ARTICLE 19 urges president to reject draft anti-terrorism law, return it to Parliament for further debate
His Excellency A. Necdet Sezer
President of the Republic of Turkey
00380 Cankaya / Ankara
27 July 2006
Dear President Sezer,
We are writing to you with regard to the draft Law to Amend the 1991 Law to Fight Terrorism [3713 of 1991], and in particular to express our concerns about its impact on the right to freedom of expression and, consequently, its consistency with international law. We respectfully urge you to exercise your discretion to reject the draft Law and return it to the Parliament for further debate. Our main concerns regarding the proposed amendments are outlined below, along with a discussion of how these can be addressed while giving effective protection against possible threats to national security.
As a State Party to the International Covenant on Civil and Political Rights (ICCPR), a member of the Council of Europe and a party to the European Convention on Human Rights (ECHR), Turkey is under an international obligation to safeguard the exercise of the right to freedom of expression. As an EU candidate country, moreover, Turkey should ensure consistency of its laws with the Charter of Fundamental Rights of the European Union, which also guarantees the right to freedom of expression.
The reform of the 1991 Law to Fight Terrorism provides an important opportunity to reaffirm Turkey's commitment to European standards for the protection of human rights. In addition to the treaties cited above, these include such instruments as the Council of Europe Convention on the Prevention of Terrorism(1) ('the Council of Europe Convention'), which Turkey signed on 19 January 2006, and the Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight Against Terrorism ('the Guidelines').(2)
Article 12 of the Council of Europe Convention and Part III of the Guidelines require each Member State to ensure that safeguards for the protection of the right of freedom of expression are built into any anti-terrorism legislation; this right must not be unduly curtailed in the fight against terrorism. Such safeguards are clearly lacking from the 1991 Law and the draft Law. Returning the draft Law to Parliament would send a strong message that Turkey is abiding by its obligations as a Member of the Council of Europe.
Article 5 of the draft Law prohibits periodicals from publishing articles which praise crimes committed or the offenders, or which "are in the nature of propaganda of the terrorist organisation".
The language in which Article 5 of the draft Law is framed is vague and goes much further in restricting free expression than is necessary to prevent a terrorist attack. Under international law, restrictions on freedom of expression whose aim is to protect national security are permitted, but only if they meet two further conditions: they must be provided by law, and must be necessary in a democratic society to achieve that aim.(3)
Provided by law
The requirement of being 'provided by law' goes beyond the mere existence of a piece of legislation. Laws restricting freedom of expression must be framed in clear, precise language which enables citizens to regulate their conduct. The European Court of Human Rights has elaborated on this requirement under the ECHR:
"[A] norm cannot be regarded as a 'law' unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given situation may entail."(4)
Furthermore, the principle of legality, as enshrined in Article 15 of the ICCPR and Article 7 of the ECHR, also requires provisions of criminal law to be sufficiently precise, for reasons similar to those outlined above.
Article 5 of the draft Law engages vague terminology ("praise", "propaganda", "in the nature of propaganda"), and does not properly define the scope of Article 5's application (there is no requirement for the authorities to show that the person/periodical is associated with a proscribed organisation).
Both the terms "praise" and "propaganda" are subjective, nebulous concepts which are susceptible to wide-ranging interpretation and provide little forewarning to citizens. Any comment which is remotely positive bears the risk of being labelled as "praise". Article 5 could potentially apply to articles in periodicals which agree in the abstract with the objectives of a terrorist organisation, but which condemn its use of violence. Not only would this lead to unjustifiable prosecutions, it would also undermine the open democratic debate which is essential to defusing any popular support for terrorist organisations. Ultimately, national security stands to benefit if discontented elements in society are permitted as much as possible to voice their concerns within the framework of the law.
Necessary in a democratic society
In addition to being clearly defined in law, international law requires any restrictions on free expression to be "necessary in a democratic society". The word "necessary" means that there must be a "pressing social need" for the limitation.(5) The reasons given by the State to justify the limitation must be "relevant and sufficient"; the State should use the least restrictive means available and the limitation must be proportionate to the aim pursued.(6)
Underlying this test of 'necessity' is the belief that restrictions on freedom of expression should always address an actual danger, rather than prohibiting a certain point of view because it is not approved of. The European Court of Human Rights has consistently reiterated that freedom of expression extends to unpopular ideas:
"Freedom of expression . . . 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. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'."(7)
Accordingly, domestic provisions such as Article 5 of the draft Law should be clearly targeted at preventing terrorist attacks, rather than criminalising certain points of view. The issue which Article 5 seeks to address has been specifically considered in the Council of Europe Convention, which strikes a much more careful balance between preventing incitement to terrorism and freedom of expression.
Article 5 of the Council of Europe Convention outlines the offence of 'a public provocation to commit a terrorist offence'. The Convention's Explanatory Report notes that this provision could apply to the dissemination of messages praising the perpetrator of an attack, amongst other things.(8) The distinction between the Council of Europe Convention and the draft Law, however, is that there are two thresholds which an offence under Article 5 of the Convention must meet:
(i) there has to be a specific intent to incite the commission of a terrorist offence; and
(ii) the result of the act must be to cause a credible danger that such an offence will be committed.(9)
In applying these standards, the nature of the author and of the recipient, as well as the content in which the offence is committed, must be taken into account, in line with the jurisprudence of the European Court of Human Rights.(10)
These thresholds are important safeguards to ensure that restrictions on freedom of expression stay within what is 'necessary in a democratic society'. Regrettably however, neither of these safeguards exists in Article 5 of the draft Law.
