DISSENTING OPINION OF JUDGE KŪRIS

1. Let us call a spade a spade.

Mr I.E. published an article entitled “Turk, here is your enemy”. In it, he listed, by name and surname, as many as twenty Members of Parliament, including the applicant. The author did not hesitate to describe them as “[t]he real murderers” because, in his assertion, they “instigate murder”. He also expressed his belief that, “[o]f course, there will be patriots who will be able to do this”. By “doing this” he meant, in his own words, “wiping out” “a few microbes”. And to ensure that no one had any doubts as to the meaning of “wiping out”, Mr I.E. explained in arithmetical terms: “one from us, five from you”. “You”, or the “microbes”, are the twenty Members of Parliament who “instigate murder” (see paragraph 10 of the judgment). Should you “instigate [the] murder” of “one from us” – then “five from you” must meet the same fate.

In his article, Mr. I.E. mentioned forty-one victims on the “us” side, not including those injured ( ibid. ). This is where the author overstepped the mark. If the formula “one from us, five from you” is applied, four “of us” would be enough to “wipe out” all these twenty people ... sorry, “microbes”.

Visually, the message sent by Mr I.E. is the following:

So simple. Even primitive. Through Mr I.E. ’ s obligingness, this geometrical symbol was placed on the forehead and the chest and the back of every one of the twenty whom the author took pains to identify. For the convenience of certain “patriots”, who, “of course”, would have to show up “to do this”, having been awakened by Mr I.E. ’ s article.

This is hate speech. No less. This is instigation to lynching. Incitement to kill. Provocation par excellence .

2. I am mindful of the fact that much innocent blood has been spilled on the “us” side. Nonetheless, I shall not enter into any discussion as to whether anything specific in the activities of the twenty ‘ human targets ’ , as selected by Mr I.E., allowed them to be called “instigators of murder”. I shall not pronounce any opinion as to whether any of those twenty persons had actually and personally done anything to prompt such a reaction on the part of Mr I.E. Maybe they had, maybe they had not. I do not know. It is not my business and not this Court ’ s business to make any judgments on this point. All States have intelligence services, prosecution authorities, courts, law-enforcement agencies, and all their apparatus, to deal with anyone who instigates murder. Under the Convention, Member States have such an obligation under Article 2.

Mr I.E. seems to hold a different view, at least with regard to Turkey. “If you are a State, be a State,” claims he. But since the State, in his verdict, is not – or is no longer – “a State”, he concludes: “It is enough. This has been the last straw!” (see paragraph 10 of the judgment). Put the State aside. Now it is time for “patriots” to step in and “to do this”.

3. The Bolu public prosecutor decided that “the author stated his opinion as to why society and State should act together against the killings committed by the PKK and had articulated public reaction and anger in the face of those killings” (see paragraph 13 of the judgment). True, “anger” is there, a lot of it. And there is “opinion”, too, and “reaction”. What is not there is the urging of society and the State to “act together”, because the State, as Mr I.E. has made it clear, is not – or is no longer – “a State”. Hence, society, or, more precisely, the “patriots”, whoever they may be, will have to manage without the State. They will have “to do this” on their own.

One postulate of the Bolu public prosecutor ’ s decision is especially stunning. He considered that the author of the article “offered a number of proposals with a view to eradicating the terrorist organisation in issue” ( ibid. ). Let us not speculate as to what other “proposals” the public prosecutor had discovered in that “number”, but it seems that he was not at all concerned even about noticing the undisguised “proposal” for the “patriots” to take matters into their own hands. A “proposal” of physical revenge. Of elimination. A final solution.

The Düzce Assize Court and later the Court of Cassation followed suit (see paragraphs 17 and 20 of the judgment). The latter even held that the public prosecutor ’ s decision “brought about the correct result” by not taking any action against Mr I.E. Fortunately enough, the notion of “correct result” seems to have only a legal procedural sense here and does not encompass a physical activity. So far.

4. It is difficult for me to comprehend how the Court can treat such findings by the domestic authorities as something which falls within the limits of permissibility. For if that which was written so eloquently and with genuine passion by Mr I.E. is an “opinion” protected by Article 10 of the Convention, then any call to violence is an “opinion”. In such a scenario, a hypothetical opponent of Mr I.E. also has a Convention-protected right to point at Mr I.E. himself as a live target. If “patriots” who believe that the Turkish State is not performing its functions and in this sense is no longer “a State” can be urged to set to lynching, so can the “anti-patriots”, whoever they might be.

