CASE OF DİLİPAK v. TURKEY

FORMER SECOND SECTION

CASE OF DİLİPAK v. TURKEY

(Application no. 29680/05)

JUDGMENT

(Extracts)

STRASBOURG

15 September 2015

FINAL

02/05/2016

This judgment will become final in the circmstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Dilipak v. Turkey,

The European Court of Human Rights (former Second Section), sitting as a Chamber composed of:

Guido Raimondi, President,
Işıl Karakaş,
András Sajó,
Paulo Pinto de Albuquerque,
Helen Keller,
Paul Lemmens,
Robert Spano, judges,
and Abel Campos, Deputy Section Registrar,

Having deliberated in private on 7 July 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 29680/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Abdurrahman Dilipak (“the applicant”), on 22 July 2005.

2. The applicant was represented by Mr S. Döğücü, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3. On 8 April 2009 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1949 and lives in Istanbul. He is a professional writer and journalist, and states that he is a human rights activist.

5. He published an article on the front page of issue 84 of the weekly magazine Türkiye’de Cuma (“Friday in Turkey”), which came out on 29 August 2003. His article, which was entitled “If the pashas [the generals] refuse to obey”, contained criticisms of high-ranking officers who were about to retire. He hinted that some generals in the armed forces were wont to sound false alarms concerning an alleged advance of fundamentalism and anti-secularism, which they then used as a pretext for interfering in the country’s general politics, and that they appeared to have links with certain business circles, the media, senior civil servants and even the Mafia, endeavouring to create a political atmosphere that tallied with their worldview. He suggested that the high-ranking officers in question should set up a political party on retirement and present their political projects to the people, instead of “deciding on the future of the nation on their own, in the name of the nation”. He added that in his view the army generals who he claimed were interfering in the country’s general politics were far removed from social realities and that in their approach to social affairs they lacked any empathy with and sensitivity towards the various social strata.

6. By an indictment of 9 January 2004, the Military Prosecutor’s Office with the Third Army Corps in Istanbul applied to the Military Court within that Corps for the applicant’s prosecution under Article 95 §§ 4 and 5 of the Military Criminal Code, which, in the Prosecutor’s view, penalised acts vis-à-vis high-ranking military officers geared to damaging hierarchical relations within the army and undermining confidence in commanding officers.

7. The applicant submitted an objection as to the jurisdiction of the Military Court to try him, on the grounds of his civilian status and relying on the Convention and his right to freedom of expression.

8. By a decision of 12 July 2004 the Military Court declined jurisdiction in favour of the Bakırköy Assize Court on the grounds that the offence at issue was not military in nature and the applicant should be tried by the non-military courts for denigration of the State armed forces, which offence was punishable under Article 159 of the former Criminal Code. The Military Court noted that by claiming that the armed forces were led by commanding officers who appeared to have links with certain business circles and even the Mafia, and to be far removed from social realities, the applicant had tarnished the image of the whole armed forces. It emphasised that the commanding officers who had been criticised were plenipotentiary representatives of the armed forces empowered to act on behalf of the latter.

9. On 9 August 2004 the commanding officer of the Third Army Corps lodged an appeal on points of law against the aforementioned decision to decline jurisdiction. He submitted that the impugned article constituted an act which had to be assessed under Article 95 § 4 of the Military Criminal Code. He argued that the military criminal provision in question constituted a lex specialis vis-à-vis Article 159 of the Criminal Code.

10. The Military Prosecutor also lodged an appeal on points of law on the same grounds, submitting that the Military Courts should have jurisdiction to adjudicate the case, and that the applicant had not targeted all the armed forces but had undeniably tarnished the image of two Generals, which was liable to undermine the confidence of the rank-and-file in these officers and thus damage hierarchical relations within the armed forces.

11. The applicant was not apprised of the appeals on points of law lodged by the commanding officer and the Military Prosecutor, both of which were added to the case file.

12. On 3 May 2005 the Military Court of Cassation, which assessed the appeals on points of law, quashed the decision declining jurisdiction and referred the case back to the Military Court. In its reasoning the Court of Cassation mentioned the need to reclassify the facts and to assess them under Article 95 § 4 of the Military Criminal Code. It specified that the provisions of Article 95 § 4 of the Military Criminal Code and (the former) Article 159 of the Criminal Code shared the same substantive and moral elements, but differed in providing protection for individuals (Article 95 § 4) and the Institution itself (Article 159), respectively. The Military Court of Cassation held that even though the applicant’s article had comprised elements of both the aforementioned criminal offences, the general tenor of the impugned article had apparently concentrated on the behaviour of two specific Generals rather than the overall armed forces. Therefore, the accusation that the officers were disobedient, that is to say that they lacked discipline, was liable to undermine the lower ranks’ confidence in them and thus damage hierarchical relations within the armed forces.

13. By a judgment of 1 March 2006 the Military Court of First Instance, having reconsidered the case, once again decline jurisdiction in favour of the non-military courts. It stated that new legislation on the press attributed to the non-military criminal courts jurisdiction to hear and determine offences committed via the press and specified that such offences no longer came under special legislation.

14. On 24 March 2006 the commanding officer of the Third Army Corps lodged a fresh appeal on points of law against the Military Court’s decision declining jurisdiction. He pointed out that the 3 May 2005 judgment of the Military Court of Cassation had been delivered after the amendment to the legislation in question and that the provisions of the Military Criminal Code (Law No. 353) enabling civilians to be tried by military courts had not been amended.

15. While the case was still pending before the Military Court of Cassation, Law No. 5530 of 29 June 2006 made a series of amendments to the Military Criminal Code, inter alia abolishing military court jurisdiction for trying civilians for offences such as those with which the applicant was charged. The Prosecutor with the Military Court of Cassation therefore referred the applicant’s file to the Military Court of First Instance, accompanied by an opinion to the effect that the military courts had no jurisdiction in such matters.

16. By a judgment of 14 November 2006 the military court once again decline jurisdiction and referred the case to the Bağcılar 2nd Criminal Court.

