JOINT PARTLY DISSENTING OPINION of Judges Wildhaber, Kūris, Strážnická, baka and traja

In freedom of expression cases the Court is called upon to decide whether the alleged interference has a sufficient basis in domestic law, pursues a legitimate aim and is justifiable in a democratic society. This flows not only from the clear wording of the second paragraph of Article 10, but also from the extensive case-law on that provision. Freedom of expression under the Convention is not absolute. Although the protection of Article 10 extends to information and ideas that “offend, shock or disturb the State or any section of the Community” (see Handyside v. United Kingdom, 7.12.1976, Series A n° 24, § 49; Castells v. Spain, 23.4.1992, Series A n° 236, § 42; Jersild v. Denmark, 23.9.1994, Series A no. 298, § 37; Fressoz & Roire v. France, 21.1.1999, § 45), this is always subject to paragraph 2. Those invoking Article 10 must not overstep certain bounds.

In the assessment of whether restrictive measures are necessary in a democratic society, due deference will be accorded to the State’s margin of appreciation; the democratic legitimacy of measures taken by democratically elected Governments commands a degree of judicial self-restraint. The margin of appreciation will vary: it will be narrow for instance where the speech interfered with is political speech because this type of expression is the essence of democracy and interference with it undermines democracy. On the other hand, where it is the nature of speech itself that creates a danger of undermining democracy, the margin of appreciation will be correspondingly wider.

Where there are competing Convention interests the Court will have to engage in a weighing exercise to establish the priority of one interest over the other. Where the opposing interest is the right to life or physical integrity, the scales will tilt away from freedom of expression (see the Zana v. Turkey judgment of 25 November 1997, Reports 1997-VII, p. 2533, §§ 51, 55 and 61).

It will therefore normally be relatively easy to establish that it is necessary in a democratic society to restrict speech which constitutes incitement to violence. Violence as a means of political expression being the antithesis of democracy, irrespective of the ends to which it is directed, incitement to it will tend to undermine democracy. In the case of United Communist Party of Turkey v. Turkey (30.1.1998, Reports 1998-I p. 1, § 57) the Court refers to democracy as the only political model contemplated by the Convention and notes that “one of the principal characteristics of democracy [is] the possibility it offers of resolving a country’s problems through dialogue, without recourse to violence”. Violence is intrinsically inimical to the Convention. Unlike the advocacy of opinions on the free marketplace of ideas, incitement to violence is the denial of a dialogue, the rejection of the testing of different thoughts and theories in favour of a clash of might and power. It should not fall under the ambit of Article 10.

In the instant case, we acknowledge that the four left-wing organisations in question are illegal under Turkish law. However, we consider the tone of the joint statement published by them to be relatively moderate. These opinions could not justify an interference with the applicants’ right to freedom of expression.

As regards the interview with the PKK’s second-in-command, we would stress at the outset that it must be possible for a leader of an illegal organisation to express his views on a given political situation. It may also be legitimate to interview a leader of such an organisation. This does not mean however that it is legitimate to publish all of his views, in particular given the sensitivity of the political and security situation in south-east Turkey.

The published interview contains words and expressions such as “the war will go on until there is only one single individual left on our side”, “there will be no single step backwards”, “the war will escalate”, “our combat has reached a certain level. Tactics have to be developed which match that level”. The interview also refers to the tactics which the PKK would use to combat the State. It is very difficult not to view these sentences as an encouragement to further violence. The author’s language is direct and clear and its meaning – that there will be no compromise even if the war escalates – was likely to be understood by the public at large. In this respect we consider that some of the wording is very similar to that used in the articles in Sürek v. Turkey (no. 1) case, where the Court found no violation of Article 10.

Given this assessment of the facts of the case before us, we feel that the majority of the Court should have followed § 60 of the judgment, in which it is explained that “where remarks incite to violence ..., the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression”. The Court’s decision in fact largely disavows the clear statement in § 60. We cannot follow the majority in this respect. We therefore consider that the interference with the applicants’ freedom of expression was, in the circumstances of the case, proportionate to the legitimate aims relied on by the Government and accepted by the Court.

In the present case we accordingly cannot agree with the opinion of the majority of the Court that there has been a violation of Article 10 of the Convention.

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 and public order.

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.

The general principles which emerge from the judgment of 25 November 1995 in the case of Zana v. Turkey and which I recall in my dissenting opinion annexed to the Gerger v. Turkey judgment (of 8 July 1999) are relevant to, and hold good in, the instant case. To avoid repetition, I refer the reader to paragraphs 1-9 of that dissenting opinion.

The case of Sürek and Özdemir v. Turkey is indistinguishable, if not in form, at least in content, from the Zana and Gerger cases. Indeed, the European Commission of Human Rights concluded that there had been a violation of Article 10 only with a very small majority (by 17 votes to 15). I entirely agree with the dissenting opinion of the minority (Mr S. Trechsel , Me E. Busuttil , Mr G. Jörundsson , Mr A.S. Gözübüyük , Mr A. Weitzel , Mrs J. Liddy , Mr I. Cabral Barreto , Mr N. Bratza , Mr D. Šváby , Mr G. Ress , Mr A. Perenič , Mr C. Bîrsan , Mr K. Herndl , Mr E. Bieliūnas and Mr E.A. Alkema ) who considered that there had been no violation of that provision. May I therefore be permitted to reproduce that opinion at length as if it were my own dissenting opinion.

