CASE OF ALTUĞ TANER AKÇAM v. TURKEY
Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi
5. The applicant was born in 1953 and lives in Ankara. 6. He is a professor of history who researches and publishes extensively on the subject of the historical events of 1915 concerning the Armenian population in the Ottoman Empire. 7. On 6 October 2006 the applicant published an editorial opinion in AGOS, a bilingual Turkish-Armenian newspaper, entitled “Hrant Dink, 301 and a Criminal Complaint”. In this editorial opinion the applicant criticised the prosecution of Hrant Dink, the late editor of AGOS, for the crime of “denigrating Turkishness” under Article 301 of the Turkish Criminal Code. He also requested, in an expression of solidarity, to be prosecuted on the same ground for his opinions on the Armenian issue. 8. On 12 October 2006 a complaint was lodged against the applicant with the Eyüp public prosecutor. The complainant, R.A., alleged that the applicant’s defence of Hrant Dink in the editorial published in AGOS violated Articles 301, 214 (incitement to commit an offence), 215 (praising a crime and a criminal) and 216 (incitement to hatred and hostility among the people) of the Turkish Criminal Code. Following this complaint, the applicant was summoned to the Şişli public prosecutor’s office to make a statement. He was informed that he would be brought to the public prosecutor’s office by force, in accordance with Articles 145 and 146 of the Criminal Code, if he did not comply with the summons. 9. On 5 January 2007 the applicant went to the Şişli public prosecutor’s office to submit his defence statement in relation to the criminal complaint against him. The applicant stated, in the presence of his two lawyers, that he had indeed written the said article published in AGOS. He explained that the policy of the Ittihad ve Terakki towards the Armenians in 1915 could well be defined as genocide within the meaning of the Convention on the Prevention and Punishment of the Crime of Genocide of the United Nations of 1948. He had written the said article in order to express his opinion on the Armenian issue in the context of freedom of the press. He pointed out that he was a professor of history who had been working on this subject for almost twenty years and that he had expressed his opinion several times in his books and articles. He had not written the impugned article in order to serve any association, organisation, race or ethnic group, or to denigrate a nation. The applicant’s two lawyers also argued that the applicant’s statements did not amount to a crime. 10. On 30 January 2007 the investigation against the applicant was terminated by the Şişli public prosecutor, who noted that at all the scientific seminars he had taken part in and in his publications the applicant had expressed the opinion that the events that took place between 1915 and 1919 could be described as genocide. Having examined the applicant’s article published in AGOS, the public prosecutor concluded that the applicant’s statements in his capacity as a professor of history came within the realm of protected expression under Article 10 of the European Convention on Human Rights and that as such they did not constitute denigration of Turkishness. Nor did they amount to incitement to commit a crime, or to praising a crime or criminal, or incitement to hatred and enmity amongst the people. 11. On 6 July 2007 the complainant, R.A., filed an objection against the above-mentioned decision of non-prosecution. 12. On 30 October 2007 the Third Chamber of the Beyoğlu Assize Court dismissed the complainant’s objection. Having examined the investigation carried out and the reasons given by the Şişli public prosecutor, the court held that the decision of non-prosecution was in accordance with procedure and law. 13. On 11 October 2007 a judgment was issued by the Şişli Criminal Court against Arat Dink (the editor of AGOS) and Serkis Seropyan (the owner of AGOS) whereby both were sentenced to one year’s imprisonment under Article 301 of the Turkish Criminal Code for accusing the Turkish nation of genocide via the press. Although the applicant was not a party to those proceedings, the court decided of its own motion that the Şişli public prosecutor had erred in discontinuing the investigation against the applicant on 30 January 2007 and held that this matter should be duly investigated by the prosecutor’s office. 14. On 26 November 2007 another complaint was lodged against the applicant, by a certain A.P., with the Chief Public Prosecutor’s office in Şişli. The complainant alleged that the applicant’s statements published in AGOS on 6 October 2006 violated Article 301 of the Turkish Criminal Code. 15. On 28 November 2007 the Şişli Public Prosecutor issued a decision of non-prosecution. He noted that a similar complaint by another complainant had been examined and dismissed by a non-prosecution decision on 30 January 2007. 16. On 10 January 2008 the applicant made an urgent request for interim measures under Rule 39 of the Rules of Court. He also requested that the respondent Government be notified of the introduction of the application in accordance with Rule 40 of the Rules of Court and that the case be given priority under Rule 41 of the Rules of Court. 17. On 14 January 2008 the applicant’s requests under Rules 39, 40 and 41 of the Rules of Court were rejected. 