Information Note on the Court’s case-law 10

September 1999

Öztürk v. Turkey [GC] - 22479/93

Judgment 28.9.1999 [GC]

Article 10

Article 10-1

Freedom of expression

Conviction for incitement to hatred: violation

(Extract from press release)

Facts :  The applicant, Ünsal Öztürk, a turkish national, was born in 1957 and lives in Ankara (Turkey). In November 1988 he published the second edition of a book by M.N . Behram entitled Hayatın Tanıklığında – İşkencede Ölümün Güncesi (A testimony to life – Diary of a death under torture) about the life of İbrahim Kaypakkaya, one of the leaders of the extreme left in Turkey. On 30 March 1989 the Ankara National Security C ourt found Mr Öztürk guilty, among other offences, of inciting the people to hatred and hostility, an offence under Article 312 of the Criminal Code. The applicant had to pay a fine of 285,000 Turkish liras and the copies of the edition in issue were confi scated. On 22 May 1991 the book’s author, M.N. Behram, who had been charged under the same provisions of the Criminal Code as the applicant, was acquitted. Mr Öztürk then applied to the appropriate branch of the State prosecution service asking them to ref er his case to the Court of Cassation by means of an appeal on points of law against his conviction. The State prosecution service allowed this application and lodged such an appeal, but this was dismissed by the Court of Cassation on 8 January 1993. The b ook, subsequently republished by a different publishing house, is at present on open sale.

The applicant complained of an unjustified infringement of his right to freedom of expression set forth in Article 10 of the European Convention on Human Rights; he further complained of an infringement of his right to the peaceful enjoyment of his possessions, guaranteed by Article 1 of Protocol No. 1.

Law : Article 10 of the Convention:

The Government’s preliminary objection - The Government maintained that as the ap plication to the Commission had been lodged on 24 May 1993 the Commission should have declared it inadmissible on the ground that it was out of time. The Commission had wrongly calculated the six-month period from 8 January 1993, when the Court of Cassatio n gave judgment on the second of two references to the Court of Cassation by Principal State Counsel, since such a reference, which was an extraordinary remedy, could not cause a new six-month period to begin to run. The Court noted that the remedy concern ed could be exercised only by Principal State Counsel at the Court of Cassation, and only on the formal instructions of the Minister of Justice. It was not directly accessible to people whose cases had been tried and it should therefore, in principle, not be taken into consideration for the purposes of the six-month rule laid down in Article 35 of the Convention. It was a different matter, however, where, as in the present case this remedy had actually been exercised. In such a case it then became similar t o an ordinary appeal on points of law, in that it gave the Court of Cassation the opportunity to set aside the impugned judgment, if necessary, and remit the case to the lower court, and therefore to remedy the situation criticised by the person whose case had been tried. In the present case, since the procedure set in motion by the applicant had proved to be effective, the six-month period had indeed begun to run on 8 January 1993, the date of the judgment rendered as a result. As the application had there fore been lodged in good time, the Government’s objection had to be dismissed.

Merits of the complaint - Article 10 guarantees freedom of expression to “everyone”. No distinction is made in it according to the nature of the aim pursued or the role played by natural or legal persons in the exercise of that freedom. By providing authors with a medium publish ers participate in the exercise of the freedom of expression, just as they are vicariously subject to the “duties and responsibilities” which authors take on when they disseminate their opinions to the public. Mr Öztürk’s conviction for helping to publish and distribute Mr Behram’s book unquestionably constituted interference with the exercise of his freedom of expression, and such interference breaches Article 10 unless it satisfies the requirements of the second paragraph of that provision.

“Prescribed by law”; legitimate aim - In the present case the Court accepted that the interference with the applicant’s right to freedom of expression, being the result of his conviction under Article 312 § 2 of the Criminal Code, could be considered to have been prescr ibed by law. Having regard to the sensitive nature of the fight against terrorism and the need for the authorities to exercise vigilance when dealing with actions likely to exacerbate violence, the Court considered that it could also accept that the applic ant’s conviction pursued two aims compatible with Article 10 § 2, namely the prevention of disorder or crime.

