The role of the editor-in-chief and his responsibility for the published articles. Temporary detention and conviction for publishing articles. Violation of the ECHR
JUDGMENT
Mehdi Tanrikulu v. Turkey (no. 2) 19.01.2021 (app. no. 33374/10)
SUMMARY
Freedom of expression and the right to personal freedom of the journalist. The role of editor-in-chief in the newspaper and his responsibility for publishing articles written by other journalists.
The applicant, editor-in-chief of a Kurdish-language newspaper published in Turkey, was indicted, remanded in custody and sentenced to 7.5 years in prison for spreading propaganda in favor of the PKK terrorist organization over articles he published in the newspaper. The sentence was finally suspended after appeals. He appealed to the ECtHR for violation of freedom of expression and the right to personal freedom.
The Court reiterated its well-established case-law that, when views are not inciting violence, States Parties may not make use of territorial integrity, national security, law enforcement or crime prevention by restricting the public’s right to information using as a threat to criminal law to influence the media.
The ECtHR separated the articles in question and ruled on those published on 23 and 24 January 2010 and simply stated that A.Ö. had been described as “the leader of the Kurdish people” did not constitute propaganda in favor of violence therefore interference with freedom of expression was unjustified as was the temporary detention due to the publication of these articles.
The ECtHR found a violation of freedom of expression (Article 10) and the right to personal liberty (Article 5-1 of the ECHR) and awarded a sum of 5,000 euros for non-pecuniary damage.
On the contrary, it considered that the four articles published in the newspaper in March 2010 with expressions such as “if they continue to attack the Kurds, [the latter] have the right to defend themselves”, “The Kurds will defend themselves”, ” The pioneering role of the PKK and popular heroism “,were an incitement to violence and the applicant’s conviction for these articles did not violate Article 10 of the ECHR.
The role of the newspaper’s editor-in-chief
According to the ECtHR, the applicant, in his capacity as editor-in-chief of the newspaper, did not personally relate to the disputed writings but provided a platform for the editors who drafted them and allowed their dissemination. In this way, the editor-in-chief indirectly shares the “duties and responsibilities” that editors take on when disseminating their views to the public and cannot be relieved of any responsibility for the content of the texts.
PROVISIONS
Article 5 par. 1
Article 10
PRINCIPAL FACTS
The applicant, Mehdi Tanrıkulu, is a Turkish national who was born in 1965. He lives in Diyarbakır. At
the relevant time he was the editor-in-chief of Azadiya Welat, a daily newspaper published in
Kurdish in Turkey.
The case concerned Mr Tanrıkulu’s placement in detention on account of articles published in the
newspaper Azadiya Welat in January and March 2010, and the subsequent criminal proceedings.
In February 2010 the public prosecutor charged Mr Tanrıkulu with disseminating propaganda in
favour of the PKK (Kurdistan Workers’ Party, an illegal armed organisation) on account of articles
published on 23 and 24 January 2010. The Assize Court remanded the applicant in custody in April
2010.
The public prosecutor subsequently questioned Mr Tanrıkulu in the context of a second set of
criminal proceedings, concerning four articles published on 6, 7, 27 and 28 March 2010. The Assize
Court also ordered his pre-trial detention in connection with this second set of proceedings. The two
sets of proceedings were subsequently joined.
In October 2010 Mr Tanrıkulu was found guilty of the offence of disseminating propaganda in favour
of a terrorist organisation under Articles 220 § 6 and 314 of the Criminal Code. The Assize Court held
that the offence in question had been committed on six occasions, in the articles of 23 and
24 January and those of 6, 7, 27 and 28 March 2010, in that the head of the PKK had been depicted
as the “leader of the Kurdish people” and the members of that organisation had been described as
“pioneers”, “heroes”, “martyrs”, “guerrilla fighters” and “stalwarts”. The court also found that the
articles in question, whose authors were unknown, had presented a real danger to public order, on
the grounds that they disseminated hatred and called for or promoted violence. Mr Tanrıkulu was
sentenced to a total of seven years and six months’ imprisonment.