17. Meanwhile, following the merger of the Bağcılar and Bakırköy judicial districts, the case was referred to the Bakırköy 24th Criminal Court. By a judgment of 11 March 2008, the latter court declined jurisdiction and referred the case to the Bakırköy 2nd Criminal Court, which held jurisdiction for offences committed via the press. By a judgment of 26 May 2008, the Bakırköy 2nd Criminal Court referred the case to the Bakırköy 16th Criminal Court on the grounds that that court was the former Bağcılar 2nd Criminal Court. By a judgment of 12 March 2009 the Bakırköy 16th Criminal Court referred a jurisdictional dispute to the Bakırköy Assize Court. Finally, the Bakırköy Assize Court decided in favour of the Bakırköy 2nd Criminal Court in the jurisdictional dispute, and referred the case to that court.

18. By a judgment of 9 June 2010 the Bakırköy 2nd criminal court declared the proceedings statute-barred under Article 95 § 4 of the Military Criminal Code.

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THE LAW

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III. THE ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

33. Relying on Article 9 of the Convention and Article 10 taken in conjunction with Article 14, the applicant submitted that he had been prosecuted for expressing his opinions. He had criticised the higher echelons of the armed forces because in his view a number of senior officers had inappropriately interfered in the country’s general politics.

34. He further alleged that the proceedings against him for offences involving denigration of the army or its commanding officers had marked him out as a “target” and had been such as to deter him from exercising his profession. He took the view that those proceedings, in conjunction with other criminal proceedings brought on the grounds of his articles, had constituted a threat against him and also against all journalists dealing with political topics, including the unlawful influence of military personnel on governmental affairs.

35. The Court, as master of the characterisation to be given in law to the facts of a case (see, for example, Söderman c. Sweden [GC], no. 5786/08, § 57, ECHR 2013, and Tarakhel v. Switzerland [GC], no. 29217/12, § 55, ECHR 2014 [extracts]), considers that these complaints must be assessed solely under Article 10 of the Convention, which provides:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. 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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

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B. Merits

1. Existence of interference

40. The applicant submitted that the Military Prosecutor’s Office, at the request of the military authorities, had charged him with criminal offences subject to sentences of several years’ imprisonment. He added that his trial had lasted six-and-a-half years before the criminal courts, two-and-a-half years of them before the military courts. He explained that at the material time the military courtrooms had been located inside military areas, access to which involved various checks and long, complicated transfers. He had spent all those years in fear, under threat of conviction and incarceration in a military prison or of provisional detention in a military jail.

41. The applicant added that the commanding officers of the armed forces whom he had criticised regarding their interference, which he considered unlawful and inappropriate, in the general political activities of the Government, had subsequently been prosecuted and even convicted by the criminal courts for an attempted coup d’état. This demonstrated that his comments on the behaviour of the senior officers had not been gratuitous claims based on erroneous information, but observations based on proven facts, in a sphere which was of very great interest to the general public.

42. The applicant also submitted that in view of the other similar criminal and civil proceedings which had been brought against him, the pressure exerted on him by the impugned criminal proceedings had become a genuine threat and had prevented him from writing about the military interference in general politics. The accumulation of criminal and civil proceedings for his criticism of dysfunctions in the democratic system caused by the inappropriate interference of senior army officers had had an extremely dissuasive effect not only on himself but also on the whole journalistic profession.

43. The Government reiterated that the applicant was not a victim, because he had not been convicted by the criminal courts. They pointed out that the prosecution instigated against the applicant had been abandoned on expiry of the limitation period.

44. The Court reiterated that it has in the past found that certain circumstances which have a chilling effect on freedom of expression do in fact confer on those concerned – persons who have not been finally convicted – the status of victim of interference in the exercise of their right to that freedom: for example, a publisher ordered to disclose the identity of an anonymous information source, even where that order was not enforced (see Financial Times Ltd and Others v. the United Kingdom, no. 821/03, § 56, 15 December 2009); the detention of investigative journalists for almost a year under criminal proceedings brought for very serious crimes (see Nedim Şener v. Turkey, no. 38270/11, §§ 94-96, 8 July 2014, and Şık v. Turkey, no. 53413/11, § 83‑85, 8 July 2014); an announcement by a Head of State of his intention not to appoint the applicant, a magistrate, to any other public office on the grounds that the latter had expressed an opinion on a constitutional issue, which opinion had allegedly contradicted that of the Head of State (see Wille v. Liechtenstein [GC], no. 28396/95, § 50, ECHR 1999‑VII).

45. The Court also reiterates that where criminal prosecutions based on specific criminal legislation are discontinued for procedural reasons but the risk remains that the party concerned will be found guilty and punished, that party may validly claim to be the victim of a violation of the Convention (see, among other authorities, Bowman v. the United Kingdom, 19 February 1998, § 107, Reports of Judgments and Decisions 1998‑I). In the case of Nikula v. Finland (no. 31611/96, § 54, ECHR 2002‑II) the Court found that the conviction of a lawyer for mere negligent defamation on account of her criticism of the strategy adopted by the public prosecutor in criminal proceedings, even if that conviction was ultimately overturned by the Supreme Court and the fine imposed on her lifted, was liable to have a chilling effect on defence counsel’s duty to defend their clients’ interests zealously. Furthermore, criminal prosecutions of journalists instigated on the basis of criminal complaints and leading to a three-year stay of proceedings, even though the criminal proceedings were lifted after that period in the absence of a conviction, constituted interference on account of their dissuasive effect on journalists (see Yaşar Kaplan v. Turkey, no. 56566/00, § 35, 24 January 2006; see, to similar effect, Aslı Güneş v. Turkey (dec.), no. 53916/00, 13 May 2004).