18. The Government submitted to the Court a decision of nonprosecution issued by the Şişli Chief Public Prosecutor’s office on 17 February 2006. It appears from this decision that on 21 October 2005 a criminal complaint was lodged by a certain K.K., who alleged that the applicant had attempted to denigrate the Republic and to influence the trial of Hrant Dink by his editorial opinion dated 14 October 2005 published in the AGOS newspaper. The public prosecutor who examined the complaint concluded that the alleged offence was time-barred and therefore issued a decision of non-prosecution. 19. According to the information provided by the applicant’s representative on 6 May 2008, no further investigation had been instigated against the applicant after the judgment of the Şişli Criminal Court dated 11 October 2007. 20. The Government submitted a list of thirteen books published by the applicant. It appears that these books are on sale in Turkey and that they mainly concentrate on the Armenian question. A selection of the books included is as follows: – “The Armenian question has been resolved; Ottoman documents concerning the policies towards the Armenians during the war years”, 2008; – Turkish national identity and the Armenian question: “From the Ittihad ve Terakki to the War of Independence”, 2001; – “Lifting the Armenian taboo, is there any solution other than dialogue” 2000; and – “Human Rights and the Armenian Question”, 1999. 21. The Government further noted that, contrary to the applicant’s allegations that he had been prevented from pursuing his research on the Armenian issue, he had been given permission to conduct research in the State Archives by the Directorate General of State Archives. Between 27 June 2006 and 17 July 2007 the applicant personally consulted the Ottoman archives and had been granted further permission to photocopy 527 documents. On page 17 of his book entitled “The Armenian question has been resolved” the applicant thanked the State Archives for assisting him in his research. 22. In an annex to their observations, the Government have furnished the Court with sample copies of non-prosecution decisions issued by public prosecutors and judgments of acquittal given by criminal courts in cases concerning prosecutions under Article 159/1 of the former Criminal Code and Article 301 of the new Criminal Code. In particular, the suspects were mainly accused of insulting or denigrating the army, the security forces, the judiciary or the Republic. 23. In these decisions and judgments, given between 2005 and 2008, the prosecuting authorities either dropped the charges against the suspects, considering that the necessary elements of the crime in question were not present, or terminated the proceedings on the grounds that the Ministry of Justice had refused permission to prosecute the suspects. In acquitting the suspects, the criminal courts relied on the case-law of the European Court in cases concerning Article 10 of the Convention. 24. The above-mentioned documents furnished by the Government included two judgments given by the Beyoğlu and Şişli Criminal Courts in respect of two prominent writers, namely Elif Şafak and Orhan Pamuk. 25. In the criminal proceedings against Elif Şafak the Beyoğlu Criminal Court had examined a criminal complaint filed by a group of lawyers and an association called the Turkish World and Culture and Human Rights Association of Izmir, who alleged that Elif Şafak had denigrated “Turkishness” as a result of statements about the Armenian issue in her book entitled “Baba ve Piç” (“The Bastard of Istanbul” in English). In a judgment dated 21 September 2006, the court acquitted Elif Şafak, holding that the book in question was fiction and that the impugned statements made by the characters in the novel could not be taken as constituting an offence of denigrating Turkishness. Having examined the novel written by the accused, the court concluded that the statements contained in the book should be examined in the context of freedom of expression. The court, however, observed that the limits of the concept of “Turkishness” should be determined and based on a solid ground by the legislator. It further remarked that opinions should only be compared with opinions. Otherwise, one could not talk of freedom of opinion and expression and would be forced to adopt uniform thoughts. 26. In the case brought against Orhan Pamuk, the Şişli Criminal Court had examined a criminal complaint lodged by two individuals who alleged that the writer had denigrated Turkishness in a speech he had given abroad. In a judgment dated 20 January 2006, the court decided to discontinue the proceedings on the ground that the requisite permission to press charges against the accused had not been obtained from the Ministry of Justice. It thus ruled that the lack of permission should be considered as a refusal and that the proceedings should be terminated. 27. The Government submitted statistical information which indicated the situation by 5 November 2008. They noted that following the amendments made to Article 301 of the Criminal Code on 8 May 2008 there had been a significant decrease in prosecutions under Article 301. In this connection, of the seventy authorisation requests made by public prosecutors to commence criminal proceedings under Article 301, the Ministry of Justice had granted only three. 28. The Government further pointed out that between 2003 and 2007 the number of sets of criminal proceedings instituted under Article 301 (Article 159/1 of the former Criminal Code) was 1,894. Of those, 744 cases had resulted in convictions and 1,142 in acquittals; 193 cases were still pending following the Court of Cassation’s decisions to quash the first-instance courts’ judgments. 