Article 10 Paper Outline
European Court of Human Rights: Prof. Janis
Focus: Restrictions on Freedom of Expression as Outlined in Article 10(2)
First Case- Ucdag v. Turkey
Facts
The applicant is one Resul Ucdag, a Turkish resident of the city of Diyarbakir,
Turkey. At the time in question, Ucdag was employed as an imam at a local
mosque in the Sur district of Diyarbakir.
June 2016. Diyarbakir prosecutor’s office charged Ucdag with an offense of
dissemination of propaganda in support of a terrorist organization. The
organization in question was the Worker’s Party of Kurdistan (PKK); a group
recognized as a terrorist organization and an illegal armed group by Turkey, the
EU, and the USA.
The offense in question relates to two texts Ucdag posted on Facebook in 2015
and 2016. Prosecutor claims the texts amounted to propaganda for the PKK;
which condoned, praised, and extolled the organization and its illegal methods of
violence and threats.
The posts included two photographs, of individuals with PKK uniforms, and a
crowd demonstrating in a public street. Both these posts were shared through
Facebook, with several other individuals.
March 2017. The Diyarbakir 5th Assize Court found Ucdag guilty of the offense.
He was sentenced to 1 year, 6 months, and 22 days of imprisonment.
The applicant’s appeal was dismissed on April 7th of that same year. The
application was not notified, his lawyer attended the registry of the Court, and
was handed a copy of the decision on February 14, 2018.
February 2018. Ucdag lodged an application with the Constitutional Court;
claiming that he obtained notification of the appeal decision almost one year later.
He also presented a voucher drawn up by the Assize Court registry certifying that
the decision had been given to his lawyer at that latter date.
The Constitutional Court declared the application inadmissible as being out of
time; considering it had not been lodged within the 30-day limit imposed by the
domestic law. (Law no. 6216)
Complaint
Article 6 (Right to a Fair Trial)
Ucdag raises an issue that ht erection of his individual application by the
Constitutional Court for failure to comply with the 30-day limit proscribed by the
domestic law.
Article 10 (Freedom of Expression)
Ucdag complains that his right to freedom of expression had been violated by the
criminal proceedings and sentencing.
Court’s Judgement
Court noted that the Constitutional Court had declared Ucdag’s application
inadmissible as being out of time without explaining why it had considered it as
so, and the manner it calculated the time limit for this case in particular.
The court found that in deciding that the application was out of time, the
Constitutional Court had displayed excessive formalism. Which led to an unjust
imposition on Ucdag; and unfair and onerous duty of diligence. It ignored the
specific and particular of the case, and inflicted upon Ucdag the failure of the
authorities to notify him of the decision, even when they had been instructed to
do so.
Requiring Ucdag to lodge his application within a 30-day period, preceded by a
90-day period in which the Court prepared a finalization entry, would create the
time limit dependant on a factor that was unknown to Ucdag, and of which he had
no control or influence.
The court, therefore, considered that the right to lodge an application should
begin at the time the application might have actually known of the final decision
by the Court.
The Court held that the Constitutional Court’s strict interpretation of the time limit
disproportionately interfered with UCdag’s ruth to an assessment of the individual
merits of his case. Therefore there was a violation of Article 6 Section 1 of the
convention.
In regards to Article 10, the Court noted that the Facebook contents on which the
authorities had based their conviction had originally been posted by other users.
The first photograph showed two members of the People’s Protection Units, an
organization with alleged ties to the PKK. The second photograph, showed a
group of protestors lighting a fire in the streets. It was accompanied by a
comment, which allegedly invited users to share the image in order to support
protests in the city of Diyarbakir (Ucdag’s place of residence).
In its original decision, the 5th Court had only pointed out that the contents in
question had been such as to incite violence, glorify the actions, or condoned and
encouraged the actions of a terrorist organization. As such he had committed the
offense of disseminating terrorist propaganda. In the appeal the 6th Court verified
the conditions, but nothing more.
Court considers that the decisions lack any appropriate examination and
explanation as to why the contents were interpreted to praise, condone and
encourage, the methods and actions of the terrorist organization, in the context of
sharing the posts.
Court noted that in subsequent cases; the 5th Court used the reasoning of this
case. And they failed to account for the principles established with Article 10,
concerning written statements presented as fuelling or justifying violence. They
had not adequately explained how the sharing of the posts could be considered,
with their content and context, as compromising increments to the use of
violence. They failed to conduct an in-depth analysis of all the criteria the Court
sets forth in Article 10.