46. In fact, individuals are entitled to claim that a law violates their rights by itself, in the absence of an individual measure of implementation, and therefore to claim to be a “victim” within the meaning of Article 34, if he is required either to modify his conduct or risk being prosecuted or if he is a member of a class of people who risk being directly affected by the legislation (see, for example, Burden v. the United Kingdom [GC], no. 13378/05, § 34, ECHR 2008; Sejdić and Finci v. Bosnia-Herzegovina [GC], nos. 27996/06 and 34836/06, § 28, ECHR 2009; Michaud v. France, no. 12323/11, § 51, ECHR 2012; and S.A.S. v. France [GC], no. 43835/11, § 57, ECHR 2014 [extracts]). For example, the Court has accepted that the fear of a prison sentence for attacking another person’s reputation (see Cumpănă and Mazăre v. Romania [GC], no. 33348/96, §§ 113-114, ECHR 2004‑XI) or concern about a large and unforeseeable award of damages for defaming a politician (see Independent News and Media and Independent Newspapers Ireland Limited v. Ireland, no. 55120/00, § 114, ECHR 2005‑V [extracts]) could have a chilling effect on the journalists concerned.

47. In that connection, the existence of legislation very broadly suppressing the expression of specific types of opinion, leading the potential perpetrators to adopt a kind of self-censorship, can amount to interference with freedom of expression. In the case of Vajnai v. Hungary (no. 33629/06, § 54, ECHR 2008), for example, the Court held that the uncertainties resulting from an overall legislative prohibition on a particular symbol, in this case the Red Star, could entail a chilling effect on freedom of expression and lead to self-censorship in the press, in view of the different meanings of that symbol. The Court also found that the fact of being threatened with criminal prosecution owing to complaints lodged under Article 301 of the Turkish Criminal Code (which, at the material time, punished the denigration of Turkishness, a vague concept) conferred on the applicant – who had not yet been prosecuted, never mind finally convicted – the status of victim of interference in freedom of expression (see Altuğ Taner Akçam v. Turkey [no. 27520/07, §§ 70‑75, 25 October 2011]).

48. In the present case the Court observes that criminal proceedings were commenced against the applicant on charges of having damaged hierarchical relations within the armed forces and “undermining confidence in superior or commanding officers” (an offence punishable under Article 95 § 4 of the Military Criminal Code), and/or having denigrated the armed forces (an offence punishable under Article 159 of the former Criminal Code and Article 301 of the current Criminal Code), by dint of a press article criticising the interference of certain active or retired commanding officers of the armed forces in the general policies conducted by the Government. The applicant lodged his application with the Court at a time when his case was still pending before the national courts, complaining of the criminal proceedings as such. The Court also notes that regardless of the replies to questions concerning the jurisdiction of the various courts depending on the classification of the offences with which the applicant was charged, the latter was liable to be sentenced to a prison term of between six months and three years, either for having denigrated the armed forces as a whole or having defamed certain Generals in particular so as to diminish their status as superior officers.

49. The Court further observes that the criminal proceedings, which lasted six-and-a-half years, including two-and-a-half years in military courts, had finally been declared statute-barred. Nevertheless, it is true, first of all, that criminal charges were pending against the applicant for a considerable, indeed excessive length of time ... and, secondly, that the applicant could not be sure that he would not, either during those criminal proceedings or at any future stage, face further legal consequences if he, as a journalist and political columnist, wrote further articles on matters relating to links between the armed forces and the country’s general politics (see, for an example of civil proceedings brought against an applicant on similar grounds, Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, 4 March 2014).

50. The Court considers that the six-and-a-half years of criminal proceedings conducted against the applicant, partly before the military courts, for very serious crimes, in view of the chilling effect which those proceedings may well have caused, cannot be viewed as solely comprising purely hypothetical risks to the applicant, but that they constituted genuine and effective restrictions per se. The declaration that the proceedings had become time-barred merely put an end to the aforementioned risks but did not alter the fact that those risks had placed the applicant under pressure for a substantial period of time.

51. In view of the foregoing considerations, under the particular circumstances of the present case, the Court rejects the Government’s objection to the effect that the applicant lacks victim status, and finds that the criminal proceedings in question constituted an “interference” with the applicant’s right to freedom of expression as secured by Article 10 of the Convention.

2. Justification of the interference

52. The applicant submitted that there was absolutely no justification for accusing him of tarnishing the army’s image by criticising a number of high-ranking army officers for having, for strategic reasons, sounded false alarms concerning a fundamentalist, anti-secular threat. Nor could he have foreseen that he would be accused of denigrating the Turkish armed forces by simply expressing opinions which were acceptable in public debate in any democratic State.

53. The Government did not pronounce on that point, reiterating that there had been no interference with the applicant’s freedom of expression since the proceedings against him had become statute-barred.

54. The interference, that is to say the commencement of criminal proceedings based on serious charges and their continuation for a considerable length of time, had infringed Article 10 unless they met the requirements of the second paragraph of that article, that is to say unless the interference was “prescribed by law”, based on one or more legitimate aims for the purposes of that paragraph, and “necessary in a democratic society” for the achievement of those aims.

a) “Prescribed by law”

55. The Court reiterates that the expression “prescribed by law” requires firstly that the impugned measure should have a basis in domestic law. It also refers to the quality of the law in question, requiring it to be accessible to the persons concerned and formulated with sufficient precision to enable them – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail and to regulate their conduct. The expression therefore requires that domestic legislation should be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to measures affecting their rights as protected by the Convention (see, for example, Gorzelik and Others v. Poland [GC], no. 44158/98, § 64, ECHR 2004‑I; Maestri v. Italy [GC], no. 39748/98, § 30, ECHR 2004‑I; Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 81, 14 September 2010; Bayatyan v. Armenia [GC], no. 23459/03, § 113, ECHR 2011; and Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014 [extracts]).

56. In the present case, the Court notes that the applicant does not dispute the fact that the impugned measures had a basis in law, that is to say Article 95 § 4 of the Military Criminal Code and Article 159 of the former Criminal Code or Article 301 of the new Criminal Code, and that those provision were accessible to him.

57. That raises the question whether the broad scope of such expressions as “damaging the hierarchical structure” of the armed forces and “undermining confidence in superior or commanding officers” (Article 95 § 4 of the Military Criminal Code), or “denigrating the armed forces” (Article 159 of the former Criminal Code and Article 301 of the new Criminal Code) can diminish the foreseeability of the legal provisions in question, as suggested by the applicant.

