October 28, 2011
European Court of Human Rights Rules In Favor of Professor on Criminal Defamation Claim
Clark University Professor Taner Akçam has won a case in the European Court of Human Rights defending his right to express his opinion concerning the prosecution of a Turkish journalist under the Turkish Criminal Code that forbids "denigrating Turkishness." As a result of Professor Akçam's writing, the Turkish government filed a case against him. Dr. Akçam filed his case under Article 34 of the European Convention on Human Rights.
The Court found:
65. The Court notes that the question concerning the alleged interference with the applicant’s right to freedom of expression hinges upon the prior establishment of whether the applicant has been affected by a measure which renders him a victim of a violation of his rights under Article 10 of the Convention.
66. In this connection, the Court reiterates its established jurisprudence that in order to claim to be the victim of a violation, a person must be directly affected by the impugned measure (see Ireland v. the United Kingdom, 18 January 1978, §§ 239-240, Series A, no. 25; Eckle, cited above; and Klass and Others v. Germany, 6 September 1978, § 33, Series A no. 28). The Convention does not, therefore, provide for the bringing of an actio popularis for the interpretation of the rights set out therein or permit individuals to complain about a provision of national law simply because they consider, without having been directly affected by it, that it may contravene the Convention (see Norris, cited above, § 31).
67. However, the Court has concluded that an applicant is entitled to “(claim) to be the victim of a violation” of the Convention, even if he is not able to allege in support of his application that he has been subject to a concrete interference (see, mutatis mutandis, Klass and Others, cited above, § 38). In such instances the question whether the applicants were actually the victims of any violation of the Convention involves determining whether the contested legislation is in itself compatible with the Convention’s provisions (for the compatibility of Article 301 of the Turkish Criminal Code see under B. below). While the present case refers to freedom of expression and not to surveillance as in the Klass and Others case, where the difficulties of knowing that one is under surveillance are a factor to be considered in the determination of victim status, the applicant has shown that he is subject to a level of interference with his Article 10 rights (see paragraph 80 below) The applicant has shown that he is actually concerned with a public issue (the question whether the events of 1915 qualify as genocide), and that he was involved in the generation of the specific content targeted by Article 301, and therefore he is directly affected.
68. Furthermore, it is also open to a person to contend that a law violates his rights, in the absence of an individual measure of implementation, if he is required either to modify his conduct because of it or risk being prosecuted (see Dudgeon v. the United Kingdom, 22 October 1981, § 41, Series A no. 45;Norris, cited above, § 31, and Bowman, cited above) or if he is a member of a class of people who risk being directly affected by the legislation (see Johnston and Others v. Ireland, 18 December 1986, § 42, Series A no. 112, and Open Door and Dublin Well Woman v. Ireland, 29 October 1992, Series A no. 246-A). The Court further notes the chilling effect that the fear of sanction has on the exercise of freedom of expression, even in the event of an eventual acquittal, considering the likelihood of such fear discouraging one from making similar statements in the future (see, mutatis mutandis, Lombardo and Others v. Malta, no. 7333/06, § 61, 24 April 2007; Association Ekin v. France (dec.), no. 39288/98, 18 January 2000; and Aktan v. Turkey, no. 20863/02, §§ 27-28, 23 September 2008).
69. Turning to the circumstances of the instant case, the Court notes that the applicant claimed that he had directly been affected by the investigation which was opened against him and that there was an ongoing risk that he would be subject to further investigation or prosecution under Article 301 for his opinions on the Armenian issue. The Government, for their part, asserted that the investigation in question had been terminated by a non-prosecution decision by the local public prosecutor and that, given the legislative amendment to the text of Article 301 in 2008, there was no risk of prosecution for the expression of opinions such as those held by the applicant.
70. In view of the above, the Court must ascertain whether the investigation commenced against the applicant for his views on the Armenian issue and the alleged ongoing threat of prosecution under Article 301 of the Criminal Code constituted interference in the circumstances of the present case.
