Information Note on the Court’s case-law 231

July 2019

Gürbüz and Bayar v. Turkey - 8860/13

Judgment 23.7.2019 [Section II]

Article 10

Article 10-1

Freedom to impart information

Criminal proceedings against the management of a newspaper for having published statements by the leader of a terrorist organisation containing an implied threat of a resumption of violence: no violation

Facts – Respectively the owner an d editor-in-chief of a daily newspaper, the applicants were charged with the offence of “publishing statements by a terrorist organisation”. After several years the first applicant’s prosecution became time-barred; the second applicant received a suspended judicial fine.

The case concerned the publication in September 2004 of statements by A.Ö. (the leader of the PKK) and M.K. (another senior leader of the PKK, and president of the popular defence force Kongra-Gel) concerning a ceasefire proposal by Kongra- Gel, and that organisation’s calls for an end to the armed conflict.

A.Ö. stated, in particular, that: (i) he approved this proposal and called on the authorities to give immediate effect to the organisation’s claims; (ii) it was absolutely necessary to d evelop Turkish-Kurdish dialogue, otherwise, although this was not desirable, 2005 would necessarily be a year of transition to guerrilla warfare; (iii) he called on Kurdish patriots to gather under the banner of Kongra-Gel.

For his part, M.K.: (i) emphasis ed peace in the region, which, in his view, would come about through recognition and respect for the rights of the Kurdish people; (ii) called on the State to open up dialogue with the Kurdish representatives to find a democratic and peaceful solution to t he Kurdish problem; (iii) stressed, in particular, that he was willing to disarm if the conditions were right.

Law – Article 10: Admittedly, the mere fact of having published statements by terrorist organisations could not justify media professionals bein g systematically convicted by the courts without an analysis of the content of the contested articles or the context in which they were written (see Gözel and Özer v. Turkey , 43453/04 and 31098/05, 6 July 2010, Information Note 132 ).

However, when it came to statements which could be held to amount to hate speech or to glorification of or incitement to violence, the Court itself analysed the contested articles, notwithstanding the fact that the reasons given by the courts for the convi ctions in question had been clearly insufficient.

In the present case, the Court noted that the statements made by M.K. were somewhat peaceful in nature; they did not seem such as to incite to the commission of violent acts, or their continuance.

In contrast, A.Ö.’s statements had been more nuanced; although A.Ö. indicated his support for Kongra-Gel’s ceasefire proposal, he nonetheless envisaged the possibility of recourse to violence if the authorities did not respond to the call for dialogue laun ched by that organisation in the context of its demands. Indeed, another passage in the article contained a barely veiled threat against the authorities, and an instruction to A.Ö.’s sympathisers and the armed members of the PKK: “should the path of dialog ue not develop, 2005 will necessarily be a year of transition to guerrilla warfare, even if this is not what they wish.” This passage could thus be regarded as public provocation to commit a terrorist offence within the meaning of Article 5 of the Council of Europe Convention on the Prevention of Terrorism.

In this context, A.Ö. called for a “gathering of patriots” under the banner of the illegal organisation Kongra-Gel. Having regard to the nature, purpose and previous actions of the latter organisation, this appeal amounted to a message aimed at recruitment for terrorism within the meaning of Article 6 of the Council of Europe Convention on the Prevention of Terrorism.

In consequence, having regard to

– the identity of A.Ö., the imprisoned leader of the PKK, who at the relevant time was continuing to transmit instructions to his former organisation through his lawyers;

– the result of the violent acts committed by the illegal organisation that he had led;

– the content of the impugned passages in A.Ö.’s statements, containing a threat and an instruction concerning possible acts of violence to be committed by PKK members in 2005; and

– the fragile context of a proposed ceasefire by Kongra-Gel in which these statements were made,

A.Ö.’s statements, read as a whole, could be interpreted as incitement to or a call for the use of violence, armed resistance or an uprising; this was so despite the fact that this call to violence had been made only in a conditional form, namely should dialogue not be developed before 2005.

In fact, these statements gave the public – and in particular the members of the PKK – the impression that, if the conditions put forward by Kongra-Gel were not met, recourse to violence would be necessary and justified in 2005. Whilst it was true that the applicants had not been personally associated with the statements, they had, however, provided a forum to A.Ö and had enabled his statements to be disseminated.

Given that the contested statements could effectively be interpreted as an incit ement to violence, the applicants could not, in their respective capacities as owner and editor-in-chief of their newspaper, be exempted from all liability. The right to impart information could not serve as an alibi or pretext for disseminating statements by terrorist groups.

Moreover, the contested interference had not been disproportionate, given, firstly, the margin of appreciation enjoyed by the national authorities in such cases and, secondly, the statute-barring and suspended sentence from which the applicants had benefited respectively.

Conclusion : no violation (six votes to one).

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

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