58. If the prosecuting authorities interpreted the expressions in question as being a means of protecting the views expressed by certain army officers on general political subjects against comments made in response to those views, the Court considers that serious doubts might arise as to the foreseeability for the applicant of his being charged under Article 95 § 4 of the Military Criminal Code, Article 159 of the former Criminal Code or Article 301 of the new Criminal Code. However, in view of its finding as regards the necessity of the interference (see paragraph 71 below), the Court considers it unnecessary to decide on this matter.

b) “Legitimate aim”

59. The Court can accept that the impugned interference pursued the legitimate aims of national security and defence of law and order (see Yaşar Kaplan, cited above, § 36).

c) “Necessary in a democratic society”

i. General principles

60. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; Castells v. Spain, 23 April 1992, § 42, Series A no. 236; Jersild v. Denmark, 23 September 1994, § 37, Series A no. 298; Prager and Oberschlick v. Austria, 26 April 1995, § 38, Series A no. 313; and Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013 [extracts]).

61. The Court further reiterates that the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest (see De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997-I). the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism (see, for example, Colombani and Others v. France, no. 51279/99, § 65, ECHR 2002-V; Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004-XI; and Masschelin v. Belgium (dec.), no. 20528/05, 20 November 2007). That does not prevent journalistic freedom from also covering possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick, cited above, § 38).

62. The Court also reiterates that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate of questions of public interest (see Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports 1996‑V, and Seher Karataş v. Turkey, no. 33179/96, § 37, 9 July 2002). Where the views expressed do not comprise incitements to violence – in other words unless they advocate recourse to violent actions or bloody revenge, justify the commission of terrorist offences in pursuit of their supporter’s goals or can be interpreted as likely to encourage violence by expressing deep-seated and irrational hatred towards identified persons – Contracting States must not restrict the right of the general public to be informed of them, even on the basis of the aims set out in Article 10 § 2, that is to say the protection of territorial integrity and national security and the prevention of disorder or crime (see Sürek v. Turkey (no. 4) [GC], no. 24762/94, § 60, 8 July 1999; Nedim Şener, cited above, § 116; and Şık, cited above, § 105).

63. As a matter of general principle, the “necessity” of any restriction on the exercise of freedom of expression must be convincingly established. Clearly, the national authorities are primarily responsible for assessing whether there is any “overriding social need” capable of justifying the restriction, for which exercise they have a certain margin of appreciation, but this goes hand in hand with a European supervision, covering both the law and the decisions applying it, including decisions taken by independent courts (see, for example, Sunday Times v. the United Kingdom (no. 2), 26 November 1991, § 50, Series A no. 217). Furthermore, where the media are concerned, as in the present case, the margin of appreciation is circumscribed by the interest of democratic society in ensuring and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under Article 10 § 2 of the Convention, whether the restriction was proportionate to the legitimate aim pursued (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999‑I), in the framework of extremely careful scrutiny on the part of the Court (see, mutatis mutandis, Sunday Times v. the United Kingdom (no. 2), cited above, § 51). Moreover, the dominant position occupied by State bodies requires them to show restraint in their recourse to criminal law, especially if they have other means of replying to unjustified media attacks and criticisms (see, among other authorities, Nedim Şener, cited above, § 114, and Şık, cited above, § 103).

64. It is the Court’s task, in carrying out such supervision, not to take the place of the competent national authorities, but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. It must accordingly look at the “interference” complained of in the light of the case as a whole in order to determine whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court must satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based their action on an acceptable assessment of the relevant facts (see, among many other authorities, Goodwin v. the United Kingdom, 27 March 1996, § 40, Reports 1996‑II; Ceylan v. Turkey [GC], no. 23556/94, § 32, ECHR 1999‑IV; and Animal Defenders International, cited above, § 100).

ii. Assessment of the facts and application of the general principles to the present case

65. The Court observes that in his impugned article the applicant accused certain Generals of interfering in the country’s general politics. The applicant had levelled severe, scathing criticism at the Generals’ political projects and their approach to social affairs in Turkey, suggesting that they were sounding false alarms concerning an alleged surge of fundamentalism, that they were using the latter as a pretext for interfering in the country’s general politics, that they seemed to have links with certain social milieus with a view to creating a political atmosphere that tallied with their worldview, and that they lacked empathy with and sensitivity towards various social strata.

66. The Court also observes that in bringing and then conducting criminal proceedings against the applicant the competent authorities considered that the applicant’s criticism of these Generals amounted to a desire to damage hierarchical relations within the army or to undermine confidence in those Generals or, more generally, constituted denigration of the armed forces. The competent authorities therefore prosecuted the applicant on the grounds of the criticism which he had levelled at specific views expressed by a number of Generals concerning the country’s political situation.

67. The applicant, in expressing his reaction to the comments made by the Generals, which he saw as inappropriate interference by the army in the general political field, was communicating his ideas and opinions on an issue which was indubitably a matter of public interest in a democratic society. The Court considers that when army officers or Generals make public statements on general political topics they are exposing themselves, like politicians or anyone participating in the debate on the subjects in question, to comments in reply which may include criticism and contradictory ideas and opinions. In a democratic society, high-ranking military officers cannot, in this specific sphere, claim immunity from possible criticism.

68. As regards the applicant’s article, the Court does not consider that it was in any way “gratuitously offensive” or insulting, or that it constituted incitement to violence or hatred. The Court takes the view that the comments did not comprise any insults or defamatory statements based on erroneous data or remarks advocating violent action against members of the armed forces.

69. Under the circumstances, the commencement of criminal proceedings looked rather like an attempt by the competent authorities to use criminal proceedings to suppress ideas or opinions considered as disruptive or shocking, whereas in fact they had been expressed in response to publicly stated viewpoints concerning the sphere of general politics.

