PARTLY DISSENTING OPINION OF JUDGE PALM

I agree with Court’s conclusion that there has been a violation of Article 6 § 1 in this case. My dissent relates to the Court’s general approach to examining whether there has been a violation of Article 10.

In my opinion the majority has attached too much weight to the admittedly harsh and vitriolic language used in the impugned letters and insufficient attention to the general context in which the words were used and their likely impact. Undoubtedly the words in question shock and disturb the reader with their general accusatory tone and their underlying violence. But in a democracy, as our Court has emphasised, even such “fighting” words may be protected by Article 10. The question in the present case concerns the approach employed by the Court to decide the point at which such “violent” and offensive speech ceases to be protected by the Convention.

My answer to this question is to focus less on the vehemence and outrageous tone of the words employed and more on the different elements of the contextual setting in which the speech was uttered. Was the language intended to inflame or incite to violence? Was there a real and genuine risk that it might actually do so? The answer to these questions in turn requires a measured assessment of the many different layers that compose the general context in the circumstances of each case.

This was in fact the approach of the former Court when it found that there had been no violation of Article 10 in the Zana case although I dissented in that case on other grounds. In Zana the applicant had indicated his support for the PKK during an interview. The Court examined the context in which the statement was made, noting (1) that the interview coincided with murderous attacks carried out by the PKK on civilians in south-east Turkey, where extreme tension reigned at the material time; (2) that the applicant was the mayor of Diyarbakır – the most important city in south-east Turkey; (3) that the interview had been given in a major national daily newspaper and had to be judged as likely to exacerbate the already explosive situation in that region (see the Zana v. Turkey judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2549, §§ 59 and 60).

Applying this approach to the facts of the present case I attach weight to the following elements. In the first place, the applicant was not punished for the offence of incitement to hatred pursuant to Article 312 of the Criminal Code but for an offence of disseminating separatist propaganda under section 8(1) of the Prevention of Terorrism Act 1991 (see paragraphs 13-20 of the judgment). In fact the courts found “no grounds for convicting him under Article 312” (see paragraph 14 of the judgment). The majority’s reliance on the letters as capable of inciting to violence or as hate speech which glorifies violence thus goes significantly further than the approach of the national courts. Secondly, the applicant was only the major shareholder in the review and not the author of the impugned letters nor even the editor of the review responsible for selecting the material in question. He was thus lower down in the chain of responsibility for the publication of readers’ letters. Nor was he (or the authors) a prominent figure in Turkish life capable, as in the Zana case, of exercising an influence on public opinion. Thirdly, the review was published in Istanbul far away from the zone of conflict in south-east Turkey. Finally, letter-writing by readers does not occupy a central or headline position in a review and is by its very nature of limited influence. Moreover some allowance must be made for the fact that members of the public expressing their views in letters for publication are likely to use a more direct and vehement style than professional journalists.

The combination of these factors leads me to the conclusion that there was no real or genuine risk of the speech at issue inciting to hatred or to violence and that the applicant was sanctioned because of the political message of the letters rather than their inflammatory tone. I am thus of the view that there was a violation of Article 10 in this case.

PARTLY DISSENTing opinion of Judge Bonello

I voted to find a violation of Article 10, as I do not endorse the primary test applied by the Court to determine whether the interference by the domestic authorities with the applicant’s 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 applicant supported or instigated the use of violence, then his 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.” [17]

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 [18] . It is a question of proximity and degree [19] .

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 [20] .

It is not manifest to me that any of the words with which the applicant was 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 conviction of the applicant 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” [21] .

Moreover, I did not support the majority in its ruling that the finding of a violation of Article 6 § 1 of the Convention constitutes in itself just satisfaction for the non-pecuniary damage alleged by the applicant. I believe that such non-redress is inadequate in any court of justice and is negated by the clear wording of the Convention, as explained in detail in my partly dissenting opinion annexed to Aquilina v. Malta ([GC], no. 25642/94, ECHR 1999-III).

joint partly dissenting opinion of judges tulkens, Casadevall AND GREVE

( Translation )

Like the majority, we voted in favour of finding a violation of Article 6 § 1 of the Convention. However, unlike the majority, we consider that there was also a breach of Article 10 in the present case. Our opinion is based in particular on the following considerations.