29. In their supplementary observations dated 30 October 2009, the Government noted that between 8 May 2008 and 30 September 2009 the Ministry of Justice had received 955 requests for authorisation to institute criminal proceedings under Article 301. The Ministry had refused 878 of these requests but granted 77. In this connection, the Government furnished the Court with sample copies of decisions of refusal issued by the Ministry of Justice. It appears from these decisions that the Ministry of Justice extensively relied on the case-law of the Court in cases concerning Article 10 when refusing public prosecutors’ requests for authorisation to institute criminal proceedings under Article 301 of the Criminal Code. The Government further noted that in 244 cases where the Ministry of Justice refused authorisation to institute criminal proceedings, the criminal complaints mainly concerned publications in the press. 30. The European Commission’s 2008 Progress Report on Turkey stated: “Following the adoption of the amendments to Article 301, Turkish courts had forwarded, by September [2008], 257 cases to the Minister of Justice for prior authorisation. This requirement concerns cases at the investigation stage or for which judicial proceedings have started. By September, the Ministry had reviewed 163 cases and refused to grant permission to proceed in 126 cases. However, the wording of Article 301 remains largely the same and the prior authorisation requirement opens up the possibility that the article will become subject to political consideration. So far, the Minister of Justice authorised the criminal investigations to continue in 37 statements made by a Turkish writer on the Armenian issue shortly after the assassination of the Turkish journalist of Armenian origin, Hrant Dink. Furthermore, there is legal uncertainty as regards cases which had been granted authorisation by the Minister of Justice under the former Article 159 of the Turkish Criminal Code”. 31. The applicant highlighted examples of post-amendment Article 301 cases with specific reference to the Armenian issue. He noted that in October 2008 the Ministry of Justice had authorised the continuance of the trial of Temel Demirer for stating that Hrant Dink had been killed not only for being an Armenian, but also for raising the issue of genocide. Another example was Ragıp Zarakolu’s conviction and sentencing on 17 June 2007 to five months’ imprisonment (subsequently commuted to a fine) under Article 301 for translating and publishing a book about the Armenian genocide entitled “The Truth Will Set Us Free”, written by George Jerjian. 32. Furthermore, according to the United States Department of State’s 2008 Human Rights Report on Turkey, the Minister of Justice himself (Ali Şahin) also made a statement that could be interpreted as instructions to the judiciary: “I will not let someone call my state ‘murderer’. This is not freedom of expression. This is exactly what the crime of insulting the person of the state is.” 33. The applicant also submitted a report published by the Media Monitoring Desk of the Independent Communications Network, for the period of July-August-September 2008. According to this report a total of 116 people, 77 of whom were journalists, were prosecuted in 73 freedom of expression cases. 34. In its editions of 10 and 29 October 2000, 5 November 2000 and 31 December 2000 the magazine Aydınlık published articles alleging that the applicant was a paid employee of the German intelligence service and that he had been commissioned to conduct research and write on the subjects “Violence in Turkish history”, “Torture in Turkish history” and “the Armenian Genocide”. These studies had been commissioned and financed by the German intelligence service and had been published in a book. 35. In its edition dated 4 January 2001 the daily newspaper Hürriyet published an article entitled “The German Intelligence Chief and Tessa Hoffmann couple” containing allegations that the applicant’s studies were determined and financed by the German intelligence service. 36. In its editions dated 21, 22 and 23 June 2007, the Hürriyet newspaper published articles describing the applicant as an individual who had betrayed Turkey and vomited hate towards Turkey in all of his books and speeches. 37. By press releases, the applicant and his family condemned the allegations published by the Hürriyet newspaper and called for apology. They referred to the killing of Hrant Dink and said that the press should act with responsibility and sensibility when publishing articles containing allegations labelling someone as a “traitor”. They further warned against Turkey becoming a country where citizens could be lynched with the help of the press. 38. By a judgment dated 8 November 2005 the Istanbul Civil Court of First Instance dismissed the applicant’s claims for non-pecuniary damage. The court held that even though the words used and allegations made by the defendants were offensive they were within the limits of permissible criticism. This judgment was confirmed by a Court of Cassation decision dated 14 March 2007. 39. On 26 July 2007 the applicant brought an action in the Ankara Civil Court of First Instance requesting the court to order the Hürriyet newspaper to publish a letter of correction in response to the offensive articles published on 21, 22 and 23 June 2007. By a decision dated 30 July 2007 the court dismissed the applicant’s request. It held that even though the criticism contained in the impugned articles was harsh in tone, it was covered by the right to freedom of expression enjoyed by the press in a pluralist democracy. 