Information Note on the Court’s case-law 188

August-September 2015

Dilipak v. Turkey - 29680/05

Judgment 15.9.2015 [Section II]

Article 10

Article 10-1

Freedom of expression

Lengthy criminal proceedings against journalist at risk of custodial sentence for publishing article allegedly denigrating armed forces: violation

Article 34

Victim

Interference with journalist’s freedom of expression by lengthy criminal proc eedings that were ultimately discontinued: victim status upheld

Facts – The applicant, a journalist, published an article criticising the intervention of certain commanding officers of the armed forces in government policy. He was charged with having, by p ublishing the article, undermined “the hierarchy within the armed forces” (Military Criminal Code) or having denigrated “the armed forces” (Criminal Code). The proceedings lasted for a total of six years and five months before two courts, with a potential sentence of between six months and three years’ imprisonment. The proceedings ended with a ruling that prosecution of the offence was time-barred.

Law – Article 10

(a) Admissibility – The Government had maintained that the applicant did not have victim status on the ground that, since the criminal proceedings that had been instituted were discontinued on the ground that the prosecution was time-barred, the applicant had not been conv icted by any military or other criminal court. The Court considered that the Government’s objection raised issues closely linked to the examination of possible interference with the applicant’s exercise of his right to freedom of expression, and hence to t he substance of the complaints under Article 10 of the Convention. Accordingly, it decided to join the objection to the merits.

(b) Merits – The Court had already held in previous cases that certain circumstances which had a chilling effect on freedom of expression conferred on the persons concerned – who had not been finally convicted – the status of victims of interference with their right to the freedom in question.

Hence, where proceedings based on specific criminal legislation were discontinued on pro cedural grounds and the person concerned remained at risk of being found guilty and punished, he or she could validly claim to be directly affected by the legislation concerned and therefore to be a victim of a violation of the Convention. In fact, an indi vidual could even argue that a law breached his or her rights in the absence of a specific instance of enforcement, and thus claim to be a “victim” within the meaning of Article 34, if he or she was required either to modify his or her conduct or risk bein g prosecuted, or if he or she was a member of a category of persons who risked being directly affected by the legislation. Against that background, the existence of legislation which, in very general terms, made certain expressions of opinion punishable an d led those who might express such opinions to censor their remarks, could amount to interference with freedom of expression.

At the time of his application to the Court, in which he complained of the criminal proceedings instituted against him, the applic ant’s case had still been pending before the domestic courts. He had risked a prison sentence of between six months and three years. The criminal proceedings, which had lasted for six and a half years, had eventually ended with a finding that the prosecuti on was time-barred. Nevertheless, a criminal charge had remained pending against the applicant for a considerable, not to say excessive, length of time; moreover, the applicant had no guarantees, either during the criminal proceedings or in the future, tha t he would not face judicial proceedings if he wrote further articles, as a journalist and political columnist, on the subject of the relationship between the armed forces and national policy.

The chilling effect of the proceedings against the applicant meant that they could not be said to have entailed purely hypothetical risks for him; rather, they had comprised in themselves real and effective constraints. The ruling that the prosecution was time-barred had merely put an end to the aforementioned risks, but did nothing to alter the fact that these had subjected the applicant to pressure for a certain period of time.

Accordingly, the Court dismissed the Government’s objection that the applicant lacked victim status, and held that the proceedings against the applicant amounted to “interference” with the exercise of his right to freedom of expression under Article 10 of the Convention. There had been an accessible legal basis for the measures in q uestion and the interference complained of had pursued the legitimate aims of national security and the prevention of disorder.

In the article in question, the applicant had sharply criticised the generals’ political plans and their approach to social issu es in Turkey. In instituting and continuing the criminal proceedings against the applicant, the competent authorities had taken the view that his criticism of the generals was to be seen as seeking to undermine the hierarchy within the army or destroy conf idence in the generals concerned or, more broadly, as denigrating the armed forces. The competent authorities had therefore prosecuted the applicant on account of his criticism of certain points of view expressed by some generals in the armed forces concer ning the political situation in the country.

However, in expressing his reaction to the remarks made by the generals, which he saw as inappropriate intervention by the military in politics, the applicant had been conveying his ideas and opinions on an issu e which was unquestionably a matter of general interest in a democratic society. The Court considered in that regard that, if certain officers or generals in the armed forces made public statements on matters of policy, they laid themselves open, like poli ticians or anyone else taking part in the debate on the subject in question, to comments in response which might include criticism and opposing points of view. In a democratic society senior military officers could not, in this specific sphere, claim immun ity from possible criticism.

As to the article written by the applicant, it had in no way been “gratuitously offensive” or insulting and had not incited others to violence or hatred. The comments had not contained any insults or defamatory remarks based on erroneous allegations, or remarks inciting others to violent action against the members of the armed forces.

In these circumstances, the aim of the competent authorities in taking criminal proceedings appeared to have been to impose criminal sanctions for ideas or opinions which were considered disturbing or shocking but which had been expressed in response to a publicly conveyed point of view concerning matters of policy.

Hence, by continuing the criminal proceedings against the applicant for serious crim es over a lengthy period, the judicial authorities had exercised a chilling effect on his willingness to express his views on matters of public interest. Taking such proceedings had been liable to create a climate of self-censorship affecting both the appl icant himself and any journalists planning to comment on the actions and statements of the members of the armed forces in connection with national policy. The dominant position occupied by State institutions required them to display restraint in resorting to criminal proceedings, particularly where other means were available for replying to unjustified attacks and criticisms by the media.

The measure complained of – namely, the continuation over a lengthy period of the criminal proceedings against the appli cant based on serious criminal charges attracting a possible custodial sentence – had not been justified by a pressing social need, had in any event not been proportionate to the legitimate aims pursued and therefore had not been necessary in a democratic society.

Conclusion : violation (five votes to two).

Article 41: no claim made in respect of damage.

(See also Financial Times Ltd and Others v. the United Kingdom , 821/03, 15 December 2009, Informati on Note 125 ; and Nedim Şener v. Turkey , 38270/11 , and Şık v. Turkey , 53413/11 , judgments of 8 July 2014, summarised in Information Note 176 )

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

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