The authorities failed to conduct an appropriate balancing exercise, in keeping
with the criteria set out in previous decisions. This balance between the
individual's right to freedom of expression and the legitimate aims pursued by the
authorities (national security, preventing disorder and crimes, etc..).
The government thus failed to demonstrate that the gourds relied upon by the
authorities to justify restricting the freedom of expression of Ucdag was
insufficient to demonstrate that it had been necessary for a democratic society,
and thus was a violation of Article 10.
Second Case- Surek and Ozdemir v. Turkey (Necessity Principle)
Facts
An interview with the second-in-command of the Kurdistan Workers' Party, as
well as a joint declaration by four Kurdish groups, was published by Kamil Sürek
and Yücel Ozdemir (principal shareholder and chief editor, respectively, of the
Turkish weekly review Haberde Yorumda Gerçek).
The PKK and the four organizations were recognized as terrorist organizations by
the Turkish government at the time.
The interview focused on the US position on the Kurdish people's status and the
PKK's perspective on Turkey's quickly shifting political landscape.
The bulk of Kurdish people live in Turkey, which the interviewer referred to as
Kurdistan. Part of the joint declaration, which appeared in a later edition, read:
“Let us unite against State terrorism, against the repression and
oppression of the Kurdish people, against the massacres, the street
killings, the dismissals, and unemployment; let us unite and step up our
efforts for freedom, democracy, and socialism!’ Such is the heading of the
appeal in which it is stated that the only means of action for the ruling
classes is that of force and violence … The State terrorism and street
executions, carried out by the [State Intelligence Organization] agents,
contra-guerrillas and special squads, must stop immediately and they
must be called upon to account for the massacres and murders.”
June 1992. The Istanbul National Security Court ordered the seizure of all copies
of the relevant issues of the review.
Soon after, under Turkish anti-terrorism laws, Sürek and Ozdemir were accused
of disseminating propaganda against the State's indivisibility. Both were found
guilty, with Sürek receiving a fine and Ozdemir receiving a fine and six months in
prison.
Sürek and Ozdemir filed an application with the European Court of Human Rights
after an unsuccessful appeal to the Court of Cassation.
Court’s Judgement
The Court focused on whether the prosecution and convictions of the applicants
were “necessary in a democratic society”.
In order to assess whether there is a pressing social need for a restriction on the
right to freedom of expression, it “must look at the interference in the light of the
case as a whole, including the content of the impugned statements and the
context in which they were made. In particular, it must determine whether the
interference in the issue was ‘proportionate to the legitimate aims pursued and
whether the reasons adduced by the national authorities to justify it are ‘relevant
and sufficient.’”
The Court went on to note the importance of the media in a democratic society,
emphasizing that “while the press must not overstep the bounds set, inter alia, for
the protection of vital interests of the State such as national security or territorial
integrity against the threat of violence or the prevention of disorder or crime, it is
nevertheless incumbent on the press to impart information and ideas on political
issues, including divisive ones.”
The Court also emphasized that restrictions on "political speech or discussion on
matters of public interest" are limited under Article 10 of the Convention, and that
"the boundaries of acceptable criticism are wider in reference to the government
than in relation to a private individual or even a politician."
In light of these considerations, the Court first pointed out that the fact that the
interviews were conducted by a member of a designated terrorist group was
insufficient to warrant the prosecution.
Second, while the PKK commander expressed antagonism toward the Turkish
government, the Court found that the texts as a whole did not promote violence
or hatred.
The Court further explained that while it understood the government's concern
about words and actions that could worsen the country's security situation, it also
had to consider "the public's right to be informed of a different perspective on the
situation in south-east Turkey, regardless of how unpalatable that perspective
may be for them."
Finally, the Court determined that the hefty monetary penalties, as well as the
six-month prison sentence, were excessive.
The Court determined a violation of the right to freedom of expression based on
the aforementioned reasons.
