December 02, 2011
This guest post is co-authored by Rónán Ó Fathaigh and Chris Wiersma, two colleagues from the Human Rights Centre. More information on Rónán and Chris can be found on the website of the Center for Journalism Studies of Ghent University, here
In its recent Akçam v. Turkey judgment, the Second Section of the European Court was again called upon to consider the controversial Article 301 in Turkey which criminalises “denigration of the Turkish Nation”. The Court unanimously concluded that the law was overbroad and vague, resulting in a violation of Article 10 of the European Convention.
The law was previously considered in Dink v. Turkey (see an excellent post by Lourdes), where the Second Section had held it was unnecessary to decide the issue of overbreadth. The law has been subject to much criticism, in particular relating to its application to persons expressing opinions on Ottoman Empire policy towards Armenians in 1915 being genocide.
The applicant in Akçam was a professor of history who had written extensively on the Armenian question in Turkey. Following the prosecution of the late editor of the AGOS newspaper Hrant Dink under Article 301 for “denigrating Turkishness”, the applicant wrote an article criticising this prosecution, and requested, as an act of solidarity, that he also be prosecuted for his similar views on the Armenian question.
A criminal complaint was made against the applicant by a member of the public, alleging the applicant’s article amounted to “denigration of Turkishness” under Article 301, incitement to crime, and incitement to hatred. The public prosecutor initiated an investigation, and concluded that there should be no prosecution, as the applicant’s views in the newspaper article were protected expression under Article 10 of the European Convention. This non-prosecution decision was upheld on appeal. A second complaint was lodged with the public prosecutor, which was also rejected.
Notwithstanding the non-prosecution decision, the applicant made an application to the European Court claiming that the mere existence of Article 301, and the fear of prosecution such a law created, constituted a continuing violation of his right to freedom of expression under Article 10 of the European Convention. The applicant also claimed that the wording of Article 301 was too vague, which could result in arbitrary prosecutions.
The first issue for the European Court was whether the applicant could indeed claim to be a victim of a violation of Article 10, as no prosecution had been initiated against the applicant. The Court reiterated its general principles on standing: an individual cannot complain about a national law merely because they consider it to violate the Convention; an applicant must be “directly affected” by the law to have victim status.
In this regard, the Court stated that an individual may claim a law violated the Convention, even in the absence of an individual measure of implementation, if (i) the individual has to modify his conduct or risk being prosecuted (citing Dudgeon v. the United Kingdom), or (ii) is a member of a class of people who risk being directly affected by the legislation (citing Johnston v. Ireland).
The Court considered that the applicant belonged to a class of people who risked being directly affected by Article 301, given that he was involved in generating content targeted by Article 301, namely academic publications concerning the Armenian question. Moreover, the Court referred to the application by the Turkish criminal courts of Article 301 to opinions criticising the official thesis on the Armenian question, which had forced to applicant to self-censor in order to avoid the risk of prosecution. Thus, the Court concluded that there had been an “interference” with the applicant’s right to freedom of expression.
The next question for the European Court was whether Article 301 was overbroad or vague, and the Court applied its usual test: was the law sufficiently clear to enable individuals to regulate their conduct and to reasonably foresee the consequences of their actions (citing Grigoriades v. Greece).
Of note, since the time when the applicant had made his application to the European Court, Article 301 had been amended by the Turkish legislature. The amendment included the replacement of the operative part of the offence from “denigration of Turkishness” to “denigration of the Turkish Nation”. Moreover, in order to initiate prosecution under Article 301, public prosecutors had to obtain authorisation from the Ministry of Justice. Nonetheless, the Court proceeded to examine the new wording of Article 301.
The Court referred to a leading judgment of the Turkish Court of Cassation which had interpreted the old Article 301, interpreting the term “Turkishness” as encompassing “the Turkish Nation”. Consequently, the European Court held that the amendment did not clarify the meaning of “Turkishness”, as the new wording had not removed from its scope opinions concerning the Armenian question.
Furthermore, the Court considered that the new prior-authorisation requirement in order to initiate prosecutions under Article 301 did not remove the risk of the application of Article 301 to legitimate expression, as any change in the political will at the Ministry of Justice would open the way for arbitrary prosecutions.
The Court concluded that Article 301 was too wide and vague, as the wording did not enable individuals to regulate their conduct to foresee the consequences of their acts. The law was overbroad as it was applicable to opinions which are offensive, shocking or disturbing; expression which is protected under Article 10 of the European Convention. Thus, the interference was not “prescribed by law”, and consequently, there had been a violation of Article 10.
Firstly, the significance of the judgment in Akçam is apparent when one considers that (i) the Turkish law under consideration had undergone an amendment since the time of the application, (ii) there had been no prosecution against the applicant, with a non-prosecution decision being issued; and (iii) the applicant had made no challenge to the law in the domestic courts. Nonetheless, the European Court considered it legitimate to review the compatibility of the amended law with Article 10 of the Convention, and ultimately finding a violation.
Secondly, while the judgment Akçam concerned Article 301, the crux of the issue was its application to controversial opinions on the Armenian question, in particular surrounding Ottoman Empire policy towards Armenians in 1915 being genocide. The Court ultimately concluded that Article 301 was overbroad as it was applicable to such opinions, and thus prohibited legitimate expression which offends, shocks and disturbs (Lingens v. Austria).
Thirdly, Akçam may represent an important development in Article 10 jurisprudence. It remains to be seen whether the reasoning in Akçam will form the basis for future applications being granted by the Court where a person self-censors because of fear of prosecution under a domestic law. There are many instances of such laws throughout Europe, including vague laws criminalising insult, glorification of terrorism, incitement, etc.
Finally, the European Court went to great lengths to justify granting the applicant standing to claim a violation under Article 10. It may not be surprising, therefore, should Turkey decide to make a request for referral of Akçam to the Grand Chamber, although the unanimity in the Chamber may render such a request difficult.