1. While, on the one hand, the Court reiterates that freedom of the press must make it possible to “ ... impart information and ideas on political issues, including divisive ones ” (see paragraph 59 of the judgment), it finds on the other hand that the impugned letters “ ... amount to an appeal to bloody revenge by stirring up base emotions and hardening already embedded prejudices which have manifested themselves in deadly violence ” (see paragraph 62). In addition to the fact that the letters concerned must be read in context, it is, in our view, difficult to assess accurately and objectively the meaning of the terms employed and how they should be construed. We consider that freedom of expression as protected by the Convention may be curtailed only when there is direct provocation to commit serious criminal offences ( crimes ).

2. Furthermore, the Court’s analysis in the instant case seems to us to be inconsistent with its conclusions in the Arslan, Ceylan and several other cases, three of which also involved the applicant, Mr Sürek. All of those cases concerned the right to information and freedom of expression. The Court hardly distinguishes between these cases in its assessment of the political statements and sometimes virulent and acerbic criticism of the Turkish authorities’ actions; in none of them did it find any justification for making an exception to Article 10 of the Convention. More particularly, we fail to see why in the present case, but not in the others “ ... the message which is communicated to the reader is that recourse to violence is a necessary and justified measure of self-defence in the face of the aggressor ”, as the majority assert in paragraph 62 of the judgment.

3. The case of Sürek (no. 1) differs markedly from Zana, as in the latter case the applicant’s statements were unambiguous, they coincided “ ... with murderous attacks carried out by the PKK on civilians in south-east Turkey, where there was extreme tension at the material time ” and Mr Zana was a political figure and former mayor of Diyarbakır , so that it followed that the published comments could be regarded as “ ... likely to exacerbate an already explosive situation in that region ” (see the Zana v. Turkey judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2549, §§ 59 ‑ 60). In the present case Mr Sürek was not even the author of the comments in the impugned letters, which had been written by readers of the review.

4. The criteria used by the majority in its assessment (see paragraphs 59 and 61 of the judgment) and the fact that, as the Court has regularly stated, paragraph 2 of Article 10 must be strictly construed so as to leave little scope for limitations on freedom of expression, meant that the Court should, in our view, have found that there was an unjustified interference with the applicant’s right to freedom of expression and, consequently, a violation of Article 10.

partly dissenting opinion of judge fischbach

( Translation )

Having voted with the majority in favour of finding a violation of Article 6 § 1, I regret that I am unable to agree with the reasoning that led it to conclude that there has been no violation of Article 10.

Obviously, I agree with the Court’s case-law affording the national authorities a wider margin of appreciation when considering whether there is a need for interference in the exercise of freedom of expression in cases concerning comments inciting people to use violence against an individual, a State representative or a sector of the population.

I cannot, however, detect in the remarks made in the two letters written by readers an incitement to use violence. In view of the situation that has prevailed in south-east Turkey since 1985, it seems to me that only conduct of that nature may be regarded as overstepping the limits of freedom of expression as protected by the Convention. The applicant, who has done no more than to describe, admittedly in violent and shocking terms, what is happening in the region, has not said any more in his comments than what the Court has in other cases regarded as tolerable and thus not falling within the exceptions to Article 10 (see Ceylan v. Turkey [GC], no. 23556/94, ECHR 1999-IV, and Arslan v. Turkey [GC], no. 23462/94, 8 July 1999).

That is why I find that there has been a violation of Article 10 in the present case.

partly dissenting opinion of judge Gölcüklü

( Translation )

To my great regret, I do not agree with the view of the majority of the Court 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. In that connection, I refer to the partly 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 (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV), and to my individual dissenting opinion in the case of Çıraklar v. Turkey (judgment of 28 October 1998, Reports 1998-VII). I remain firmly convinced that the presence of a military judge in a court composed of three judges, two of whom are civilian 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 75 of the judgment, that it is “understandable that the applicant ... should have been 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] . The Republic of Turkey ( Türkiye Cumhuriyeti ).

[6] . The phrases in inverted commas in this paragraph are quotations from the public speeches of Mr Demirel, former Prime Minister of Turkey.

[7] . 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)).

[8] . 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.

[9] -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.

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

[11] . See paragraph 27 below.

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

[13] . This provision concerns reprieves.

[14] . 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.

[15] . 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.”

[16] . Note by the Registry . 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.