A Court-endorsed multiplier effect such as this, a slippery slope of this nature, would make the “no man – no problem” model a very peculiar way to achieve social concord and problem-solving in the spirit of the rule of law.

5. I have no doubt whatsoever that the Turkish State violated Article 2 of the Convention by not conducting a proper investigation into Mr I.E. ’ s call for violence that would have led to at least some decision whereby individuals were discouraged from similar “initiatives”. Here, I concur with the Turkish Minister of Justice at the relevant time (see paragraph 18 of the judgment). I do not hint as to the manner in which way Mr I.E. ought to be held liable and what sanction – criminal or other – ought to be imposed on him. I am merely aware, from the experience obtained in deciding the Court ’ s cases against Turkey, that that country ’ s legal system has no shortage of means, including a variety of sanctions, when it comes to prosecuting incitements to violence, not only those which are taken at face value but also those which are merely implied.

6. However, the heart of the issue is not so much about sanctions. Nor is it about a requirement on the authorities to take or not to take “operational measures” to protect the applicant from a “real and immediate risk to [his] life” (see paragraph 37 of the judgment), although importance could also be attached to such “measures”. It is, first and foremost, about the Member State ’ s attitude towards incitements to kill any human being, however reproachable that person ’ s activities may be and however well-grounded society ’ s anger against him or her may be.

The majority were satisfied that the applicant has not shown that “there was a real and immediate risk to [his] life” which the authorities would have had to prevent. This satisfaction illustrates that there is nothing new under the Sun and the perpetual nature of the problem, observed even by Plato in his day, that courts care not about truth but about proof. Still, it is not at all clear as to how the applicant could “show” i.e. prove, that his concerns were not the product of a fertile imagination but something realistic, because Mr I.E. did not provide him (or anyone else) with the list of “patriots” who, “of course”, had “to do this” and did not indicate the location of the ambush where some “patriot” will lurk for the applicant.

The requirement that a potential victim of assassination must always prove that the risk to his life is “real” and “immediate” places far too heavy a burden of proof on a person who has been turned into what can probably be described as a human target at large.

The phrase “real and immediate risk”, so extensively used in the Court ’ s case-law following the formulation of the so-called “Osman test” (see Osman v. The United Kingdom [GC], no. 23452/94, Reports 1998-VIII), is not the best choice of words, at least if the words “real” and especially “immediate” are interpreted literally and hereby narrowly, as is sometimes the case. ( On the need to review the “Osman text” in the context of cases related to domestic violence, see the concurring opinion of Judge Pinto de Albuquerque in Valiulienė v. Lithuania (no. 33234/07, 26 March 2013), wherein it is stated that “the duty to act arises for public authorities when the risk is already present, although not imminent”. ) In my opinion, this phrase ’ s American counterpart, a “clear and present danger”, is more felicitous.

For, as dictionaries expound, “real” is not all that can ( sic! ) happen, i.e. not everything that is “realistic”. “Real” is something very restrictive: this word means something which is “not false or artificial” but “exists in the physical world, not just in someone ’ s imagination or stories”, whereas “realistic” is a somewhat broader term which means “based on facts and situations as they really are” (see, for example, Macmillan Dictionary ). “Real risk”, if this notion is dogmatically taken word for word, is an oxymoron: “risk”, by definition, is always a probability, even if a high one. So “risk” cannot be “real”, it can be only “realistic”, or, to borrow from the U.S. Supreme Court lexicon, “present”.

As to the word “immediate”, i.e. the second element of the “real and immediate risk”, this word, as juxtaposed to “clear”, means “instant”, or “occurring at once”. However, even Mr I.E. probably did not expect that the “patriots” would show up and “do this” on the following day or even the following month after publication. Hence, this showing up did not necessarily have to be “immediate” in order to be “real”, that is, to “materialise”, to use the Osman language (cited above, § 116). The clock is ticking.

In general, are killings incited by publications only a fictional reality, a mere fantasy? Or are they, at least to a considerable extent, realistic? In the Turkish context, if an article could trigger the assassination of an author or an editor (compare Dink v. Turkey , nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, 14 September 2010), why, in principle, can a publication not trigger the assassination of someone against whom that publication is directed and who is singled out by the statement: “Turk, here is your enemy”?!

