Case of Zana V

Case of Zana v. Turkey (25 November 1997)

Facts: Since 1985 there had been disturbances between security forces and members of the Workers’ Party of Kurdistan (the “PKK”) in the south-east area of Turkey. Since 1987, ten of the eleven provinces of the area had been subjected to emergency rule.

In August 1987, Mehdi Zana, a Turkish citizen who was a former mayor of Diyarbakir (the “Applicant”), was serving several sentences in a military prison in that town. While in jail he had an interview with journalists and made comments which were published in the national daily newspaper on August 30, 1987.

The comments by the Applicant were, “I support the PKK national liberation movement; on the other hand, I am not in favour of massacres. Anyone can make mistakes, and the PKK kill women and children by mistake...”

The “press offenses” department of the Istanbul public prosecutor’s office started an investigation on the Applicant on the grounds he “defended an act punishable by law as a serious crime”, a violation of Article 312 of the Turkish Criminal Code.

The Istanbul public prosecutor’s office ruled it had no jurisdiction. The file was sent to the Diyarbakir public prosecutor which ruled it did not have jurisdiction. The file was then sent to the public prosecutor at the Diyarbakir National Security Court which ruled it did not have jurisdiction and sent the file to Diyarbakir Military Court which eventually sent the file back to the National Security Court. This was almost two years after the initial investigation.

At a hearing the Applicant refused to speak Turkish and said he wanted to defend himself in Kurdish, his mother tongue. The court had told him if he continued to refuse to defend himself he would be deemed to have waived his right to do so. He continued to speak Kurdish and the court noted in the record he did not put forward a defense.

The domestic court held that the PKK qualifies as an “armed organization” under Article 168 of the Criminal Code and it’s aim was to bring about secession of part of Turkey and had committed acts of violence. Therefore, the statements by Applicant were an offense under Article 312 because they defended an act punishable by law as a serious crime and endangered public safety.

Alleged violations of the Convention/Law: Applicant complained of the length of the criminal proceedings, of an infringement of his right to a fair trial in that he hadn’t been able to appear before the court which convicted him and had not been able to defend himself in his mother tongue, and of an interference with his freedom of thought and expression. Applicant based these allegation on Article 6 par. 1 and 3, Article 9 and 10 of the Convention.

Article 10 states that everyone has the right to freedom of expression and such freedom is subject to restrictions as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety.

Article 6 states that everyone is entitled to a fair hearing within a reasonable time and to defend himself in person and to examine or have examined witnesses.

Holding: The Court held that there was not a violation of Article 10 and there was a violation of Article 6 par. 1 and 3(c)

Analysis: Article 10 It was uncontested that Applicant’s conviction and sentence were an interference with his exercise of freedom of expression. It is not, however, a violation of Art. 10 if it was prescribed by law, had one or more of the legitimate aims referred to in Art. 10 and was necessary in a democratic society for achieving such aim(s).

Applicant was convicted under provisions in the Turkish Criminal Code and so the requirement that the restriction be prescribed by law was met.

The Court then looked at whether the aim of the interference was legitimate. According to the government, the aim of the interference was maintenance of national security and public safety, the preservation of territorial integrity and prevention of crime. The statement by the Applicant happened to coincide with the murders of civilians by PKK militants in the area. The Applicant is a former mayor of a city in the area, a well-known political figure, with standing and influence. The Court therefore held that in light of the circumstances in the area at the time of the statement, the government was reasonable in it’s determination that the statement could have an impact necessitating the authorities taking the measures it did against the Applicant.

The Court then looked at whether the interference was necessary.

*Exceptions to the freedom of expression must be construed strictly and the need for restrictions must be established convincingly.

*Necessary is defined as the existence of a pressing social need.

* States have a certain margin of appreciation is assessing whether a need exists which is subject to European supervision. In a terrorist situation that threatens a state’s territorial integrity, a state has a wider margin of appreciation.

*The Court has the power to give a final ruling on whether a restriction is reconcilable with the freedom of expression and in doing so must look at the case a whole and in the context the statement was made.

*The Court must determine whether the interference was proportionate to the legitimate aim pursued and whether the reasons that justified it were relevant and sufficient.

* Court must determine if there is a fair balance between the freedom of expression and the state’s right to protect itself against a terrorist organization.

