The criminal conviction of the President of Turkey’s Human Rights Organisation for statements made on television violated his freedom of expression.
JUDGMENT
Selahattin Demirtaş v. Turkey 09-07-2019 (n. 3) (αp. no.. 8732/11)
SUMMARY
Criminal conviction of the President of Turkey’s Human Rights Organization, Selahatin Demitras, for statements made on a television show. His statements urged the authorities and the public to consider the possible role of Abdullah Ocalan, a prisoner leader of the Kurdistan Workers’ Party (PKK), in finding a peaceful solution to the Kurdish problem and calling for improved detention conditions.Following a detailed examination of the statements
in question, the Court found that, taken as a whole, they could not be regarded as amounting to incitement to engage in violence, armed resistance or rebellion, nor did they constitute hate speech. The Court held that the criminal proceedings instituted against the applicant on charges of disseminating propaganda in favour of a terrorist organisation had not met a pressing social need, had not been proportionate to the legitimate aims pursued and had consequently not been necessary in a democratic society
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Selahattin Demirtaş, is a Turkish national who was born in 1973 and was living in
Diyarbakır at the time the application was lodged. The case concerned his criminal conviction for
statements made during a television broadcast.
On 20 December 2005 the Diyarbakır public prosecutor charged Mr Demirtaş with disseminating
propaganda in favour of a terrorist organisation, following comments he had made by telephone,
during a television programme, in his capacity as President of the Human Rights Association and
spokesman of the Diyarbakır Democratic Platform.
On 28 September 2010 the Diyarbakır 5th Assize Court found Mr Demirtaş guilty and sentenced him
to 10 months’ imprisonment, before deciding to suspend delivery of its judgment for five years
under Article 231 of the Code of Criminal Procedure. The Assize Court found that the comments in
question were not covered by the right to freedom of expression protected by the Convention, that
they amounted to propaganda in favour of the terrorist organisation PKK/Kongra-Gel and that they
publicly defended its imprisoned leader, Öcalan, and its members. The Assize Court dismissed an
objection by Mr Demirtaş against its decision to suspend delivery of the judgment.
On 29 July 2013 the Diyarbakır 5th Assize Court, taking note of the entry into force of Law no. 6352,
decided to set aside its judgment of 28 September 2010 and to suspend the proceedings against the
applicant for three years.
THE DECISION OF THE COURT…
Article 10
In the particular circumstances of the present case, the Court found that the criminal proceedings in
question and the decisions taken in that context to suspend delivery of the judgment and to stay the
proceedings had amounted, in view of their potential chilling effect, to interference with the
exercise of Mr Demirtaş’s right to freedom of expression.
Next, the Court observed that the interference had been prescribed by section 7(2) of Law no. 3713.
It had pursued legitimate aims, namely the protection of national security and public safety and the
prevention of disorder and crime.
The Court reiterated that there was little scope under Article 10 § 2 of the Convention for
restrictions on political speech or on debate on matters of public interest. Where the views
expressed did not constitute incitement to violence, the Contracting States could not restrict the
right of the public to be informed of them, even with reference to the aims set out in Article 10 § 2,
namely the protection of territorial integrity or national security or the prevention of disorder or
crime.
In the present case, the Court observed that Mr Demirtaş had been conveying his ideas and opinions
on an issue of indisputable public concern in a democratic society, namely the potential role of the
imprisoned PKK leader – who, according to Mr Demirtaş, was viewed by the Kurds as the leader of
their people – in finding a peaceful solution to the Kurdish problem and the need to provide him
with the means to perform that role by improving the conditions of his detention.
Following a detailed examination of the statements made by Mr Demirtaş, the Court found that,
taken as a whole, they could not be regarded as amounting to incitement to engage in violence,
armed resistance or rebellion, nor did they constitute hate speech.
The Court therefore considered that the criminal proceedings instituted against the applicant on
charges of disseminating propaganda in favour of a terrorist organisation had not met a pressing
social need, had not been proportionate to the legitimate aims pursued and had consequently not
been necessary in a democratic society. There had accordingly been a violation of Article 10.
Just satisfaction (Article 41)
The Court held that Turkey was to pay the applicant 2,500 euros (EUR) in respect of non-pecuniary
damage and EUR 1,000 in respect of costs and expenses(echrcaselaw.com).
