PARTLY DISSENTING OPINION OF JUDGE PALM
I agree with Court's conclusion that there has been a violation of Article 6 § 1 in this case. My dissent relates to the Court's general approach to examining whether there has been a violation of Article 10.
In my opinion the majority has attached too much weight to the admittedly harsh and vitriolic language used in the impugned letters and insufficient attention to the general context in which the words were used and their likely impact. Undoubtedly the words in question shock and disturb the reader with their general accusatory tone and their underlying violence. But in a democracy, as our Court has emphasised, even such "fighting" words may be protected by Article 10. The question in the present case concerns the approach employed by the Court to decide the point at which such "violent" and offensive speech ceases to be protected by the Convention.
My answer to this question is to focus less on the vehemence and outrageous tone of the words employed and more on the different elements of the contextual setting in which the speech was uttered. Was the language intended to inflame or incite to violence? Was there a real and genuine risk that it might actually do so? The answer to these questions in turn requires a measured assessment of the many different layers that compose the general context in the circumstances of each case.
This was in fact the approach of the former Court when it found that there had been no violation of Article 10 in the Zana case although I dissented in that case on other grounds. In Zana the applicant had indicated his support for the PKK during an interview. The Court examined the context in which the statement was made, noting (1) that the interview coincided with murderous attacks carried out by the PKK on civilians in south-east Turkey, where extreme tension reigned at the material time; (2) that the applicant was the mayor of {Diyarbakir} - the most important city in south-east Turkey; (3) that the interview had been given in a major national daily newspaper and had to be judged as likely to exacerbate the already explosive situation in that region (see the Zana v. Turkey judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2549, §§ 59 and 60).
Applying this approach to the facts of the present case I attach weight to the following elements. In the first place, the applicant was not punished for the offence of incitement to hatred pursuant to Article 312 of the Criminal Code but for an offence of disseminating separatist propaganda under section 8 (1) of the Prevention of Terorrism Act 1991 (see paragraphs 13 - 20 of the judgment). In fact the courts found "no grounds for convicting him under Article 312" (see paragraph 14 of the judgment). The majority's reliance on the letters as capable of inciting to violence or as hate speech which glorifies violence thus goes significantly further than the approach of the national courts. Secondly, the applicant was only the major shareholder in the review and not the author of the impugned letters nor even the editor of the review responsible for selecting the material in question. He was thus lower down in the chain of responsibility for the publication of readers' letters. Nor was he (or the authors) a prominent figure in Turkish life capable, as in the Zana case, of exercising an influence on public opinion. Thirdly, the review was published in Istanbul far away from the zone of conflict in south-east Turkey. Finally, letter-writing by readers does not occupy a central or headline position in a review and is by its very nature of limited influence. Moreover some allowance must be made for the fact that members of the public expressing their views in letters for publication are likely to use a more direct and vehement style than professional journalists.
The combination of these factors leads me to the conclusion that there was no real or genuine risk of the speech at issue inciting to hatred or to violence and that the applicant was sanctioned because of the political message of the letters rather than their inflammatory tone. I am thus of the view that there was a violation of Article 10 in this case.