Today’s guest post was written by Hannes Cannie, PhD candidate at the Human Rights Centre of Ghent University. Further information on Hannes, including a list of his publications, can be found here.
In Aydin v. Germany (27 January 2011) the Fifth Section of the Strasbourg Court held with six votes to one that the applicant’s criminal conviction for lending support to an illegal organisation constituted no violation of Article 10 ECHR. Although the conviction itself for various acts that are interpreted as contravening a ban on the PKK’s activities may seem reasonable, I find that the Court, as it does not pay much attention to the freedom of expression perspective, misses a chance to shed light on the controversial speech issue in this case.
But first things first, what is this case about? In1993 the German Interior Ministry issued a decision by which it imposed a ban on the activities of the PKK within the German territory, contravention of which is punishable under the German Law on Associations (section 20 §1 no. 4). In the context of a large-scale campaign launched by the PKK’s presidential counsel in 2001, the applicant, as did many others, signed a declaration firmly condemning this ban and asking attention for the Kurdish question, which is “a European problem waiting for a solution”.
The declaration starts with the statement “I also am a follower of the PKK” and emphasises the organisation’s “strategic change” to a politics of non-violence as well as the signatories’ commitment to this “new policy”. Having regard to the fact “that the PKK has not committed one single violent act for two years”, the declaration demands the lifting of all bans on this organisation. Particularly the final sentence, “I further declare that I do not acknowledge this prohibition and that I assume all responsibility arising therefrom”, was hard for the German courts to swallow. Aydin also co-organised and coordinated a collection of such declarations in Berlin and eventually handed these to the Berlin public prosecutor. On top of this, she had donated certain sums of money to a sub-organisation of the PKK, which was also subject to the ban. In Germany, Aydin was criminally convicted to “150 daily fines of eight euros each”. The Berlin Regional Court considered that the applicant, by signing the declaration, taking part in the campaign and giving donations, had flouted the ban, a judgment that was approved of by the Federal Court of Justice. After Aydin had lodged a constitutional complaint regarding alleged violations of her rights to both freedom of expression and petition, the Federal Constitutional Court, like the lower courts, clearly suggested that the declaration’s final sentence had shifted the balance, from protected “mere utterance of criticism and the request for a lifting of the ban” into an unprotected “commitment (…) not to respect the ban on activities in the future”.
After having established (without further clarification) that the domestic courts “had thoroughly examined the content of the declaration signed by the applicant within the general context”, taking into account that the applicant had also “undisputedly contravened the prohibition order in a separate way by making a donation to a sub-organisation of the PKK”, the Strasbourg Court suffices with ‘finding’ that it does “not consider that the interpretation they gave to the applicant’s statement was contrary to her rights under Article 10 of the Convention”. As the Court finally observes that the criminal courts “considered as mitigating factors that the applicant was relying on her right to freedom of expression” and that the sanction imposed “does not appear to be disproportionate”, it concludes “that the courts have sufficiently taken account of the applicant’s right to freedom of expression”.
First of all, I have the impression that the Court is too much influenced by the fact that, next to signing the declaration, Aydin had also made a donation. Admittedly, financially supporting an organisation whose activities are banned may be regarded as an obvious contravention of the ban, causing, even though the same holds not necessarily true for the declaration, a conviction based on the ensemble of both acts to appear justified and proportionate. However, whether this also means that the domestic courts did not unnecessarily interfere with Aydin’s right to freedom of expression, by (at least partially) convicting her for making an unallowable statement through signing a declaration, remains for the Strasbourg Court to assess under Article 10(2) ECHR. In applying the prescribed ‘necessity’ test, it should exercise strict scrutiny, as it reiterated on many occasions that there is little scope under Article 10(2) ECHR for restrictions on political speech or on debate on questions of public interest (see e.g. the Court’s Grand Chamber judgment in United Communist Party of Turkey a.o. v. Turkey).
However, the Court’s reasoning (reproduced above) awakes the strong feeling that it applied some sort of ‘reasonableness’ test instead of the highly speech-protective ‘necessity’ test. This feeling is even strengthened by the absence of any, let alone a critical, observation in response to the unequivocal statement of the German Constitutional Court that, in the context of the criminal courts’ present examination, freedom of opinion/expression took second place without a weighing being required in the individual case. The Strasbourg Court usually accepts such ‘categorical’ approach only exceptionally, in cases reflecting the ‘worst’ kinds of speech, such as (racist) hate speech (especially Holocaust denial) and incitement to violence. As dissenting judge Kalaydjieva in my opinion rightly observes, this silence preserved by the Strasbourg Court indicates that the national courts were not required to determine whether the interference with the freedom of expression reflected a pressing social need justifying the interference in the individual case of the applicant.
This raises questions about the free speech standards applied by the domestic courts, and the Strasbourg Court’s satisfaction with these. To me, it is clear that some elements, apart from the question whether they could actually shift the balance in favour of freedom of expression in this case, are not valued properly at the domestic, nor receive (valuable) attention at the Strasbourg level: the emphasised commitment to the new policy of non-violence (disregarded). The fact that this case essentially concerns the signing of a petition within the context of a peaceful campaign, advanced without advocating the use of violence nor inciting to uprising (idem). The domestic courts’ emphasis on the probable/possible impact of the declaration in terms of producing an advantageous effect for the PKK and the banned activities, without, however, any explanation, examination, support in this regard. And finally, the significant weight the domestic courts attached to one (the final) sentence in the whole declaration, interpreted as a ‘commitment’ not to respect the ban in the future. Firstly, this interpretation seems not hardened very well (the main argument being: “Otherwise, the addendum would not make sense”). Secondly, even if this interpretation of the declaration would be sound and correct, what does this say about the individual intention of each of the signers? Can each signer of any petition be held fully accountable for its entire content? I strongly doubt the adequacy, let alone the ‘necessity’, of such a view. However, this seems to be the firm conviction of the German courts (and also of the Strasbourg Court?), as an individual assessment has been deemed not required. After all, the Federal Court of Justice had rendered a pilot judgment two years after the facts that, by interpreting the declaration, at the same time has fixed Aydin’s intent as well as the intent of each defendant subject (also in the future) to the prosecutions started as a result of handing over the signed declarations… And thirdly, as to the requirement that each interference with the right to freedom of expression must be “prescribed by law”, I question whether Aydin could have reasonably foreseen the consequences that her declaration, (even) qualified as a ‘commitment’ not to respect a ban in the future, could entail under a provision that criminalises actually ‘contravening’ a ban.