72. The Court also considers that by prosecuting the applicant for serious crimes over a considerable length of time, the judicial authorities had a chilling effect on the applicant’s desire to express his views on matters of public interest. It accepts the applicant’s submission that commencing such proceedings is liable to create a climate of self-censorship affecting both himself and (all) other journalists who might be considering commenting on the actions and statements of members of the armed forces relating to general politics in the country. The Court refers here to its case-law to the effect that the dominant position occupied by State bodies requires them to show restraint in their recourse to criminal law, especially if they have other means of replying to unjustified media attacks and criticisms (see paragraph 63 above).

73. In the light of the foregoing considerations, the Court holds that the impugned measure – that is to say the continuation over a considerable period of time of criminal proceedings against the applicant on the basis of serious criminal charges subject to prison sentences – did not meet any overriding social need, that it was not, in any case, proportionate to the legitimate aims pursued, and that it was therefore not necessary in a democratic society.

72. There has accordingly been a violation of Article 10 of the Convention.

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FOR THESE REASONS, THE COURT

1. Joins to the merits the Government’s objection regarding the applicant’s lack of victim status under Article 10 of the Convention and rejects it;

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5. Holds, by five votes to two, that there has been a violation of Article 10 of the Convention.

Done in French, and notified in writing on 15 September Abe, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel CamposGuido Raimondi
Deputy RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

– concurring opinion of Judge Pinto de Albuquerque;

– joint partly dissenting opinion by Judges Raimondi and Spano.

G.R.A.

A.C.

CONCURRING OPINION
OF JUDGE PINTO DE ALBUQUERQUE

1. I agree with the majority opinion that there has been a violation of Article 10 of the European Convention on Human Rights (“the Convention”). However, I do not fully concur with its reasoning. In my view the central issue in the present case is the lack of foreseeability of the applicable criminal law. Article 95 § 4 of the Military Criminal Code is at variance with the principle of legality, as are Article 159 of the former Criminal Code and Article 301 of the new Criminal Code. Therefore, it would not even have been necessary to assess the case in the light of the proportionality principle.

Furthermore, given that this is not the first time the Court has had to adjudicate on the protection of the reputation of State bodies in the context of Turkish criminal policy (by creating offences relating to Majestätsbeleidigung)[1], I am convinced the time has come to express a clear and solid position of principle on that criminal policy option and to highlight the pressing need to reform it. It is indispensable to issue an injunction to the respondent State under Article 46 of the Convention in view of the inertia of the Turkish legislature in this area of criminal policy since Altuğ Taner Akçam.

Article 301 of the new Criminal Code

2. In the Chapter entitled “Crimes against the emblems of State sovereignty and against the honour of State bodies”, Article 301 of the new Turkish Criminal Code is based on Article 159 of the old Code, the 1936 version of which had already been influenced by the Criminal Code of the Italian fascist regime, il codice Rocco[2]. The redrafting of this article in the new Code and, later, by Law No. 5759 of 29 April 2008, is manifestly insufficient in the light of international standards. Neither replacing the word “Turkishness” (Türklük) with “Turkish nation” nor requiring the approval of the Minister of Justice as a precondition for criminal prosecution make the relevant domestic legislation any more acceptable vis-à-vis the international criteria. In essence, the reform of Article 301 changed nothing[3]. It was a missed opportunity to bring the country’s legislation into line with international human rights standards.

3. The impugned criminalisation of criticising the “Turkish nation” is just as unacceptable from the angle of the guarantee set out in Article 10 of the Convention as the criminalisation of criticising “Turkishness” which it replaced. The legal interest (Rechtsgut, korunan hukukî konu) which that measure is supposed to protect is so vague as to be virtually unidentifiable. It is true that the letter of the law and the preparatory work for the text suggest that the temporal and spatial scope of the new criminal rule was reduced, since it no longer covers the culture of all Turks, regardless of the territory in which they live, but solely the community of Turks residing in what has been the national territory since the foundation of the Turkish State in 1923[4]. Nevertheless, the legal interest protected successively by Article 159 of the former Code and Article 301 of the new Code is the same: the “national sentiment” (millî duygu), that is to say nationalism, the feeling of belonging to a cultural and political community[5].

The conclusion to be drawn from judicial practice hitherto is that criminal-law protection of nationalism as the pillar of the contemporary Turkish State can render unlawful any expression which is directly or indirectly liable to erode, undermine or affect the desire of members of the Turkish nation to live together under the established political and military authority. Therefore, the aim of this new version of the Article continues to be that of preventing criticism of State dysfunctions and wrongdoing by members of State bodies[6].

The punitive nature of this criminal-law policy is exacerbated by the fact that the requirement of a “public” attack against the legal interest enshrined in the criminal provision is interpreted so broadly that it can cover any utterance in the presence of more than one other person, even in a private or closed area[7]. This punitive logic equates criticism of the State with the crime of lese-majesty, because the “sentiment” of the “Turkish nation” is identified with the established authority itself as embodied in the policies conducted by the State and in the acts of its political and military bodies; and any criticism of that policy and those acts can be construed as an assault on the “national sentiment”. This “national sentiment” therefore implies subordination to the constituted authority, as if only obedient Turks submissive to the political and military authorities were “good” Turks and reformist Turks critical of the powers that be were “bad” Turks, “betrayers of the nation”.

4. The new requirement of ministerial authorisation as a precondition for criminal prosecution evidences that situation: although this may, on the one hand, restrict the application of the criminal offence, it can, on the other, reinforce the discretionary and political nature of the criminal proceedings[8]. The Minister of Justice thus dons the mantle of interpreter of the legal interest protected by the criminal provision: the criminal prosecution depends on his or her value judgment of the extent of the assault on the “national sentiment”. This makes it clear that it is the political and military authorities, as such, which the legal provision is intended to protect from any criticism from the Turkish intelligentsia and people. Not only intellectuals but also ordinary people have good reason to fear the broad discretionary scope of this criminal provision. The criminal proceedings against the applicant for denigration of the armed forces amply prove that such a fear is not unreasonable.