Accordingly, the blanket ban of Article 5 of the draft Law is an illegitimate restriction on the expression of non-violent opinion.(11) Terms such as "propaganda" and the wide-reaching concept of "in the nature of propaganda" are vague and overbroad. In contrast to the more structured approach in the Council of Europe Convention, Article 5 may prove counter-productive in defeating terrorism and addressing its root causes.
Article 6 of the draft Law amends Article 7 of the 1991 Law, so that it would criminalise "making propaganda of the terrorist organisation or its purposes", a crime which carries a particularly heavy sanction when committed via the media. Article 6 would also create a number of new expression offences, such as "carrying the emblem or the signs of the terrorist organisation in a way to demonstrate that s/he is a member or supporter of the organisation" or "carrying posters, banners, placards, pictures, signboards, equipments and materials, chanting slogans or using audio devices for the purposes of the organisation".
Article 7 of the 1991 Law limited liability for propaganda for "armed organisations" to those who produced it "on their behalf". Article 6 prohibits the making of propaganda for any "terrorist organisation" or for its aims. This is, then, a significant widening of liability in two respects - "terrorist organisation" is very broadly defined and covers organisations that would not have been encompassed within the old term "armed organisations"; and the law as amended would prohibit producing propaganda even if not done on behalf of the organisation in question, or indeed if done only in support of its aims rather than its means.
Both of these are very concerning developments. As discussed above, restrictions on the right of freedom of expression in the context of counter-terrorism legislation need to be examined very carefully for their precision and necessity in a democratic society. Article 6 suffers from similar flaws as Article 5 in this respect.
Again, the term "propaganda" is capable of many interpretations and is not suitable, without further clarification, to a law restricting freedom of expression. Further, while expressions of support for a terrorist organisation could, on occasion, legitimately be prohibited, a clear line should be drawn between statements which are specifically intended to provoke a terrorist attack and are in addition likely to do so, and those which in fact are harmless, if offensive. Suppression of a statement merely for the reason that it is strongly disapproved of by the majority is incompatible with both a democratic form of government and with international law.
In regard to the severe sanctions imposed on the media by the new offences created by both Articles 6 and 7, we emphasise the fundamental role which the media plays in realising the right of freedom of expression. The threat of crushing sanctions creates a serious 'chilling effect' - the media are likely to self-censor and steer far clear of any potentially dangerous subject. As a result, the free flow of information and ideas and the public's right to be well-informed on matters of public interest will suffer. In the case of Sener v. Turkey, the European Court of Human Rights warned against excessive penalisation of the media:
"Contracting States cannot, with reference to the protection of territorial integrity or national security or the prevention of crime or disorder, restrict the right of the public to be informed of them by bringing the weight of the criminal law to bear on the media."(12)
In conclusion, we urge you to reject the draft Law insofar as it imposes new restrictions on freedom of expression, and to ensure that any legislation eventually adopted addresses national security concerns consistently with international law, without exerting an unwarranted detrimental effect on the right of freedom of expression.
Director, Law Programme
ARTICLE 19 Global Campaign for Free Expression
1. Council of Europe Committee of Ministers, Convention on the Prevention of Terrorism (CETS No. 196). Accessible at: http://conventions.coe.int/Treaty/EN/Treaties/Html/196.htm
2. Guidelines of the Committee of Ministers of the Council on Europe on Human Rights and the Fight Against Terrorism (2002), Part III(2). Accessible at: http://www.coe.int/T/E/Human_rights/guidelines.asp
3. Ibid. These Guidelines reflect the requirements under the Article 19 of the ICCPR and Article 10 of the ECHR for a restriction on the right of freedom of expression - that any restriction must be provided by law, and necessary to protect a legitimate interest.
4. The Sunday Times v. United Kingdom, 26 April 1979, Application No. 6538/74, para.49 (European Court of Human Rights).
5. See, for example, Handyside v. the United Kingdom, 7 December 1976, Application No. 5493/72, para. 48 (European Court of Human Rights).
6. See, for example, Lingens v. Austria, 8 July 1986, Application No. 9815/82, paras. 39-40 (European Court of Human Rights).
7. See, for example, Zana v. Turkey, 25 November 1997, Application No. 18954/91, para. 51 (European Court of Human Rights); Sürek v. Turkey (No. 4), 8 July 1999, Application No. 24762/94, para. 54 (European Court of Human Rights).
8. Council of Europe Committee of Ministers, Explanatory Report on the Convention on the Prevention of Terrorism, para. 95. Accessible at: http://conventions.coe.int/Treaty/EN/Reports/Html/196.htm
9. Ibid, paras. 99, 100.
11. ARTICLE 19, The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (London, 2001), UN Doc E/CN.4/1996/39, Principle 7. Accessible at: http://unbisnet.un.org:8080/ipac20/ipac.jsp?session=11N382K564V33.954&profile=bib&uri=full=3100001~!411232~!1&ri=1&aspect=power&menu=search&source=~!horizon
12. Sener v. Turkey, Application No. 26680/95, 18 July 2000, paras. 40, 42 (European Court of Human Rights).