The criminal conviction of a publisher of a book on the Kurdish PKK has violated the freedom of expression.

JUDGMENT

Mehdi Tanrıkulu v. Turkey 05.05.2020 (no. 9735/12)

see here

SUMMARY

Freedom of expression and the right of citizens to valid information. The plaintiff owns a publishing house in Istanbul. He published a book on the Kurdish revolutionary organization PKK. He was prosecuted on charges of propaganda for a terrorist organization and was sentenced by domestic courts to 1 year and 6 months in prison. Under a new law, the execution of his sentence was suspended.

The Court reminded that Article 10 § 2 of the Convention leaves little room for restrictions on freedom of expression in the field of political discourse or in matters of public interest. As long as there is no incitement to violence, the public has every right to full and comprehensive information.

The ECtHR, studying the excerpts from the book in question, found that it did not contain evidence of violence, and domestic courts did not provide sufficient explanations for their decision because they interpreted the disputed passages, which are read throughout the book, as illegal and encouraging. uses the PKK.

Consequently, the ECtHR ruled that the national authorities were not sufficiently balanced and in accordance with the criteria set out in its case law, the individual’s right to freedom of expression and the objectives pursued by law. He unanimously found a violation of his freedom of expression (Article 10 of the ECHR) and awarded the applicant 2,000 euros in non-pecuniary damage.

PROVISION

Article 10

PRINCIPAL FACTS

The applicant, Mehdi Tanrıkulu, is a Turkish national who was born in 1965 and lives in Istanbul
(Turkey).

The case concerned Mr Tanrıkulu’s conviction for promoting a terrorist organisation following the
publication of a book by the publishing house of which he had been owner and editor at the relevant
time.

In 2006 the public prosecutor of Istanbul charged Mr Tanrıkulu with the offence of promoting a
terrorist organisation on account of the book published by his publishing house in October 2006
under the title “The role of the Kurdish Liberation Movement and the PKK in the imperialist process
of capitalism”. The prosecutor submitted that certain passages in the book glorified the PKK
(Kurdistan Workers Party, an illegal armed organisation) and sought to garner support for that
organisation.

In 2008 the Istanbul Assize Court found Mr Tanrıkulu guilty as charged and sentenced him to a term
of imprisonment of one year and six months, under section 7(2) of Law no. 3713 on the prevention
of terrorism. The court found in particular that certain passages in the book glorified and
encouraged the PKK’s use of violence and terrorism.

In 2012 the Court of Cassation dismissed Mr Tanrıkulu’s appeal and upheld his conviction. Before
serving his sentence Mr Tanrıkulu nevertheless benefited from a stay of execution of his sentence
for three years, under Law no. 6358, which had entered into force in the meantime.

Relying on Article 10 (freedom of expression), Mr Tanrıkulu complained about his conviction on
account of the publication of a book by his publishing house.

THE DECISION OF THE COURT…

The court noted that in the present case the plaintiff, owner and publisher of the publishing house at the critical time, was sentenced to one year and six months in prison following a criminal proceedings against him for the crime of propaganda in favor of a terrorist organization due to the content of a book from his publishing house.

It further noted that it was not disputed between the parties that this intervention was provided for by law, more specifically by Article 7 § 2 of Law no. 3713. He may also acknowledge that the alleged interference was for legitimate purposes pursuant to Article 10 (2) of the Convention, ie the protection of national and public security, the protection of order and the prevention of crime.

With regard to the need for intervention, the Court notes that Article 10 § 2 of the ECHR leaves little room for restriction on freedom of expression in the field of political discourse or on matters of general interest. In this sense, when such views do not incite violence – in other words, when they do not support the use of force or bloody revenge, the Contracting States may not restrict the right to inform the public, as the right is guaranteed by the purposes of this article. 10.

The Court noted that the disputed excerpts from the book in question, for which the applicant was convicted, expressed the author’s views on the historical reasons that led to the creation of the PKK, the organization’s relationship with the Kurdish people, the popular support they enjoy and its participation in the Kurdish liberation movement, its structure, operation and strategies, the role of its leader in the organization and its leadership status for t the Kurdish people, the reasons on which the use of force by the PKK is based and the conditions that govern the armed conflict between the parties. In one of these excerpts, the author notes that the continuation of the war between the two sides was absurd and that a peaceful and democratic solution to the Kurdish problem was the only possible outcome of the conflict.

Therefore, the Court considers that the disputed excerpts from the book undoubtedly concerned a matter of public interest, namely the origin and nature of the conflict between the PKK and the Turkish authorities and the role and strategies of the PKK it claims to undertake on behalf of Kurdish people.

The Court points out that the decisions taken by the national authorities do not provide an adequate explanation for the question of why the disputed passages, read throughout the book, should be interpreted as illegal and encouraging the methods of violence used by the PKK. It also notes that these domestic court rulings do not contain any analysis of why these passages could not be considered to be part of a public debate on issues of general interest in the conflict between the PKK and the police.

The Court noted that the examination of the national courts in the present case does not appear to have taken into account all the principles established in its case law from the point of view of Article 10, as it does not answer the question of whether the disputed excerpts could be taken into account, the context in which they were written and their ability to harm, as they contained incitement to the use of force, armed resistance or insurrection, or as a component of hatred. It considered that the national authorities had not carried out an appropriate analysis on the basis of all the criteria set out and applied in matters relating to freedom of expression.

Based on the above, the Court concluded that, under the circumstances of the present case, condemning the applicant for propaganda in favor of a terrorist organization due to the publication of the book in question, the national authorities did not adequately balance the criteria defined by its case law, between the individual’s right to freedom of expression and the objectives pursued by law.

It argued that the government had failed to prove that the reasons given by the national authorities to justify the alleged measure were relevant and sufficient and that they were necessary in a democratic society.

It unanimously ruled that there had been a violation of the right to freedom of expression (Article 10 of the Convention).

Just satisfaction: EUR 2,000 (non-pecuniary damage)


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