5. In the specific case of the “armed forces of the Turkish State” it is clear that the scope of the criminal provision covers the land-based, marine and air forces, as well as the Gendarmerie (Jandarma Genel Komutanligi), but not special military formations (regiments, brigades, battalions and companies), special military units (infantry and artillery), or members of those formations and units individually[9]. Nevertheless, as we can see from the present case, the military authorities, which represent the armed branch of the “Turkish nation”, are protected in the framework of a Meinungsdiktatur and are thus shielded from democratic criticism.

6. Unfortunately, not even the legal clause protecting “the expression of critical opinions” was implemented as it should have been in the present case. That clause was introduced under Law No. 4771 of 3 August 2002 and broadened in scope under Law No. 4963 of 30 July 2003, which made it applicable to all acts falling within the ambit of the then Article 159. In legal terms the clause is a truism, merely stating that the scope of every “utterance offence” (Äusserungsdelikt) is limited by the constitutional principle of freedom of expression and that “crimes against the emblems of State sovereignty and against the honour of State bodies” are subject to the same limitation. Article 301 retained that clause, but judicial practice is still oblivious to its real scope. Impunity must apply not only to the authors of fairly banal expressions of dissatisfaction with the public and State authorities but also to persons expressing forceful, mordant, incisive and provocative criticism attracting the attention of the general public. That also demonstrates that criticism of the public authorities, especially of high-ranking army officers, for statements which they have made in public on the general politics in the country, is not tolerated. Citizens remain at the mercy of an unjust law and are liable to be punished just for expressing an opinion. In other words, it transpires from the present case that criminal law is being hijacked for political purposes and used to protect a certain political/military elite from any form of legitimate criticism.

7. In a democratic society, criticism of the public authorities and of those exercising public power is a crucial part of the political debate and is vital for the formation of public opinion. The reputation of State bodies is, in principle, protected by the freedom to exercise the right of reply. However, in some countries there may be an overriding social need to defend democracy (wehrhafte Demokratie) with an additional criminal-law option. If such an approach is to be strictly compatible with the requirements of Article 10 § 2 of the Convention, that is to say with the principles of legality, necessity and proportionality, the provision criminalising attacks on the reputation of State bodies can only be conceived as a bulwark against a clear and imminent threat to national security (konkretes Gefährdungsdelikt)[10], as abstract danger (abstraktes Gefährdungsdelikt) is clearly insufficient to justify criminalising such expression of opinion[11]. In the context of democratic processes, protecting the reputation of State institutions by criminal-law measures is no longer acceptable as a means of defending the mythologised, monistic “ideal personality of the State” (devletin manevi sahsiyeti), but only as a wholly exceptional measure bound up with a criminal-law policy to protect a demythologised pluralistic State (Staatsschutzstrafrecht)[12].

Therefore, the legal interest protected by the provision criminalising attacks on the reputation of State bodies in a democratic society is not “national sentiment” but the security of the democratic and pluralistic constitutional order. Only attacks that constitute a clear and imminent threat to that order may be punished by criminal law. States Parties to the Convention can defend themselves against any form of communication and expression liable to jeopardise seriously the security of the democratic and pluralistic constitutional order, but they cannot impose by the force of criminal law any “national sentiment” interpreted as submission to the established political and military power and loyalty to those exercising that power[13].

8. In conclusion, criminalising straightforward assaults on the reputations of State bodies, particularly the reputation of the armed forces (referred to as Majestätsbeleidigung), which do not constitute a clear and imminent threat to national security, is contrary to Article 10 of the Convention[14]. A fortiori, criminalising an attack on “national sentiment” is completely groundless in the criminal-law policy of any democratic society. It creates a “sentimental offence” (Gefühlsdelikt) which, on the pretext of protecting an “apparent legal interest” (Scheinrechtsgut), quite simply serves to perpetuate the political and military balance of power in Turkish society, to marginalise the intelligentsia and the most reformist social and professional strata of society and, lastly, to guarantee the conformity of the Turkish people.

Article 95 § 4 of the Military Criminal Code

9. The scope of this Article is unclear as compared with the aforementioned provision of the Criminal Code. Even the domestic courts have difficulty distinguishing between the two provisions, as we have seen in the present case. The Military Court of First Instance thrice declined jurisdiction. The fact is that the extremely broad objective and subjective scope of such expressions as “damaging hierarchical relations” in the armed forces and “undermining confidence in senior or commanding officers” raises problems. The majority have serious doubts regarding the foreseeability of those expressions, but I myself have none: I find them unacceptable in a law-based State which respects the principle of legality and where criminal law must be couched in sufficiently precise terms to restrict the margin of interpretation of the police, the prosecution and the judiciary.

10. Furthermore, the wording of the Turkish Military Criminal Code does not even require actual damage to the said hierarchical relations and loss of confidence in senior and commanding officers, but only the person’s intention to achieve those aims (as the Article itself states, matuf olarak). This is a textbook case of an “interrupted offence of result” (kupiertes Erfolgsdelikt) whereby mens rea transcends actus reus in that the perpetrator endeavours to obtain an unlawful result which is not necessarily included in the actus reus.

11. There is only one possibility here: either, if the military criminal provision is geared to protecting military discipline and the confidence of the lower ranks in their commanding officers, as the Military Court of Cassation claims, it should not apply to civilians for the simple but obvious reason that civilians are not bound by duties of military discipline and subordination to commanding officers; or, if the criminal provision sub judice also applies to civilians inasmuch as their public acts are liable to undermine hierarchical relations within the armed forces, as also stated by the Military Court of Cassation, it is manifestly unforeseeable and disproportionate.

12. Clearly, the honour and reputation of senior and commanding officers as individuals can be protected by general criminal-law provisions applicable to all citizens, whether civilians or soldiers. Insults against them are punishable under the same legal conditions as all other persons. However, assaults on the honour of senior and commanding officers as professional members of the military hierarchy in whom “confidence” must be preserved can only be criminalised under a special criminal-law provision applicable solely to military personnel.

