CM/Inf(99)28 15 May 2000
Violations of the freedom of expression in Turkey: General and individual measures
Since 1998 the Committee of Ministers had to supervise the execution of several individual cases against Turkey relating to violations of the right to freedom of expression guaranteed by Article 10 of the European Convention on Human Rights. The cases in question are: Inçal (judgment of 9 June 1998), Aslantaş (application No.25658/94, Interim Resolution DH(99)560), Arslan, Başkaya & Okçuoğlu , Ceylan, Erdoğdu & Ince, Gerger, Karataş, Okçuoğlu, Polat, Sürek & Özdemir, Sürek II and Sürek IV (judgments of 8 July 1999), Öztürk (judgment of 28 September 1999) and Özgür Gündem (judgment of 16 March 2000). The issue of freedom of expression in the specific context of the right of political association has been the subject of other judgments of the European Court of Human Rights ("the Court"): Unified Communist Party of Turkey (judgment of 30 January 1998), Socialist Party and others (judgment of 25 May 1998) and ÖZDEP (judgment of 8 December 1999).
During the consideration of these cases, the Deputies' attention has been drawn to the question of the measures required, on the one hand, to put an end to the violations found and remedy the consequences which continue to affect the applicants, and on the other, to avoid the recurrence of similar violations. The Committee of Ministers, at its 695th meeting (February 2000), asked the Directorate General of Human Rights to prepare a memorandum clarifying the various issues raised. This document has been drawn up in response to this request.
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With regard to individual measures, the aim is to make reparation for the consequences of convictions that are contrary to Article 10 of the convention, particularly so as to restore the applicants' civil and political rights where those rights have been restricted as a result of the convictions. Since the necessary remedies are not available at present under Turkish legislation or are subject to restrictive conditions, the Directorate General of Human Rights believes that legislative amendments should be contemplated.
With regard to general measures, legislative reforms seem necessary to avoid further violations similar to those found. They should be accompanied by a change in the case-law of the higher Turkish courts in order to ensure an interpretation of Turkish law which is consistent both with the Convention and with the Court's case-law.
The Deputies will recall that the issue of freedom of expression in Turkey (including freedom of expression in the political sphere) has been discussed in other contexts, notably that of the Parliamentary Assembly, and also as part of the Committee of Ministers' monitoring exercise.
The following documents are appended:
- Appendix I - Summary table of cases calling for individual measures;
- Appendix II: Declaration by the Danish, Finnish, Icelandic, Swedish and Norwegian delegations at the 688th meeting (November 1999);
- Appendix III: Written Question for oral reply No.9 by Mr Ziefer in the Parliamentary Assembly and reply by the Chairman of the Committee of Ministers.
B. MEASURES DESIGNED TO SET ASIDE THE CONSEQUENCES OF VIOLATIONS:
These cases originated in judgments imposing fines and/or prison sentences on the applicants following the peaceful public expression or dissemination of information and ideas, particularly through the press.
In all these cases, the Court (or the Committee of Ministers in the Aslantaş case) found that the applicants' convictions were not necessary in a democratic society and were therefore contrary to the European Convention on Human Rights.
The convictions also entailed restrictions on the applicants' civil and political rights. For example, persons sentenced to more than one year's imprisonment under Law No. 3713 are prohibited from holding public office (Law No. 367 on civil servants, Article 98, paragraph 2). Persons convicted under Article 312, paragraph 2 of the Criminal Code are not allowed to found associations (Law No. 2908, Article 4, paragraph 2b) or trade unions, or to be members of the bureaux of such bodies (Law No. 2929). They are also prohibited from founding political parties or joining them (Law No. 2820, Article 11, paragraph 5) and from being elected to parliament (Law No. 2839, Article 11, paragraph f3).
The respondent State is obliged to set aside these consequences: this follows from the obligations undertaken upon accession to the Convention and has been confirmed both by the case-law of the Court (see, for example, the judgment in the case of Papamichalopoulos against Greece of 31 October 1995, paragraph 34: "a judgment in which the Court finds a breach imposes on the respondent state a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach") and by the practice of the Committee of Ministers (see, for example, Interim Resolutions DH(99)245 and DH(99)529 adopted in the case of Socialist Party and others against Turkey).
