the impugned article constituted an act which had to be assessed under A rticle 95 § 4 of the Military Criminal C ode. He argued that the military criminal provision in question constituted a lex specialis vis-à-vis A rticle 159 of the Criminal C ode.

10 . The Military Prosecutor also lodged an appeal on points of law on the same grounds, submitting that the Military Courts should have jurisdiction to adjudicate the case, and that the applicant had not targeted all the armed forces but had undeniably tarnished the image of two Generals, which was liable to undermine the confidence of the rank-and-file in these officers and thus damage hierarchical relations within the armed forces.

11 . The applicant was not apprised of the appeals on points of law lodged by the commanding officer and the Military Prosecutor, both of which were added to the case file .

12 . On 3 May 2005 the Military Court of C assation, which assessed the appeals on points of law, quashed the decision declining jurisdiction and referred the case back to the Military Court . In its reasoning the Court of C assation mentioned the need to reclassify the facts and to assess them under A rticle 95 § 4 of the Military Criminal C ode. It specified that the provisions of A rticle 95 § 4 of the Military Criminal C ode and (the former) A rticle 159 of the Criminal C ode shared the same substantive and mora l elements , but differed in providing protection for individuals ( A rticle 95 § 4) and the I nstitution itself ( A rticle 159) , respectively . The Military Court of C assation held that even though the applic ant ’ s article had comp rised elements of both the aforementioned criminal offences, the general tenor of the impugned article had apparently concentrated on the behaviour of two specific Generals rather than the overall armed forces . Therefore, the accusation that the officers were disobedient, that is to say that they lacked discipline , was liable to undermine the lower ranks ’ confidence in them and thus damage hierarchical relations within the armed forces .

13 . By a judgment of 1 March 2006 the Military Court of First I nstance, having reconsidered the case , once again decline jurisdiction in favour of the non- military court s. It stated that new legislation on the press attributed to the non- military criminal court s jurisdiction to hear and determine offences committed via the press and specified that such offences no longer came under special legislation .

14 . On 24 March 2006 the commanding officer of the Third A rm y Corps lodged a fresh appeal on points of law against the Military Court ’ s decision declining jurisdiction . He pointed out that the 3 May 2005 judgment of the Military Court of C assation had been delivered after the amendment to the legislation in question and that the provisions of the Military Criminal C ode ( Law No. 353) enabling civil ian s to be tried by military courts had not been amended.

15 . While the case was still pending before the Military Court of Cassation, Law No. 5530 of 29 June 2006 made a series of amendments to the Military Criminal Code, inter alia abolishing military court jurisdiction for trying civilians for offences such as those with which the applicant was charged. The Prosecutor with the Military Court of C assation therefore referred the applic ant ’ s file to the Military Court of First I nstance, accompanied by an opinion to the effect that the military courts had no jurisdiction in such matters .

16 . By a judgment of 14 November 2006 the military court once again decline jurisdiction and referred the case to the Ba ğ c ı lar 2 nd Criminal Court.

17 . Meanwhile, following the merger of the Ba ğ c ı lar and Bakırköy judicial districts , the case was referred to the Bakırköy 24 th Criminal Court . By a judgment of 11 March 2008, the latter court declined jurisdiction and referred the c as e to the Bakırköy 2 nd Criminal Court , which held jurisdiction for offences committed via the press . By a judgment of 26 May 2008, the Bakırköy 2 nd Criminal Court re ferred the case to the Bakırköy 16 th Criminal Court on the grounds that that court was the former Ba ğ c ı lar 2 nd Criminal Court . By a judgment of 12 March 2009 the Bakırköy 16 th Criminal Court referre d a jurisdictional dispute to the Bakırköy Assize Court . Final ly , the Bakırköy Assize Court decided in favour of the Bakırköy 2 nd Criminal Court in the jurisdictional dispute, and referred the case to that court.

18 . By a judgment of 9 June 2010 the Bakırköy 2 nd criminal court declared the proceedings statute-barred under A rticle 95 § 4 of the Military Criminal C ode.

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THE LAW

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III. THE ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

33 . Relying on Article 9 of the Convention and Article 10 taken in conjunction with Article 14, the applic ant submitted that he had been prosecuted for expressing his opinions. He had criti cised the higher echelons of the armed forc es because in his view a number of senior officers had inappropriately inter fered in the country ’ s general politics .

34 . He further alleged that the proceedings against him for offences involving denigration of the arm y or its command ing officer s had mark ed him out as a “ target ” and had been such as to deter him from exerc ising his profession. He took the view that those proceedings , in co njunction with other criminal proceedings brought on the grounds of his articles , had constituted a threat against him and also against all journalists dealing with politi cal topics , including the unlawful influence of military personnel on governmental affairs .

35 . The Court , a s master of the characterisation to be given in law to the facts of a case ( see , fo r example , Söderman c . Sweden [GC], n o. 5786/08, § 57, E CH R 2013, and Tarakhel v . Switzerland [GC], n o. 29217/12, § 55, E CH R 2014 [ extracts ] ), considers that these complaints must be assessed solely under A rticle 10 of the Convention , which provides :

“ 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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority an d impartiality of the judiciary . ”

...

B. Merits

1. Existence of interference

41 . T he applic ant add ed that the command ing officers of the armed forces whom he had criti cised regarding their inter ference, which he considered unlawful and inappropri ate , in the general political activities of the Government , had subsequently been prosecuted and even convicted by the criminal courts for an attempted coup d ’ état . This demonstrated that his comments on the behaviour of the senior officers had not been gratuitous claims based on erro neous information , but observations base d on proven facts, in a sphere which was of very great interest to the general public.