In January 2013 the Court of Cassation overturned the Assize Court judgment, finding that the case
should be re-examined in the light of provisional section 1 of Law no. 6352 which provided, among
other things, for the suspension of criminal proceedings and sentences in cases concerning offences
committed through the press and the media. In March 2013, taking note of the entry into force of
the new Law, the Assize Court stayed execution of Mr Tanrıkulu’s sentence for three years.
Relying on Article 5 (right to liberty and security) and Article 10 (freedom of expression) of the
Convention, Mr Tanrıkulu complained of his pre-trial detention and of the criminal proceedings
brought against him on account of the publication of the articles in question in the newspaper of
which he had been editor-in-chief.
THE DECISION OF THE COURT…
Reasoning for the applicant’s pre-trial detention
The Court recalls that, according to its established case-law, the detention of a journalist
due to his journalism activities, regardless of the outcome of criminal proceedings,
constitutes an interference with the exercise by the person concerned of his right to freedom of expression.
Such interference is contrary to Article 10 of the Convention unless it is “provided for by
law ”, aims at one or more of the legitimate aims mentioned in paragraph 2 of this article and is
“Necessary in a democratic society” to achieve this or these goal (s).
The Court recalls at the outset, with regard to the legality of the pre-trial detention of the
applicant, having found that the contested measure did not comply with Turkish law and cannot
therefore be considered lawful within the meaning of Article 5 § 1 of the Convention. However, Article 10 of the
Convention requiring that interference with the exercise of freedom of expression be “provided for by
the law “in the same way as Article 5 § 1 requires that any deprivation of liberty be” lawful “, it
It follows that the applicant’s detention due to the publication of several issues of the
daily Azadiya Welat was not “prescribed by law” under Article 10 of the Convention.
Accordingly, there has been a violation of Article 10 of the Convention on account of the detention
of the applicant.
The Court refers to the principles deriving from its case-law on liberty expression, which are summarized in particular in the Bédat v. Swiss. In this regard, she
recalls that there is no doubt that Contracting States may take measures effective in preventing terrorism and in dealing, in particular, with public provocation
that represent terrorist offenses. Indeed, in view of the sensitive nature of the situation reigning in such or such part of a country and the need for the state to exercise vigilance regarding acts that may increase violence, the competent authorities can take measures in matters of security and measures for the fight against terrorism.
The Court observes at the outset that the applicant was first indicted for having published in
the 23 and 24 January 2010 issues of the daily Azadiya Welat several articles containing
propaganda in favor of the PKK. Then he was also the subject of criminal proceedings due to the
publication of the issues of 6, 7, 27 and 28 March 2010. The Court observes that one
characteristic of the present case is that the applicant, a media professional who
was editor of a daily newspaper, was convicted on the ground that the daily paper in question
had published several writings which national judges characterized as propaganda in favor of
of a terrorist organization. To assess whether the “necessity” of the restriction on the exercise of
freedom of expression is convincingly established, the Court must, in accordance with its
case law, to be situated mainly in relation to the motivation adopted by the Turkish judges
In its examination of the articles published in the daily Azadiya Welat, the Court will
particular attention to the terms used in these writings and to the context of their publication.
a) Article of January 23 and 24, 2010 of the daily Azadiya Welat
The Court observes that, with regard to the articles published in the issues of 23 and 24 January
2010 of the daily Azadiya Welat, the disputed measures were taken against the applicant
on the grounds that A.Ö. had been described as “leader of the Kurdish people”. As the court mentioned before there is no doubt that Contracting States can take action in preventing terrorism and in dealing, in particular, with public provocation that represent terrorist offenses.
