Interim Resolution ResDH(2004)38
    Freedom of Expression cases concerning Turkey: General Measures

    (Adopted by the Committee of Ministers on 2 June 2004
    at the 885th meeting of the Ministers' Deputies)

    The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11 (hereinafter referred to as “the Convention”),

    Having regard to 27 judgments and decisions rendered by the Convention organs finding that the criminal convictions of the applicants on account of statements contained in articles, books, leaflets or messages addressed to, or prepared for, a public audience, had violated their freedom of expression guaranteed by Article 10 of the Convention (see cases listed in Appendix 1);

    Bearing in mind a number of other cases involving similar complaints which the European Court has struck out of its list following the conclusion of friendly settlements on the basis not least of undertakings by the government to bring Turkish Law into line with the requirements of Article 10 of the Convention (see cases listed in Appendix I);

    Recalling its Interim Resolution ResDH(2001)106 on violations of the freedom of expression in Turkey, in which it encouraged the Turkish authorities to bring to a successful conclusion the comprehensive reforms planned to bring Turkish law into conformity with the requirements of Article 10 of the Convention;

    Having examined the significant progress achieved in further series of reforms undertaken with a view to aligning Turkish law and practice with the requirements of the Convention in the field of freedom of expression;

    Welcoming the changes made to the Turkish Constitution, in particular to its Preamble to the effect that only anti-constitutional activities instead of thoughts or opinions can be restricted, as well as to Articles 13 and 26 which introduce the principle of proportionality and indicate the grounds for restrictions of the exercise of freedom of expression, similar to those contained in paragraph 2 of Article 10 of the Convention;

    Welcoming also the recent, important legislative measures adopted as a result of these reforms, in particular the repeal of Article 8 of the Anti-terrorism Law and the modification of Articles 159 and 312 of the Turkish Criminal Code;

    Noting nonetheless that the violations of freedom of expression found as a result of the application of Article 6 of the Anti-terrorism Law have yet to be specifically addressed;

    Stressing that the effectiveness of these important reforms will, to a large extent, depend on the interpretation of the law by the national courts in the light of the case-law of the European Court of Human Rights;

    Welcoming in this context the “train the trainers” programme currently being carried out in the framework of the “Council of Europe/European Commission Joint Initiative with Turkey: to enhance the ability of the Turkish authorities to implement the National Programme for the adoption of the Community acquis (NPAA) in the accession partnership priority area of democratisation and human rights” (see Appendix 3) and noting that this programme aims, among other things at devising a long-term strategy for integrating Convention training into the initial and in-service training of judges and prosecutors;

    Noting in this context the recent establishment of the Judicial Academy, as well as many Convention awareness-raising and training activities for judges and prosecutors initiated by the Turkish authorities;

    Welcoming furthermore the amendment of Article 90 of the Constitution, recently adopted by the Turkish Parliament, which should facilitate the direct application of the Convention and case-law in the interpretation of Turkish Law;

    Encourages the Turkish authorities to consolidate their efforts to bring Turkish Law fully into conformity with the requirements of Article 10 of the Convention;

    Invites in particular the Turkish authorities to ensure, by appropriate means, that statements or accusations falling under Article 6 of the Anti-terrorism Law which serve the public interest and in respect of which the proof of truth is offered, or in respect of which the person concerned is in good faith about the truth, are not punishable and nor indeed are the printing of other statements covered by this article which do not incite to violence;

    Encourages the Turkish authorities to take further measures to enhance the direct effect of the Convention and of the European Court's judgments in the interpretation of Turkish law, in particular by judges and prosecutors, taking into account the relevant Recommendations of the Committee of Ministers in this area;

    Decides to resume consideration of the general measures in these cases within nine months, and outstanding individual measures concerning the respective applicants at its 897th meeting (September 2004), it being understood that the Committee's examination of those cases involving applicants convicted on the basis of former Article 8 of the Anti-terrorism Law will be closed upon confirmation that the necessary individual measures have been taken.

    Appendix 1 to Interim Resolution ResDH(2004)38

    - Judgements concerning violations of the right to freedom of expression pending before the Committee of Ministers for supervision of execution

    Aksoy Ibrahim, judgment of 10/10/00,
    Arslan, judgment of 08/07/99
    Aslantaş Sedat, Interim Resolution by the Committee of Ministers DH(99)560 of 08/10/99
    Baskaya and Okçuoğlu, judgment of 08/07/99
    C.S.Y., judgment of 04/03/03
    Çetin, judgment of 13/02/03
    Ceylan, judgment of 08/07/99
    E.K., judgment of 07/02/02,
    Erdoğdu, judgment of 15/06/00
    Erdoğdu and Ince, judgment of 08/07/99
    Gerger, judgment of 08/07/99
    Gökçeli Yaşar Kemal, judgment of 04/03/03,
    Inçal, judgment of 09/06/98
    Karataş, judgment of 08/07/99
    Karataş Seher, judgment of 09/07/02,
    Karakoç and others, judgment of 15/10/02,
    Karkın, judgment of 23/09/03,
    Kızılyaprak, judgment of 02/10/03,
    Küçük Yalçın, judgment of 05/12/02,
    Okçuoğlu, judgment of 08/07/99
    Öztürk, judgment of 28/09/99
    Polat, judgment of 08/07/99
    Sürek II, judgment of 08/07/99
    Sürek IV, judgment of 08/07/99
    Sürek and Özdemir, judgment of 08/07/99
    Özgür Gündem, judgment of 16/03/00
    Öztürk Ayşe, judgment of 15/10/02,
    Yağmurdereli, judgment of 04/06/02,