42 . Th e applic ant also submitted that in view of the other similar criminal and civil proceedings which had been brought against him , the press ure exer ted on him by the impugned criminal proceedings had become a genuine threat and had prevented him from writing about the military inter ference in general politics . The accumulation of criminal and civil proceedings for his criticism of dysfunctions in the democratic system caused by the inappropriate interference of senior army officers had had a n extreme ly d issuasive effect not only on himself but also on the whole journalistic profession.

43 . Th e Government r eitera te d that the applic ant was not a victim , because he had not been con victed by the criminal courts . They pointed out that the prosecution instigated against the applicant had been abandon ed on expiry of the limita tion period .

45 . The Court also reiterates that where criminal prosecutions bas ed on specific criminal legislation are discontinued for procedural reasons but the risk remains that the party concerned will be found guilty and puni shed, that party may val idly claim to be the victim of a violation of the Convention ( see , among other authorities , Bowman v . the Uni ted Kingdom , 19 February 1998, § 107, Re ports of Judgments and Decisions 1998 ‑ I). In the case of Nikula v . Finland (n o. 31611/96, § 54, E CH R 2002 ‑ II) the Court found that the con vic tion of a lawyer for mere negligent defamation on account of her criticism of the strategy adopted by the public prosecutor in criminal proceedings, even if that conviction was ultimately overturned by the Supreme Court and the fine imposed on her lifted, was liable to have a chilling effect on defence counsel ’ s duty to defend their clients ’ interests zealously. Furthermore , criminal prosecutions of journalists instigated on the basis of criminal complaints and leading to a three-year stay of proceedings , even though the criminal proceedings were lifted after that period in the absence of a con vic tion, constituted interference on account of their d issuasive effect on journalists ( see YaÅŸar Kaplan v . Turkey , n o. 56566/00, § 35, 24 January 2006; see, to similar effect , Aslı GüneÅŸ v . Turkey (d e c.), n o. 53916/00, 13 May 2004).

48 . In the present case the Court observe s that criminal proceedings were commenced against the applic ant on charges of having damaged hierarchical relations within the arm ed forces and “ undermining confidence in superior or commanding officers ” ( an offence punishable under A rticle 95 § 4 of the Military Criminal C ode) , and / or having denigrated the arm ed forces ( an offence punishable under A rticle 159 of the former Criminal C ode and A rticle 301 of the current Criminal C ode), by dint of a press article criti cising the inter ference of certain active or retired commanding officers of the armed forces in the general policies conducted by the Government . Th e applic ant lodged his application with the Court at a time when his case was still pending before the national court s, complaining of the criminal pro ceedings as such . The Court also note s that regardless of the replies to questions concerning the jurisdiction of the various courts depending on the class ification of the offences with which the applic ant was charged , the latter was liable to be sentenced to a prison term of between six months and three years , either for having denigrated the arm ed forces as a whole or having defamed certain Generals in particular so as to diminish their status as superior officers .

49 . The Court further observes that the criminal proceedings , which lasted six- an d-a-half year s, including two-and-a-half years in military court s, had final ly been declared statute-barred . Nevertheless, i t is true, first of all, that criminal charge s were pending against the applic ant for a considerable , indeed excessive length of time ... and , secondly , that the applicant could not be sure that he would not , either during th ose criminal proceedings or at any future stage , face further legal consequences if he, as a journalist and political columnist, wrote further articles on matters relati ng to links between the armed forces a nd the country ’ s general politics ( see , for an example of civil proceedings brought against an applic ant on similar grounds , Dilipak and Karakaya v. Turkey , n os. 7942/05 and 24838/05, 4 March 2014).

2. Justification of the interference

52 . The applicant submitted that there was absolutely no justification for accusing him of tarnishing the army ’ s image by critici sing a number of high -ranking army officers for having , for strategic reasons , sounded false alarms concerning a fundamentalist , anti-secular threat. Nor could he have foreseen that he would be accused of denigrating the Turkish arm ed forces by simply expressing opinions which were acceptable in public debate in any democratic Stat e.

53 . Th e Government did not pronounce on that point, reiterating that there had been no interference with the applicant ’ s freedom of expression since the proceedings against him had be come statute-barred .

54 . The interference , that is to say the commencement of criminal proceedings based on serious charges and their continuation for a considerable length of time , had infringed A rticle 10 unless they met the requirements of the second paragraph of that article, that is to say unless the interference was “ prescribed by la w ” , based on one or more legitimate aim s for the purposes of that paragraph , and “ necessary in a democratic society ” for the achieve ment of those aims .

a) “ Prescribed by la w ”

55 . The Court r eiterates that the expression “prescribed by law” requires firstly that the impugned measure should have a basis in domestic law. It also refers to the quality of the law in question, requiring it to be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail and to regulate their conduct . The expression therefore requires that domestic legislation should be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to measures affecting their rights as protected by the Convention ( see , fo r example , Gorzelik and Others v . Poland [GC], n o. 44158/98, § 64, E CH R 2004 ‑ I ; Maestri v . Italy [GC], n o. 39748/98, § 30, E CH R 2004 ‑ I ; Sanoma Uitgevers B.V. v . the Netherlands [GC], n o. 38224/03 , § 81, 14 September 2010 ; Bayatyan v . Armenia [GC], n o. 23459/03, § 113, EC H R 2011 ; and Fernández Martínez v . Spain [GC], n o. 56030/07, § 117, E CH R 2014 [ extracts ] ).

