A professor of history had published numerous books and articles on the historical events of 1915 concerning the Armenian population, a subject of great sensitivity in Turkey. He published an editorial opinion in a Turkish-Armenian newspaper criticising the prosecution of the late editor of that newspaper for the crime of ‘denigrating Turkishness’ under article 301 of the Turkish Criminal Code. A complaint was then made against him which led to a criminal investigation, that in publishing that opinion, the applicant himself had breached various provisions of the criminal code, including article 301. The applicant claimed that he had directly been affected by the criminal investigation and there was an ongoing risk that he would be subject to further investigation or prosecution for his opinions on the Armenian issue. The Turkish Government asserted that the investigation had been terminated by a non-prosecution decision by the local public prosecutor and the applicant therefore lacked victim status under Article 34 of the Convention. In addition, a legislative amendment to the text of article 301 in 2008, meant there was no longer any risk of prosecution that the applicant would be prosecuted for expressing such opinions.
Held: (Grand Chamber) the objection about the applicant’s status was inextricably linked to whether there had been an interference with his freedom of expression and the ongoing threat of prosecution interfered with the applicant’s Article 10 rights. In reaching those conclusions, the Grand Chamber said amongst other things that the applicant was directly affected because he had shown he was actually concerned with a public issue and was involved in the generation of specific content targeted by article 301. In any event, the applicant could contend that the law had violated his rights if he was required to modify his conduct because of it or risk being prosecuted, or if he was a member of a class of people who risk being directly affected by the measure. The fear of sanction had a chilling effect on the exercise of freedom of expression, given the likelihood of the fear discouraging future similar statements. The applicant’s research interests, concerning as they did the sensitive historical events of 1915 concerning the Armenian population, belonged to a group of people who could be stigmatised for their opinions on this topic and subjected to investigations or prosecutions under article 301. The public prosecutor’s decisions of non-prosecution did not necessarily mean that the applicant would be safe from investigations of that kind in the future. Even though, therefore, the impugned provision 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 had caused him stress, apprehension and fear of prosecution. This situation has also forced the applicant to modify his conduct by displaying self-restraint in his academic work in order not to risk prosecution under article 301.
27520/07, [2011] ECHR 1799, (2016) 62 EHRR 12
Bailii
European Convention on Human Rights
Human Rights
Cited by:
Cited – Miller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .
Lists of cited by and citing cases may be incomplete.
Human Rights
Updated: 30 December 2021; Ref: scu.448178
