Download Terrorism and freedom of expression

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 : we’re on the right place to put
the spotlights on threats on the right on
freedom of expression (FoE).
Iceland’s 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 NGO’s 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 Öcalan on emancipation of women)
- Saygili and Falakaoğlu (identification of an officer
active in anti terror)
- Salihoğlu (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)
Özer 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 Europe’s 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 (n°6) 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 Court’s 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 Björgvinsson 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 Bündnis 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 Bündnis 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, Sdruženi Jihočeské 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 Falakaoğlu (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
Court’s 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
order’s true commitment to human
rights is tested”
(S. Sottiaux, Terrorism and the Limitation of Rights, p. 410
quoting Justice Davis, 1866, Milligan case, US)