Thus the legal interest of “confidence in the military hierarchy” can only be protected by criminal-law provisions in cases where military personnel denigrate their commanding officers in a manner which actually poses a clear and imminent threat to national security or public safety (see Article 10 § 2 of the Convention). Any other interpretation would mean that criminal law accuses civilians of lacking discipline vis-à-vis those commanding officers and therefore of disobeying them, which would simultaneously entail an inacceptable militarisation of society and domestication of the media, which would lead them to adopt an ostrich policy or even to engage in incantational and laudatory speech in respect of the military authorities.

13. To put it bluntly, critical appraisal of matters of public interest in Turkey remains a risky business. Even after the criminal-law reform of 2008, the least that can be said is that the problem remains unresolved. It is inacceptable in a free, democratic society for an individual to remain for six-and-a-half years, two-and-a-half of them in the military courts, under threat of the imposition of vague and disproportionate criminal provisions, for having written an article criticising interference by certain army Generals in the country’s general politics. Even if the criminal proceedings were declared statute-barred, the applicant was nonetheless subjected to the direct effects of those provisions: he was the subject of criminal proceedings, with all the inevitable consequences for his personal, social and professional life, particularly in terms of changing his professional conduct. The effect of censoring divergent opinions on and criticisms of the political and military authorities has been in no way hypothetical but very real and effective, and it has spread through an entire social and professional stratum, which can at any time suffer the effects of the sword of Damocles wielded in Article 310 and Article 159[15]. Indeed, inasmuch as the applicant, Mr Dilipak, represents a whole category of persons – writers, journalists and political columnists, or a fair section of the Turkish intelligentsia – the criminal proceedings brought against him also posed a threat to that professional category.

Conclusion

14. It is clear that the domestic courts had no desire to adjudicate this case. The jurisdictional conflicts firstly between the civil courts and the military court, and secondly among the civil courts themselves show the reluctance of the Turkish judges to assess the merits of the indictment issued against the applicant by the military prosecution. Such reluctance is very comprehensible, on account not only of the highly unjustified nature in concreto of the criminal charge brought against the applicant, who had acted in accordance with the public interest of Turkish society, but also of the problematical nature in abstracto of the applicable criminal provisions. The extensible scope of the provisions of Article 159 of the former Criminal Code and Article 301 of the new Criminal Code and the vague definition of the legal interest (“national sentiment”) which they were intended to protect removed any kind of accessibility and foreseeability from domestic law. Nor is the military criminal-law provision (Article 95 § 4 of the Military Criminal Code) any better. Not only does it lack clarity, but it also disproportionately infringes civilians’ freedom of expression.

15. After the Court made it crystal-clear in paragraph 95 of the Altuğ Taner Akçam judgment that the notorious Article 301 had to be reformed, no changes were made. This time the Turkish legislature cannot ignore the fact that the Court has found the mere existence of such a criminal-law threat intolerable, even in the absence of a subsequent conviction. In the light of the systemic effect of the present judgment within the Turkish legal system and the large number of legal suits brought against journalists, the Turkish legislature must instigate a reform of the Criminal Code and the Military Criminal Code with a view to removing from these texts all obstacles to freedom of expression. In particular, it must abolish Article 301 of the Criminal Code or replace it with a criminal provision criminalising assaults on the reputation of State bodies created strictly as a bulwark against a clear and imminent threat to national security. As regards Article 95 § 4 of the Military Criminal Code, its objective and subjective scopes must be clarified in such a way that it applies solely to acts whereby military personnel denigrate their superiors, constituting a clear and imminent threat to national security and public safety.

Furthermore, the need must be emphasised for improving the judicial system and the training of Turkish judges and prosecutors, particularly in the human rights field and very especially in the sphere of freedom of expression. It is crucial to transform judges’ and prosecutors’ attitudes. Such a move will not only calm the tension in the country but also contribute decisively to progress towards a freer and more democratic Turkey.

[1]. See Altuğ Taner Akçam v. Turkey, no. 27520/07, 25 October 2011; Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, 14 September 2010; and Kayasu v. Turkey, nos. 64119/00 and 76292/01, § 106, 13 November 2008.

[2] Regarding the legislative history, the application and the implications of Article 301, see Sözüer, Das neue türkische Strafgesetzbuch, in Zeitschrift für die gesamte Strafrechtswissenschaft, 2007, pp. 717-749; Algan, The Brand New Version of Article 301 of Turkish Penal Code and the Future of Freedom of Expression Cases in Turkey, in German Law Journal, 2008, pp. 2237‑2251; Arslan, Meinungsfreiheit im Lichte der Entscheidungen des Europäischen Gerichtshofes für Menschenrechte; Öztürk (publ.), Hukuk Devletinde Suç Yaratilmasinin ve Suçun Aydinlatilmasinin Sinirlari Sempozyumu, Istanbul, 2008, pp. 281-288; Can, Der Schutz der staalichen Ehre und religiösen Gefühle in der Turkei, in Depenheuer and Others, Der Schutz staatlicher Ehre und religiöser Gefühle und die Unabhängigkeit der Justiz, Münster, 2008, pp. 33-50; Centel, Kritische Betrachtungen zum neuen türkischen Strafgesetzbuch, in Tellenbach (publ.), Das neue türkische Strafrecht und Strafprozessrecht, Berlin, 2008, pp. 41-64; Tellenbach, Einige Bemerkungen zum neuen türkischen Strafgesetzbuch aus europäischer Sicht, in Öztürk (publ.), Hukuk Devletinde Suç Yaratilmasinin ve Suçun Aydinlatilmasinin Sinirlari Sempozyumu, Istanbul, 2008, pp. 76‑80; and Dagasan, Das Ansehen des Staates im türkischen und deutschen Strafrecht, Berlin, 2015.

[3] See Altuğ Taner Akçam, cited above, § 92. This conclusion was also reached by both the European Commission in its Turkey Progress Report published on 5 November 2008 (SEC(2008)2699, page 15) and the European Parliament in its 12 March 2009 Resolution on that report (paragraph 13).