56 . In the present case , the Court note s that the applic ant does not dispute the fact that the impugned measures had a bas is in law, that is to say A rticle 95 § 4 of the Military Criminal C ode and A rticle 159 of the former Criminal C ode or A rticle 301 of the new Criminal C ode, and that those provision wer e accessible to him .

57 . That raises the question whether the broad scope of such expressions as “ d amaging the hierarchical structure ” of the armed forces and “ undermining confidence in superior or commanding officer s ” ( A rticle 95 § 4 of the Military Criminal C ode) , or “ denigrating the armed forces ” ( A rticle 159 of the former Criminal C ode and A rticle 301 of the new Criminal C ode) can diminish the foreseeability of the legal provisions in question , as suggested by the applicant .

58 . If the prosecuting authorities interpreted the expressions in question as being a means of protecting the views expressed by certain army officers on general political subjects against comments made in response to those views, the Court considers that serious doubts might arise as to the foreseeability for the applicant of his being charged under Article 95 § 4 of the Military Criminal Code, Article 159 of the former Criminal Code or Article 301 of the new Criminal Code. However, in view of its finding as regards the necessity of the interference ( see paragraph 71 below ), the Court considers it unnecessary to decide on this matter .

b) “ Legitimate aim ”

59 . The Court can accept that the impugned interference pursued the legitimate aims of national security and defence of l aw and order (see Yaşar Kaplan , cited above, § 36).

c) “ Necessary in a democratic society ”

i. General principles

60 . The Court r eiterates that freedom of expression constitutes one of the essential foundations of a democratic society . Subject to paragraph 2 of Article 10, it is applicable not only to “ information ” or “ ideas ” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population ( see Handyside v . the Uni ted Kingdom , 7 December 1976, § 49, Series A n o. 24 ; Castells v . Spain , 23 April 1992, § 42, Series A n o. 236 ; Jersild v . Denmark , 23 September 1994, § 37, Series A n o. 298 ; Prager and Oberschlick v . Austria , 26 April 1995, § 38, Series A n o. 313 ; and Animal Defenders International v . the Uni ted Kingdom [GC], n o. 48876/08, § 100, E CH R 2013 [ extracts ] ).

61 . The Court further reiterates that the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest ( see De Haes and Gijsels v. Belgium , 24 February 1997, § 37, Re ports 1997-I). the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism ( see, fo r example , Colombani and Others v . France , n o. 51279/99, § 65, E CH R 2002-V ; Pedersen and Baadsgaard v . Denmark [GC], n o. 49017/99, § 78, E CH R 2004-XI ; and Masschelin v . Belgium (d e c.), n o. 20528/05, 20 November 2007). That does not prevent journalistic freedom from also covering possible recourse to a degree of exaggeration, or even provocation ( see Prager and Oberschlick , cited above , § 38).

63 . As a matter of general principle , the “ necessity ” of any restriction on the exercise of freedom of expression must be convincingly established . C l e a r ly , the national authorities are primarily responsible for assessing whether there is any “ overriding social need ” capable of justifying the restriction, for which exercise they have a certain margin of appreciation, but this goes hand in hand with a European supervision, cover ing both the law and the decisions applying it, including decisions tak en by independent courts ( see , fo r example , Sunday Times v . the Uni ted Kingdom (n o. 2) , 26 November 1991, § 50, Series A n o. 217). Furthermore , where the media are concerned , as in the present case , the margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under Article 10 § 2 of the Convention, whether the restriction was proportionate to the legitimate aim pursued ( see Fressoz and Roire v . France [GC], n o. 29183/95, § 45, E CH R 1999 ‑ I), in the framework of extremely careful scrutiny on the part of the Court ( see, mutatis mutandis , Sunday Times v . the Uni ted Kingdom (n o. 2) , cited above , § 51). Moreover , the dominant position occup i e d by State bodies requires them to show restraint in their recourse to criminal law, especially if they have other means of replying to unjustified media attacks and criticisms ( see , among other authorities , Nedim Åžener , cited above , § 114, and Şık , cited above , § 103).

64 . It is the Court ’ s task , in carrying out such supervision , no t to take the place of the competent national authorities , but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation . It must accordingly look at the “interference” complained of in the light of the case as a whole in order to determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court must satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based the ir action on an acceptable assessment of the relevant facts ( see , among many other authorities , Goodwin v . the Uni ted Kingdom , 27 March 1996, § 40, Re ports 1996 ‑ II ; Ceylan v. Turkey [GC], n o. 23556/94, § 32, E CH R 1999 ‑ IV ; and Animal Defenders International , cited above , § 100).

ii. Assessment of the facts and application of the general principles to the present case

65 . The Court observe s that in his impugned article the applic ant accused certain Generals of interfering in the country ’ s general politics . The applicant had levelled severe, scathing criticism at the Generals ’ political projects and their approach to social affairs in Turkey, suggesting that they were sound ing false alarms concerning an alleged surge of fundamentalism, that they were using the latter as a pretext for interfering in the country ’ s general politics, that they seemed to have links with certain social milieus with a view to creating a political atmosphere that tallied with their worldview, and that they lacked empathy with and sensitivity towards various social strata.