However, it considered that the fact that some of the expressions used in those articles were used to conclude that there was propaganda in favor of a terrorist organization could not be regarded as an application of the criteria laid down in Article 10 of the Convention. According to the settled case law of the Court, when opinions are not inciting violence, States Parties may not make use of the protection of territorial integrity, national security, law enforcement or the prevention of crime by restricting the right of information to the public using as a threat to criminal law to influence the media.
In the light of the foregoing, the Court has concluded that the interference with the applicant ‘s right to freedom of expression is not justified by’ relevant and sufficient ‘grounds within the meaning of Article 10 of the Convention. of the Convention due to the criminal proceedings initiated for the publication of the articles in the pages of 23 and 24 January 2010 in the newspaper Azadiya Welat.
B) Articles on 6, 7, 27 and 28 March 2010
First of all, the Court noted that some of the disputed articles published in the issues of 6, 7, 27 and 28 March 2010, in particular in the statements of A.Ö. (March 6) and those entitled “Kurds will defend themselves” (March 7), “PKK’s pioneering role and popular heroism” (March 27) and “Heroism Week is an epic of freedom” (March 28) ) differ in their content from other articles published in the various pages of the Azadiya Welat newspaper discussed above. In addition, the court noted that, in the leaflet of March 27, 2010, the statements of MK, another PKK leader, were published, in which the latter stated that “as long as the attacks continue, the Kurds will defend themselves in every way”. Similarly, in statements published in the same sheet, A.Ö. He said that “if they continue to attack the Kurds, [the latter] have the right to defend themselves.” In addition, on the same page, PKK members were portrayed as PKK heroes and the role of the PKK was praised, describing its role as a “pioneering role”. In addition, the KCK’s statements presented the PKK’s armed action as heroic and its continuation was praised, stating that “the heroism that began under the leadership of the PKK has turned into popular heroism”. Finally, in an article published in the March 28, 2010 issue, the PKK activities were described as an “epic of freedom”.
In the present case, if the national courts had not taken into account the applicant ‘s intention, the Court could not have overlooked the possible impact of such messages containing the provocation of violence in a politically sensitive area. Consequently, the Court agreed with the Criminal Court’s finding that those articles published in the newspaper posed a specific danger to public policy.
The editor’s role
In addition, the Court considered that these writings were published as such without the editors distancing themselves from their content. Although it is true that the applicant, in his capacity as editor-in-chief, did not personally relate to the disputed writings, he nevertheless provided a platform for their authors and allowed them to be published. In this way, they are indirectly in charge of the “duties and responsibilities” that authors take on when disseminating their views to the public. The Court therefore concluded that the proceedings against the applicant were based on ‘relevant and sufficient’ grounds. It also noted that the execution of the sentence imposed on the applicant had been suspended for a period of three years. It does not appear from the case file that this sentence was subsequently carried out, although more than three years have passed since the last decision of the national courts. However, the nature and severity of the sanctions imposed are also factors that must be taken into account when assessing the proportionality of the intervention.
In view of the above, the Court concluded that there had been no violation of Article 10 of the Convention as a result of the criminal proceedings instituted for the publication of the articles in the newspapers of 6, 7, 27 and 28 March 2010.
Other violations
The applicant also complained, pursuant to Articles 5 § 2 and 13 of the Convention, that he had not been informed of the actual reasons for his detention and that he had not been able to bring an action under domestic law concerning his detention.
The Court concluded that the applicant had not shown that he had not had the opportunity to challenge his continued detention on remand, and held that the complaint on this point was manifestly ill-founded.
Violation of Article 5 § 1
Violation of Article 10 (pre-trial detention)
Violation of Article 10 on account of the criminal proceedings instituted against Mr Tanrıkulu
following the publication of the 23 and 24 January 2010 issues of Azadiya Welat daily
No violation of Article 10 on account of the criminal proceedings instituted against Mr Tanrıkulu
following the publication of the 6, 7, 27 and 28 March 2010 issues of Azadiya Welat daily
Just satisfaction: EUR 5,000 (non-pecuniary damage)