40. On 24 November 2007 the Taraf newspaper published an article criticising the attitude of the judiciary in regard to the media campaign against the applicant. 41. The applicant claimed that he had received hate mail from unknown persons. He submitted a copy of an e-mail sent by a person insulting him and threatening him with death as a result of his views on the Armenian issue. 42. Between 9 and 23 July 2007 a number of articles were published on internet portals and in magazines and newspapers criticising the attacks against the applicant and expressing support for him. 43. Former Article 301 of the Turkish Criminal Code reads as follows: “1. A person who publicly denigrates Turkishness, the State of the Republic of Turkey or the Grand National Assembly of Turkey shall be sentenced to a penalty of imprisonment for a term of six months to three years. 2. A person who publicly degrades the Government of the Republic of Turkey, the judicial bodies of the State or the military or security organisations of the State shall be sentenced to a penalty of imprisonment for a term of six months to two years. 3. In cases where denigration of Turkishness is committed by a Turkish citizen in another country the punishment shall be increased by one third. 4. The expression of an opinion for the purpose of criticism does not constitute an offence.” 44. The new text of Article 301 of the Turkish Criminal Code, as amended on 29 April 2008, reads as follows: “1. A person who publicly degrades the Turkish nation, the State of the Republic of Turkey, the Grand National Assembly of Turkey, the Government of the Republic of Turkey or the judicial bodies of the State, shall be sentenced to a penalty of imprisonment for a term of six months to two years. 2. A person who publicly degrades the military or security organisations of the State shall be sentenced to a penalty in accordance with paragraph 1 above. 3. The expression of an opinion for the purpose of criticism does not constitute an offence. 4. The conduct of an investigation into such an offence shall be subject to the permission of the Minister of Justice.” 45. In the criminal proceedings against Hrant Dink (see Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 28, ECHR 2010... (extracts)), the Grand Chamber of the Court of Cassation interpreted the term Turkishness as follows (Yargıtay Ceza Genel Kurulu, E.2006/9-169, K.2006/184, judgment of 11 July 2006): “... [T]he term “Turkishness” (Türklük) refers to the human element of the State; that is to say, the Turkish Nation. Turkishness is constituted by the national and moral values as a whole, that is, human, religious and historical values as well as the national language and national feelings and traditions ...” 46. The European Commission’s 2009 Progress Report on Turkey stated the following, insofar as it concerns the use of Article 301 of the Criminal Code in cases concerning freedom of expression: “...[t]he Turkish legal framework still fails to provide sufficient guarantees for exercising freedom of expression and, as a result, is often interpreted in a restrictive way by public prosecutors and judges. There are still some prosecutions and convictions based on Article 301...” 47. The European Commission’s 2010 Progress Report on Turkey stated, insofar as relevant, the following: “...As regards freedom of expression, an increasingly open and free debate continued on a wide scale in the media and public on topics perceived as sensitive, such as the Kurdish issue, minority rights, the Armenian issue and the role of the military. There are few cases initiated on the basis of Article 301 of the Turkish Criminal Code (TCC) after it was amended in May 2008. According to the Ministry if Justice, since the amendment to Article 301 of the Turkish Criminal Code, a decrease in the number of cases opened has been observed. The figures below cover examinations concluded between 1 January 2010 and 31 July 2010: 369 files examined, 270 files for which permission was denied, 10 files for which permission was granted, 3.57% file for which permission was granted...” 48. In his report dated 12 July 2011 Thomas Hammarberg Commissioner for Human Rights of the Council of Europe, stated the following: “17. Following his visit to Turkey in 2009, the Commissioner expressed his concern regarding Article 301, notwithstanding an amendment adopted in 2008 which led to a decrease in the number of proceedings brought under this article. On 14 September 2010 the Court delivered its judgment in the case of Dink v. Turkey in which it found a violation of Article 10 ECHR on account of Hrant Dink’s conviction based on Article 301. The Court held that Hrant Dink’s conviction for denigrating Turkish identity prior to his murder did not correspond to any “pressing social need” which is one of the major conditions on which interference with one’s freedom of expression may be warranted in a democratic society. The Commissioner considers that the amendment adopted in 2008, which subjects prosecution to a prior authorisation by the Ministry of Justice in each individual case, is not a lasting solution which can replace the integration of the relevant ECHR standards into the Turkish legal system and practice, in order to prevent similar violations of the Convention.”