concurring OPINION OF JUDGE bonello

I voted with the majority to find a violation of Article 10, but I do not endorse the primary test applied by the Court to determine whether the interference by the domestic authorities with the applicants’ freedom of expression was justifiable in a democratic society.

Throughout these, and previous Turkish freedom-of-expression cases in which incitement to violence was an issue, the common test employed by the Court seems to have been this: if the writings published by the applicants supported or instigated the use of violence, then their conviction by the national courts was justifiable in a democratic society. I discard this yardstick as insufficient.

I believe that punishment by the national authorities of those encouraging violence would be justifiable in a democratic society only if the incitement were such as to create ‘a clear and present danger’. When the invitation to the use of force is intellectualised, abstract, and removed in time and space from the foci of actual or impending violence, then the fundamental right to freedom of expression should generally prevail.

I borrow what one of the mightiest constitutional jurists of all time had to say about words which tend to destabilise law and order: “We should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country” [4] .

The guarantee of freedom of expression does not permit a state to forbid or proscribe advocacy of the use of force except when such advocacy is directed to inciting or producing imminent lawlessness and is likely to incite or produce such action [5] . It is a question of proximity and degree [6] .

In order to support a finding of clear and present danger which justifies restricting freedom of expression, it must be shown either that immediate serious violence was expected or was advocated, or that the past conduct of the applicant furnished reason to believe that his advocacy of violence would produce immediate and grievous action [7] .

It is not manifest to me that any of the words with which the applicants were charged, however pregnant with mortality they may appear to some, had the potential of imminently threatening dire effects on the national order. Nor is it manifest to me that instant suppression of those expressions was indispensable for the salvation of Turkey. They created no peril, let alone a clear and present one. Short of that, the Court would be subsidising the subversion of freedom of expression were it to condone the convictions of the applicants by the criminal courts.

In summary “no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose, through discussion, the falsehood and the fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence”. [8]

DISSENTING OPINION OF JUDGE gölcüklü

( Provisional translation )

To my great regret, I cannot agree with the majority of the Court that there has been a violation of Article 10 of the Convention. In my opinion, there is no valid reason to find that the interference in this case was not necessary in a democratic society and, in particular, not proportionate to the aim of preserving national security.

Nor do I share the majority’s view that there has been a violation of Article 6 § 1 in that the National Security Courts are not “independent and impartial tribunals” within the meaning of that provision owing to the presence of a military judge on the bench.

Allow me to explain.

1. In the Zana case (judgment of 25 November 1997) the comments concerned, which the applicant when interviewed by journalists, were as follows:

“I support the PKK national liberation movement; on the other hand, I am not in favour of massacres. Anyone can make mistakes, and the PKK kill women and children by mistake …”

That statement was published in the national daily newspaper Cumhuriyet .

2 The backdrop to the case (and to a number of similar cases) is the situation in the south-east of Turkey, which was described by the Court in its Zana judgment:

“Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces.” (see § 10)

(see § 10). That figure was approximately 30,000 in 1999.

3. The PKK is recognised by the Court (see Zana, § 58) and international institutions as being a Kurdish terrorist organisation.

4. In the Zana judgment, the Court once again reiterated (§ 51 of the judgment) the fundamental principles which emerge from its judgments relating to Article 10:

“(i) Freedom of expression constitutes one of the essential foundations of a democratic society...

(ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision...

(iii) In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them...”

5. In paragraph 55 of its judgment the Court said that the above principles applied “also appl[ied] to measures taken by national authorities to maintain national security and public safety as part of the fight against terrorism ...”

6. Thus, in the aforementioned case, the Court felt bound to assess whether Mr Zana’s conviction met an “pressing social need” and was “proportionate to the legitimate aim pursued”. To that end, it considered it important to analyse the content of the applicant’s remarks in the light of the situation prevailing in south-east Turkey at the time. (see § 56).

7. The Court said that Mr Zana’s words “could be interpreted in several ways but, at all events, they are both contradictory and ambiguous. They are contradictory because it would seem difficult simultaneously to support the PKK, a terrorist organisation which resorts to violence to achieve its ends, and to declare oneself opposed to massacres; they are ambiguous because whilst Mr Zana disapproves of the massacres of women and children, he at the same time describes them as “mistakes” that anybody could make.” (see § 58).

8. After considering these factors, the Court concluded (-ibid. §§59-62):

“The statement cannot, however, be looked at in isolation. It had a special significance in the circumstances of the case, as the applicant must have realised. As the Court noted earlier (see paragraph 50 above), the interview coincided with murderous attacks carried out by the PKK on civilians in south-east Turkey, where there was extreme tension at the material time...