    - Complaints struck out of the list by the Court following the conclusion of friendly settlements on the basis of the Government's undertakings

    Altan, judgment of 14/05/02 - Friendly settlement
    Demirtaş 1, judgment of 09/10/03 – Friendly settlement
    Erkanlı, judgment of 13/02/03 - Friendly settlement
    Erol Ali, judgment of 20/06/02 - Friendly settlement
    Kiliç Özcan, judgment of 26/11/02 - Friendly settlement
    Özler, judgment of 11/07/02 - Friendly settlement
    Sürek Kamil Tekin V, judgment of 16/07/02 - Friendly settlement
    Zarakolu, judgment of 27/05/03 - Friendly settlement
    Zarakolu Ayşenur No.1, judgment of 02/10/03 – Friendly settlement
    Zarakolu Ayşenur No.2, judgment of 02/10/03 – Friendly settlement
    Zarakolu Ayşenur No. 2, judgment of 02/10/03 – Friendly settlement
    Caralan, judgment of 25/09/03 – Friendly settlement
    Demirtaş Nurettin, judgment of 09/10/03 – Friendly settlement

    Appendix 2 to Interim Resolution ResDH(2004)38

    Information provided by the Government of Turkey to the Committee of Ministers on the general measures taken in the area of freedom of expression

    2.1. Constitutional amendments

    A. On 03/10/2001, a number of constitutional amendments concerning, among other things, the provisions on freedom of expression were adopted and are directly applicable.

    i. The Preamble to the Constitution now provides that only anti-constitutional “activities” (rather than “thoughts or opinions”) may be restricted and, according to the new Article 13, such restrictions should respect the principle of proportionality and be based on the specific grounds listed in the relevant articles of the Constitution.

    The amendment is an important step towards the enhancement of freedom of expression. With the amendment, it is activities, not expressions of ideas or opinions, against national interests and principles which are targeted.

    ii. Article 26 of the Constitution on freedom of expression and dissemination of thought has been amended as well. The second paragraph of this Article lists the exceptional situations in which freedom of expression can be restricted. The following addition was made to this paragraph:

    "The exercise of these freedoms may be restricted for the purposes of protecting national security, public order and public safety, the basic characteristics of the Republic and safeguarding the indivisible integrity of the State with its territory and nation, preventing crime, punishing offenders, withholding information duly classified as a state secret, protecting the reputation and rights and private and family life of others, or protecting professional secrets as prescribed by law, or ensuring the proper functioning of the judiciary.

    "The third paragraph restricting the use of languages prohibited by law and the seizure of written and printed documents etc. has been repealed.”

    The following paragraph was added to the Article:

    “The formalities, conditions and procedures to be applied in exercising the right to expression and dissemination of thought shall be prescribed by law."

    iii. A further amendment was made to Article 28 on the freedom of the press. Before the amendment, the Article provided that publication could not be made in any language prohibited by law. This paragraph was removed from the text.

    iv. Article 31 on the right to use mass media other than the press owned by public corporations was also amended. The second paragraph concerning the restrictions on this right has been amended.

    B.i. A second amendment was made to the Constitution by Law No. 4777 which entered into force on 31 December 2002. The scope of freedom of thought and expression was further expanded with the amendment of Article 76. This Article regulates the conditions to be eligible to become a member of parliament. The previous conditions stipulated in this Article 7 provided that eligibility requires "not having participated in ideological or anarchical acts”. This wording was repealed and a new provision regarding "participation in acts of terrorism" was introduced.

    C. On 7 May 2004 the Turkish Parliament adopted an amendment to Article 90 of the Constitution, which now provides that international agreements will prevail over incompatible domestic law.

    2.2. Legislative amendments to Articles 159 and 312 of the Turkish Criminal Code and Article 7 of the Anti-terrorism Law

    Following the constitutional amendments, Turkey launched a comprehensive review of its legislation. Seven comprehensive legal amendments have been enacted in line with the constitutional amendments, all of them contributing to the enhanced implementation of freedom of expression.

    The First Harmonisation Package, adopted on 6 February 2002, amended Article 312 and introduced a new criterion to the Article, namely "incitement in a manner which is explicitly dangerous to public order". Only overtly criminal acts or active disobedience of the law will be punishable under this amendment.