71. The Court observes that the applicant is a history professor whose research interest includes the historical events of 1915 concerning the Armenian population. He has published numerous books and articles on the Armenian issue, a subject which is considered sensitive in Turkey. He thus belongs to a group of people who can easily be stigmatised for their opinions on this subject and be subject to investigations or prosecutions under Article 301 of the Criminal Code as a result of criminal complaints that can be lodged by individuals belonging to ultranationalist groups who might feel offended by his views (see, mutatis mutandis, Johnston and Others, cited above, § 42).
72. Indeed, in the instant case, the investigation against the applicant was commenced as the result of a criminal complaint by an individual who alleged essentially that the applicant had committed the offence of denigrating Turkishness under Article 301 of the Criminal Code by his editorial opinion in the AGOSnewspaper (see paragraph 8 above). The applicant was summoned to the local public prosecutor’s office and asked to answer the criminal complaints against him (see paragraph 9 above). Even though the public prosecutor in charge of the investigation issued a decision of non-prosecution holding that the applicant’s views were protected under Article 10, this did not necessarily mean that the applicant would be safe from further investigations of that kind in the future. It appears that two other criminal complaints were lodged by individuals alleging that the applicant had denigrated Turkishness under Article 301 by his articles in the AGOS newspaper and that the investigations were terminated by decisions of the local public prosecutors not to prosecute (see paragraphs 14, 15 and 18 above).
73. The Court refers to its findings in the Dink case (cited above), where the first applicant was prosecuted following a criminal complaint lodged by an extremist group of individuals and convicted under Article 301 for his opinion on the Armenian issue, that is, for denigrating Turkishness. In the eyes of the public, particularly ultranationalist groups, Mr Dink’s prosecution and conviction was evidence that he was an individual who insulted all persons of Turkish origin. As a result of this perception or stigma attached to him Mr Dink was later murdered by an extreme nationalist (see Dink, cited above, § 107).
74. The Court notes that, as in the case of Mr Dink, the applicant has been the target of an intimidation campaign which presented him as a “traitor” and a “spy” to the public on account of his research and publications on the Armenian issue (see paragraphs 34-36 above). Following this campaign, the applicant received hate mails from a number of individuals who insulted and threatened him with death (see paragraph 41 above).
75. This being so, the Court considers that while the applicant was not prosecuted and convicted of the offence under Article 301, the criminal complaints filed against him by extremists for his views on the Armenian issue had turned into a harassment campaign and obliged him to answer charges under that provision. It can therefore be accepted that, even though the impugned provision has not yet been applied to the applicant’s detriment, the mere fact that in the future an investigation could potentially be brought against him has caused him stress, apprehension and fear of prosecution. This situation has also forced the applicant to modify his conduct by displaying self-restraint in his academic work in order not to risk prosecution under Article 301 (see, mutatis mutandis, Norris, cited above, § 31, and Bowman, cited above).
76. As regards the future risk of prosecution, the Government contended that the applicant was unlikely to suffer prejudice in the future because certain safeguards had been introduced by the amendment of Article 301 which had significantly reduced prosecutions under this provision. In this regard, they attached great importance to the fact that in order to commence prosecutions under Article 301 public prosecutors needed to obtain authorisation from the Ministry of Justice. With reference to statistical data, the Government pointed out that the large majority of these requests were refused by the Ministry of Justice, who applied the principles established in the Court’s jurisprudence in Article 10 cases (see paragraphs 27-29 above).
77. In the Court’s opinion, however, the measures adopted by the Government to prevent largely arbitrary or unjustified prosecutions under Article 301 do not seem to provide sufficient safeguards. It transpires from the statistical data provided by the Government that there are still significant number of investigations commenced by public prosecutors under Article 301 and that the Ministry of Justice grants authorisation in a large number of cases: according to the Government’s contention, between 8 May 2008 and 30 November 2009 the Ministry of Justice received 1,025 requests for authorisation to institute criminal proceedings under Article 301 and granted prior authorisation in 80 cases (approximately 8% of the total requests). The Court notes that the Government did not explain the subject matter or nature of the cases in which the Ministry of Justice granted authorisation. However, the statistical information provided by the applicant indicates that the percentage of prior authorisations granted by the Ministry of Justice is much higher and that these cases mainly concern the prosecution of journalists in freedom of expression cases (see paragraphs 30-33 above). Moreover, as noted by the Human Rights Commissioner of the Council of Europe, a system of prior authorisation by the Ministry of Justice in each individual case is not a lasting solution which can replace the integration of the relevant Convention standards into the Turkish legal system and practice, in order to prevent similar violations of the Convention (see paragraph 48 above).