In similar cases against other countries, the authorities concerned deleted from the applicant's criminal record a conviction found to be contrary to Article 10 (see, for example, Resolutions DH(93)60 and DH(94)23 adopted in the cases of Oberschlick and Schwabe against Austria), or the reopening of the proceedings made it possible to set aside the consequences of the breach by acquitting the applicant (see Resolution DH(95)212 adopted in the case of Jersild against Denmark).
1. Reopening of proceedings which led to a conviction found, on the merits, to be contrary to the Convention
In the light of this information there is clearly an urgent need to introduce provisions into Turkish law making it possible to reopen proceedings where a conviction has been found to be contrary to the Convention, in order to have it set aside and make reparation for all its consequences. At present, there is no such possibility under Turkish law and the highest Turkish courts have in fact explicitly ruled it out in their recent decisions.
However, the introduction of a possibility of reopening proceedings impugned by the European Court of Human Rights, in conformity with Committee of Ministers' Recommendation No.R(2000)2, seems to be the most simple and effective means of setting aside the consequences of violations, having regard also to the current restrictions in Turkey in terms of striking out convictions and restoring applicants' civil and political rights.
The introduction of such a possibility would make it possible to ensure proper execution of the judgments currently under consideration in the Committee of Ministers, as well as of those which might subsequently be referred to the Committee of Ministers. In some cases, however, this aim could also be achieved through amendment of the provisions concerning the deletion of convictions and/or the restoration of civil and political rights (see below).
2. Deletion of convictions found to be contrary to Article 10
According to the information supplied by the Turkish delegation, Turkish domestic law currently makes no provision for setting aside a conviction found to be contrary to the convention or for immediately deleting any mention of it from the applicant's criminal record.
According to the Court Registers Act (Law No.3682 of 22 November 1990, Articles 8 and 9), any request for deletion of a conviction from a criminal record is subject to certain conditions, including the expiry of a certain period of time (five years in the cases under consideration here, see details in appended table). Furthermore, deletion of a conviction is not allowed if another conviction is handed down against the person in question in the course of that period. Even if a conviction is deleted from a person's criminal record, an entry relating to that conviction may still remain in a register in accordance with Article 76 of the Constitution, under which any person sentenced to more than one year's imprisonment, or where the conviction refers to certain criminal offences, is prohibited from taking up parliamentary duties.
There appears to be no exceptions and no special provisions in the case of convictions which, because of the finding of a violation of the Convention, should be rendered invalid.
Consequently, according to the information supplied by the Turkish delegation in its letters of 24 January 2000, 14 March 2000 and 11 April 2000, only the conviction of Mr Selim Okçuoglu (case of Baskaya and Okçuoglu) has been deleted from his criminal record. It is not clear which provisions were applied to that effect. In the cases of Mr Baskaya, Mr Ceylan, Mr Inçe, Mr Karatas, Mr Polat and Mr Sürek, the request for deletion cannot be submitted for the time being because the statutory period has not yet expired. In at least two cases, domestic law rules out any possibility of deleting the convictions from the applicants' criminal records: these are the (Ahmet Zeki) Okçuoglu and Öztürk cases. The Secretariat has not so far received any information on the situation of Mr Arslan, Mr Erdogdu and Mr Özdemir.
3. Restoration of the applicants' civil and political rights
At present, applicants' civil and political rights may be subject to restrictions as a result of their convictions, even though those had been found to be contrary to the Convention.
For example, it may be seen from the Court's judgments that Mr Baskaya has been dismissed from his post as university lecturer and is prohibited from holding public office, and Mr Ceylan has been relieved of his duties as a trade unionist and also banned from holding political office. Some of the relevant domestic law provisions are specified in the above-mentioned judgments. It would seem, however, that further restrictions are provided for in other laws and it would be desirable to have some clarifications in this regard.
