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martes, 25 de octubre de 2011

Turkish law means history professor lives in constant fear of prosecution for his views on the events of 1915 concerning the Armenian population

In today’s Chamber judgment in the case Altuğ Taner Akçam v. Turkey (application
no. 27520/07), which is not final1, the European Court of Human Rights held,
unanimously, that there had been:
A violation of Article 10 (freedom of expression) of the European Convention on
Human Rights.
Mr Taner Akçam alleged that the fear of prosecution for his views on the Armenian issue
had caused him considerable stress and anxiety and had even made him stop writing on
the subject.
Principal facts
The applicant, Altuğ Taner Akçam, is a Turkish and German national who was born in
1953 and lives in Ankara. A professor of history, he researches and publishes extensively
on the historical events of 1915 concerning the Armenian population in the Ottoman
Empire. The Republic of Turkey, one of the successor states of the Ottoman Empire,
does not recognise the word “genocide” as an accurate description of events.
Affirming the Armenian issue as “genocide” is considered by some (especially extremist
or ultranationalist groups) as a denigration of “Turkishness” (Türklük), which is a
criminal offence punishable under Article 301 of the Turkish Criminal Code by a term of
imprisonment of six months to two or three years. Amendments have been introduced
following a number of controversial cases and criminal investigations brought against
such prominent Turkish writers and journalists as Elif Şafak, Orhan Pamuk and Hrant
Dink2 for their opinions on the Armenian issue. Notably, in October 2005 Hrant Dink,
editor of AGOS, a bilingual Turkish-Armenian newspaper, was convicted under
Article 301 for denigrating “Turkishness”. It was widely believed that because of the
stigma attached to his criminal conviction, Mr Dink became the target of extremists and
in January 2007 he was shot dead. The three major changes introduced to the text
were: to replace “Turkishness” and “Republic” with “Turkish Nation” and “State of the
Republic of Turkey”; to reduce the maximum length of imprisonment to be imposed on
those found guilty under Article 301; and, most recently in 2008, to add a security
clause, namely any investigation into the offence of denigrating “Turkishness” has to first
be authorised by the Minister of Justice.
On 6 October 2006 Mr Taner Akçam published an editorial opinion in AGOS criticising the
prosecution of Hrant Dink. Following that, three criminal complaints were filed against
1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month
period following its delivery, any party may request that the case be referred to the Grand Chamber of the
Court. If such a request is made, a panel of five judges considers whether the case deserves further
examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral
request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for
supervision of its execution. Further information about the execution process can be found here:
2 See Dink v. Turkey (application nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09), 14.09.2010.
him by extremists under Article 301 alleging that he had denigrated “Turkishness”.
Following the first complaint, he was summoned to the local public prosecutor’s office to
submit a statement in his defence. The prosecutor in charge of the investigation
subsequently decided not to prosecute on the ground that Mr Taner Akçam’s views were
protected under Article 10 of the European Convention. The investigations into the other
two complaints were also terminated with decisions not to prosecute.
The Government submitted that it was unlikely that Mr Taner Akçam was at any risk of
future prosecution on account of the recent safeguards introduced to Article 301, notably
the fact that authorisation was now needed from the Ministry of Justice to launch an
investigation. Accordingly, between May 2008 (when this amendment was introduced)
and November 2009, the Ministry of Justice received 1,025 requests for authorisation to
bring criminal proceedings under Article 301 and granted such authorisation in 80 cases
(about 8% of the total requests). Furthermore, Mr Taner Akçam had not been prevented
from carrying out his research; on the contrary, he had even been given access to the
State Archives. His books on the subject are also widely available in Turkey.
According to Mr Taner Akçam, however, the percentage of prior authorisations granted
by the Ministry of Justice was much higher, and these cases mainly concerned the
prosecution of journalists in freedom of expression cases. He submitted statistics from
the Media Monitoring Desk of the Independent Communications Network for the period
from July to September 2008 according to which a total of 116 people, 77 of whom were
journalists, were prosecuted in 73 freedom of expression cases.
