Freedom of expression: a judgment recapitulating case-law on the offence of propaganda in favour of terrorist organisations

JUDGMENT

Özer v. Turkey 11.02.2020 (no. 3) (no.  69270/12)

see here 

SUMMARY

The case concerned criminal proceedings brought against Mr Özer over an article published in his
magazine. Mr Özer was prosecuted and convicted of the criminal offence of providing propaganda
for a terrorist organisation, under section 7(2) of Law No. 3713.

The Court reiterated the principles which it had established in its case-law under Article 10 of the
Convention concerning criminal proceedings initiated for the offence of propaganda in favour of a
terrorist organisation, punishable under section 7(2) of Law No. 3713.

The Court noted that the domestic courts had not taken account of all the principles established in
its case-law, given that their assessment of the case had not answered the question of whether the
impugned passages of the article in question could – having regard to their content, context and
capacity to lead to harmful consequences – be considered as comprising incitement to the use of
violence, armed resistance or rebellion, or as amounting to hate speech.

The Court therefore held that the domestic authorities had failed to conduct an appropriate analysis
having regard to all the criteria set out and implemented by the Court in cases concerning freedom
of expression, and that the Government had not demonstrated that the impugned measure had met
a pressing social need, had been proportionate to the legitimate aims pursued and had been
necessary in a democratic society.

PROVISION

Article 10

PRINCIPAL FACTS

The applicant, Aziz Özer, is a Turkish national who was born in 1964 and lives in İstanbul (Turkey).
The case concerns criminal proceedings against Mr Özer, the owner and editor of the magazine Yeni
Dünya İçin Çağrı, for the criminal offence of publishing propaganda in favour of a terrorist
organisation in his magazine.

In 2007 the Istanbul prosecutor’s office charged Mr Özer with disseminating propaganda in favour of
a terrorist organisation on account of an article published in the January 2007 edition of his
magazine.

The following year the Istanbul Assize Court found him guilty of the offence and sentenced him to 15
months’ imprisonment. The Assize Court considered in particular that some sections of the article,
which had borne the title “The Kurdish question: seeking a solution and our obligations”, had
constituted propaganda for the PKK (the Kurdistan Workers’ Party, an illegal armed organisation),
and had corresponded not to the exercise of the right to freedom of expression but to a misuse of
that freedom.

In 2012 the Court of Cassation upheld that judgment. The same year, following the entry into force
of Act No. 6352, Mr Özer was granted a three-year stay of execution of his sentence.

THE DECISION OF THE COURT…

Article 10

Recapitulation of the principles established in the Court’s case-law concerning criminal
proceedings brought on the basis of section 7(2) of Law No. 3713.

1. Principles relating to quality of the law (section 7(2) of Law No. 3713): in its case-law the Court
had noted a lack of clarity and foreseeability in section 7(2) of Law No. 3713 in its versions in force
up until 2013.

The Court had considered, in particular, that having regard to the wording of section 7(2) – in the
two versions successively in force between 2003 and 2013 – and to the manner in which the
domestic courts had interpreted that provision in order to convict the applicants, that there were
serious doubts about the foreseeability of its application. It had also held, in Belge v. Turkey
, that neither the offence of propaganda in favour of a terrorist organisation – in the version of section
7(2) in force between 2006 and 2013 – nor its interpretation by the domestic courts were entirely
clear.

2. Principles relating to the necessity in a democratic society of an interference prompted by a set
of criminal proceedings brought on the basis of section 7(2) of Law No. 3713: in its case-law the
Court had noted violations of Article 10 of the Convention on the basis of two different types of
assessment.

First of all, the Court had itself analysed the impugned documents and statements, as well as
other acts allegedly committed by the applicants. In the cases in question, it had concluded that
even though the documents, statements and alleged acts had sometimes been hostile in nature and
comprised serious criticism of the State authorities or opinions liable to be deemed favourable to
certain illegal organisations or their leaders or members, all in all they had neither contained any incitement to violence, resistance or rebellion nor amounted to hate speech, nor had they been
likely to foster violence by instilling deep-rooted, irrational hatred of identified persons.

Secondly, in some cases the Court had based its assessment on the reasoning given by the
domestic courts in their final convictions. It had, in particular, had recourse to that analytical method
where it had not been patently obvious that the impugned documents, statements or acts could not
be considered as comprising incitement to the use of violence, armed resistance or rebellion, or as
amounting to hate speech. It had held in those cases that the domestic authorities had given neither
relevant and sufficient reasons to justify the applicants’ criminal convictions, nor sufficient
explanations, in particular, concerning whether the impugned documents, statements or acts could,
having regard to their content, context and capacity to lead to harmful consequences, be considered
as comprising incitement to the use of violence, armed resistance or rebellion, or as amounting to
hate speech. The Court had further considered that the domestic authorities had failed to conduct
an appropriate analysis having regard to all the criteria set out and implemented by the Court in
cases concerning freedom of expression, or that they had not carried out an adequate balancing
exercise in conformity with the criteria laid down its case-law between the applicant’s right to
freedom of expression and the legitimate aims sought to be achieved.

In Hatice Çoban v. Turkey, the Court had also considered that, having failed to answer the relevant
arguments put forward by the applicant concerning the reliability and accuracy of the content of the
main piece of evidence which they had used to support her criminal conviction, the domestic courts
had failed in their duty to balance the competing interests for the purposes of Article 10 of the
Convention.

Finally, in other cases the Court had delivered judgments finding no violation or had declared the
application inadmissible as being manifestly ill-founded, having noted that the impugned
documents, statements or acts had fuelled or condoned violence, hatred and intolerance.
As regards the present case, the Court noted an interference with Mr Özer’s right to freedom of
expression on account of the chilling effect which the criminal proceedings, which had lasted four
years and eleven months, might have had on him; the fact of sentencing him to one year and three
months in prison; and the decision to suspend the execution of his sentence for three years. This
interference had been covered by section 7(2) of Law No. 3713 and had pursued legitimate aims
(protecting national security and public safety, and preventing disorder and crime).

As regards the necessity of the interference, the Court decided not to examine the reasoning set out
by the Turkish courts in support of their conviction of the applicant. It noted that the assessment
carried out by the domestic courts had not taken into account all the principles established in its
case-law under Article 10 of the Convention concerning spoken or written comments presented as
fuelling or condoning violence, hatred or intolerance, since that assessment did not answer the
question whether the impugned passages of the impugned article could – having regard to their
content, context and capacity to lead to harmful consequences – be considered as comprising
incitement to the use of violence, armed resistance or rebellion, or as amounting to hate speech.
Consequently, the domestic authorities had failed to conduct an appropriate analysis having regard
to all the criteria set out and implemented by the Court in cases concerning freedom of expression;
and the Government had failed to demonstrate that the impugned measure had met a pressing
social need, had been proportionate to the legitimate aims sought to be achieved and had been
necessary in a democratic society. There had therefore been a violation of Article 10 of the
Convention.

Just satisfaction (Article 41)

The Court held that Turkey was to pay the applicant 2,000 euros (EUR) in respect of non-pecuniary
damage.


ECHRCaseLaw

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