Application no: 23168/94
The applicant wrote an anthology of poems on the Kurdish rebellion. He was charged for disseminating propaganda against the individisibilty of the State and sentenced to prison and also received a fine. The ECtHR contextualized the poems in the sensitivity of the security situation in South-East Turkey but held that regardless of some aggressive words, the fact that they were artistic in nature and of limited impact made them less a call to an uprising than an expression of deep distress in the face of a difficult political situation. As such, it found a violation of Article 10.
Date: 8 July 1999
Description of Applicant: Psychologist/Poet
Brief Description of Facts: The applicant, a Turkish national of Kurdish origin, wrote poems. One of his anthologies, with the title ‘Dersim – Folk Song of a Rebellion’ was published in Istanbul He was prosecuted for disseminating propaganda in his poetry against the indivisibility of the State. He was sentenced to one year and one month’s imprisonment and a fine. Samples of his poetry include:
… let us go children of the unyielding we have heard there is a rebellion in the mountains can we hear and do nothing? let the festivities and celebrations begin let flames as high as the rooftops reach for the sky so that before the day’s end the cannons fall silent venerable Kurdistan beautiful Kurdistan Kurdistan our friend
The public prosecutor accused the applicant and his publisher for disseminating propaganda against the indivisibility of the State. The applicant was sentenced to one year and eight months’ imprisonment and a fine of 41,666,666 Turkish Lira. It also ordered the confiscation of the publications concerned. A new law was passed that led to the reduction of his prison sentence to one year, one month and ten days imprisonment and increased the fine to TRL 111,111,110.
(Alleged) target(s) of speech: Turkish State
Court’s assessment of impugned speech: The Court found that although the sensitivity of the security situation needs to be taken account, the nature of the speech, namely poetry which is artistic but also reaches a small audience plus the nature and severity of the penalty imposed meant that there was a violation of Article 10.
Important paragraph(s) from the judgement:
Para.44: The Court considers that, having regard to the sensitivity of the security situation in south-east Turkey and to the need for the authorities to be alert to acts capable of fueling additional violence, the measures taken against the applicant can be said to have been in furtherance of certain of the aims mentioned by the Government, namely the protection of national security and territorial integrity and the prevention of disorder and crime. This is certainly true where, as with the situation in south-east Turkey at the time of the circumstances of this case, the separatist movement had recourse to methods which rely on the use of violence.
Para.49: The work in issue contained poems which, through the frequent use of pathos and metaphors, called for self-sacrifice for “Kurdistan” and included some particularly aggressive passages directed at the Turkish authorities. Taken literally, the poems might be construed as inciting readers to hatred, revolt and the use of violence. In deciding whether they in fact did so, it must nevertheless be borne in mind that the medium used by the applicant was poetry, a form of artistic expression that appeals to only a minority of readers.
Para.52: The Court observes, however, that the applicant is a private individual who expressed his views through poetry – which by definition is addressed to a very small audience – rather than through the mass media, a fact which limited their potential impact on national security, public order and territorial integrity to a substantial degree. Thus, even though some of the passages from the poems seem very aggressive in tone and call for the use of violence, the Court considers that the fact that they were artistic in nature and of limited impact made them less a call to an uprising than an expression of deep distress in the face of a difficult political situation.
ECHR Article: Article 10
Use of ‘hate speech’ by the Court in its assessment?