Mr Taner Akçam further claimed that the criminal complaints filed against him for his
views had turned into a harassment campaign, with the media presenting him as a
“traitor” and “German spy”. He has also received hate mail including insults and death
He further alleged that the tangible fear of prosecution had not only cast a shadow over
his professional activities – he effectively stopped writing on the Armenian issue in June
2007 when he brought his application to this Court – but had caused him considerable
stress and anxiety.
Complaints, procedure and composition of the Court
Relying on Article 10 (freedom of expression), Mr Taner Akçam alleged that the
Government could not guarantee that he would not face investigation and prosecution in
the future for his views on the Armenian issue. He further alleged that, despite the
amendment to Article 301 in May 2008 and the Government’s reassurances, legal
proceedings against those affirming the Armenian “genocide” had continued unabated.
Moreover, the Government’s policy on the Armenian issue had not in essence been
changed and could not be predicted with any certainty in the future.
The application was lodged with the European Court of Human Rights on 21 June 2007.
Judgment was given by a Chamber of seven, composed as follows:
Françoise Tulkens (Belgium), PRESIDENT,
Danutė Jočienė (Lithuania),
David Thór Björgvinsson (Iceland),
Dragoljub Popović (Serbia),
András Sajó (Hungary),
Işıl Karakaş (Turkey),
Guido Raimondi (Italy), JUDGES,
and also Stanley Naismith, SECTION REGISTRAR.
Decision of the Court
The Court found that there had been an “interference” with Mr Taner Akçam’s right to
freedom of expression. The criminal investigation launched against him and the Turkish
criminal courts’ standpoint on the Armenian issue in their application of Article 301 of the
Criminal Code (any criticism of the official line on the issue in effect being sanctioned),
as well as the public campaign against him, confirmed that there was a considerable risk
of prosecution faced by persons who expressed “unfavourable” opinions on the subject
and indicated that the threat hanging over Mr Taner Akçal was real. The measures
adopted to provide safeguards against arbitrary or unjustified prosecutions under Article
301 had not been sufficient. The statistical data provided by the Government showed
that there were still a significant number of investigations, and Mr Taner Akçam alleged
that this number was even higher. Nor did the Government explain the subject matter or
the nature of the cases in which the Ministry of Justice granted authorisation for such
investigations. Moreover, the Court agreed with Thomas Hammarberg, Human Rights
Commissioner of the Council of Europe, in his report which stated that a system of prior
authorisation by the Ministry of Justice in each individual case was not a lasting solution
which could replace the integration of the relevant Convention standards into the Turkish
legal system and practice.
Furthermore, in the Court’s opinion, while the legislator’s aim of protecting and
preserving values and State institutions from public denigration could be accepted to a
certain extent, the wording of Article 301 of the Criminal Code, as interpreted by the
judiciary, was too wide and vague and did not enable individuals to regulate their
conduct or to foresee the consequences of their acts. Despite the replacement of the
term “Turkishness” by “the Turkish Nation”, there was apparently no change in the
interpretation of these concepts. For example, in the case Dink v. Turkey of 2010 the
Court criticised the Court of Cassation for understanding them in the same way as
before. Thus Article 301 constituted a continuing threat to the exercise of the right to
freedom of expression. As was clear from the number of investigations and prosecutions
brought under this Article, any opinion or idea that was considered offensive, shocking or
disturbing could easily be made the target of a criminal investigation by public
prosecutors. Indeed, the safeguards put in place to prevent the abusive application of
Article 301 by the judiciary did not provide a guarantee of non-prosecution because any
change of political will or of Government policy could affect the Ministry of Justice’s
interpretation of the law and open the way for arbitrary prosecutions.
In view of that lack of forseeability, the Court concluded that the interference with
Mr Taner Akçam’s freedom of expression had not been “prescribed by law”, in violation
of Article 10.
The Court held that the finding of a violation was sufficient just satisfaction under
Article 41 in the circumstances of the case.
The judgment is available only in English.
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The European Court of Human Rights was set up in Strasbourg by the Council of
Europe Member States in 1959 to deal with alleged violations of the 1950 European
Convention on Human Rights.

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