So far, the Secretariat has received no information concerning applicants' individual position with regard to the enjoyment of civil and political rights.
According to the information available to the Secretariat, the restoration of rights which have been subjected to restrictions is governed by Articles 121 to 124 of the Turkish Criminal Code. As with the deletion of convictions from a person's criminal record, requests for the restoration of rights are also subject to conditions and the expiry of a certain period of time (the minimum period is three years). It would seem, however, that the courts have wider discretion in the application of these provisions than they have as regards deletion of convictions. It is unclear whether the ban on taking up parliamentary duties under Article 76 of the Constitution is revocable.
There seem to be currently no derogation or special provision permitting immediate and unconditional restoration of rights where their restriction stems from a conviction found to be contrary to the Convention.
C. GENERAL MEASURES DESIGNED TO PREVENT FURTHER VIOLATIONS
Since 1998, when the judgments in the Inçal and Socialist Party and others cases were under consideration in the Committee of Ministers, the attention of the Turkish authorities has been drawn to the need to amend Article 312 of the Criminal Code (Law No.765) and Article 8 of Law No.3713 of 1991  (Prevention of Terrorism Act), which were called into question in these two cases respectively. Subsequent judgments of the Court have confirmed the existence of a serious problem with regard to freedom of expression in Turkey; these judgments have also shown that other provisions of Turkish law are interpreted in a manner contrary to the Convention: Article 159 of the Criminal Code and Article 6 of Law No. 3713.
The Turkish delegation has mentioned planned reforms, which would concern, inter alia, Article 312 of the Criminal Code and Article 8 of Law No. 3713.
At the 688th meeting (November 1999), the Danish, Finnish, Icelandic, Swedish and Norwegian delegations made a joint declaration (see Appendix II) expressing their intention of closely monitoring Turkey's implementation of judgments relating to freedom of expression. They took note of the current public debate in Turkey concerning the planned legislative changes in this field and said that they were looking forward to seeing concrete proposals for reform in this context. They also welcomed the adoption of legislation permitting a certain form of amnesty in freedom of expression cases  , but they pointed out that the ultimate goal should be an overall reform of legislation and practice in this field. The Portuguese delegation endorsed the declaration by the delegations of the Nordic countries. The Deputies subsequently asked the Secretariat to prepare this memorandum.
The Secretariat has repeatedly asked for details concerning the substance of the current plans, the scope of the reforms, the timetable for their adoption and the progress made on them, but has received, so far, no reply.
On the basis of the Court's case-law, here, in brief, are the most important points which the Turkish authorities might take into account in the course of current or planned legislative work, or to which the attention of the courts (in particular the Constitutional Court and the Court of Cassation) should be drawn to enable them to bring their case-law into line with that of the European Court of Human Rights.
1. General issues related in particular to the application of Articles 6 and 8 of Law No. 3713 and Articles 159 and 312 of the Criminal Code
a. Introduction of the general criterion of "incitement to violence"
A key element in the Court's assessment of the proportionality of the restrictions imposed is the presence in the censored publications of incitement to violence. Where the views expressed, however scathing they may be, do not encourage violence, armed resistance, an uprising, hostility or hatred between citizens, or seem unlikely to do so, the Court believes that it is unjustified to restrict freedom of expression (see Arslan judgment paragraph 48, Baskaya and Okçuoglu paragraph 64, Ceylan paragraph 36, Erdogdu and Ince paragraph 52, Gerger paragraph 50, Okçuoglu paragraph 48, Öztürk paragraph 68, Polat paragraph 47, Sürek and Özdemir paragraph 61, Sürek IV paragraph 58, Inçal paragraph 50, Aslantaş paragraph 52, and Özgür Gündem paragraphs 63, 64 and 70).
On the other hand, the Court recognises that the national authorities have wider discretion in their consideration of the need for interference in the exercise of freedom of expression where the remarks complained of encourage violence towards an individual, a representative of the state or a section of the population. In such cases, however, further elements may enter into consideration, such as the nature and scope of the means employed for conveying those opinions, and their author. For instance, in the Karatas case (paragraph 52), the interference was considered disproportionate, despite the existence of passages encouraging violence, because the author was a private individual addressing a very small audience through the medium of poetry.
