The criminal punishment of a book publisher on the disappearance of a journalist and the freedom of expression
JUDGMENT
Fatih Taş v. Turkey 04.09.2018 (no. 6810/09)
SUMMARY
Criminal conviction of a publisher of a book on public denigration of the Republic of Turkey because he criticized the authorities and claimed that a journalist had been kidnapped by state guards. The ECtHR has condemned Turkey for violating freedom of expression because the national authorities had not taken any balancing action, in accordance with the criteria established by the case law of the Court, between the applicant’s right to freedom of expression and the legitimate aims pursued. The Court did not regard the book as “unjustifiably offensive” nor encouraged for violence or hatred.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Fatih Taş, is a Turkish national who was born in 1979 and lives in Istanbul (Turkey). At the time of the events he was a publisher and the owner of a publishing company.
In April 2004 Mr Taş’s publishing company published a book entitled Kayıpsın diyorlar (“They say you disappeared”) concerning the circumstances surrounding the disappearance of a journalist (N.B.) in 1994. The author claimed that the journalist in question had been abducted by village guards and by anti-guerrilla forces while he was in Siverek (a town in south-east Turkey) working on an investigative report.
The applicant, Fatih Taş, is a Turkish national who was born in 1979 and lives in Istanbul (Turkey). At the time of the events he was a publisher and the owner of a publishing company. In April 2004 Mr Taş’s publishing company published a book entitled Kayıpsın diyorlar (“They say you disappeared”) concerning the circumstances surrounding the disappearance of a journalist (N.B.) in 1994. The author claimed that the journalist in question had been abducted by village guards and by anti-guerrilla forces while he was in Siverek (a town in south-east Turkey) working on an investigative report.
THE DECISION OF THE COURT
Article 10 (freedom of expression)
The Court noted that the criminal proceedings against Mr Taş had constituted interference with the exercise of his right to freedom of expression. The interference had been prescribed by law, in this instance by Article 301 of the new Criminal Code and Article 159 of the former Criminal Code. With regard to the quality of the law, the Court reiterated its doubts concerning the foreseeability of the Articles in question. In its judgment in Altuğ Taner Akçam v. Turkey , the Court had found that Article 301 of the new Criminal Code did not satisfy the requirement of quality of the law as its wording was overly broad and vague, constituted a continuing threat to the exercise of freedom of expression and did not enable individuals to regulate their conduct and foresee the consequences of their acts. The Court had also found that the requirement to obtain authorisation from the Minister of Justice in order to bring a prosecution under that provision did not provide a reliable and continuous guarantee against its abusive application, given that a change in the political situation might affect the position of the Minister of Justice and open the way for arbitrary prosecutions. In other cases the Court had found that serious doubts might arise as to the foreseeability for the applicants of their being charged under Article 159 of the former Criminal Code or Article 301 of the new Criminal Code, on account of the broad scope of the terms used in those provisions. The Court accepted that the interference had pursued the legitimate aims of protecting public safety and national security.
As to the necessity of the interference, the Court noted that the book in question had concerned the circumstances in which a journalist had disappeared, which was unquestionably a matter of public interest. After studying the passages of the book to which the domestic courts had referred in convicting Mr Taş it noted that, while they certainly contained criticisms of the State authorities that were at times harsh and exaggerated, they had in no way been “gratuitously offensive” or insulting and had not incited to violence or hatred, which in the Court’s view was the essential element to be taken into account. Consequently, the Court considered that the criminal proceedings complained of, which had been liable to have a chilling effect on Mr Taş’s willingness to express his views on matters of public interest, had not met a pressing social need and had in any event not been proportionate to the legitimate aims pursued. Accordingly, they had not been necessary in a democratic society. The Court therefore concluded that the national authorities had not carried out an appropriate balancing exercise, in conformity with the criteria established by the Court’s case-law, between the applicant’s right to freedom of expression and the legitimate aims pursued. There had therefore been a violation of Article 10 of the Convention.
Article 41 (just satisfaction)
The Court held that Turkey was to pay Mr Taş 2,500 euros (EUR) in respect of non-pecuniary damage.
Article 46 (binding force and execution of judgments)
The Court held that the violations of the right guaranteed by Article 10 of the Convention in cases concerning proceedings brought under Article 159 of the former Criminal Code and Article 301 of the new Criminal Code stemmed from a problem relating to the application of the provisions in question in a manner incompatible with the criteria established by the Court’s case-law. In that regard the Court considered that bringing the relevant domestic law into compliance with Article 10 of the Convention and the Court’s case-law would constitute an appropriate form of execution by which to put an end to the violations found(echrcaselaw.com editing).
