CEDH · CASELAW;CLIN;ENG — 25 octobre 2011

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Turkey - 27520/07 Judgment 25.10.2011 [Section II] Article 10 Article 10-1 Freedom of expression Criminal investigation for “denigrating Turkishness”: violation   Facts – In October 2006 the applicant, a history professor involved in research and publication on the historical events of 1915 concerning the Armenian population in the Ottoman Empire, published an editorial opinion in a bilingual Turkish-Armenian newspaper criticising the prosecution of the late editor of that newspaper for the crime of “denigrating Turkishness” under Article   301 of the Criminal Code. Subsequently, a complaint was lodged against the applicant by a private individual in respect of the same offence. The public prosecutor took a statement from the applicant, but the charges were ultimately dropped. Law – Article 10: The Court first had to establish whether a mere criminal investigation commenced against the applicant constituted an interference with his right to freedom of expression. While the investigation had been instigated by a criminal complaint lodged by a private individual, the applicant had been summoned to the prosecutor’s office to give a statement. Although the charges against him had been dropped, that did not necessarily mean that he was safe from any future investigation. The applicant was clearly the target of an intimidation campaign which presented him as a “traitor” and a “spy” to the public on account of his research and publications. He had also received hate mail containing insults and even death threats. Such a situation had inevitably forced the applicant to modify his conduct by displaying self-restraint in his academic work in order not to risk prosecution under Article   301 of the Criminal Code. In so far as the Government relied on amendments to that provision which it was claimed would significantly reduce the number of prosecutions, the measures adopted did not provide sufficient safeguards as the Ministry of Justice still granted authorisation to prosecute in a large number of cases. The fact that Article   301 had not been applied in this particular type of case for a considerable time did not mean that it would not be applied in the future, for example, in the event of a change of political will or policy by a newly formed Government. The jurisprudence of the Court of Cassation also clearly established that any criticism of the official thesis on the Armenian issue was caught by Article   301. This combination of the criminal investigation commenced against him, the domestic courts’ case-law on the Armenian issue and the public campaign sparked by the investigation confirmed that there was a real risk of the applicant being prosecuted in the future and constituted an interference with his right to freedom of expression. Following several controversial cases against prominent writers and journalists, such as Orhan Pamuk and Hrant Dink, the respondent Government had amended Article   301 of the Criminal Code with a view to bringing it into line with the requirements of Article   10 of the Convention. The term “Turkishness” had been replaced by “Turkish nation”, the maximum length of imprisonment reduced and any criminal investigation under this provision required the prior approval of the Ministry of Justice. However, despite the replacement of the term “Turkishness”, there seemed to have been no change or major difference in the interpretation of this concept by the domestic courts. Even though the legislature’s aim of preserving values and State institutions from public denigration could be accepted to an extent, the scope of the terms of Article   301 remained too wide and too vague and constituted a continuing threat to the exercise of the right to freedom of expression in that the wording did not enable individuals to regulate their conduct or to foresee the consequences of their acts. Article   301 of the Criminal Code did not, therefore, meet the “quality of law” requirement. Conclusion : violation (unanimously). Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage. (See also Dink v. Turkey , nos. 2668/07 et al., 14   September 2010, Information Note no.   133)   © 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