Application Number 26682/95
European Court of Human Rights
The applicant was a major shareholder of a company that owns a weekly review. In 1992 two letters were published in the review which were deemed by the Turkish authorities to disseminate propaganda against the indivisibility of the State and provoke enmity and hatred among the people. The ECtHR found no violation of Article 10, noting the turbulent situation in South-East Turkey and the issue of terrorism in the region. It held that the letters constituted hate speech and a glorification of violence.
Theme(s): Violence, terrorism
Date: 8 July 1999
Description of applicant(s): Major shareholder of company which owns a weekly review.
Brief description of facts: At the material time, the applicant was the major shareholder of a Turkish limited liability company which owns a weekly review entitled Haberde Yorumda Gerçek (“The Truth of News and Comments”), published in Istanbul. In a 1992 issue, two readers’ letters entitled ‘weapons cannot win against freedom’ and ‘its our fault’ were published. Excerpts of letters below:
(a) Weapons cannot win against freedom
In the face of the escalating war of national liberation in Kurdistan, the fascist Turkish army continues to carry out bombings. The ‘Şırnak massacre’ which Gerçek journalists revealed at the cost of great self-sacrifice has been another concrete example this week.
The brutalities in Kurdistan are in fact the worst that have been experienced there in the past few years. The massacre carried out in Halepçe in southern Kurdistan by the reactionary BAAS administration is now taking place in northern Kurdistan. Şırnak is concrete proof of it. By causing provocation in Kurdistan, the Turkish Republic was heading for a massacre. Many people were killed. In a three-day attack with tanks, shells and bombs, Şırnak was razed to the ground.
b) It is our fault
The TC (Republic of Turkey) murder gang is continuing its murders … on the grounds of ‘protecting the Republic of Turkey’. But as people wake up to what is happening and become more aware, as they gradually learn to stand up for their rights and the idea that ‘if they won’t give, then we’ll take by force’ gradually germinates in people’s minds and grows stronger day by day – as long as this continues, the murders will obviously also continue … Beginning of course with those who planted the seed in people’s minds – according to the generals, imperialism’s hired killers, and according to the double-chinned, pot-bellied, stiff-necked Turguts, Süleymans and Bülents …
In an indictment, the public prosecutor at the Istanbul National Security Court charged the applicant in his capacity as the owner of the review, as well as the review’s editor, with disseminating propaganda against the indivisibility of the State and provoking enmity and hatred among the people. The applicant was fined and the editor of the review was sentenced to a fine and imprisonment. Apart from a reduction in the fine, his appeals were unsuccessful at a national level.
(Alleged) target(s) of speech: Turkish State
The Court’s assessment of the impugned speech: The Court found that the speech in the letters constituted hate speech and a glorification of violence. The fact that the applicant was a shareholder rather than an editor made no difference to the Court since it deemed him to be in a position to shape the editorial mandate of the weekly review. As a result, the Court found no violation of Article 10. The Court placed its analysis in the framework of the turbulent situation in South East Turkey and the terrorism associated with that.
Important paragraph(s) from the judgment:
Para. 62: The Court will have particular regard to the words used in the letters and to the context in which they were published. In this latter respect it takes into account the background to cases submitted to it, particularly the problems linked to the prevention of terrorism. It notes in the first place that there is a clear intention to stigmatise the other side to the conflict by the use of labels such as “the fascist Turkish army”, “the TC murder gang” and “the hired killers of imperialism” alongside references to “massacres”, “brutalities” and “slaughter”. In the view of the Court the impugned letters amount to an appeal to bloody revenge by stirring up base emotions and hardening already embedded prejudices which have manifested themselves in deadly violence. Furthermore, it is to be noted that the letters were published in the context of the security situation in south-east Turkey, where since approximately 1985 serious disturbances have raged between the security forces and the members of the PKK involving a very heavy loss of life and the imposition of emergency rule in much of the region (In such a context the content of the letters must be seen as capable of inciting to further violence in the region by instilling a deep-seated and irrational hatred against those depicted as responsible for the alleged atrocities. Indeed, the message which is communicated to the reader is that recourse to violence is a necessary and justified measure of self-defence in the face of the aggressor…The Court reiterates that the mere fact that “information” or “ideas” offend, shock or disturb does not suffice to justify that interference (see paragraph 58 above). What is in issue in the instant case, however, is hate speech and the glorification of violence.
Para. 63: While it is true that the applicant did not personally associate himself with the views contained in the letters, he nevertheless provided their writers with an outlet for stirring up violence and hatred. The Court does not accept his argument that he should be exonerated from any criminal liability for the content of the letters on account of the fact that he only has a commercial and not an editorial relationship with the review. He was an owner and as such had the power to shape the editorial direction of the review. For that reason, he was vicariously subject to the “duties and responsibilities” which the review’s editorial and journalistic staff undertake in the collection and dissemination of information to the public and which assume an even greater importance in situations of conflict and tension.
ECHR Article: Article 10
Decision: No violation
Use of ‘hate speech’ by the Court in its assessment? Yes:
Para.62: The Court reiterates that the mere fact that “information” or “ideas” offend, shock or disturb does not suffice to justify that interference. What is in issue in the instant case, however, is hate speech and the glorification of violence.