66 . The Court also observe s that in bringing and then conducting criminal proceedings against the applic ant the competent authorities considered that the applicant ’ s criti cism of these Generals amounted to a desire to damage hierarchical relations within the arm y or to undermine confidence in those Generals or , more generally , constituted denigration of the armed forces . The competent authorities therefore prosecuted the applic ant on the grounds of the criti cism which he had levelled at specific views expressed by a number of Generals concerning the country ’ s politi cal situation .

67 . The applic ant , i n expressing his reaction to the comments made by the Generals , which he saw as inappropriate interference by the army in the general politi cal field , was communicating his ideas and opinions on an issue which was indubitably a matter of public interest in a democratic society . The Court considers that when army officers or Generals make public statement s on general politic al topic s they are exposing themselves , like politi cians or anyone participating in the debate on the subjects in question, to comment s in reply which may include criti cism and contradictory ideas and opinions. In a democratic society , high-ranking military offic e r s cannot, in this specific sphere , claim immunity from possible criti cism .

68 . As regards the applicant ’ s article, the Court does not consider that it was in any way “ gratuit ously offens ive ” or in sulting , or that it constituted incitement to violence o r hatred . The Court takes the view that the comment s did not comprise any insults or defamatory statements based on erroneous data or remarks advocating violent action against members of the armed forces .

69 . Under the circ um stances , the co m mencement of criminal proceedings looked rather like a n a t tempt by the comp e tent aut h orit ie s to use criminal proceedings to suppress ideas or opinions considered as disruptive or shocking , whereas in fact they had been expressed in response to publicly stated view points concerning the sphere of general politics .

72 . The Court also considers that by prosecuting the applic ant for serious crimes over a considerable length of time , the judicia l authorities had a chilling effect on the applic ant ’ s desire to express his views on matters of public interest . It accept s the applic ant ’ s submission that commencing such proceedings is liable to create a climate of self- censorship affecting both himself and (all) other journalists who might b e considering comment ing on the actions and statements of members of the armed forces relating to general politi cs in the country . The Court refers here to its case-law to the effect that the dominant position occupied by State bodies requires them to show restraint in their recourse to criminal law, especially if they have other means of replying to unjustified media attacks and criticisms ( see paragraph 63 above ).

73 . In the light of the foregoing considerations, the Court holds that the impugned measure – that is to say the continuation over a considerable period of time of criminal proceedings against the applic ant on the basis of serious criminal charges subject to prison se n t e nces – did not meet any overriding social need , that it was not , in any case, proportion at e to the legitimate aim s pursued , and that it was therefore not necessary in a democratic society .

72 . There has accordingly been a violation of A rticle 10 of the Convention.

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FOR THESE REASONS, THE COURT

1. Joins to the merits the Government ’ s objection regarding the applicant ’ s lack of victim status under Article 10 of the Convention and rejects it ;

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5. Holds , by five votes to two, that there has been a violation of Article 10 of the Convention.

Done in French , and notified in writing on 15 September Abe , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Guido Raimondi Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

– concurring opinion of Judge Pinto de Albuquerque;

– joint partly dissenting opinion by Judges Raimondi and Spano.

G.R.A.

A.C.

CONC U R RING OPINION OF JU D GE PINTO DE ALBUQUERQUE

1. I agree with the majority opinion that there has been a violation of A rticle 10 of the European Convention on Human Rights ( “ the Convention ” ). However, I do not fully concur with its reasoning . In my view the central issu e in the present case is the lack of foreseeability of the applicable criminal law . A rticle 95 § 4 of the Military Criminal C ode is at variance with the principle of legality , as are A rticle 159 of the former Criminal C ode and A rticle 301 of the new Criminal C ode. Therefore , i t would not even have been necessary to assess the case in the light of the proportionality principle .

Furthermore, given that this is not the first time the Court has had to adjudicate on the protection of the reputation of State bodies in the context of Turkish criminal policy (by creating offences relating to Majestätsbeleidigung ) [1] , I am convinced the time has come to express a clear and solid position of principle on that criminal policy option and to highlight the pressing need to reform it. It is indispensable to issue an injunction to the respondent State under Article 46 of the Convention in view of the inertia of the Turkish legislature in this area of criminal policy since Altuğ Taner Akçam .

A rticle 301 of the new Criminal Code

2. In the Chapter entitled “ Crimes against the emblems of State sovereignty and against the honour of State bodies ” , Article 301 of the new Turkish Criminal Code is based on Article 159 of the old Code, the 1936 version of which had already been influence d by the Criminal Code of the Italian fascist regime, il codice Rocco [2] . The redrafting of this article in the new C ode and , later, by Law No. 5759 of 29 April 2008 , is manifestly in sufficient in the light of international standards . N either replacing the word “ T ur kishness ” ( Türklük ) with “ Turkish nation ” n or requiring the appro val of the Minister of Justice as a pre condition for criminal prosecution make the relevant domestic legislation any more acceptable vis-à-vis the internationa l criteria . In essence, the reform of A rticle 301 changed nothing [3] . It was a missed opportunity to bring the country ’ s legislation into line with international human rights standards.

