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Terrorism and Freedom of Expression

Impact on Media and Journalism


The ECtHR still on the barricades
for Freedom of Expression?

Dirk Voorhoof, Ghent University


& Copenhagen University

Iceland hosting FOE-conference


RSF
Press Freedom Ranking 2008
Freedom House
Press Freedom Ranking 2008

Iceland nr. 1 : were on the right place to put


the spotlights on threats on the right on
freedom of expression (FoE).

Icelands excellent record in Strasbourg:


only one violation of Article 10, in 1992
ECtHR, 25 June 1992, Thorgeir Thorgeirson v. Iceland
Violation of Article 10
members of police units Reykjavik = wild beasts in uniform
Conviction for defamation was not necessary in democratic
society, intention was investigation into alleged violent behaviour
of some metropolitan police units in Iceland, clear matter of public
interest
Since 1992 no more violations of Article 10 ECHR by Strasbourg
Court

ECtHR has upgraded standards on FoE in Europe


also in cases related to (anti)terrorism

In many cases violation of Art. 10 by Turkey

- support or even reference to Kurdish independence movement


- criticizing military actions by the State in South-East Turkey
- references to the role or actions of PKK
- interviews with PKK-members
are considered in Turkey as support to terrorism, incitement to
hatred amongst the population or separatist propaganda

ECtHR has upgraded standards on FoE in Europe

ECtHR considered in most cases these interferences in FoE in


relation to terrorism / Kurdish context as a violation of Art. 10
ECtHR considers these interferences only in accordance with Art. 10
IF
- there is an incitement to violence
(wording, text)
- there is a (real) risk that this incitement can lead to the use of
violence, armed resistance or an uprising

Relative impact of
cases related to FoE and terrorism
Turkey keeps on prosecuting and convicting media, journalists,
members of human rights NGOs and politicians
for incitement to hatred, separatist propaganda and offences
under the anti terrorism law nr. 3713

ECtHR on 21/10/2008 again found FIVE violations of Article 10


- Kanat & Bozan (text of calan on emancipation of women)
- Saygili and Falakaolu (identification of an officer
active in anti terror)
- Saliholu (possession of copies of banned issues of magazine)
- Unay (politician, speech, support to Kurds)
- Isak Tepe (idem)

more recent violations by Turkey


-

Aktan v. Turkey, 23 September 2008 (Kurdish media independence)


Demirel en Ates nr. 3, 9 December 2008 (interview PKK)!!
Imza t. Turkije, 20 januari 2009 (Texts of PKK)
zer t. Turkije, 5 May 2009 (Marxist speech, fair struggle, The Court
observed, in particular, that the article and leaflet in question
amounted to political appeals and did not call for either violence or
bloody revenge)

ECtHR confirms case law in support of FOE and


freedom of the media to report and comment on
these issues of major interest for society

ECtHR 9 December 2008, Demirel en Ates nr. 3


The fact that interviews or statements were given by a member of a
proscribed organisation (PKK) cannot in itself justify a blanket ban
on the exercise of freedom of expression.
Regard must be had instead to the words used and the context in
which they were published, with a view to determining whether the
impugned text, taken as a whole, can be considered an incitement
to violence
As such the wording of Article 6 2 of Law no. 3713 and its application
in the instant case falls short of the Convention requirements
Violation of Article 10 ECRH !

Media freedom must not fall victim to anti-terrorist laws


Statement by COE Secretary General (Terry Davis)
on the occasion of World Press Freedom Day on 3 May 2009

It is true that we live in dangerous and uncertain times, but in order to


protect our societies from the threats we face, we need more, not
fewer human rights. We need more, not less freedom of expression.

It is possible to combat terrorism robustly and effectively while fully


respecting freedom of expression and information. That is why I call
on our member states to ensure that their national anti-terrorist laws
and practices comply with the Council of Europes standards.

We must ensure that any legislation concerning this fundamental right


fully respects Article 10 of the European Convention on Human Rights
and the case law of the European Court of Human Rights.

However: role of ECHR and ECtHR in matters


of FoE and antiterrorism is rather weak
- takes 7-12 years
- only relative impact on member states
- margin of appreciation

! and more recently: worrying


application by ECtHR of standards FoE
in some cases

Recent restrictive trend in case law ECtHR,


including regarding FoE and terrorism
and esp. investigative journalism

Seminar in ECtHR Strasbourg 10 October 2008


Lindon, Otchakovsky-Laurens and July v. France (GC), 22 October 2007
Stoll v. Switzerland (GC), 10 December 2007
Rumyana Ivanova v. Bulgaria, 14 February 2008
Alithia Publ. Company Ltd. & Constantinides v. Cyprus, 22 May 2008
Backes v. Luxembourg, 8 July 2008
Soulas a.o. v. France, 10 July 2008
Flux (n6) v. Moldova, 29 July 2008
Cuc Pascu v. Romania, 16 September 2008
and Denis Leroy v. France, 2 October 2008,

Reasons for serious concern regarding the future of freedom of


expression in Europe
See http://www-ircm.u-strasbg.fr/seminaire_oct2008/index.htm

Dissenting opinions
Stoll v. Switzerland
Grand Chamber 10 December 2007

a dangerous and unjustified departure from the Courts well


established case-law concerning the nature and vital importance
of freedom of expression in democratic societies

More robust dissenting opinions


Flux nr. 6 v. Moldova, 29 July 2008 (4/3)
The dissenting judges (Bonello, joined by Bjrgvinsson and Sikuta)
express the fear
that this judgment of the Court has thrown the protection of freedom of
expression as far back as it possibly could

and

this is a sad day for freedom of expression

(!!!)

