Taş’s application concerned the criminal proceedings against him for “denigrating the Republic of Turkey” on account of the publication of a book

 

The European Court of Human Rights (ECtHR) on 4 September announced its judgment concerning the application of Fatih Taş, ruling that the proceedings against the publisher violated his right to freedom of expression under Article 10 of the European Convention on Human Rights.

In its unanimous decision, the Strasbourg court also ruled that Turkey pays Taş 2,500 euros in non-pecuniary damages.

Taş’s application, lodged in December 2008, concerned the criminal proceedings against him for “denigrating the Republic of Turkey” on account of the publication of a book, according to a press release issued Tuesday on the ECtHR website.

The book, titled Kayıpsın Diyorlar (“They say you disappeared”) and published in 2004 by Aram Yayıncılık, recounted the life story and the disappearance of Nazım Babaoğlu, an Urfa-based reporter for the now-shuttered newspaper Özgür Gündem.

Taş stood trial for the book on the charge of “publicly denigrating the state of the Republic of Turkey.” The trial court convicted Taş in 2005 and sentenced the publisher to six months in prison. At the end of the appeal process, the Court of Cassation ordered a retrial. At the end of the retrial in 2008, the 2nd Criminal Court of First Instance of Istanbul once again found Taş guilty, and gave him a six-month prison term, which it then commuted to a fine of TL 1,650.

The courts based their decision on the offence set out in Article 159 of Turkey’s former Penal Code (TCK), which was replaced in June 2005 by Article 301 in the current Penal Code.

The Court found in particular that there had been interference with the exercise of Taş’s freedom of expression. It also expressed doubts as to the foreseeability of Article 301 of the new Criminal Code and Article 159 of the former Criminal Code, on which the interference had been based.

The Strasbourg court also found that the book had in no way been “gratuitously offensive” or insulting and that it had not incited to violence or hatred, which in the court’s view was the essential element to be taken into account. The ECtHR therefore considered that the criminal proceedings in question, which had been liable to have a chilling effect on Taş’s willingness to express his views on matters of public interest, had not met a pressing social need and had not been proportionate to the legitimate aims pursued (the protection of public safety and of national security). The criminal proceedings had therefore not been necessary in a democratic society.

The court considered that bringing the domestic legislation into compliance with Article 10 of the ECHR and the court’s case-law would constitute an appropriate form of execution by which to put an end to violations of the rights guaranteed by Article 10 of the Convention in cases concerning proceedings brought under TCK Article 301 and former Article 159.

The judgment was rendered in French.

The ECtHR’s English-language press release concerning the judgment can be accessed here.