3. The impugned crimin alis ation of criti cising the “ Turkish nation ” is just as unacceptable from the angle of the guarantee set out in A rticle 10 of the Convention as the crimin alis ation of criti cising “ T ur kishness ” which it replaced . The legal interest ( Rechtsgut, korunan hukukî konu ) which that measure is supposed to protect is so vague as to be virtually uni dentifi abl e. It is true that the letter of the la w and the preparatory work for the text suggest that the temporal and spatial scope of the new criminal rule was reduced , since it no longer covers the culture of all Turks , regardless of the territory in which they live, but solely the community of Turks residing in what has been the national territory since the foundation of the Turkish S tat e in 1923 [4] . Nevertheless , the legal interest protected successive ly by A rticle 159 of the former C ode and A rticle 301 of the new C ode is the sam e: the “ national sentiment ” ( millî duygu ), that is to say nationalism , the feeling of belonging to a cultural and politi cal community [5] .

The conclusion to be drawn from judicia l practice hitherto is that criminal-law protection of nationalism as the pillar of the contemporary Turkish S tat e can render unlawful any expression which is direct ly or indirect ly liable to erode , undermine or affect the de sire of members of the Turkish nation to live together under the established politi cal and military authority . Therefore , the aim of this new version of the A rticle continues to be t hat o f prevent ing criti cism of State dysfunctions and wrong doing by members of S tat e bodies [6] .

The punitive nature of this criminal-law poli cy is exacerbated by the fact that the requirement of a “ public ” attack against the legal interest enshrined in the criminal provision is interpreted so broadly that it can cover any utterance in the presence of more than one other person, even in a priv ate or closed area [7] . Th is punitive logic e qu ates criti cism of the S tate with the crime of l ese-majesty , because the “ sentiment ” of the “ Turkish nation ” is identified with the establish ed authority itself as embodied in the policies conducted by the Stat e and in the acts of its politi cal and military bodi es; and any criti cism of that poli cy and those acts can be construed as an assault on the “ national sentiment” . This “ national sentiment” therefore impli es subordination to the constituted authority , as if only obedient Turks submissive to the politi cal and military authorities were “ good ” Turks and reformist Turks criti cal of the powers that be were “ bad ” Turks , “ be tra yers of the nation ” .

4. The new requirement of ministerial authorisation as a pr econdition for criminal prosecution evidence s that situation : although this may, on the one hand, restr ict the application of the criminal offence , it can, on the other, reinforce the discretionary and politi cal nature of the criminal proceedings [8] . The Minister of Justice thus d on s the mantle of interpreter of the legal interest protected by the criminal provision: the criminal prosecution depends on his or her value judgment of the extent of the assault on the “national sentiment”. This makes it clear that it is the politi cal and military authorities, as such , which the legal provision is intended to protect from any criti cism from the Turkish intelligentsia and people . Not only intellectuals but also ordinary people have good reason to fear the broad discretionary scope of this criminal provision. The criminal proceedings against the applicant for denigration of the armed forces amply prove that such a fear is not unreasonable .

5. I n the specific case of the “armed forces of the Turkish State ” it is clear that the scope of the criminal provision covers the land-based, marine and air forces , as well as the G endarmerie ( Jandarma Genel Komutanligi ), but not special military formations ( regiments , brigades, battalions and companies ), special military units ( infantry and artillery ), or members of those formations and unit s individually [9] . Nevertheless , as we can see from the present case , th e military authorities , which represent the armed branch of th e “ Turkish nation ” , are protected in the framework of a Meinungsdiktatur and are thus shielded from democratic criti cism .

6. Unfortunately , not even the legal clause protecting “ the expression of criti cal opinions ” was implemented as it should have been in the present case . That clause was introdu ced under Law No. 4771 of 3 August 2002 and broadened in scope under L a w No. 4963 of 30 July 2003, which made it applicable to all acts falling within the ambit of the then A rticle 159. In legal terms the clause is a truism, mere ly stating that the scope of every “ utterance offence ” ( Äusserungsdelikt ) is limited by the constitutional principle of freedom of expression and that “ crimes against the emblems of State sovereignty and against the honour of State bodies ” are subject to the sa me limitation. A rticle 301 retained that clause, but judicia l practice is still oblivious to its real scope. Impunity must apply not only to the authors of fairly banal expressions of dis satisfaction with the public and State authorities but also to persons expressing forceful, mordant , incisive and provocative criticism att racting the attention of the general public . That also demonstrates that criti cism of the public authorities , especially of high-ranking army officers , for statements which they have made in public on the general politics in the country , is not tolerated . Cit iz ens remain at the mercy of an unjust law and are liable to be punished just for expressing an opinion. In other words, i t transpires from the present case that criminal law is being hijacked for politi cal purposes and used to protect a certain politic al/military e lite from any form of legitimate criticism .

7. In a democratic society , criti cism of the public authorities and of those exercising public power is a crucial p art of the politi cal debate and is vital for the formation of public opinion . The reputation of State bodies is , in principle , protected by the free dom to exercise the right of reply . However , i n some countries there may be an overriding social need to defend democracy ( wehrhafte Demokratie ) with an additional criminal-law op tion . If such an approach is to be strictly compatible with the requirements of Article 10 § 2 of the Convention, that is to say with the principles of legality, necessity and proportionality, the provision criminalising attacks on the reputation of State bodies can only be conceived as a bulwark against a clear and imminent threat to national security ( konkrete s Gefährdungsdelikt ) [10] , as abstract danger ( abstrakte s Gefährdungsdelikt ) is clearly insufficient to justify criminalising such expression of opinion [11] . In the context of democratic processes , protecti ng the reputation of S tat e institutions by criminal -law measures is no longer acceptable as a means of defending the mythologised, monistic “ideal personality of the State ” ( devletin manevi sahsiyeti ), but only as a wholly exceptional measure bound up with a criminal-law policy to protect a d emythologised pluralistic State ( Staatsschutzstrafrecht ) [12] .