78. In any event, the Court considers that even though the Ministry of Justice carries out a prior control in criminal investigations under Article 301 and the provision has not been applied in this particular type of case for a considerable time, it may be applied again in such cases at any time in the future, if for example there is a change of political will by the current Government or change of policy by a newly formed Government (see, mutatis mutandis, Norris, cited above, § 33). Accordingly, the applicant can be said to run the risk of being directly affected by the provision in question.
79. Moreover, the Court observes that the established case-law of the Court of Cassation must also be taken into consideration when assessing the risk of prosecutions under Article 301. In this connection, the Court reiterates its criticism in the Dink judgment in regard to the interpretation of Article 301, particularly the concepts of “Turkishness” or the “Turkish nation”, by the Court of Cassation (cited above, § 132). In that case the Court found that the Court of Cassation sanctioned any opinion criticising the official thesis on the Armenian issue. In particular, criticism of denial by State institutions of genocide claims in relation to the events of 1915 was interpreted as denigration or insulting “Turkishness” or the “Turkish nation” (ibid.).
80. Likewise, the Şişli Criminal Court’s conviction of the editor and owner of the AGOS newspaper of an offence under Article 301 of the Turkish Criminal Code for accusing the Turkish nation of genocide confirms the stance of the judiciary (see paragraph 13 above).
81. The Court further observes that thought and opinions on public matters are of a vulnerable nature. Therefore the very possibility of interference by the authorities or by private parties acting without proper control or even with the support of the authorities may impose a serious burden on the free formation of ideas and democratic debate and have a chilling effect.
82. In view of the foregoing, the Court concludes that the criminal investigation commenced against the applicant and the standpoint of the Turkish criminal courts on the Armenian issue in their application of Article 301 of the Criminal Code, as well as the public campaign against the applicant in respect of the investigation, confirm that there exists a considerable risk of prosecution faced by persons who express “unfavourable” opinions on this matter and indicates that the threat hanging over the applicant is real (see Dudgeon, cited above, § 41). In these circumstances, the Court considers that there has been an interference with the exercise of the applicant’s right to freedom of expression under Article 10 of the Convention.
83. For the above reasons, the Court dismisses the Government’s preliminary objection concerning the applicant’s alleged lack of victim status.
B. Whether the interference was prescribed by law
85. The applicant alleged that Article 301 of the Criminal Code did not provide sufficient clarity and failed to provide adequate protection against arbitrary interference.
86. The Government did not comment on this point since they considered that there had been no interference in the present case. However, they provided explanations regarding the concepts of “Turkishness” and the “Turkish nation”. They maintained that following the amendment of the text of Article 301 the concept of “Turkishness” had been replaced by that of the “Turkish nation”. Yet these concepts did not have any racial or ethnic connotations. They should instead be understood as referring to Turkish citizenship as defined by Article 66 of the Turkish Constitution.
87. The Court reiterates that the relevant national law must be formulated with sufficient precision to enable the persons concerned – if need be with appropriate legal advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see, among many other authorities, Grigoriades v. Greece, 25 November 1997, § 37, Reports 1997-VII). Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Whilst certainty is highly desirable, it may entail excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are a question of practice (see Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30, and Flinkkilä and Others v. Finland, no. 25576/04, § 65, 6 April 2010).
88. The Court notes that in the above-mentioned Dink judgment, the question arose whether the legal norms implied by the term “Turkishness” were sufficiently accessible and foreseeable for the applicant. While the Court expressed some doubts on this question, it preferred not to examine it in the circumstances of that case (see Dink, cited above, § 116).
89. However, the Court considers that it is required to address this question in the present case. It notes that Article 301 of the Criminal Code – and Article 159 of the former Criminal Code – had been subjected to several amendments since the adoption of the first Turkish Criminal Code in 1926. It appears that the last amendment introduced to the text of the impugned provision came after a number of controversial cases and criminal investigations brought against well known figures in Turkish society, such as prominent writers and journalists like Elif Şafak, Orhan Pamuk and Hrant Dink, for their unfavourable opinions on sensitive issues (see paragraphs 25 and 26 above). Thus, abusive or arbitrary applications of this provision by the judiciary compelled the Government to revise it with a view to bringing it into line with the requirements of Article 10 of the Convention as interpreted by the Court.