In those circumstances the support given to the PKK – described as a ‘national liberation movement’ – by [Mr Zana], ... had to be regarded as likely to exacerbate an already explosive situation in that region.

The Court accordingly considers that the penalty imposed on the applicant could reasonably be regarded as answering a ‘pressing social need’ and that the reasons adduced by the national authorities are ‘relevant and sufficient’...

Having regard to all these factors and to the margin of appreciation which national authorities have in such a case , the Court considers that the interference in issue was proportionate to the legitimate aims pursued. There has consequently been no breach of Article 10 of the Convention.”

9. In my opinion, this reasoning and these grounds should have acted as the guiding principle in similar cases and avoided any abstract assessment of the remarks concerned, an assessment that I find unrealistic and to be based on a misconception of what is meant by freedom of expression and democracy.

10. The case of Gerger v. Turkey is indistinguishable, if not in form, at least in content, from the Zana case. In his message, dispatched and read out at a time when PKK terrorism was raging not just in south-east Turkey but in the whole country, the applicant spoke of:

(i) his “solidarity with the revolutionary cause ”;

(ii) the Turkish Republic which he said was “based on negation of the fundamental rights of workers and Kurds”, though the latter had nothing to do and no connection with the memorial ceremony that had been organised;

(iii) the rulers, whose aim had been to eradicate social and political activity in the country and to weigh society down with the yoke of non-pluralism and dependence in order to “ break any resistance and stifle any revolt by the masses ”;

(iv) “ the spirit of resistance and revolt of those heroic years, a nightmare for the rulers, has been with the country for more than twenty years”;

(v) “the seeds of liberation of the Kurdish people sown in those days [from which] the [current] guerrilla campaign in the mountains of Kurdistan was born ”

(vi) their national democratic fight and the war of the “classes”;

(vii) their “solidarity and unity in the struggle”.

11. These statements clearly incite and condone “violence” and constitute a public invitation to hatred and action. The Court itself accepted (see paragraph 42 of the judgment) that the applicant’s conviction pursued “legitimate aims” within the meaning of Article 10 § 2 of the Convention, namely maintenance of “national security”, prevention of “[public] disorder” and preservation of “territorial integrity” and added that that was “certainly true where, as with the situation in south-east Turkey at the time of the circumstances of this case, the separatist movement had recourse to methods which rely on the use of violence”.

12. In the light of the foregoing, and having regard to the State’s margin of appreciation in this sphere, it is my view that the restriction on the applicant’s freedom of expression was proportionate to the legitimate aims pursued and, accordingly, could reasonably be considered as necessary in a democratic society to achieve them.

13. Secondly , the majority found that there has been a violation of Article 6 § 1 in that the National Security Courts do not the provide guarantees of “independence and impartiality” required by that provision of the Convention.

14. In the dissenting opinion which I expressed jointly with those eminent judges Mr Thor Vilhjálmsson, Mr Matscher, Mr Foighel, Sir John Freeland, Mr Lopes Rocha, Mr Wildhaber and Mr Gotchev in the case of Incal v. Turkey of 9 June 1998 and my individual dissenting opinion in the case of Çıraklar v. Turkey of 28 October 1998. I explained why the presence of a military judge in a court composed of three judges, two of whom are civil judges, in no way affects the independence and impartiality of the National Security Courts, which are courts of the non-military (ordinary) judicial order from which an appeal lies to the Court of Cassation. So as to avoid repetition, I refer to my aforementioned dissenting opinions.

15. I remain firmly of the opinion that:

(1) the conclusion of the majority results from an unjustified extension to the theory of outward appearances ;

(2) it does not suffice to say, as the majority do in paragraph 79 of the judgment, that it is “understandable that the applicants ... should be apprehensive about being tried by a bench which included a regular army officer, who was a member of the Military Legal Service”, and then simply to rely on the Incal precedent (Çıraklar being a mere repetition of what was said in the Incal judgment); and

(3) the majority’s opinion is in the abstract and ought therefore, if it was to be justifiable, to have been better supported both factually and legally.

[1] Notes by the Registry.

1-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

[3] 3. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[2] 1. Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States bound by that Protocol.

[3] . Note by the Registrar . For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1999), but a copy of the Commission’s report is obtainable from the registry.

[4] . Justice Oliver Wendell Holmes in Abrahams v. United States, 250 U.S. 616 (1919) at 630.

[5] . Brandenburg v. Ohio , 395 U.S. 444 (1969) at 447.

[6] . Schenck v. United States 294 U.S. 47 (1919) at 52.

[7] . Whitney v. California 274 U.S. 357 (1927) at 376.

[8] . Justice Louis D. Brandeis, in Whitney v. California , 274 U.S. 357 (1927) at 377.