The conviction of a publisher because of the content of a book by a Kurdish politician insulted a former President of the Republic, violated his right to freedom of expression. Insufficient grounds for the conviction.
JUDGMENT
Önal v. Turkey 02.07.2019 (no. 44982/07)
SUMMARY
Book publisher. Critisims of a Former Turkish President in the content of a published book of a Kurdish politician. Condemnation of the publisher for defamation. Inadequate reasoning.
The applicant is the owner of a publishing house that published a book – an autobiography by a Kurdish politician and entrepreneur, stating that former Turkish President Shuliman Demirel had been involved in criminal activities. The domestic courts convicted him of a criminal offense and imposed a fine on him under a law providing for increased protection for public figures.
The European Court of Human Rights has held that there has been a violation of freedom of expression because increased protection by a special law on defamation of public figures is in principle not in line with the spirit of the ECHR since any conviction can have a deterrent effect on the freedom of expression of the convicted person, the proportionality of the balance between the applicant’s right to that right and the legitimate aims pursued has not been respected, with result the criminal conviction imposed is not proportionate to the legitimate purposes pursued and necessary in a democratic society within the meaning of Article 10 of the Convention.
Strasbourg also dealt with the brief justification of the conviction that considered it inadequate. The reasoning of the national court that the passages of the book exceeded the limits of criticism and offended the President of the Republic was not sufficient for the conviction.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Ahmet Önal, is a Turkish national who was born in 1956 and lives in Istanbul.
The case concerned the applicant’s conviction on account of a book published by his publishing
house.
In December 1999 the publishing house owned by Mr Önal issued the biography of Hüseyin
Baybaşin, a businessman of Kurdish origin who was accused of drug trafficking and membership of
the PKK (the Kurdistan Workers’ Party).
On 22 March 2000 the Beyoğlu public prosecutor charged the applicant with insulting the President
of the Republic and denigration of the Republic and of the State security services on account of the
contents of the book in question. On 7 February 2006 the Beyoğlu Assize Court convicted Mr Önal as
charged and ordered him to pay a fine, in application of Articles 158 § 1 and 159 § 1 of the Criminal
Code, considered to be more favourable to the applicant than the provisions of the new Criminal
Code, which had entered into force on 1 June 2005. On 3 April 2007 the Court of Cassation upheld
the Assize Court’s judgment.
The applicant alleged that his conviction had constituted a breach of his right to freedom of
expression, protected by Article 10.
THE DECISION OF THE COURT…
The Court reiterates the principles stemming from the case-law on the protection of privacy and freedom of expression; points out that in this case the applicant was convicted of insulting the President of the Republic for certain extracts of the book in question relating to the a decision by the Assize Court, which attributes to former President Sulejman Demirel serious criminal activities.
The Court recalls, first of all, that these are the claims directly to the person of the former President as a politician and not to him personally. It recalls in this connection that the limits of permitted criticism are wider for a politician described as such than a private individual. The difference with the second is that the first is inevitably exposed to a careful control of his actions by both journalists and the mass of citizens and must show greater tolerance.
The Court then noted that the relevant passages in the book did not jeopardize the private life of the former President of the Republic.
It observes that, in the present case, these allegations constituted real statements against Süleyman Demirel. It observes that it is not apparent from the content of the case file that those allegations had sufficient factual basis.
However, it believes that these passages of the book may be considered to be within the framework of the general interest debate, in particular in some alleged actions of the former President, which, if proven true, could lead to the criminal responsibility of the former for political choices as well as the way in which he exercised power. The discretion which the authorities had to assess the ‘necessity’ of the sanction against the applicant is therefore very limited.
Furthermore, the Court found that, in order to condemn the applicant, the national courts relied on Article 158 CC. Like the current section 299 of the ASC, this provision, as in force at the time of the act, gave the President of the Republic a higher level of protection than other persons – protected by the common denomination regime – in disclosing information or views concerned and provided for stricter penalties for the perpetrators of defamatory statements.
In this context, the Court has already stated that increased protection by a special law on an infringement is in principle not in line with the spirit of the Convention.
As regards, in particular, the criminal sanction for the insult of the President of the Republic, the Court considers that persons holding public office in the State and representing the competent authorities as guarantors of the public order institution must be self-restrained in the use of criminal proceedings. In this context, the Court recalls that the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the measure.
Thus, the assessment of the proportionality of an intervention to the rights protected by Article 10 depends in many cases on the question of whether the authorities could use a means other than a criminal sanction, such as recourse to civil proceedings.
The Court also recalls that, even where the penalty is as moderate as possible, such as a penalty involving the exemption from criminal penalties and a simple obligation to pay a ‘symbolic amount’, it is nevertheless a criminal sanction and, in any event, is not sufficient to justify the applicant’s right of expression.
It has repeatedly stressed that the violation of freedom of expression may have a deterrent effect on the exercise of this freedom.
In view of the above, the Court considers that nothing in the circumstances of the present case can justify the imposition of a criminal sanction. By its very nature, such a penalty has an inevitably deterrent effect, despite its modest rigor, especially in view of the consequences of the conviction and the serious impact on the applicant because it has a white criminal record.
Lastly, considering the decision of the national court in the present case, the Court finds that, in order to condemn the applicant for the offense of offending the President of the Republic, that court simply held that the relevant passages of the book exceeded the limits of the criticism and offends the President of the Republic. Such a brief reasoning, which fails to take account of any of the above considerations, does not enable the Court to show that in the present case the national court has carried out a sufficient review of the balance between the applicant’s right to freedom of expression and the legitimate aims pursued, with the criteria set out in his case.
Accordingly, in the circumstances of the present case, given the lack of a proper balance and in accordance with the criteria laid down in the case-law of the Court of Justice, the interests involved, and in particular the lack of control of the proportionality of the criminal penalty, a provision providing for increased protection for the President of the Republic for press crimes, the Court considers that it has not been proven to be proportionate to the legitimate aims pursued and is necessary in a democratic society within the meaning of Article 10 of the Convention.
In the light of all of the foregoing, the Court concludes that there has been a violation of Article 10 of the Convention in the present case.
Violation of article 10
Just satisfaction: EUR 680 for pecuniary damage and EUR 2,500 for non-pecuniary damage(echrcaselaw.com).