In the light of the Court's case-law, criminal liability should be clearly confined to statements inciting to violence. The introduction of this element into all Turkish legislation which might affect freedom of expression should be accompanied by application of the relevant provisions in a manner consistent with the interpretation criteria identified by the Court.
It will be recalled that this point had already been raised in 1998 during consideration of the execution of judgments concerning the dissolution of political parties and sanctions for non-violent political statements (see in particular the memorandum by the Directorate General of Human Rights, CM/Inf(98)48 of 10 December 1998).
b. Introduction of a general criterion of truth and public interest
If restrictions on freedom of expression are to be proportionate to the legitimate aims pursued, the latter must be weighed up against other conflicting interests, such as the public interest in being informed. In some cases, this public interest may take precedence over the need, for example, to protect the rights of others. In addition, where the remarks complained of contain factual elements, their truthfulness is a key element to be taken into account.
However, the Court's judgments show that, under Turkish law, it is not possible to plead the defence of truth and public interest (see Sürek II judgment, paragraph 39 and Özgür Gündem paragraphs 61, 68 and 70). In order to comply with the Convention, these criteria should therefore be incorporated into Turkish legislation governing freedom of expression.
c. Review of the level of penalties
The severity of the penalties imposed and the persistence of the prosecution's efforts to secure the applicants' conviction constitute, in most cases, aggravating elements when the Court comes to evaluate the proportionality of the interference. In this connection, it should be noted that the minimum level of penalties for offences related to the expression of opinions and ideas is relatively high and that the penalties are more severe where the offence is committed through the press. For example, prison sentences are stipulated in all the provisions examined by the Court, except Article 6 of Law No.3713 (the minimum sentence being one year under Article 8 of Law No.3713), and additional fines, corresponding to 90% of the average sales figure for the month preceding the offence, are often imposed on the publications concerned, here again with fixed minimum amounts.
Consideration might be given to the possibility of lowering the minimum level of penalties in order to allow the courts greater flexibility in applying sentences, which could then comply more fully with the criteria of proportionality laid down by the Court.
2. Specific issues related to the application of Article 6.1 of Law No. 3713 (disclosure of the identity of civil servants participating in anti-terrorism operations)
The defences of truth and public interest (see Section 1.b above) should play a major role in the application of Article 6 of Law No. 3713. At present, any reference to a civil servant involved in the fight against terrorism may result in a conviction, whereas the public interest would sometimes call for full details to be provided on certain questions entailing liability for these civil servants, particularly in criminal cases, and especially if the allegations can be proved.
The content of the text at issue and the fact that the information is already in the public domain are further elements which the Turkish courts should systematically take into consideration in applying the first paragraph of Article 6 of Law No. 3713.
3 Specific issues related to the application of Article 6.2 of Law No. 3713 (dissemination of statements by the PKK)
In order to give effect to the Court's judgments, the second paragraph of Article 6 of Law No. 3713, prohibiting any dissemination of statements originating from the PKK, should be repealed or amended.
This provision currently contains an absolute ban on disseminating this kind of material, whereas, according to the Court, "the fact that interviews or statements were given by a member of a proscribed organisation cannot in itself justify an interference with the newspaper's freedom of expression. Nor can the fact that the interviews or statements contain views strongly disparaging of government policy" (see Özgür Gündem judgment paragraph 63 and Sürek and Özdemir paragraph 61). Once again, it is the terms employed and the context in which the publication is set which can indicate whether or not there is incitement to violence and hence justify possible restrictions.
4. Positive obligation to protect freedom of expression
In the recent Özgür Gündem judgment, the Court, in addition to the above remarks, emphasised that genuine, effective exercise of freedom of expression "does not depend merely on the state's duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals" (paragraph 43, previously cited judgment). In the case in question, the Court found a lack of effective measures of investigation into illegal acts accompanied by violence and a lack of protection against such acts where it may prove necessary.
