CEDH · CASELAW;CLIN;ENG — 14 septembre 2010

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Turkey - 2668/07, 6102/08, 30079/08 et al. Judgment 14.9.2010 [Section II] Article 2 Positive obligations Article 2-1 Life Failure of authorities to protect life of a journalist following death threats: violation   Article 10 Failure of authorities to protect freedom of expression of a journalist who had commented on identity of Turkish citizens of Armenian extraction: violation   Facts – The applicants are a journalist, now deceased, and five of his close relatives. The first applicant, a Turkish national of Armenian extraction, was publication director and editor-in-chief of a Turkish-Armenian weekly newspaper. In 2003 and 2004 he wrote a series of articles for the newspaper in which he expressed his views on the identity of Turkish citizens of Armenian extraction. He commented, among other things, that Armenians’ obsession with having their status as victims of genocide recognised had become their raison d’être , that this need on their part was treated with indifference by Turkish people and that, as a result, the traumas suffered by Armenians remained a live issue. In his view, the Turkish component in Armenian identity was both poison and antidote. He also wrote that “the purified blood that will replace the blood poisoned by the ‘Turk’ can be found in the noble vein linking Armenians to Armenia”. He wrote a further article in which he referred to the Armenian origins of Atatürk’s adopted daughter. Extreme nationalists reacted to the articles by staging demonstrations, writing threatening letters and lodging a criminal complaint. In 2005 a criminal court found the journalist guilty of denigrating “Turkishness” (Turkish identity) and imposed a suspended prison sentence on him. In 2006 the Court of Cassation upheld the finding of guilt. In early 2007 the criminal court to which the case had been remitted discontinued the proceedings on account of the death of the journalist, who had been assassinated a few weeks earlier. The public prosecutor’s office instituted criminal proceedings against eighteen persons on suspicion of involvement in terrorist activities and assassinations; the proceedings are still pending. Several investigations and sets of proceedings aimed at establishing whether the gendarmerie and police departments in question had known about the assassination plot and had been negligent were discontinued, with the exception of one set of proceedings against two non-commissioned gendarmerie officers, still pending. Law – Article 2 ( substantive aspect ): In view of the reactions to the articles in question, the security forces could reasonably be considered to have been informed of the intense hostility towards the journalist in extreme nationalist circles. Furthermore, it appeared that two police departments and one gendarmerie department had been informed of the likelihood of an assassination attempt and even of the identity of the alleged instigators. The threat of an assassination could therefore be said to have been real and imminent. However, none of the three authorities concerned had taken action to prevent the crime. Admittedly, the journalist had not requested increased protection; however, he could not have known about the plan to assassinate him and it had therefore been for the authorities in question to take action. In sum, the latter had not taken the reasonable measures available to them to prevent a real and immediate risk to the journalist’s life. Conclusion : violation (unanimously). Article 10: (a) Victim status – At the time of the first applicant’s death, the Court of Cassation had upheld the finding that he was guilty of denigrating Turkishness. This ruling, taken on its own or coupled with the lack of measures to protect the journalist against attacks by nationalist extremists, had amounted to interference with the exercise of his right to freedom of expression. Accordingly, the journalist had victim status in relation to Article   10 and the remaining applicants had a legitimate interest in obtaining a finding that his conviction had been in breach of the right to freedom of expression. (b)   Necessity of the interference – Analysis of the full series of articles showed clearly that what the journalist had described as “poison” had not been “Turkish blood”, as held by the Court of Cassation, but the “perception of Turkish people” by Armenians and the obsessive nature of the Armenian diaspora’s campaign to have Turkish people recognise the events of 1915 as genocide. A study of the way in which the notion of Turkishness had been interpreted by the Court of Cassation showed that the latter had indirectly penalised the journalist for criticising the State institutions’ denial that the events amounted to genocide. Article   10 did not permit restrictions on freedom of expression in the sphere of political debate and issues of public interest, and the limits of permissible criticism were wider with regard to the government than in relation to private individuals. Furthermore, the series of articles taken overall did not incite others to violence, resistance or revolt. The author had been writing in his capacity as a journalist and editor-in-chief of a Turkish-Armenian newspaper, commenting on issues concerning the Armenian minority in the context of his role as a player on the political scene. He had merely been conveying his ideas and opinions on an issue of public concern in a democratic society. In such societies, the debate surrounding historical events of a particularly serious nature should be able to take place freely, and it was an integral part of freedom of expression to seek historical truth. Finally, the impugned articles had not been gratuitously offensive or insulting, and they had not incited others to disrespect or hatred. The journalist’s conviction for denigrating Turkishness had therefore not answered any pressing social need. (c)   Positive obligations – States had positive obligations in relation to freedom of expression: they must not just refrain from any interference but must sometimes take protective measures even in the sphere of the relations of individuals between themselves. They were also required to create a favourable environment for participation in public debate by all the persons concerned, enabling them to express their opinions and ideas without fear. In view of the authorities’ failure to protect the journalist against the attack by members of an extreme nationalist group and his conviction in the absence of a pressing social need, the respondent State had not complied with its positive obligations with regard to the journalist’s freedom of expression. Conclusion : violation (unanimously). The Court also held unanimously that there had been a violation of Article   2 in its procedural aspect and of Article   13 taken in conjunction with Article   2. Article 41: EUR 100,000 jointly to the journalist’s widow and children, and EUR   5,000 to his brother, in respect of non-pecuniary damage.   © 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