CEDH · CASELAW;CLIN;ENG — 23 juin 2015

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Turkey - 34823/05 Judgment 23.6.2015 [Section II] Article 10 Article 10-1 Freedom of expression Criminal conviction on account of the use of the word “ kelle ” (“mug” in Turkish) when referring to visual portrayals of the founder of the Turkish Republic before a limited audience: violation Facts – The applicant, a navy commander, was charged before a military court with insulting the memory of Atatürk. He was accused of having used the word “ kelle ” to a non-commissioned officer in November 1997 while pointing at images of Atatürk. In June 1998 the military court sentenced him to one year’s imprisonment and refused to suspend the sentence. It noted that the term “ kelle ” usually referred to the head, but that it could also have a slang meaning which indicated the head of animals. The court then stated that the words “head” or “bust” should have been used, rather than the term “ kelle ”, which the applicant had deliberately used with the intention of insulting the memory of the founder of the Republic of Turkey. At the end of lengthy proceedings, during which, inter alia , the military court had ruled that it did not have jurisdiction and transferred the case to the civilian courts, the criminal court complied in August 2013 with the Court of Cassation’s judgment, namely one year’s imprisonment, commuted to a fine, and decided to suspend execution of the fine for a period of three years. Law – Article 10: The applicant’s conviction by the domestic courts for insulting the memory of Atatürk on account of his use of the term “ kelle ” to refer to representations of the founder of the Republic of Turkey amounted to interference in the applicant’s exercise of his right to freedom of expression. The interference had been prescribed by the law criminalising insults to the memory of Atatürk. The applicant’s conviction had been intended to protect the reputation and rights of others. Atatürk was an emblematic figure in modern Turkey, and the Turkish Parliament had chosen to criminalise certain acts which it considered insulting to his memory and injurious to the feelings of Turkish society. In the present case, although the term “ kelle ” could admittedly have a pejorative connotation in Turkish, the domestic courts had not specified how its use, in the circumstances of the case, had been insulting to Atatürk’s memory. Indeed, before relinquishing the case, the military court had based its judgment convicting the applicant, of June 1998, on grounds which were not used by the civilian courts in their judgments reaching a similar conclusion. These courts had not conducted any analysis of the context in which the impugned comments had been made. In particular, they had not taken into consideration the fact that the applicant had made them in a confined space and before a select group of persons. Thus, apart from the non-commissioned officer to whom he was speaking and three other servicemen present during the incident, no one had been aware of the applicant’s remarks. In addition, there was nothing to indicate that he had had any intention or verifiable wish to make them public. Thus, the circumstances in which the impugned remarks had been made considerably limited their impact, so that they could not be considered as representing in themselves an attack of any gravity on Atatürk’s reputation. As to the nature and severity of the punishment, at the close of lengthy proceedings involving several procedural developments and which lasted almost sixteen years, the applicant had ultimately been convicted and sentenced to one year’s imprisonment, commuted to a suspended fine. Although none of the sentences imposed on the applicant had ultimately been executed, it remained the case that he had been under the threat of a prison sentence, imposed, moreover, on two occasions. Thus, the fact of sentencing the applicant to a prison sentence, even if it had been commuted to an alternative measure that was still suspended, amounted, in the context of Article   10 of the Convention, to a sanction which was disproportionate to the aim pursued. Having regard to the foregoing, the grounds relied upon by the domestic courts to justify the impugned interference had not been sufficient, and it had been disproportionate to the legitimate aim pursued. The applicant’s conviction for defamation had not been “necessary in a democratic society”. Conclusion : violation (unanimously). Article 41: claim made out of time.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes