CONCURRING OPINION OF JUDGE KARAKAÅž

I voted with the majority in finding no violation of Article 2 of the Convention given that within the framework of the existing c ase- law of the Court, it could not be concluded that there had been a real and immediate risk to the applicant ’ s life. I consider that only the Grand Chamber could adopt a new approach vis-à-vis the positive obligations under Article 2 of the Convention in the context of the present case.

Nevertheless, in my opinion, the applicant ’ s submissions under Articles 2 and 13 of the Convention could also have been examined from the standpoint of Article 8 of the Convention as they concerned the alleged failure of the domestic authorities to fulfil their positive obligation to secure respect for the applicant ’ s personal integrity in the face of the allegedly gratuitous personal attacks contained in the article of 11 October 2007 and to issue decisions with a deterrent effect with regard to incitement to violence (see, mutatis mutandis , A. v. Croatia , no. 55164/08, § 57, 14 October 2010, and Hajduová v. Slovakia , no. 2660/03, § 49, 30 November 2010). Indeed, the respondent Government were requested to reply to a question put under Article 8 of the Convention at the communication stage. I also consider that the Chamber should have found a breach of Article 8, for the following reasons.

According to the Court ’ s case-law, the physical and psychological integrity of an individual is covered by the concept of private life within the meaning of Article 8 of the Convention (see Bevacqua and S. v. Bulgaria , no. 71127/01, § 65, 12 June 2008). While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective “respect” for private and family life, and these obligations may involve the adoption of measures in the sphere of the relations of individuals between themselves (see Sandra Janković v. Croatia , no. 38478/05, § 44, 5 March 2009; A. v. Croatia , cited above, § 59; Hajduová , cited above, § 45; Kalucza v. Hungary , no. 57693/10, § 58, 24 April 2012; and Eremia v. the Republic of Moldova , no. 3564/11, § 72, 28 May 2013).

I consider that in the instant case, the Court should have examined whether the content of the above-mentioned article could have created a well-founded and genuine fear on the part of the applicant and, if so, whether the Government succeeded in adopting measures designed to secure respect for the applicant ’ s psychological integrity with a view to determining whether the national authorities fulfilled their positive obligation under Article 8 of the Convention.

In the case at hand, Mr I.E. ’ s article was published in the Bolu Express on 11 October 2007 and was also made available on the Internet. It was written following the killing of a number of security officers and, in particular, thirteen soldiers from the Bolu Commando Brigade, allegedly by the PKK. Given that serious disturbances had raged between the security forces and the members of the PKK since approximately 1984, resulting in very heavy loss of life, it can be concluded that there was a public interest in addressing the issue of the killing of members of the security forces.

However, the article in question listed the names of a number of well-known DTP members, including Mr Selahattin Demirtaş, referring to them as “the real murderers”. In addition, the author explicitly stated that some members of Parliament were “the instigators of the terrorists” (see paragraph 10 of the judgment). Although in his statements to the Bolu public prosecutor Mr I.E. maintained that he had been referring to PKK members in his article, he also stated that if the complainant considered himself the subject of the article, then he had been right to identify him as a target. Mr I.E. further noted that the DTP had been the object of many sets of criminal proceedings and that its members had failed to condemn terrorist attacks (see paragraph 12 of the judgment). He maintained that as a Turkish nationalist he would be proud of committing an offence against the applicant if his words were to be seen as an offence. It appears from both his article and Mr I.E. ’ s statements to the Bolu public prosecutor that the author held the DTP members listed in the article, including the applicant, responsible for the killing of security forces in the context of the conflict in south-east Turkey, since, in the author ’ s view, they had not condemned the killings of the security officers. Moreover, after listing the names of the applicant and other well-known members of the DTP, Mr I.E. stated that those persons were the enemy of the Turkish nation and invited “civilian patriots” to target them. He claimed that it was the majority ’ s desire to see that, for every security officer who was killed, one of those people should share the same fate (see paragraph 10 of the judgment).