Therefore , the legal interest protected by the provision crimina lising attacks on the reputation of S tat e bodies in a democratic society is not “ national sentiment ” but the security of the democratic and pluralistic constitutional order . Only attacks that constitu t e a clear and imminent threat to that order may be punished by criminal la w . S tat e s P arties to the Convention can defend themselves against any form of communication and expression liable to jeopardise seriously the security of the democratic and pluralistic constitutional order , but they cannot impose by the force of criminal law any “ national sentiment” interpreted as submission to the established political and military power and loyalty to those exerc ising that power [13] .

8. In conclusion, crimina lising straightforward assaults on the reputations of S tat e bodies , particularly the reputation of the armed forces ( referred to as Majestätsbeleidigung ), which do not constitute a clear and imminent threat to national security , is contrary to A rticle 10 of the Convention [14] . A fortiori , crimina lising an att ack on “ national sentiment ” i s completely groundless in the criminal-law poli cy of any democratic society . It creates a “ sentiment al offence ” ( Gefühlsdelikt ) which, on the pretext of protecti ng an “ apparent legal interest ” ( Scheinrechtsgut ) , quite simply serves to perpetuate the politi cal and military balance of power in Turkish society , to marginalise the intelligentsia and the most reformist social and professional strata of society and , lastly , to guarantee the conformi ty of the Turkish people .

A rticle 95 § 4 of the Military Criminal Code

9. The scope of this A rticle is unclear as compared with the aforementioned provision of the Criminal C ode. Even the domestic courts have difficulty distingu ishing between the two provisions , as we have seen in the present case . The Military Court of First I nstance thrice declined jurisdiction . Th e fact is that the extremely broad objective and subjective scope of such expressions as “damaging hierarchical relations ” in the arme d forces and “ undermining confidence in senior or commanding officers” raises problems . T he majority have serious doubts regarding the foreseeability of those expressions, but I myself have none: I find them unacceptable in a law-based State which respects the principle of legality and where criminal law must be couched in sufficiently precise terms to restrict the margin of interpretation of the police, the prosecution and the judiciary.

10. Furthermore , the wording of the Turkish Military Criminal C ode does not even require actual damage to the said hierarchical relations and loss of confidence in senior and commanding officers , but only the person ’ s intention to achieve those aims ( as the A rticle itself states , matuf olarak ). This is a t extbook case of an “ in terrupted offence of result ” ( kupiertes Erfolgsdelikt ) whereby mens rea transcends actus reus in that the perpetrator endeavours to obtain an unlawful result which is not necessarily included in the actus reus .

11. There is only one possibility here : either, if the military criminal provision is geared to protecting military discipline and the confidence of the lower ranks in their commanding officers , as the Military Court of Cassation claims , it should not apply to civil ian s for the simple but obvious reason that civil ian s are not bound by duties of military discipline and subordination to commanding officers ; or , if the criminal provision sub judice also appli es to civil ian s inasmuch as their public acts are liable to undermine hierarchical relations within the armed forces , as also stated by the Military Court of Cassation, it is manifest ly unforeseeable and disproportionate .

12. Clearly, the honour and reputation of senior and commanding officers as individuals can be protected by general criminal-law provisions applicable to all citizens , whether civil ian s or s oldiers . Insults against them are punishable under the same legal conditions as all other persons . However, assaults on the honour of senior and commanding officers as professional members of the military hierarchy in whom “ confidence ” must be preserved can only be criminalised under a special criminal-law provision applicable solely to military personnel.

Thus the legal interest of “ confidence in the military hierarchy ” can only be protected by criminal-law provisions in cas es where military personnel denigrate their commanding officers in a manner which actually poses a clear and imminent threat to national security or public safety ( see A rticle 10 § 2 of the Convention). Any other interpretation would mean that criminal la w accuses civil ian s of lacking discipline vis-à-vis those commanding officers and therefore of disobeying them, which would simultaneously entail an ina ccepta ble militarisation of society and domestication of the media , which would lead them to adopt an ostrich policy or even to engage in incantational and laudatory speech in respect of the military authorities .

13. To put it bluntly, criti cal appraisal of matters of public interest in Turkey remains a risky business . Even after the criminal-law reform of 2008, the least that can be said is that the problem remains unresolved. It is inacceptable in a free, democratic society for an individual to remain for six-and-a-half years, two-and-a-half of them in the military courts, under threat of the imposition of vague and disproportionate criminal provisions, for having written an article criticising interference by certain army Generals in the country ’ s general politics. Even if the criminal proceedings were declared statute-barred, the applicant was nonetheless subjected to the direct effects of those provisions: he was the subject of criminal proceedings, with all the inevitable consequences for his personal, social and professional life, particularly in terms of changing his professional conduct. The effect of censoring divergent opinions on and criti cisms of the politi cal and military authorities has been in no way hypothetical but very real and effective , and it has spread through an entire social and professional stratum, which can at any time suffer the effects of the sword of Damocles wielded in A rticle 310 and A rticle 159 [15] . Indeed , inasmuch as the applic ant, M r Dilipak, represents a whole category of persons – writers , journalists and politi cal columnists , or a fair section of th e Turkish intelligentsia – the criminal proceedings brought against him also posed a threat to that professional category .