Paper Outline
➔ Ucdag v. Turkey
➔ Surek and Ozdemir v. Turkey
➔
➔ Admissibility under Article 10 in general
➔ Examination of the Court’s Article 10 Analysis
◆ Whether there was an interference with the exercise of the freedom of the right of
expression and the forms of interference
◆ Legitimacy tests
● Lawfulness and Interference Test
● The legitimacy of the aim pursued by the interference test
● The necessity of the interference in a democratic society test
○ Existing or pressing social need
○ Analysis of the nature and severity of the sanctions
○ Least restrictive measures
○ Requirement of relevant and sufficient reasons
◆ The conflict between rights protected by the Convention
● Balancing with rights protected in other articles
➔ Restrictions on Freedom of Expression
◆ Necessary in a democratic society
◆ The interest of national security, territorial integrity, prevention of disorder or
crime, etc…
➔ Interest in National Security and Prevention of Disorder of Crime
◆ General principle
● The necessity of the restriction
◆ Concept of national security and public safety
◆ Scope of the restriction
◆ Prevention of Terrorism and Harm
◆ Margin of Appreciaiton
◆ Balancing of justification for interference with the right of expression
● Contribution to a debate of general interest
● Nature and content of speech; and its impact (analysis within the context
of the case)
● Separatist discourse; and publications from illegal organizations
● Gorigyinf and condoning illegal, criminal, and/or terrorist action
◆ The severity of the Sanction
➔ Previous Case History within the ECHR
◆ Examination of Article 10
● Wille v. Liechtenstein
● Yilmaz v. Turkey
● Schweizerische Radio v. Switzerland
● Cangi v. Turkey
● Perincek v. Switzerland
● Lindon v. France
● Handyside v. UK
● Stoll v. Switzerland
● Morice v. France
● Janowski v. Polan d
● Bedat v. Switzerland
● Glor v. Switzerland
● Sapan v. Turkey
◆ National Security Restrictions
● Surek and Ozdemir v. Turkey
● Barthold v. Germany
● Gormus v. Turkey
● Gozel and Ozer v. Turkey
● Karatas v. Turkey
● Leroy v. France
● Doner v. turkey
● Faruk Temel v. Turkey
● Zana v. Turkey
● Aksoy v. Turkey
● Ozgur v. Turkey
● Gozel and Ozer v. Turkey
● Perincek v. Switzerland
● Savva Terentyev v. Russia
● Feret v. Belgium
● Erdogdu v. Turkey
● Surek v. Turkey 2
● Surek v. Turkey 3
● Z. B. v. France
● Le Pen v. France
● Nix v. Germany
● Arslan v. Turkey
● Incal v. Turkey
➔ Explore the Restrictions on Freedom of Expression in other Human Rights agencies,
conventions, and entities
◆ ICJ
◆ Inter-American Court of Human Rights
◆ United States Constiutiton
➔ Comparative Analysis
◆ How politics, culture, history, and domestic systems create a different
understanding of the right of expression; and domestic laws regarding it
◆ Margin of Appreciation
◆ More or less restrictive nations regarding freedom of expression; in particular in
regards to the usage of the restrictions for national security and necessity in a
democratic society
➔ Conclusion
Compendium:
➔ Article 10
◆ https://www.echr.coe.int/documents/guide_art_10_eng.pdf
◆ https://rm.coe.int/thematic-factsheet-freedom-expression-eng/1680a235d0
◆ http://ilj.law.indiana.edu/articles/84/84_3_Flauss.pdf
➔
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National Security
◆ https://www.echr.coe.int/Documents/Research_report_national_security_ENG.pdf
◆ https://rm.coe.int/16806f5bb3
◆
Ucdag v. Turkey
◆ https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-211581%22]}
◆ file:///C:/Users/Rosanna/Downloads/Judgment%20%C3%9C%C3%A7dag%20v.
%20Turkey%20-%20conviction%20of%20an%20imam%20on%20the%20ground
s%20of%20his%20Facebook%20posts.pdf
◆ file:///C:/Users/Rosanna/Downloads/Judgment%20%C3%9C%C3%A7dag%20v.
%20Turkey%20-%20conviction%20of%20an%20imam%20on%20the%20ground
s%20of%20his%20Facebook%20posts.pdf
Surek and Ozdemir v. Turkey
◆ https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-58278%22]}
◆ https://globalfreedomofexpression.columbia.edu/cases/surek-ozdemir-v-turkey/
General Articles
◆ https://strasbourgobservers.com/2021/10/12/its-just-a-prank-bro-zb-v-france-anda-dark-humour-that-turned-sour/
◆ https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22002-13388%22]}
◆ https://www.article19.org/resources/european-court-of-human-rights-contradictory
-rulings-in-two-key-free-expression-and-terrorism-cases/
Scholarly Articles
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