In my view, the principal message to the reader was that recourse to violence towards the DTP members was a necessary and justified measure. By describing the applicant and the other members of the DTP as the enemy who ought to be targeted by patriots, Mr I.E. stirred up hatred for them and exposed them to a possible risk of physical violence at the hands of others. I therefore consider that Mr I.E. ’ s article contained incitement to hatred and violence against a group of persons, including the applicant, on account of their political identity and expressed intolerance towards them through aggressive nationalism. The expressions contained in the article may even be described as hate speech in the light of the definition set out in the Appendix to Recommendation no. R (97) 20 of the Committee of Ministers to member States of the Council of Europe.

Statements which constitute incitement to violence not only arouse a well-founded fear and render the persons in question vulnerable to violence, but also run counter to the fundamental values of justice and peace set forth in the Preamble to the Convention, as well as to the founding principles of a pluralist democracy (see Gündüz v. Turkey (dec.), no. 59745/00, ECHR 2003 ‑ XI (extracts)). The States Parties therefore have a duty to protect the psychological integrity of those who become the target of expressions which contain incitement to violence and who have a well-founded fear. Thus, in its judgment in the case of CumpÇŽnÇŽ and MazÇŽre v. Romania [GC] (no. 33348/96, § 115, ECHR 2004 ‑ XI), the Court held that the imposition of a prison sentence for a press offence would be compatible with journalists ’ freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights were seriously impaired, as, for example, in the case of hate speech or incitement to violence.

I consider that the applicant had a well-founded and genuine fear of being a target of potential acts of violence and, therefore, the Government ’ s positive obligation to secure respect for his moral integrity was engaged. Thus, the national authorities should have conducted an effective investigation into the applicant ’ s complaints and the Court should have examined whether the investigation conducted by the national authorities complied with the requirements of Article 8 of the Convention (compare with Karaahmed v. Bulgaria , no. 30587/13, § 110, 24 February 2015).

In this regard, it should be noted that Articles 214 and 217 of the Criminal Code appear to provide an adequate legal framework for imposing a sanction against incitement to violence in Turkey (see paragraph 21 of the judgment). However, the national authorities ’ decisions fell foul of the requirements of Article 8 of the Convention. In particular, there is nothing in the Bolu public prosecutor ’ s and the Düzce Assize Court ’ s decisions of 7 December 2007 and 21 August 2008 to indicate that the applicant had been involved in or committed any offence, in particular the killing of security officers. The Bolu public prosecutor considered that the DTP had not condemned the PKK ’ s activities and had failed to share the view of society and the State (see paragraph 13 of the judgment). It appears that the Bolu public prosecutor ’ s conclusion that t here was a factual basis for Mr I.E. ’ s statements in his article was founded on this perceived failure by the DTP members to react to the PKK ’ s activities. In my view, this could not serve as the basis of statements such as “the real murderers” or “the instigators of the terrorists”. I therefore consider that the public prosecutor did not attempt to distinguish between criticism of the political stance of DTP members, including the applicant, and marking them as targets in his decision. Nor did he examine whether Mr I.E. had acted in accordance with the ethics of journalism.

More importantly, the Bolu public prosecutor, the Düzce Assize Court and the Court of Cassation did not give due consideration to the applicant ’ s rights to respect for his psychological integrity and to freedom from fear. In particular, the national authorities failed to carry out an adequate assessment of the possible impact on the applicant ’ s personal integrity of the extremely alarming expressions contained in the article, such as those marking Mr Selahattin Demirtaş and the other DTP members as “the enemy of the Turkish nation” and targets for “civilian patriots”, and those referring to “wiping out of microbes”.

Furthermore, as noted above, at the time of the publication of Mr I.E. ’ s article, armed clashes between the security forces and PKK members, which had caused the deaths of thousands of people, had been continuing for more than twenty years. Moreover, as the applicant submitted, on 19 January 2007, – that is, at the beginning of the same year – Hrant Dink was assassinated after an intimidation campaign carried out by ultra-nationalists (see Dink v. Turkey , nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, 14 September 2010). In such a context the content of Mr I.E. ’ s article could have incited violence and hatred, and the applicant ’ s fear of potential violence was particularly justified. In this regard, I appreciate the efforts of the Ministry of Justice to bring criminal proceedings with regard to the statements in question. The Bolu public prosecutor, the Düzce Assize Court and subsequently the Court of Cassation should therefore have had particular regard to the context in question.

In the light of the foregoing, I find that the Government failed to fulfil their positive obligation to secure to the applicant respect for his private life and that therefore there was a breach of Article 8 of the Convention.