90. To that end, three major changes were introduced to the text of Article 301. Firstly, the terms “Turkishness” and “Republic” were replaced by “Turkish Nation” and “State of the Republic of Turkey”. Secondly, the maximum length of imprisonment imposable on those found guilty was reduced and considerations of aggravating circumstances were excluded. Thirdly and lastly, an additional security clause was added to the text, which now provides that any investigation into an offence defined under that provision shall be subject to the permission of the Minister of Justice (see paragraphs 43 and 44 above). It is clear from this last amendment that the legislator’s aim was to prevent arbitrary prosecutions under this provision.
91. Be that as it may, the Court must ascertain whether the revised version is sufficiently clear to enable a person to regulate his/her conduct and to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Grigoriades, cited above, § 37).
92. In this connection, the Court notes that despite the replacement of the term “Turkishness” by “the Turkish Nation”, there seems to be no change or major difference in the interpretation of these concepts because they have been understood in the same manner by the Court of Cassation (see paragraph 45 above). Accordingly, the legislator’s amendment of the wording in the provision in order to clarify the meaning of the term “Turkishness” does not introduce a substantial change or contribute to the widening of the protection of the right to freedom of expression.
93. In the Court’s opinion, while the legislator’s aim of protecting and preserving values and State institutions from public denigration can be accepted to a certain extent, the scope of the terms under Article 301 of the Criminal Code, as interpreted by the judiciary, is too wide and vague and thus the provision constitutes a continuing threat to the exercise of the right to freedom of expression. In other words, the wording of the provision does not enable individuals to regulate their conduct or to foresee the consequences of their acts. As is clear from the number of investigations and prosecutions brought under this provision (see paragraphs 28-33 and 47 above), any opinion or idea that is regarded as offensive, shocking or disturbing can easily be the subject of a criminal investigation by public prosecutors.
94. As noted above, the safeguards put in place by the legislator to prevent the abusive application of Article 301 by the judiciary do not provide a reliable and continuous guarantee or remove the risk of being directly affected by the provision because any political change in time might affect the interpretative attitudes of the Ministry of Justice and open the way for arbitrary prosecutions (see paragraphs 75-77 above).
95. It follows therefore that Article 301 of the Criminal Code does not meet the “quality of law” required by the Court’s settled case-law, since its unacceptably broad terms result in a lack of foreseeability as to its effects (see Amann v. Switzerland [GC], no. 27798/95, § 50, ECHR 2000-II; and Vajnai v. Hungary, no. 33629/06, § 46,8 July 2008).
96. The foregoing considerations are sufficient to enable the Court to conclude that the interference in question was not prescribed by law.
There has accordingly been a violation of Article 10 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
97. Lastly, the applicant alleged a violation of Article 7 of the Convention in that Article 301 of the Criminal Code was so vague and broad that an individual could not discern from its wording which acts or omissions might result in criminal liability. He maintained, lastly, that the impugned provision also breached Article 14 of the Convention because of its highly discriminatory consequences.
98. In the light of all the material in its possession, the Court finds that the applicants’ submissions do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
99. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
100. The applicant claimed 11,200 euros (EUR) in respect of pecuniary damage and EUR 75,000 for non-pecuniary damage.
101. The Government invited the Court not to make any awards in respect of pecuniary damage on account of the applicant’s failure to submit any evidence in support of his claims. The Government also considered that the claim for non-pecuniary damage was excessive and therefore unacceptable.
102. The Court observes that the applicant has not submitted any evidence to enable the Court to assess and calculate the damage suffered by him; it therefore rejects this claim.
103. As regards the applicant’s claim for non-pecuniary damage, the Court considers that the finding of a violation constitutes sufficient just satisfaction in the circumstances of the present case.
104. As to the legal costs and expenses, in the absence of any quantified claim, the Court makes no award.
Read the ECHR ruling here.
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