LEROY v. FRANCE
2 October 2008

A 9/11-cartoon whose
message, according to its
author, was criticizing US
imperialism
French courts and the
European Court of
Human Rights concluded
that the essence of the
message of the cartoon
was condoning and
glorifying terrorism

LEROY v. FRANCE
2 October 2008
Unanimous judgment!

Although
-

Aim/intention was to criticise US-imperialism, satire


Made on 9/11, no time for distanced reflection
Week later: apologies, cartoonist took distance, made clear
that intention was not to glorify violence and made reference
to human suffering of victims
No real, serious risk that this cartoon would incite to terrorist
attacks in Basque region
However, no application of Art. 17 (+)

LEROY v. FRANCE
2 October 2008

Request for referral to Grand Chamber


REJECTED
by panel of 5 judges (art. 43 ECHR)
Judgment final since 6 April 2009

Judgment of ECtHR with impact on


freedom of expression of cartoonists!

Other examples:
DIETER KERN v. GERMANY, ECtHR 29 May 2007
Dismissal of civil servant, no violation Art. 10
Press release by Bndnis Recht referring to 9/11 attacks,
condoning attacks on US-imperialism, adding that:
The strikes should rather serve as a warning to America perhaps not to
act as the policeman of the world on all continents and finally to
ensure that less control is being accorded to certain power
constellations within America!
The Bndnis Rechts fiercely condemns all terrorist attacks no matter by
whom and expresses its condolences to all innocent, civil victims of
such attacks. Terrorist attacks, no matter against whom, are basically
unacceptable and intolerable.

Dismissal, incitement to terrorism, no violation of Art. 10

Other examples:
ECtHR 10 July 2006, Sdrueni Jihoesk Matky v. Czech Republic,
appl. 19101/03
Access to administrative documents (protected under Art. 10!)
REFUSED
Documents regarding some aspects of safety of nuclear power
station
Request by environmental group (Mother Earth)
Court accepted argument that there was a risk that the documents
might fall in hands of terrorists

ECtHR 31 March 2009, Sanoma Uitg. v. Netherlands


Company complained of having been compelled to hand over
the CD-ROM that could reveal the identity of journalistic
sources
THE COURT:
It is disquieting that the prior involvement of an independent judge is no
longer a statutory requirement (..). As it was, the public prosecutor obtained
the approval of the investigating judge even without being so obliged by
domestic law (..); the Court considers this, as an addition to the applicant
company's entitlement under statute of review post factum of the
lawfulness of the seizure by the Regional Court (..), to satisfy the
requirements of Article 10 in the present case.
The Court is bound to agree with the Regional Court that the actions of the
police and the public prosecutors were characterised by a regrettable lack
of moderation (..). Even so, in the very particular circumstances of the case,
the Court finds that the reasons advanced for the interference complained
of were relevant and sufficient and proportionate to the legitimate aims
pursued.

There has accordingly been no violation of Article


10 of the Convention.

ECtHR 31 March 2009, Sanoma Uitg. v. Netherlands


Dissenters !
(the police) without any prior judicial assessment or authorisation,
arrived at one of the applicant's editorial offices, ordered the
editors to surrender all photographic and other materials
required for an investigation, declined to give details as to the
necessity for the demand, refused to entertain any objection
based on journalistic undertakings of confidentiality, threatened,
arrested and detained the editor in chief and further threatened
to close and search all of the applicant company's premises for
an entire weekend.
What occurred in this case, (..) , is not far removed from (and in
certain respects goes beyond) the type of drastic measure
previously criticised by this Court in finding a violation of Article
10 of the Convention. The absence of any statutory requirement
for prior judicial involvement in a case such as this, is, (..)
somewhat more than disquieting (as the majority considers)
and the actions of the police are a great deal more than
regrettable ".

ECtHR 17 February 2009


Saygili en Falakaolu (n 2) v. Turkey
Conviction and temporary ban on newspaper for publishing declarations of
prisoners opposing new prison system and advocating for robust action
against it
ECtHR: no violation of Article 10 (5/2)
Dissenting opinions :

The majority considers that the message conveyed by the


newspaper was not a peaceful one and that it went beyond a
mere criticism of the new prison system.
Such a consideration is disquieting. Watchdogs are not meant to
be peaceful puppies; their function is to bark and to disturb the
appearance of peace whenever a menace threatens. A new and,
in our view, a dangerous threshold in the protection of free
speech has been reached if expression may be suppressed,
lawfully, because it is neither peaceful nor confined to mere
criticism. Such qualifications are new conditions precedent to
the right to exercise such freedom and are not reflected in this
Courts case law

Media freedom must not fall victim to anti-terrorist laws

Statement by COE Secretary General (Terry Davis)


on the occasion of World Press Freedom Day on 3 May 2009
We must ensure that any legislation concerning this fundamental right fully
respects Article 10 of the European Convention on Human Rights and the case
law of the European Court of Human Rights.

More is needed
urgent need
(ICJ, Banisar, Braman)

+ readjust the
approach of ECtHR
as ultimate watchdog over
FoE in Europe!

Coda
When peace prevails and the authority
of the Government is undisputed there
is no difficulty of preserving the
safeguards of liberty.
It is in times of fear and crisis that a legal
orders true commitment to human
rights is tested
(S. Sottiaux, Terrorism and the Limitation of Rights, p. 410
quoting Justice Davis, 1866, Milligan case, US)