25 January 2014

Mezopotamya v Turkey: Strasbourg's Defence Against Abusive Government

Two applicants alleged breaches of various rights enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (ECHR). The European Court of Human Rights (Strasbourg or ECtHR) decided only the second applicant's ECHR Article 10 right to freedom of expression was violated. The second applicant (Mesopotamia) was a publishing company. Mesopotamia was dissolved by a domestic Turkish civil court and its property was seized pursuant to a prosecution in a domestic Turkish criminal court.

This post analyses Strasbourg's reasons for holding that Turkey violated Article 10. First I exposit the ECtHR's process. Second I analyse Turkey's procedural irregularities. Third, I compare these against and with the dissenting opinion. Finally, I explain my reasons for supporting the majority opinion.

European Court of Human Rights
Second Section

Application Number: 21377/03

21 January 2013

Perihan and Mezopotamya Basın Yayın AŞ = Applicants (Mesopotamia)
Turkey = Respondent State

Judges Dragoljub Popović, András Sajó, Paulo Pinto de Albuquerque, Helen Keller as the majority; and
Judges Guido Raimondi (President), Işıl Karakaş, Peer Lorenzen dissenting.

1. Freedom of Expression: Process and Problems

1.1 First Applicant's Dismissal

Perihan's request--the first applicant--was declared inadmissible because he only became involved in Mesopotamia's business after the seizure and dissolution that led to Strasbourg (§ 30). Perihan could not have been a victim of the Article 10 violation, and therefore had no place to apply to the ECtHR (§31).

1.2 Article 10 and the Second Applicant

Decisions pertaining to Article 10 must satisfy various elements. These are written in the Article itself:
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.

One must establish that 'expression' is engaged. When a company is dissolved it cannot trade. When that company's trade is publishing, its dissolution negatives its ability to 'receive [or] impart information and ideas (…)' (Art 10). Mesopotamia's expression rights became engaged, then, when a civil Turkish court dissolved the company and rendered it impossible to exercise the right freely to express.

After considering Turkey's objections, Strasbourg sequentially examined Article 10.2's elements. It is necessary to evaluate Turkey's interference against the criteria in that machinery because some interferences are acceptable, and if that was the case here, the dissolution would not have been a violation.

Interferences must be prescribed by a law and for a legitimate aim. To dissolve Mesopotamia Publishing, the Turkish civil court relied on their Commercial Code, which 'pursued the legitimate aim of protecting national security and preventing disorder and crime' (§52). The interference therefore accorded with satisfactory legislation.

Interferences must also be necessary in a democracy. The court reiterates that this implies that if dissolution is for a 'pressing social need' it would not violate Article 10 (§53). Whether this desideratum exists is a matter for Strasbourg deliberation.

In the ECtHR's supervisory role, they must consider whether interferences are proportionate. ECHR Signatory States must offer 'relevant and sufficient' reasons to justify their interference is proportionate (§53). To restate, absence of need implies an absence of necessity, which implies disproportionality. Turkey therefore had to adduce evidence to show they had actually considered the issue.

But Turkey could not provide that evidence: the domestic civil proceedings failed to record why Mesopotamia had (even potentially) caused public disorder, which was Turkey's reason for dissolution. It is difficult for Strasbourg to agree that Turkey acted proportionately without knowing how the decision to dissolve Mesopotamia Publishing came to fruition. The ECtHR therefore held the dissolution violated Article 10.

2. An Inconvenient Inference

There is an important point to consider here, a point that appears to be hidden in the judgment but lucidly silhouetted. The Turkish government did not want Mesopotamia to share their ideology about treating Kurdish individuals better. However, criminal proceedings between the years 1997 and 2000 failed to convict the publishing house's employees for their attempts to so share: the criminal courts' failures were due to acquittals and administrative errors--prosecutions became 'time-barred' and proceedings were suspended in light of corresponding pending cases (§§ 7, 12, 16).

Rather than let Kurdish-favouring publications be disseminated, the Turkish government had another go at stopping that from happening. As the criminal cases were underway, Turkey's Industry and Trade Minister began the contentious civil proceedings, which culminated in Mesopotamia's dissolution in 2001.

Three dissenting opinions in the Strasbourg judgment rely on those civil proceedings. Judges Raimondi, Karakaş, and Lorenzen are persuasive: they retreat through the case history and assert that domestic remedies were never exhausted. To show this, they identify that Mesopotamia did not turn up to the civil proceedings. If Mesopotamia did not turn up, they cannot have discussed Article 10 issues. If free expression was not examined in domestic proceedings, the national authorities can never have had the opportunity to remedy or restrain their own behaviour. Therefore Mesopotamia did not exhaust domestic remedies as is required before an application to Strasbourg is admissible. If inadmissible, there cannot be a judicial deliberation of Article 10 in the ECtHR.

It does not however follow that Article 10 is not violated (sic). The dissent seems to assume that a violation follows from the fact that it is not for Strasbourg to decide. This seems wrong (and I admit a little ignorance, here--perhaps I've missed something (cf below)) because the only thing dissenting reasoning seems to imply is that a domestic court should be responsible for determining Article 10's violation or non-violation, rather than Strasbourg. Nevertheless, the dissenting judges employed different logic to mine, and declared Article 10 was not violated. Luckily for free expression the majority declared Article 10 was violated.

3. Supportive Conclusion

Although the dissent is powerful, it is clear, considering Turkey's backhandedness, why the majority decided as they did. It would be deplorable to allow a government to evade provisions--politically inserted into legislation--that are in place to protect citizens against just this sort of executive behaviour. Governments cannot be allowed to pretend to offer protections in the form of time-limitations, only to circumvent those protections later.

Maybe this did not actually occur here. Perhaps my inference is a pseudo-conspiracy theory. But 'holding Article 10 not violated' might have encouraged the Turkish government, and the merest support would signal to ECHR Signatory States that underhanded political tactics are acceptable. Therefore even if 'no violation' did follow inadmissibility, as the dissent claims, the majority effected the right outcome and defensively upheld free expression for individuals facing State power.

Created: 25 January 2014. Version 1.0.

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