Conclusion

14. I t is clear that the domestic courts had no desire to adjudicate this case . The jurisdictional conflicts firstly between the civil court s and the military court, and secondly among the civil court s themselves show the reluctan ce of the Turkish judges to assess the merits of the indictment issued against the applicant by the military prosecution . Such reluctance is very comprehensible , on account not only of the highly unjustified nature in concreto of the criminal charge brought against the applic ant, who had acted in accordance with the public interest of Turkish society , but also of the problematical nature in abstracto of the applicable criminal provisions . The extensible scope of the provisions of A rticle 159 of the former Criminal C ode and A rticle 301 of the new Criminal C ode and the vague definition of the legal interest ( “ national sentiment ” ) which they were intended to protect removed any kind of accessibility and foreseeability from domestic law . Nor is the military criminal-law provision ( A rticle 95 § 4 of the Military Criminal C ode) any better . No t only does it lack clarity , but it also disproportion at e ly infringes civil ian s ’ freedom of expression .

15. A fter the Court made it crystal-clear in paragraph 95 of the Altuğ Taner Akçam judgment that the notorious A rticle 301 had to be reformed , no changes were made . This time the Turkish legislature cannot ignore the fact that the Court has found the mere existence of such a criminal-law threat intolerable , even in the absence of a subsequent con vic tion. In the light of the systemic effect of the present judgment within the Turkish legal system and the large number of legal suits brought against journalists , the Turkish legislature must instigate a reform of the Criminal C ode and the Military Criminal C ode with a view to removing from these texts all obstacles to freedom of expression. In particular , i t must abolish A rticle 301 of the Criminal C ode or replace it with a criminal provision criminalising assaults on the reputation of S tat e bodies created strict ly as a bulwark against a clear and imminent threat to national security . As regards A rticle 95 § 4 of the Military Criminal C ode, i ts objective and subjective scopes must be clarified in such a way that it applies solely to acts whereby military personnel denigrate their superiors, constituting a clear and imminent threat to national security and public safety .

Furthermore , the need must be emphasised for improving the judicia l system and the training of Turkish judges and prosecutors , particularly in the human rights field and very especially in the sphere of freedom of expression. It is crucial to t r ans form judges ’ and prosecutors ’ attitudes . Such a move will not only calm the tension in the country but also contribute decisively to progress towards a freer and more democratic Turkey .

[1] . See Altuğ Taner Akçam v. Turkey , no. 27520/07, 25 October 2011; Dink v. Turkey , nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, 14 September 2010; and Kayasu v. Turkey , nos. 64119/00 and 76292/01, § 106, 13 November 2008.

[2] Regarding the legislative history, the application and the implications of Article 301, see Sözüer, Das neue türkische Strafgesetzbuch , in Zeitschrift für die gesamte Strafrechtswissenschaft , 2007, pp. 717-749; Algan, The Brand New Version of Article 301 of Turkish Penal Code and the Future of Freedom of Expression Cases in Turkey , in German Law Journal , 2008, pp. 2237 ‑ 2251; Arslan, Meinungsfreiheit im Lichte der Entscheidungen des Europäischen Gerichtshofes für Menschenrechte ; Öztürk (publ.), Hukuk Devletinde Suç Yaratilmasinin ve Suçun Aydinlatilmasinin Sinirlari Sempozyumu , Istanbul, 2008, pp. 281-288; Can, Der Schutz der staalichen Ehre und religiösen Gefühle in der Turkei , in Depenheuer and Others, Der Schutz staatlicher Ehre und religiöser Gefühle und die Unabhängigkeit der Justiz , Münster, 2008, pp. 33-50; Centel, Kritische Betrachtungen zum neuen türkischen Strafgesetzbuch , in Tellenbach (publ.), Das neue türkische Strafrecht und Strafprozessrecht , Berlin, 2008, pp. 41-64 ; Tellenbach, Einige Bemerkungen zum neuen türkischen Strafgesetzbuch aus europäischer Sicht, in Öztürk (publ.), Hukuk Devletinde Suç Yaratilmasinin ve Suçun Aydinlatilmasinin Sinirlari Sempozyumu , Istanbul, 2008, pp. 76 ‑ 80; and Dagasan, Das Ansehen des Staates im türkischen und deutschen Strafrecht , Berlin, 2015.

[3] See Altuğ Taner Akçam, cit ed above , § 92. This conclusion was also reached by both the European Commission in its Turkey P rogress R eport published on 5 November 2008 (SEC(2008)2699, page 15) and the European P arliament in its 12 March 2009 R esolution on that report (paragraph 13).

[4] See Adalet Komisyonu Raporu , p. 15, cited by Dagasan ( op. cit. , p. 112). This apparent restriction could, for example, exclude discussion of the nature of the events of 1915 ‑ 1918 from the scope of acts punishable under criminal law. Even if that had been the legislature’s intention, which seems doubtful, practice has taken the opposite direction and shows, at any event , that the criminal standard is broad enough to continue to prosecute the straightforward express ion of peaceful ideas on subjects of general interest, as the European Commission and the European Parliament noted in the aforementioned texts. Moreover, interpreting the expression “ Turkish nation ” as only covering the values and customs of ethnic T urks would clash with the definition of “ Turk ” set out in the Constitution, as that concept includes all Turkish nationals without discrimination on grounds of ethnic origin or religion, which should raise serious doubts about the foreseeability of the definition of the offence set out in Article 301 of the Criminal Code (see Dink , op. cit. , § 116).

