Fikret İLKİZ
With European Court of Human Rights judgment on Case of Altuğ Taner Akçam v. Turkey (Application no. 27520/07) dated October 25, 2011; if the laws result in everyone using their freedom of expression to be under “ongoing threat of investigation or prosecution”, such laws causing “threat”, are in violation of freedom of thought and expression. (The full version of the judgment is published at the website of IHOP http://echr.coe.int/echr/en/hudoc)
Akçam, the applicant alleged that the provisions of Article 301 of Turkish Criminal Code had led to an ongoing threat of prosecution and violation of his freedom of expression for insulting “Turkishness” in connection with his academic work on the Armenian issue. Following the complaint against Akçam, public prosecutors decided there is no need for legal proceedings and did not start criminal process. More than one investigation were commenced against him, however, none of them resulted in a criminal process.
Is it possible for a person against whom there is not any ongoing legal proceedings to claim being “victim” due to the fact that he is under threat of prosecution as per a legal arrangement?
According to ECHR, a person has the right to claim “being victim” due to the violation of his rights covered by the Convention. As a matter of fact, even though there is not any solid precaution, if one person is obliged to change his behavior or else risk being prosecuted or the same person is a member of a group which may be directly affected from legal arrangement, that person may claim that a certain law violates his rights.
ECHR considered the fact that the applicant is a professor of history whose research interest includes the historical events of 1915 concerning the Armenian population. He has published numerous books and articles on the Armenian issue, a subject which is considered sensitive in Turkey. He thus belongs to a group of people who can easily be stigmatized for their opinions on this subject and be subject to investigations or prosecutions under Article 301 of the Criminal Code as a result of criminal complaints that can be lodged by individuals belonging to the ultranationalist groups who might feel offended by his views.
ECHR considers that while the applicant was not prosecuted and convicted of the offence under Article 301, the criminal complaints filed against him by extremists for his views on the Armenian issue had turned into a harassment campaign and obliged him to answer charges under that provision.
It can therefore be accepted that, even though the mentioned provision (Turkish Criminal Code Article 301) has not yet been applied to the applicant’s detriment, the mere fact that in the future an investigation could potentially be brought against him has caused him stress, apprehension and fear of prosecution.
This situation has also forced the applicant to modify his conduct by implementing self-restraint in his academic work in order not to risk prosecution under Article 301.
Article 301 of the Turkish Criminal Code was amended on 29 April 2008, and the conduct of an investigation into such an offence is subject to the permission of the Minister of Justice.
In the Court’s opinion, however, the measures adopted by the Government to prevent highly arbitrary or unjustified prosecutions under Article 301 do not seem to provide sufficient safeguards. It transpires from the statistical data provided by the Government that there are still significant number of investigations commenced by public prosecutors under Article 301 and that the Ministry of Justice grants authorization in a large number of cases. According to the Government’s contention, between May 8, 2008 and November 30, 2009 the Ministry of Justice received 1,025 requests for authorization to institute criminal proceedings under Article 301 and granted prior authorization in 80 cases (approximately 8% of the total requests).
In the opinion of ECHR, while the legislator’s aim of protecting and preserving values and State institutions from public denigration can be accepted to a certain extent, the scope of the terms under Article 301 of the Criminal Code, as interpreted by the judiciary, is too wide and vague and thus the provision constitutes a continuing threat to the exercise of the right to freedom of expression.
In other words, the wording of the provision does not enable individuals to regulate their conduct or to foresee the consequences of their acts.
As is clear from the number of investigations and prosecutions brought under this provision, any opinion or idea that is regarded as offensive, shocking or disturbing can easily be the subject of a criminal investigation by public prosecutors.
ECHR observed the fact that the conduct of an investigation based on the violation of Article 301 of Turkish Criminal Code shall be subject to the permission of the Minister of Justice as a precaution to prevent abusive application of Article 301 by judiciary.
The Court, however, also stated that the permission system applied through legal amendment does not provide a reliable and continuous guarantee or eliminate the risk of being directly affected by the provision. It is because any possible political change in time might affect the interpretative attitudes of the Ministry of Justice and open the way for arbitrary prosecutions.
It follows therefore that Article 301 of the Criminal Code does not meet the “quality of law” required by the Court’s settled case-law, since its unacceptably broad terms result in a lack of foreseeability as to its effects.
According to ECHR judgment summarized above, there has been a violation of Article 10 of the Convention.
In that case, the law itself and a single article of the criminal code which create ongoing investigations, ongoing threat of prosecution and ongoing threat of punishment may be “violation of right” by themselves… If this "threat" exists, there is no absolute need for a prosecution or conviction.
So, Article 301 of Turkish Criminal Code is such an article and should be abolished.
December 12, 2011