“We regret that we are unable to share the view of the majority of the Commission that there has been a violation of Article 10 of the Convention in the present case.

While we agree that the published declaration by four socialist organisations was not such as to justify an interference with the applicants' right to freedom of expression, we take a different view of the interview with C.B. which was published in two parts in the 31 May and 7 June 1992 editions of the applicants' weekly review.

We attach special significance to the fact that C.B. was at the time of the interview the second-in-command of the P.K.K., an armed terrorist organisation which was and is engaged in violent terrorist acts. Like the majority of the Commission, we do not consider that the mere fact of publication of an interview with a leading member of the P.K.K. would be sufficient to justify an interference with freedom of expression. Thus, for example, an interview with a terrorist leader which contained a factual analysis of the development of the conflict or which put forward suggestions for bringing about its peaceful solution would not in our view of itself justify action against the publisher. However, it is in our view incumbent on those who publish such interviews to take special care to ensure that they do not contain anything which can fairly be interpreted as an encouragement to further violent acts.

The majority of the Commission conclude that the replies of C.B., while including a clear prediction of continued armed action from the Turkish State as well as from the P.K.K., can hardly be interpreted as an incitement to further violence. We cannot agree. There are in our view a number of passages in the interview which can only be interpreted as an encouragement to further terrorist violence. In particular, we draw attention to the following replies: "Our combat has reached a certain level. Tactics have to be developed which match that level, because it is a mistake to wage war with less developed tactics. Progress can be achieved in the war by using tactics in keeping with the level of warfare which has now been reached. That is why an action of that nature was planned. The idea was to attack in the morning and hold our ground, continuing the clashes throughout the day - and it was successful in the end. It was an experiment. From our point of view there are conclusions to be drawn from it. We are studying the matter. We shall benefit from that in the actions we carry out in the future. ... This war will continue as long as the Turkish State refuses to accept the will of the people of Kurdistan . There will be not one single step backwards. The war will go on until there is only one single individual left on our side."

The Commission has previously drawn attention to the particular difficulty in striking a fair balance between the requirements of protecting freedom of information and the imperatives of protecting the State and the public against armed conspiracies seeking to overthrow the democratic order, in a situation where the advocates of this violence seek access to the media for publicity purposes (see eg ., No. 15404/89, Dec. 16.4.91, D.R. 70, p. 262).

In the present case we consider that the national authorities did not exceed their margin of appreciation in taking measures against the publications and that such measures may be regarded as necessary in a democratic society to achieve the aims of national security and public safety.”

As regards the Court’s finding of a violation of Article 6 § 1, I refer to the dissenting opinion which I expressed jointly with those eminent judges Mr Thór 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 to my individual dissenting opinion in the case of Çıraklar v. Turkey of 28 October 1998. I remain convinced that 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 whose decisions are subject to review by the Court of Cassation .

I wish to stress 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

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

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

[4] . Note by the Registry : 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 not bound by that Protocol.

[5] . See paragraph 23 below.

[6] . The conviction of a person pursuant to Article 312 § 2 entails further consequences, particularly with regard to the exercise of certain activities governed by special legislation. For example, persons convicted of an offence under that Article may not found associations (Law no. 2908, section 4(2)(b)) or trade unions, nor may they be members of the executive committee of a trade union (Law no. 2929, section 5). They are also forbidden to found or join political parties (Law no. 2820, section 11(5)) and may not stand for election to parliament (Law no. 2839, section 11(f3)). In addition, if the sentence imposed exceeds six months’ imprisonment, the convicted person is debarred from entering the civil service, except where the offence has been committed unintentionally (Law no. 657, section 48(5)).

[7] . This law, promulgated with a view to preventing acts of terrorism, refers to a number of offences defined in the Criminal Code which it describes as “acts of terrorism” or “acts perpetrated for the purposes of terrorism” (sections 3 and 4) and to which it applies.

[8] -2. The phrase in italics was deleted by a judgment of the Constitutional Court on 31 March 1992 and went out of force on 27 July 1993.

[9] . See the relevant provision of Law no. 4126, reproduced below.

[10] . See paragraph 26 below.

[11] . This provision concerns substitute penalties and measures which may be ordered in connection with offences attracting a prison sentence.

[12] . This provision concerns reprieves.

[13] . On the question whether the judgment is unlawful, the Court of Cassation is not bound by the arguments submitted to it. Moreover, the term “legal rule” refers to any written source of law, to custom and to principles deduced from the spirit of the law.

[14] . The National Security Courts were created by Law no. 1773 of 11 July 1973, in accordance with Article 136 of the 1961 Constitution. That law was annulled by the Constitutional Court on 15 June 1976. The courts in question were later reintroduced into the Turkish judicial system by the 1982 Constitution. The relevant part of the statement of reasons contains the following passage:

“There may be acts affecting the existence and stability of a State such that when they are committed, special jurisdiction is required in order to give judgment expeditiously and appropriately. For such cases it is necessary to set up National Security Courts. According to a principle inherent in our Constitution, it is forbidden to create a special court to give judgment on a specific act after it has been committed. For that reason the National Security Courts have been provided for in our Constitution to try cases involving the above-mentioned offences. Given that the special provisions laying down their powers have been enacted in advance and that the courts have been created before the commission of any offence …, they may not be described as courts set up to deal with this or that offence after the commission of such an offence.”

[15] . These provisions are based on Article 143 of the Constitution, to the application of which they refer.

[16] . Note by the Registrar . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.

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

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

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

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

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