Given that the Strasbourg-based European Court of Human Rights (ECtHR) found violations to the right of freedom of expression in eight Turkish cases brought before it out of 123 in total in 2012, the proposed changes aim to prevent these problems in the future. The draft that I have seen envisages revisions to sections six and seven of Law No. 3713, also known as the Counterterrorism Law (TMK), in a way that “violence” or “incitement to violence” must be established by the prosecutor before proceeding with an investigation. Otherwise, the case will be thrown out by the judge. Let's hope that it won't get diluted in the relevant commissions or in the General Assembly with last minute additions or revisions.
The relevant provisions of the TMK were significantly amended by Law No. 5532, which entered into force in July 2006. Now they will be changed again when this reform package is approved by Parliament and signed into law by the president. The addition of a conditional clause in the law that will require prosecutors to satisfactorily present the criteria before a judge of “praising or legitimizing coercion, violence or threats or encouraging these methods” will bring important changes to the penal code in Turkey. It will hopefully address the significant shortcomings Turkey has long faced in the body of case-law at the ECtHR.
Going back to the two articles in Law No. 3713 that run afoul with the right to freedom of expression enshrined in the European Convention on Human Rights (ECHR), most specifically Article 10, the ECtHR repeatedly criticized Turkey for failing to meet the requirements or benchmarks in the protection of rights relevant to the freedom of expression. Article 10 of the convention underlines that “everyone has the right to freedom of expression” but acknowledges that the “exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society.” It states that “prevention of disorder or crime” or “the protection of the reputation or rights of others” may be good examples in restricting right to freedom of expression.
The existing provisions to Article 6 of the Turkish law state that an offence, made orally or in print, that is deemed propaganda for a terrorist organization is punishable by law. It bars printing or publishing declarations or leaflets emanating from terrorist organizations without mentioning the “violence” criteria discussed above. The law envisions a term of imprisonment of one to three years when an offense of propaganda is committed and paves the way for suspension or seizure of periodicals whose content openly encourages the commission of these offenses. Similarly, Article 7 of the law stipulates that “any person who disseminates propaganda in favor of a terrorist organization shall be liable to a term of imprisonment of one to five years. If this offense is committed through the press or the media, the sentence shall be increased by half.”
Both articles will now be changed to reflect the violence criteria mentioned in the draft version when they were approved by Parliament. Looking at the case law at the ECtHR, the court actually drew a nice roadmap for Turkey to meet both the benchmarks laid out in the rights convention while simultaneously addressing the terrorism and security risks posed by violent groups in Turkey. In other words, the Turkish criminal justice system will not be left alone without the necessary tools to fight terrorism and violence. If an illegal armed group uses a media outlet to stir up violence and hatred, then the media that communicated a message of violent recourse to its readers should be liable in the court of law. The protections bestowed upon citizens in light of Article 10 will not be valid in such cases.
The general principles of the ECtHR are very clear here. Although the court emphasizes that freedom of expression is essential in a democratic society, it also acknowledges that it may be subject to exceptions and restrictions. The only redline for the free press is that it “must not overstep the bounds required, for example, to provide protection against threats of violence, disorder or crime.” The court always looks for the necessity of any restriction imposed by national law when it comes to limits to free press. It is up to the national authorities, of course, to assess whether there is a “pressing social need” for the restriction. In our case, there is plenty, considering that ethnic, religious and leftist terrorist organizations have killed tens of thousands in this country in the last couple of decades.
These revisions will allow the press to freely promote ideas that may even depart from conventional thinking in Turkish society, solidifying the democratic credentials of Turkey in its fight against terrorism and violence. The revised law will differentiate, as it should, people who simply sympathize with a terrorist organization from those holding a weapon. If a person is simply shouting slogans that are not associated with violence, injury or harm to any person, they will not be open to prosecution, even if that slogan may be deemed to be very offensive to others in society.
If the interference or restriction to the right to freedom of expression is “proportionate to the legitimate aims pursued” and reasons cited by authorities for justification are “relevant and sufficient,” then Turkey would be seen as in clear violation at the ECtHR. The prevention of public disorder and terrorism are perfectly justified in the Turkish case as long as the proportionality of the interference is well established here. The court gives considerable leeway to national authorities in making the assessment on whether or not the restriction or interference is proportionate. After all, the ECtHR recognizes the vital interests of the state such as national security and territorial integrity, and it tries to balance these interests with individual rights and freedoms.
But unlike many others, I do not expect the release of hundreds of prisoners in Turkey, especially with regard to court cases that involve terrorism charges related to, for example, the Kurdistan Communities Union (KCK), an umbrella organization encompassing the outlawed Kurdistan Workers' Party (PKK), or others. Because many of those people who were charged under sections six and seven of the TMK are also facing other and more serious charges. The prosecutor may have to drop the charges on propaganda activities, but will still pursue prosecution of these people on other charges, if there is sufficient evidence tying them to terrorism. Looking at the indictment, there is plenty of evidence that has nothing to do with the propaganda.