Taking into account that these issues have already been raised in other cases involving other Convention articles (see, for example, the Mahmut Kaya and Kiliç judgments of 28 March 2000) and that this seems therefore to be a major problem, urgent measures of execution are necessary.
Appendix I – Summary table of cases calling for individual measures
Appendix II – Extract from the records of the 688th meeting of the Ministers' Deputies
H46-59 SÜREK AND ÖZDEMIR
Judgment of 8 July 1999
H46-61 SÜREK II
Judgment of 8 July 1999
H46-63 SÜREK IV
Judgment of 8 July 1999
Application of Article 46, paragraph 2,
On behalf of the Delegations of Denmark, Finland, Iceland, Sweden and Norway, the Representative of Norway made the following statement:
"The European Court of Human Rights has stated in several cases, including in the judgments now under discussion, that the right to freedom of expression constitutes one of the "essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment" (quotation from one of the judgments of July this year).
In the light of the Court's clear position on this subject, and having regard to the high number of breaches of this fundamental right that has been found by the Court, the Nordic countries will follow Turkey's implementation of the relevant court-decisions with special attention.
With regard to general measures, the Nordic countries have noted with interest that a public debate is presently going on in Turkey concerning the compatibility of Turkish laws and practice with its international obligations in the field of freedom of expression. The Nordic countries look forward to seeing concrete proposals for reform in this context.
Concerning individual measures, the Nordic countries welcome the fact that Turkish legislation that contains elements of amnesty has been brought to bear in several cases involving freedom of expression, including in the case of Mr Perinçek, who had been convicted under section 8 of the Turkish law on prevention of terrorism. It is our hope that this legislation can be applied also in other cases concerning freedom of expression before us, although the final aim should be the change of legislation and practice in this field.
Appendix III – Extract from the Parliamentary Assembly's report of the second part of the 2000 ordinary session, eleventh sitting (AS (2000) CR 11).
“Question No. 9:
Considering the increasing number of cases against Turkey concerning freedom of expression;
Noting that the need for a global reform of Turkish laws on freedom of expression has been raised before the Committee of Ministers in the context of its supervision of the execution of a good number of judgments rendered by the European Court of Human Rights since 1998 (Inçal, Socialist Party and subsequent cases);
Considering that many of these cases also raise concern as regards the individual situation of the applicants, whose civil and political rights are being restricted, although their conviction has been contrary to Article 10 of the Convention;
To ask the Chairman of the Committee of Ministers,
Whether Turkey has now adopted legislation permitting to erase the consequences of the violations found in these cases, notably the unjustified restrictions on civil and political rights, and to prevent new violations of the right to freedom of expression, in particular by amending Articles 6 and 8 of the Anti-Terror Law and Article 312 of the Criminal Code.”
Reply by the Chairman on behalf of the Committee of Ministers:
"The Committee of Ministers has been informed by the Turkish authorities that amendments are envisaged to the relevant Turkish legislation whose current interpretation and application have led to restrictions to freedom of expression. The Committee has requested to be informed of the scope and content of the envisaged reforms, as well as the time-frame for their adoption.
In addition, the Committee of Ministers is examining the individual situation of each applicant in order to ascertain whether they are still suffering from any restriction to their civil and political rights and what means are available, in Turkish law, to restore them as well as to annul the convictions contrary to the Convention and strike them off the criminal records of the applicants.
Here again, the opportunity of reopening or re-examining criminal convictions found in breach of the Convention by the European Court is under examination by the Turkish authorities."
 This law, and in particular Article 8 thereof, was amended by Law No. 4126 of 27 October 1995.
 This is Law No. 4454, passed in August 1999 and sometimes referred to as the "Amnesty Act". This law actually provides for a stay of proceedings and a stay of execution of the sentence for a period of three year. However, it is only after that period has expired, and only if the person has not been convicted for an offence of the same kind during that period, that the conviction is actually set aside.