JOINT DISSENTING OPINION OF JUDGES POWER AND GYULUMYAN

The criminal prosecution of the applicants as owner and editor-in-chief of a daily newspaper, the imposition upon them of a heavy financial penalty and the closure of their newspaper for three days constituted, in our view, a violation of Article 10 of the Convention and we voted in favour of such a finding. Their newspaper published declarations of detainees who called for support and resistance in their campaign against what they regarded as an oppressive and dehumanising prison regime. In their unsuccessful appeal against conviction before the domestic courts, the applicants claimed that they exercised their duty to impart political opinions and that the declarations published did not incite violence or harm national security.

Freedom of the press is a value to be guarded, jealously, in a democratic society. For the flourishing of the common good of that social order, many journalists work in difficult situations and often at great personal risk. Whilst assassinations and disappearances of journalists who impart politically controversial opinion indicate the collapse of democratic order, their criminalisation undermines its very foundations. Given their critical function in the maintenance of democracy, the pre-eminent role of the press as “public watchdog” has been acknowledged, repeatedly, by this Court . [1] Thus, i t has held that due to its “chilling effect” upon the profession, there can be no justification whatsoever for the imprisonment of journalists who are alleged to have defamed within the context of a debate on matters of public interest . [2] In certain cases, the fact alone of a criminal conviction of a journalist, even if minor, can be considered excessive . [3]

While the “closest scrutiny” of an impugned expression is required to see if it could be integrated within a public interest debate [4] even a cursory examination of the declarations in this case demonstrates that the matters in question - the nature and conditions of prisoners ’ detention - are issues of obvious public concern . The detainees ’ “fundamental requests” included the abolition of “F” Type prison cells, the reinstatement of prisoners ’ rights, the abrogation of an anti-terrorism law, the abolition of state security courts and the bringing to trial of torturers and perpetrators of massacres. Their grievances bear a remarkable resemblance to matters that come, not infrequently, before this Court. The potential vulnerability of prisoners, as a specific social group, is frequently acknowledged in Strasbourg and without the press one wonders how otherwise their voices might be heard?

It appears from the reasoning of the majority, that the problem is not with the prisoners ’ goals per se but rather with “ the wording of the overall message ”, namely, their willingness to die for their convictions and their call for support in their resistance. The majority considers that the message conveyed by the newspaper was “ not a peaceful one ” and that it went beyond “ a mere criticism ” of the new prison system (§ 28). Such a consideration is disquieting. ‘ Watchdogs ’ are not meant to be peaceful puppies; their function is to bark and to disturb the appearance of peace whenever a menace threatens. A new and, in our view, a dangerous threshold in the protection of free speech has been reached if expression may be suppressed, lawfully, because it is neither “peaceful” nor confined to “mere criticism”. Such qualifications are new conditions precedent to the right to exercise such freedom and are not reflected in this Court ’ s case law.

There was nothing peaceful in the “virulent remarks” describing the Turkish government ’ s actions as “terror” and part of a “special war” against “the Kurdish people” in the case of Incal v Turkey . Nevertheless, the Court found that such words could not “be taken as incitement to the use of violence, hostility or hatred” ( § 50) and held that the criminal prosecution of the applicant was a disproportionate interference with the right to freedom of expression. By contrast, the majority in this case, without citing, by way of example, one violent word or any call to aggression, finds that the “ overall message ” was not peaceful and that the newspaper provided “ an outlet to stir up violence and hatred ”. The declarations were, undoubtedly, marked by a strong sense of passion, resolve, conviction and determination. They were, indeed, a rallying call for support and resistance but their authors (however well or misguided they may have been) did not advocate violence, injury or harm to any person. As such, there was no clear and pressing danger that required such a radical interference as the criminal prosecution of the applicants.

The majority rely upon what they describe as “ a similar case ” in which the Court has already expressed its concern about the making of such declarations “at a time when serious disturbances had taken place in several prisons”. The case cited as authority for their finding in this case is distinguishable on it s facts, timing and context and on the proportionality of the interference involved. The Court in Falakaoğlu and Sayg ı l ı (cited in § 25 of the judgment) came to its conclusion that there was no violation of Article 10 because the impugned publication was made in the aftermath of what were then recent and serious disturbances in prisons. By contrast, the publication in the instant case took place two months before any such disturbances had occurred. The majority considers that “ there were indeed reasons to fear for violent reactions and thus to be reticent in view of the events that had taken place in the prisons in less than two months after the publication of the impugned declarations ” (§ 28). How, one wonders, were the publishers to know in October 2000 that there were reasons for them “to be reticent” in view of events that were to take place the following December?

In this regard, it should also be pointed out that the disturbances in question were not caused when the readership of Yeni Evrensel descended en masse upon the prisons inspired so to do by the rallying call in the published declarations. Rather, the events occurred when members of the security forces entered, simultaneously, into twenty penitential centres in which the hunger strikers were detained and violent clashes erupted between them and the protesting prisoners.

The threshold of the “necessity” test of state interference with freedom of expression is not equivalent to nor does it have the latitude associated with such notions as “tolerable”, “acceptable” or “reasonable”. Necessity implies the existence of a “ pressing social need ” not a “possible” one . [5] Thus, the fact that social disturbances occur some two months after an article is published, cannot be used to justify radical state interference in a protected Convention right as exercised two months prior to such events.

The majority, through a process of retrospective reasoning, impute a causal connection between a publication in a daily newspaper in October 2000 and subsequent events in prisons the following December. The logic of their position would require the press not just to look over its shoulder to ensure that its publications do not add fuel to flaming fires. They must, in addition, look into the future to try to ascertain whether a fire might some day occur and, if so, whether their publication could be identified as one of a number of matches that may be accused of having caused it! Such a burden places an unworkable restriction upon the freedom of the press and jeopardises the protection of a fundamental value in a democratic society. There is nothing in the case law of this Court to justify the imposition of such a restriction.

Finally, the majority ’ s conclusion, in our view, is difficult to reconcile with this Court ’ s finding in Thoma v Luxembourg [6] in which the Court reiterated that punishing a journalist for assisting in the dissemination of statements made by another person would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there were particularly strong reasons for doing so. We find no such reasons in this case.

[1] . Dalban v. Romania [GC], no. 28114/95, § 49, ECHR 1999 ‑ VI; Castells v. Spain , 23 April 1992, § 43, Series A no. 236.

[2] . CumpÇŽnÇŽ and MazÇŽre v. Romania [GC], no. 33348/96, § 116, ECHR 2004 ‑ XI.

[3] . Scharsach and News Verlagsgesellschaft v. Austria , no. 39394/98, § 32, ECHR 2003 ‑ XI.

[4] . Incal v. Turkey , 9 June 1998, § 46, Reports of Judgments and Decisions 1998 ‑ IV.

[5] . Lingens v. Austria , 8 July 1986, §§ 39-40, Series A no. 103; Sunday Times v. the United Kingdom (no. 2) , 2 6 November 1991, § 50, Series A no. 217.

[6] . N o. 38432/97, § 62 , ECHR 2001 ‑ III .