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Постановление ЕСПЧ от 08.07.1999 "Дело "Шюрек (Surek) против Турции (N 1)" (жалоба N 26682/95) [рус., англ.]




Like the majority, we voted in favour of finding a violation of Article 6 § 1 of the Convention. However, unlike the majority, we consider that there was also a breach of Article 10 in the present case. Our opinion is based in particular on the following considerations.

1. While, on the one hand, the Court reiterates that freedom of the press must make it possible to "... impart information and ideas on political issues, including divisive ones" (see paragraph 59 of the judgment), it finds on the other hand that the impugned letters "... amount to an appeal to bloody revenge by stirring up base emotions and hardening already embedded prejudices which have manifested themselves in deadly violence" (see paragraph 62). In addition to the fact that the letters concerned must be read in context, it is, in our view, difficult to assess accurately and objectively the meaning of the terms employed and how they should be construed. We consider that freedom of expression as protected by the Convention may be curtailed only when there is direct provocation to commit serious criminal offences (crimes).

2. Furthermore, the Court's analysis in the instant case seems to us to be inconsistent with its conclusions in the Arslan, Ceylan and several other cases, three of which also involved the applicant, Mr {Surek}. All of those cases concerned the right to information and freedom of expression. The Court hardly distinguishes between these cases in its assessment of the political statements and sometimes virulent and acerbic criticism of the Turkish authorities' actions; in none of them did it find any justification for making an exception to Article 10 of the Convention. More particularly, we fail to see why in the present case, but not in the others "... the message which is communicated to the reader is that recourse to violence is a necessary and justified measure of self-defence in the face of the aggressor", as the majority assert in paragraph 62 of the judgment.

3. The case of {Surek} (No. 1) differs markedly from Zana, as in the latter case the applicant's statements were unambiguous, they coincided "... with murderous attacks carried out by the PKK on civilians in south-east Turkey, where there was extreme tension at the material time" and Mr Zana was a political figure and former mayor of {Diyarbakir}, so that it followed that the published comments could be regarded as "... likely to exacerbate an 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 - 60). In the present case Mr {Surek} was not even the author of the comments in the impugned letters, which had been written by readers of the review.

4. The criteria used by the majority in its assessment (see paragraphs 59 and 61 of the judgment) and the fact that, as the Court has regularly stated, paragraph 2 of Article 10 must be strictly construed so as to leave little scope for limitations on freedom of expression, meant that the Court should, in our view, have found that there was an unjustified interference with the applicant's right to freedom of expression and, consequently, a violation of Article 10.