Full case report
Saim Üstün v Turkey
Reference Application No. 37685/02
Court European Court of Human Rights
Judge Baka (President), Cabral Barreto, Türmen, Ugrekhelidze, Zagrebelsky, Mularoni, Popoviã and Joèienë JJ
Date of Judgment 10 May 2007
Human rights – Freedom of expression – Article 10, European Convention on Human Rights – Whether necessary in a democratic society – Conviction of publisher for publication of separatist propaganda
The applicant’s firm republished a book entitled “The people’s artist and fighter: Yýlmaz Güney”, about the life and political views of the left-wing revolutionary cinema artist Yýlmaz Güney. He was prosecuted and convicted of publishing separatist propaganda, the court noting that the book referred to a certain part of the Turkish territory as Kurdistan, and thus constituted propaganda “against the indivisible integrity of the State”. Copies of the book were confiscated. The applicant was fined. He complained to the European Court of Human Rights that this conviction and sentence was a violation of his rights under Article 6 and 10, and that the confiscation of the book infringed his property rights under Article 1 of Protocol 1. Subsequently, following a change in Turkish law, his conviction was quashed.
Whether the interference with the applicant’s Article 10 right was necessary in a democratic society (it not being disputed that there had been an interference with the applicant’s rights under Article 10, that that interference had been prescribed by law and in the pursuit of a legitimate aim)
Finding a violation of Article 10; the book did not give a neutral account of Mr Güney’s life but rather a politicised version, and the author had sought to convey his own opinions on matters such as the rights of the Kurdish people and the authorities’ stance against the achievement of such rights. There is little scope under Art 10(2) for restrictions on political speech or the debate on questions of public interest. Although the narrative had a hostile tone, it did not encourage violence, armed resistance or insurrection, and did not constitute hate speech. The 1st edition of the book had sold without occasioning criminal proceedings and there was no explanation why the 2nd caused more concern to the judicial authorities. Notwithstanding his acquittal, the applicant had been convicted and had to pay a fine. Against this background, the reasons for the conviction were insufficient and the sentence disproportionate such that they were not necessary in a democratic society.
This decision emphasises the strong protection that the European Court will give to political speech which forms part of a debate on a matter of public interest, even if it considers that speech ‘hostile’, so long as it does not encourage violence or constitute hate speech.
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