“Necessary in a democratic society” - The Court reiterated the fundamental principles underlying its judgments relating to Article 10. It observed that the book in issue took the form of a biography through which the author intended, at least implicitly, to criticise the Turkish authorities’ actions in the repression of extreme left-wing movements and thus give moral support to the ideology which İ. Kaypakkaya had espoused. The National Security Court had held that by venerating communism and the “terrorist” İ. Kaypakkaya the book had “expressly incite[d] the people to hatred and hostility”. On that point, the Court reiterated that there is little sc ope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest. It certainly remained open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, e ven of a criminal-law nature, intended to react appropriately and without excess to such remarks. Finally, where such remarks incited to violence, the national authorities enjoyed a wider margin of appreciation when examining the need for an interference w ith exercise of freedom of expression. In that connection, it was important to note that the bench of the National Security Court which tried the author of the book, M.N. Behram, had ruled that nothing in the book disclosed any incitement to crime for the purposes of Article 312 of the Criminal Code. In the Court’s view, this striking contradiction between two interpretations of one and the same book separated in time by about two years and made by two different benches of the same court was one element to be taken into consideration.

The Court considered that the words used in the relevant edition of the book, whose content, moreover, did not differ in any way from that of the other editions, could not be regarded as incitement to the use of violence or to hostility and hatred between citizens. Admittedly, the Court could not exclude the possibility that such a book might conceal objectives and intentions different from the ones it proclaimed. However, it saw no reason to doubt the sincerity of the aim pursu ed by Mr Öztürk in the second edition of the book, especially as the first had sold out without occasioning criminal proceedings. The Court was prepared to take into account the background to the cases submitted to it, particularly problems linked to the p revention of terrorism, and accepted that it was for the domestic courts to determine whether the applicant had published the book with a reprehensible object, but the fact that domestic law did not require proof that the offence of which the applicant was accused had had any concrete effect did not in itself weaken the need to justify the interference under Article 10 § 2.

In the present case, the book had been on open sale since 1991 and had not apparently aggravated the “separatist” threat. Moreover, the Government had not explained how the second edition of the book could have caused more concern to the judicial authorities than the first, published in October 1988. The Court therefore discerned nothing which might justify the finding that Mr Öztürk had any responsibility whatsoever for the problems caused by terrorism in Turkey and considered that use of the criminal law against the applicant could not be regarded as justified in the circumstances of the case. Having regard to the fact that the preventiv e aspect of the interference under consideration – namely the seizure of some copies of the book – in itself raised issues under Article 10, the Court considered, in the circumstances of the case, that it could not attach decisive weight to the moderate am ount of the fine imposed on the applicant. The Court accordingly took the view that it had not been established in the present case that at the time when the edition in issue was published there was a “pressing social need” capable of justifying a finding that the interference in question was “proportionate to the legitimate aim pursued”. Nor, on that point, could the Court accept the Government’s argument, based on “developments in the case-law” since the applicant’s conviction, that where a violation of t he Convention initially committed had subsequently been made good the Court should not rule on the matter. The Court’s sole task was to assess the particular circumstances of a given case. It reiterated that a decision or measure favourable to an applicant is not sufficient in principle to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention. In the present case, however, the a pplicant had not even benefited from any such decision or measure. Even supposing that “developments in the case-law” had prompted Mr Behram’s acquittal, it could only be noted that these had not proved to be sufficiently pertinent to enable the Court of C assation to remedy the situation the applicant now complained of before the Court. The Court accordingly concluded that there had been a violation of Article 10 of the Convention.

Conclusion : violation (unanimous).

Article 1 of Protocol No. 1 - The Court noted that the confiscation of the copies of the edition in issue complained of by the applicant had been an incidental effect of his conviction, which it had held to have been in breach of Article 10. It was consequently unnecessary to consid er this complaint separately.

Conclusion : not necessary to examine (unanimous).

Article 41 of the Convention - The Court, making an equitable ruling on the basis of all the information in its possession, awarded the applicant USD 10,000 for pecuniary damag e and FRF 20,000 for his costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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