[4] See Adalet Komisyonu Raporu, p. 15, cited by Dagasan (op. cit., p. 112). This apparent restriction could, for example, exclude discussion of the nature of the events of 1915‑1918 from the scope of acts punishable under criminal law. Even if that had been the legislature’s intention, which seems doubtful, practice has taken the opposite direction and shows, at any event, that the criminal standard is broad enough to continue to prosecute the straightforward expression of peaceful ideas on subjects of general interest, as the European Commission and the European Parliament noted in the aforementioned texts. Moreover, interpreting the expression “Turkish nation” as only covering the values and customs of ethnic Turks would clash with the definition of “Turk” set out in the Constitution, as that concept includes all Turkish nationals without discrimination on grounds of ethnic origin or religion, which should raise serious doubts about the foreseeability of the definition of the offence set out in Article 301 of the Criminal Code (see Dink, op. cit., § 116).

[5] See 5759 Sayili Kanunun Madde Gerekçeleri, p. 2, cited by Dagasan (op. cit., pp. 97, 121 and 125). Furthermore, there is an ongoing doctrinal debate in Turkey on whether the new Code broadens the substantive element of the offence. For instance, Dagasan (op. cit., pp. 116-117, 127) notes that the punishable conduct  is no longer tahkir ve tezyif edenler (in German Beschimpfung and Verächtlichmachung), but aşağılayan (in German Herabsetzung). I note that in the case of Kayasu the Court translated the expressions mentioned in Article 159 by “insulte ou offense publiquement” (public insult or offence), which translation was not retained in the present case.

[6] See Altuğ Taner Akçam, cited above, § 93. See also the positions subsequently adopted by the European Parliament in its Resolution of 15 January 2015 on freedom of expression in Turkey, its Resolution of 12 March 2014 on the 2013 Turkey Progress Report, and the 13 June 2013 Resolution on the situation in Turkey; the joint statement by the Vice-President of the European Commission and High Representative of the Union for Foreign Affairs and Security Policy, and the Commissioner responsible for the European Neighbourhood Policy and Enlargement Negotiations of 14 December 2014; the 8 October 2014 Turkey Progress Report; the European Commission’s Indicative Strategy Paper for 2014-2020 of 26 August 2014; and the 15 December 2014 statement by the Council of Europe Commissioner for Human Rights.

[7] See Dagasan, op. cit., p. 129.

[8] As noted by the European Commission in its 5 November 2008 Turkey Progress Report (mentioned above) and the Council of Europe Commissioner for Human Rights in his 12 July 2011 report. The Monitoring Report prepared by the European Commission on Turkey in 2014 under the European integration process set out the following conclusions on the Article in question: “In 2013, the number of cases referred to the Minister of Justice was 373, while investigation authorisation was granted to 40 of those cases. In the first semester of 2014 the total number of cases referred was 228, and investigation authorisation was granted to 14 of them”.

[9] See the judgment of the Military Court of Cassation of 13 July 1971. This restrictive interpretation is based on the preparatory work on Law No. 3038 of 11 June 1936, which introduced the reference to the armed forces (see Zabit Ceridesi, 11 June 1936, p. 37). However, the fact of replacing the expression “armed forces of the State” (askeri kuvvetleri, militärischer Streitkräfte des Staates) with “military organisations” (askeri teskilati, militärischer Aufbau) gave rise to a debate on the objective scope of the new criminal provision (see references in Dagestan, op. cit., p. 114).

[10] See my separate opinions in the cases of Faber v. Hungary (no. 40721/08) and Mouvement raëlien suisse v. Switzerland [GC] (no. 16354/06) on the clear and imminent criterion in the context of Article 10 of the Convention.

[11] Turkish criminal law, like criminal law in Germany and other European countries, draws a distinction between “offences of result” (zarar suçlari, Erfolgsdelikt) and offences of endangerment (tehlike suçlari, Gefährdungsdelikt), whether the danger in question is abstract (soyut) or concrete (somut).

[12] As stated by the German Federal Constitutional Court, “[d]a dem Staat kein grundrechtlich geschützter Ehrenschutz zukommt, hat er grundsätzlich auch scharfe und polemische Kritik auszuhalten; die Schwelle zur Rechtsgutverletzung ist im Bereich des Staatsschutzes erst überschritten, wenn aufgrund der konkreten Art und Weise der Meinungsäußerung der Bestand oder die Funktionsfähigkeit des Staates oder seiner Einrichtungen beeinträchtigt oder der öffentliche Friede gefährdet ist. Dies kann etwa der Fall sein, wenn der Bundesrepublik Deutschland jegliche Legitimation abgesprochen und dazu aufgerufen wird, sie zu ersetzen” (BVerfG 1 BvR 917/09, 28 November 2011). This opinion was subsequently followed by the German Federal Supreme Court (see BGH, 16.05.2012 - 3 StR 33/12). The Constitutional Court rejected the radical proposals to delete § 90a and 90b of the Criminal Code submitted by the Alternativ Entwurf StGB BT Politisches Strafrecht in 1968 and by the third Strafverteidigertag held in Berlin in 1979 (see references in Strafgesetzbuch Nomos Kommentar, Volume 2, 4th edition, 2013, pp. 247-248).

[13] Here again the German Federal Constitutional Court took care to note this in the aforementioned decision: “Der Meinungsäußernde ist insbesondere auch nicht gehalten, die der Verfassung zugrunde liegenden Wertsetzungen zu teilen, da das Grundgesetz zwar auf die Werteloyalität baut, diese aber nicht erzwingt”.

[14] See, to similar effect, Judge Sajo’s separate opinion in Kayasu (cited above).

[15] As acknowledged by the European Parliament in its recent Resolution of 15 January 2015 (cited above): “whereas intimidating statements by politicians and proceedings launched against critical journalists, combined with the ownership structure of the media sector, have led to widespread self-censorship by media owners and journalists, as well as to sackings of journalists …”. The Court has previously noted in another case the effect on the whole profession of criminal proceedings based on the former Article 159 of the Criminal Code (see Kayasu, cited above, § 106).

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