Criminal conviction for propaganda because they read periodicals of a far-left party violates the right to freedom of expression!
JUDGMENT
Mart and others v. Turkey 19.03.2019 (no. 57031/10)
SUMMARY
The case concerned the conviction of the three applicants in criminal proceedings for disseminating
propaganda in favour of an illegal organisation (the MKLP, the Marxist-Leninist Communist Party).
The Court observed that, in giving reasons for its judgment, the Assize Court had noted in particular
that the applicants were readers of the periodicals Atılım and Özgür Gençlik, that they had chanted
slogans and displayed banners and placards at demonstrations, and that they had books, periodicals
and documents at their homes connected to the organisation in question.
The Court held that the applicants’ conviction had been based on activities covered by the exercise
of their right to freedom of expression, and observed that there had been interference with the
exercise of that right. In the Court’s view, the domestic courts had not provided relevant and
sufficient reasons to justify that interference. They had not examined the content of the articles
published by the periodicals, the slogans that had been chanted, the placards and flags that had
been displayed or the publications and documents found at the applicants’ homes. Hence, they had
not provided sufficient clarification as to whether the activities in question could be regarded
generally as containing an incitement to violence, armed resistance or insurrection, and whether
they amounted to hate speech, which in the Court’s view was the main element to be taken into
account.
As a result, the Court considered that it was not possible to determine on the basis of the domestic
courts’ rulings how they had performed their task of weighing the applicants’ freedom of expression
against the legitimate aims pursued. Accordingly, the interference had not met a pressing social
need, had not been proportionate to the legitimate aims pursued and had not been necessary in a
democratic society.
PROVISION
Article 10
PRINCIPAL FACTS
The applicants, Selçuk Mart, Yusuf Bayraktar and Selver Orman, are Turkish nationals who were born
in 1982, 1983 and 1981 respectively.
In July 2004 the Ankara public prosecutor charged the applicants with the offence of membership of
an illegal organisation (the MLKP). In February 2007 the Ankara Assize Court sentenced them to two
years and six months’ imprisonment, reclassifying the offence as disseminating propaganda in favour
of the illegal organisation the MLKP, which was likely to incite others to violence (section 7(2) of Law
no. 3713). The Assize Court considered, among other points, that the applicants were readers of the
periodicals Atılım and Özgür Gençlik – which the court considered to be official organs of the MLKP,
in view of their editorial line and the articles they published, their target readership and the persons who distributed them – and that the applicants had participated in meetings and demonstrations
organised by those periodicals. The Assize Court also noted that during the demonstrations the
applicants had chanted slogans in favour of the MLKP; had carried placards of organisations that the
court considered to be sub-branches of the MLKP; had covered their faces with scarves in
accordance with the MLKP’s instructions; and had waved the flags and banners of that organisation
and portraits of its members. The Assize Court held that the acts in question had been aimed at
publicly demonstrating the strength of the MLKP and imposing its violent methods on the
population. The acts had thus amounted to disseminating propaganda in favour of the MLKP, an
illegal organisation, and promoting violence. Mr Mart and Ms Orman served their sentences while
Mr Bayraktar’s was suspended.
THE DECISION OF THE COURT
Article 10 (freedom of expression)
The applicants had been convicted on charges of disseminating propaganda in favour of the illegal
organisation the MLKP for being readers of periodicals allegedly linked to that organisation, chanting
slogans and displaying banners and placards in favour of the MLKP during demonstrations, having
books, periodicals and documents connected to the organisation in their homes and, in the case of
one of the applicants, being the director of a periodical allegedly attached to the organisation. The
Assize Court had also reclassified the acts in question, considering that they amounted to
disseminating propaganda in favour of a terrorist organisation rather than membership of an illegal
organisation, the offence with which the applicants had been charged in the indictment.
The Court considered that the applicants’ conviction had been based on activities covered by the
exercise of their right to freedom of expression. It therefore found that there had been interference
with that right, noting that this had been set down in prescribed by law (section 7(2) of Law no.
3713) and had pursued the legitimate aims of ensuring public safety, preventing crime and
protecting the rights of others .
After careful scrutiny of the domestic judgment the Court observed that the Assize Court had not
examined the content of the articles published by the periodicals, which were legal publications that
the applicants had been accused of reading. Likewise, the Assize Court had not examined the
content of the slogans chanted or the placards and flags displayed during the demonstrations, or of
the publications and documents found at the applicants’ homes. The Court further noted that
neither the Assize Court nor the Court of Cassation judgment had provided sufficient clarification as
to whether the activities in question could be regarded generally as containing an incitement to
violence, armed resistance or insurrection, and whether they amounted to hate speech, which in the
Court’s view was the essential element to be taken into account.
The Court therefore found that it was not possible to determine on the basis of the domestic courts’
rulings how they had performed their task of weighing the applicants’ freedom of expression against
the legitimate aims pursued. Accordingly, the Court held that since the domestic courts had not
given relevant and sufficient reasons to justify it, the interference in question had not met a pressing
social need and had not been proportionate to the legitimate aims pursued, and had thus not 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 2,500 euros (EUR) to Mr Bayraktar and EUR 5,000 each to
Mr Mart and Ms Orman in respect of non-pecuniary damage. It was also to pay EUR 2,000 jointly to
the applicants in respect of costs and expenses(echrcaselaw.com editing).