The Court found that the reasons the government gave for the penalty imposed on the Applicant were relevant and sufficient to show it answered a pressing social need. Furthermore, the penalty was proportionate to the legitimate aim pursued.

Article 6

Applicant argued his right to a fair trial was infringed because he’d been unable to appear at a hearing before the court and also because of the length of the proceedings against him.

The Court found that the fact that Applicant raised objections to jurisdiction and wished to speak only in Kurdish did not mean he waived his rights under Article 6. Such a waiver must be established in an unequivocal manner. The domestic court could not, if the trial was fair, give judgment without a direct assessment of the applicant’s evidence given in person. Therefore, this was a violation of Art. 6 paragraphs 1 and 3.

As to the length of the proceedings, the entire process took more than two years. The length is to be assessed in light of the circumstances of the case, in particular the complexity of the case and conduct of the Applicant and authorities. It’s also necessary to take account what is at stake for the Applicant in the litigation. Here, the case was not complex and the Court found that the delay was due solely to the conduct of the judicial authorities. As to the conduct of the Applicant, the Court held that under Art. 6 there is no requirement that a person charged with a criminal offense cooperate actively with authorities. A person has the right to a final decision within a reasonable amount of time and it is for the contracting states to organize their legal systems in such a way that their courts can meet this requirement.

What was at stake was important to the Applicant because he was already in custody when he made the statement and was then sentenced to a further term.

In light of all this, there length of the proceedings was not reasonable and there was a violation of Art. 6 paragraph 1.

Dissent of Judge Lopes Rocha

This judge found that there was not a violation of Art. 6 paragraphs 1 and 3 (right to fair trial) and he makes this finding for reasons of consistency. The Court said that the Applicant’s absence from a hearing was a violation of Art. 6 because he could have said what his intentions had been when he made the statement and in what circumstances the interview took place and summoned journalists as witnesses. Yet, the court did not need such evidence to determine that there was no violation of Art. 10 (freedom of expression).

If the Applicant’s intentions and the evidence were shown as necessary to there being a fair trial, logically it would seem these things were indispensable for a just decision from the point of view of analyzing a possible violation of Art. 10. The Court, The Court found that there was no violation of Art. 10 because the government’s interference was based on a social pressing need. It based it’s decision solely on the content of the statement without more.

Further, the judge did not think the Applicant was deprived of explaining himself at the different stages of the proceedings.

Dissent of Judges Van Dijk, Palm, Loizou, Misfud Bonnici, Jambrek, Kuris and Levits

They feel there was a breach of Article 10 of the Convention. They question whether the interference with this right was actually necessary and in particular whether it was proportionate to the aim of maintaining national security and public safety. Had the government really felt this statement was a threat, it could have take more effective and less intrusive measures to prevent or restrict the harm caused by the statement.

This conclusion was based on five arguments, First, free speech is one of the essential foundations of a democratic society. The government relied on the unstable situation in Turkey as a justification for the interference. It did not so far as to say Turkey was not still a democratic society and that therefore Applicant’s statement deserved less protection. Their reasoning was not sufficient.

Second, Article 10 also protects information or ideas that shock or offend so the fact that the statement indicated support for an organization whose aims the government rejects cannot be sufficient reason to prosecute Applicant.

Third, on whether the interference was necessary the Court was supposed to have considered the content of the remarks and the context in which they were made. The Applicant stated his support for PKK but also dissociated himself from their violence. Applicant had been an activist since the 1960’s and always spoke out against violence. He had even been imprisoned for belonging to the Path of Freedom organization which advocated non-violent action. The Court did not consider the full content of the statement or the Applicant’s personal background against which to interpret the statement.

Fourth, though the dissent agrees that the statement by the Applicant was a little ambiguous, the domestic court had never given Applicant a chance to explain the statement and what he meant to say. The Court brought this deficiency up in its analysis of an Art. 6 violation but not in its analysis of an Art. 10 violation which it should have.

Finally, in analyzing the possible effect of the statement, the Court relies on the government’s reasoning that the statement was made by a former mayor of the most important city in the area where there was an already explosive situation. The Court should have expressly indicated what weight it attached to the fact that the statement was made by a former mayor who was already in prison at the time. The dissent was not convinced there would have been as big or relevant an impact as argued and the Court should have explained why it believed this to be so.