[5] See 5759 Sayili Kanunun Madde Gerekçeleri , p. 2, cited by Dagasan ( op. cit. , pp. 97, 121 and 125). Furthermore, there is an ongoing doctrina l debate in Turke y on whether the new Code broadens the substantive element of the offence. For instance, Dagasan ( op. cit. , pp. 116-117, 127) notes that the punishable conduct  is no longer tahkir ve tezyif edenler (in German Beschimpfung and Verächtlichmachung ), but aşağılayan (in German Herabsetzung ). I note that in the case of Kayasu the Court translated the expressions mentioned in Article 159 by “ insulte ou offense publiquement” ( public insult or offen c e ) , which translation was not retained in the present case.

[6] See Altuğ Taner Akçam , cited above, § 93. See also the positions subsequently adopted by the European Parliament in its Resolution of 15 January 2015 on freedom of expression in Turkey, its Resolution of 12 March 2014 on the 2013 Turkey Progress Report, and the 13 June 2013 Resolution on the situation in Turkey; the joint statement by the Vice-President of the European Commission and High Representative of the Union for Foreign Affairs and Security Policy, and the Commissioner responsible for the European Neighbourhood Policy and Enlargement Negotiations of 14 December 2014; the 8 October 2014 Turkey Progress Report; the European Commission’s Indicative Strategy Paper for 2014-2020 of 26 August 2014; and the 15 December 2014 statement by the Council of Europe Commissioner for Human Rights.

[7] See Dagasan, op. cit. , p. 129.

[8] As noted by the European Commission in its 5 November 2008 Turkey Progress Report (mentioned above) and the Council of Europe Commissioner for Human Rights in his 12 July 2011 re port. The Monitoring Report prepared by the European Commission on Turkey in 2014 under the European integration process set out the following conclusions on the Article in question: “ In 2013, the number of cases referred to the Minister of Justice was 373, while investigation authorisation was granted to 40 of those cases. In the first semester of 2014 the total number of cases referred was 228, and investigation authorisation was granted to 14 of them ”.

[9] See the judgment of the Military Court of Cassation of 13 July 1971. This restrictive interpretation is based on the preparatory work on Law No. 3038 of 11 June 1936, which introduced the reference to the armed forces (see Zabit Ceridesi , 11 June 1936, p. 37). However, the fact of replacing the expression “ armed forces of the State ” ( askeri kuvvetleri, militärischer Streitkräfte des Staates ) with “ military organisations ” ( askeri teskilati, militärischer Aufbau ) gave rise to a debate on the objective scope of the new criminal provision (see references in Dagestan, op. cit. , p. 114).

[10] See my separate opinions in the cases of Faber v. Hungary (no. 40721/08) and Mouvement raëlien suisse v. Switzerland [ GC ] ( no. 16354/06) on the clear and imminent criterion in the context of Article 10 of the Convention.

[11] Turk ish criminal law , like criminal law in Germany and other European countrie s, draws a distin ction between “offences of result” ( zarar suçlari, Erfolgsdelikt ) and offences of en danger ment ( tehlike suçlari, Gefährdungsdelikt ), whether the danger in question is abstract ( soyut ) or concrete ( somut ).

[12] As stated by the German Federal Constitutional Court, “ [d] a dem Staat kein grundrechtlich geschützter Ehrenschutz zukommt, hat er grundsätzlich auch scharfe und polemische Kritik auszuhalten; die Schwelle zur Rechtsgutverletzung ist im Bereich des Staatsschutzes erst überschritten, wenn aufgrund der konkreten Art und Weise der Meinungsäußerung der Bestand oder die Funktionsfähigkeit des Staates oder seiner Einrichtungen beeinträchtigt oder der öffentliche Friede gefährdet ist. Dies kann etwa der Fall sein, wenn der Bundesrepublik Deutschland jegliche Legitimation abgesprochen und dazu aufgerufen wird, sie zu ersetzen ” (BVerfG 1 BvR 917/09, 28 November 2011). This opinion was subsequently followed by the German Federal Supreme Court (see BGH, 16.05.2012 - 3 StR 33/12). The Constitutional Court rejected the radical proposals to delete § 90a and 90b of the Criminal Code submitted by the Alternativ Entwurf StGB BT Politisches Strafrecht in 1968 and by the third Strafverteidigertag held in Berlin in 1979 (see references in Strafgesetzbuch Nomos Kommentar , Volume 2, 4 th edition, 2013, pp. 247-248).

[13] Here again the German Federal Constitutional Court took care to note this in the aforementioned decision: “ Der Meinungsäußernde ist insbesondere auch nicht gehalten, die der Verfassung zugrunde liegenden Wertsetzungen zu teilen, da das Grundgesetz zwar auf die Werteloyalität baut, diese aber nicht erzwingt ” .

[14] See, to similar effect, Judge Sajo’s separate opinion in Kayasu (cited above).

[15] As acknowledged by the European Parliament in its recent Resolution of 15 January 2015 (cited above): “ whereas intimidating statements by politicians and proceedings launched against critical journalists, combined with the ownership structure of the media sector, have led to widespread self-censorship by media owners and journalists, as well as to sackings of journalists … ” . The Court has previously noted in another case the effect on the whole profession of criminal proceedings based on the former Article 159 of the Criminal Code (see Kayasu , cited above, § 106).