I repeat: the clock is ticking. It will continue to tick, until the “correct result” (alas, not in a legal procedural sense) which Mr I.E. did his best to imply that he hoped for is brought about. If there is no danger to the applicant ’ s life, and to the lives of the other nineteen persons listed by Mr I.E., why was there a need (in my opinion, a genuine need!) to anonymise, by citing only initials, the names of those nineteen persons in the judgment when reproducing the text of Mr I.E. ’ s article (see paragraph 10 of the judgment)?

7. The majority, while finding that there was no violation of Article 2 of the Convention, nevertheless fou nd it important, in paragraph 35 of the judgment, to insert the caveat that the conclusion that “[t]he circumstances of the present case do not ... engage the State ’ s positive obligation under Article 2 of the Convention ... should not be interpreted as an endorsement of the decisions of the domestic judicial authorities, namely the Bolu public prosecutor, the Dücze Assize Court and the Court of Cassation”.

This is nothing less than an acknowledgment that something is wrong with these decisions. Not only morally, but legally wrong, otherwise why should it be included in the Court ’ s judgment, a legal text?

So what? This non-endorsement caveat is a dictum . Nothing more. Use the Wambaugh ’ s Inversion Test – remove the caveat, and the operative part of the judgment will be the same: no violation. In an analogous forthcoming case a similar caveat can be added again, and in yet another one – one more, and so on ... until some human target will be able to “show”, by losing his or her life, that the danger was “real”. Post factum.

Because what the caveat claims not to endorse, the operative part of the judgment in fact does endorse.

By this judgment the lamp has been rubbed, and the genie is about to appear. This is by no means a good genie from a fairy-tale. This is the genie of venom and hatred, one who suggests to a self-proclaimed “patriot” that he, as well as his like-minded compatriots, have been deprived of what used to be but is no longer “a State”, and hands over to them a license to kill.

8. Many of Bob Dylan ’ s stanzas are polysemantic, including probably this one (“License to Kill”, from “Infidels”, 1983, Columbia Records):

Now, he ’ s hell-bent for destruction, he ’ s afraid and confused

And his brain has been mismanaged with great skill

All he believes are his eyes

And his eyes, they just tell him lies.

But there ’ s a woman on my block

Sitting there in a cold chill

She say who gonna take away his license to kill?

The Turkish public prosecutor, then the two courts in that State, and now this Court have had the opportunity to “take away” this license, by ruling against the “mismanagement of brains” of a person (and potentially more than one person!) who, upon incitement, may feel that it is he who must do what Mr I.E. suggested a “patriot” should do. “To do this”.

That opportunity has been missed. Instead, “great skill” has been employed to convince us that nothing happened, either in law or in life, merely that an “opinion” has been expressed.

I am not convinced.

As always in life, nothing happens until it happens.

“In the beginning was the Word” (John 1:1). The sentence is about creation. But it appears that the same can equally be said about destruction. A “word” which calls for the destruction of persons must not be considered as an “opinion” which is protected by the Convention. And the State has an obligation to do its utmost not to allow such “opinions” to materialise. Which means, as a conditio sine qua non , that it must not tolerate them.

As long ago as 1170, long before the Convention came into existence and before the “freedom to hold opinions and to receive and impart information” (Article 10 of the Convention) had been invented, the effects of the destructive power of a word were experienced by one Thomas Becket. King Henry II allegedly asked: “Who will rid me of this troublesome priest?” (although historians disagree as to the exact wording of what was said). There were some present who listened and heard – and who took the rhetorical (?!) question seriously. And Becket was no more.

9. To sum up, I sincerely hope that the applicant requests, under Article 43 of the Convention, that this case be referred to the Grand Chamber. This case raises not only “a question affecting the application or interpretation of the Convention”, but also “a serious issue of general importance”. It is in fact the most “serious issue of general importance” not only to block the route which would lead to the lynching of a specific individual, but, more broadly, in order to signal disapproval of lynch-urging language in general, which cannot and does not enjoy protection under the Convention. The non-endorsement caveat (see paragraph 7 above), toothless and pussyfoot, is no barrier at all on this route. If the judgment in the present case remains as it stands now, those who think of themselves as of having a right to decide who has to be labelled the next human target will not be stopped. Nor will those whose brains they mismanage.

[1] 1. An illegal armed organisation.