    The First and Seventh Harmonisation Packages amended Article 159 of the Turkish Criminal Code and reduced the sentences. Another amendment to Article 159 was made by the Third Harmonisation Package, enacted on 3 August 2002. Under the terms of the amended articles, penalties have been lifted for expressions of thought, which will fall within the scope of freedom of thought and expression and are merely critical in nature. According to the new version of Article 159, written, oral or visual expressions of thought which are merely critical in nature and which involve no deliberate attempt to insult or deride the bodies and institutions listed in the said Article, do not incur any penalty. Thus no penalties are provided for expressions of thought which fall within the scope of freedom of expression which are merely critical in nature.

    Article 7 of the Anti-terrorism Law has been amended so as specifically too sanction propaganda carried out on behalf terrorist organisations in a manner that encourages resort to violence or other terrorist means.

    These amendments have already led to acquittals or reduced sentences in a number of cases. It is just a matter of time before these amendments will find stronger expression in the case-law of our national courts as well as in the practice of administrative authorities. In fact, cases referred to the Court of Cassation are now being quashed on the basis of the recent amendments, and the recent case-law of the State Security Courts clearly demonstrates that national courts are applying the latest amendments in accordance with the jurisprudence of the European Court of Human Rights.

    2.3. Law on the election of members of parliament

    The amendment to Article 11 of the Law on the Election of the members of Parliament in the Fourth Harmonisation Package is another development contributing to the fulfilment of freedom of expression. Before amendment, the Article provided that persons convicted under Article 312 of the Turkish Criminal Code could not participate in parliamentary elections. This paragraph was amended to read as "persons convicted of terror crimes" are banned from participation in parliamentary elections.

    2.4. Repeal of Article 8 of the Anti-terrorism Law

    Law No. 4928 of 19 July 2003 repealed Article 8 of the Anti-terrorism Law, which prohibited written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic or the indivisible unity of the nation. As regards procedures initiated under this Article before its repeal, Law No. 4928 provides that preliminary prosecutions shall be discontinued, that persons arrested shall be released and that cases pending for decision or for execution shall be urgently examined by the competent courts in conformity with the principle set by Article 2 of the Turkish Criminal Code (nullum crimen, nulla poena sine lege).

    2.5. Press Law No. 5680

    Some provisions of the press law have also been amended, notably by deleting prison penalties and establishing respect for the confidentiality of journalists' sources in law. The possibilities of preventing distribution and collection of printed material have been limited. The period for which a periodical may be suspended in cases of conviction for press offences has been shortened. Sentences have been reduced in respect of persons who continue to publish a suspended periodical, or those who publish a new periodical which is clearly a continuation of a suspended periodical. The criminal responsibility of editors and publishers for the use of any language prohibited by the law has been lifted.

    2.6. Other legislative changes having effect on freedom of expression

    - Articles of the "Act on the Establishment of Radio and Television Enterprises and Their Broadcasts" have been amended so as to remove a much criticised broadcasting principle of "private lives of the individuals are not to become subjects of broadcasts with the exception of cases where this is necessary for public good". The abstract expression of "pessimism and desperation and encouragement of chaos and violent tendencies" has also been removed from Article 4 thus enhancing freedom of expression.

    With an amendment to Article 26 of the above mentioned Act, the matter of re-transmission has been clarified and alignment with the European Convention on Trans-frontier Television is ensured.

    - Article 6 of the Law on Associations was amended by the Fourth Harmonisation Package, adopted on 2 January 2003. Here, the requirement that associations should only use Turkish in their correspondence was amended. The obligation to use Turkish is now limited solely to associations' official correspondence with Turkish public institutions.

    - The amendments to various Articles of the Act on Political Parties and Law on Associations also have important effects on freedom of expression.

    Appendix 3 to Interim Resolution ResDH(2004)38

    Objectives of the Joint European Commission/Council of Europe Initiative with Turkey to enhance the ability of the Turkish authorities to implement the National Programme for the adoption of the Community acquis (NPAA) in the accession partnership priority area of democratisation and human rights

    The project's overall objective is to enhance the ability of the Turkish authorities to implement the National Programme for the adoption of the Community acquis (NPAA) in the Accession Partnership priority area of human rights and democratisation.

    This will be achieved by:

    · developing training capacities on ECHR case-law standards: devise and implement short- and long- term strategies on the rule of law and ECHR case-law for judges, prosecutors and lawyers;

    · promoting awareness-raising on human rights standards;

    · providing legal expertise on draft laws aimed at aligning the national rule of law and human rights framework with European standards.

    The key indicators of project success are:

    · pool of trainers trained to impart ECHR case-law courses to judges;

    · increased public awareness of human rights;

    · fulfilment of commitments vis-à-vis the Council of Europe and the Community acquis;

    · effective functioning of the national legal framework and institutions protecting the rule of law and human rights.

    The following specific objectives will be pursued:

    1. Devise and implement short- and long-term training strategies on rule of law and ECHR case-law for judges, prosecutors and public officials;

    2. Create and launch a comprehensive campaign to increase awareness and understanding of human rights among the public at large;

    3. Align the normative framework and its implementation, in conformity with European standards, in the following areas: judiciary, criminal norms, civil norms, data protection, protection of human rights, freedom of media and expression, democratic institutions.



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