Application Number: 25723/94
European Court of Human Rights
The applicant was editor of a periodical entitled “The Worker’s Voice” which published an article written by a reader on the Kurdish Problem. He was charged with disseminating propaganda. The ECtHR found that the article dealt with an issue of public interest and did not incite hatred, thus finding a violation of Article 10.
Link: https://hudoc.echr.coe.int/rus#{%22itemid%22:[%22001-58607%22]}
Theme(s): Violence, terrorism
Date: 15 June 2000
Description of applicant(s): Journalist, editor of the bi-monthly periodical ‘The Workers’ Voice.’
Brief description of facts: In 1992, the periodical published an article written by a reader entitled “The Kurdish Problem is a Turkish Problem.” The public prosecutor instituted criminal proceedings against the publisher and the applicant. The prosecutor noted that in the article in question, “acts of separatist terrorism perpetrated in the south-east of the country were described as Kurdish National Resistance; part of the country, [thus] of the State of the Republic of Turkey, was called Kurdistan [and] an appeal was made for support for acts described as being of National Resistance.” He charged the defendants with disseminating propaganda, through the medium of a periodical, against the territorial integrity of the State and the indivisible unity of the Turkish nation.
Excerpts of the article relied on by the public prosecutor:
“The confrontations between Turks and Kurds in the various provinces are seen as foreseeable incidents; moreover, they are sometimes provoked by the security forces, sometimes by fascist civilians and from time to time by the ‘fundamentalists’. Consequently, the policy of favouring ‘a military solution’, which until now was implemented by means of a dirty war against [the guerrillas] has taken on a new dimension and has begun to be coupled with a destructive social policy leading to ethnic conflict in all regions of Turkey. It is very clear from this that the Kurdish problem is a general problem for Turkish society and not a problem experienced in Kurdistan and confined to within Kurdistan’s borders …”
“The only key to resolving the problem is for the Turkish people to perceive Kurdish national resistance as part of their [own] struggle for freedom and democracy … activities designed to establish fraternity between peoples in the West constitute, in themselves, one of the most important means of the struggle against the current bonds of sovereignty … The revolutionary movement in the West should henceforth ‘intervene’ in the Kurdish problem.”
The National Security Court found the applicant and the publisher guilty of the offence as charged. It also ordered the copies of the issue of the review in which the impugned article had been published to be seized. The National Security Court accordingly sentenced Erdoğdu, in his capacity as editor, to six months’ imprisonment and a fine of 50,000,000 Turkish Lira. Following an amendment to the law, the National Security Court finally gave Erdoğdu a fine of 50,900,000 Turkish Lira, which it decided to defer accordingly. Lastly, in a judgment dated 10 December 1997, the National Security Court decided to defer judgment against Erdoğdu, but to proceed to delivery if, within three years from the date of deferment, he was convicted of an intentional offence in his capacity as editor, and, lastly, that the criminal proceedings against him would be discontinued if no similar conviction was made before the expiry of that three-year period.
(Alleged) target(s) of speech: Turkish State
The Court’s assessment of the impugned speech: The Court found that the article in question was a form of political speech and that, in this framework, there was little scope under Article 10(2) for restriction. It found that the deference of the punishment was not sufficient enough to demonstrate moderate punishment since the deference was contingent upon the applicant’s behaviour. It found that the article did not incite violence but, instead, dealt with an issue of public interest.
Important paragraph(s) from the judgment:
Para. 67: That being so, the Court notes, as the Government pointed out, the use in the article of words such as “war”, “conflict”, “armed conflict”, “massacre”, “violence” and “fascist”. It observes that the first three terms – apart from the two places in which they refer to the Gulf War – refer to the confrontations relating to the fight against terrorism and the consequent social unrest; the word “fascist” refers to civilians or fundamentalist powers; the term “massacre” is used to stigmatise the domestic policies of the Turkish authorities, and lastly, the word “violence” appears in its usual meaning.
While the Court is prepared to admit that the use of such terms confers a certain virulence on the political criticism expressed by the author, it considers, however, that the impugned article can be clearly distinguished, in respect of the tone used, from the articles examined in the case of Sürek (no. 1), since, in the instant case, the Court does not find anything which can be construed “as an appeal for bloody revenge” and/or to communicate to the reader “the message that recourse to violence is a necessary and justified measure of self-defence” in the face of the Turkish State.
Para. 71: Where a publication cannot be categorised as inciting to violence, Contracting States cannot with reference to the prevention of disorder or crime restrict the right of the public to be informed by bringing the weight of the criminal law to bear on the media.
ECHR Article: Article 10
Decision: Violation
Use of ‘hate speech’ by the Court in its assessment? Yes:
Para.62: The Court also acknowledges that in situations of conflict and tension particular caution is called for on the part of the national authorities when consideration is being given to the publication of opinions which advocate recourse to violence against the State lest the media become a vehicle for the dissemination of hate speech and the promotion of violence.