On 4 September 2018, the European Court of Human Rights rendered its judgment in the case of Fatih Taş v. Turkey (5) (application no. 6810/09). The Court held, unanimously, that there had been a violation of Article 10 (freedom of expression) of the ECHR.

The case concerned the criminal proceedings instituted against the owner of a publishing company (Mr Taş) for denigrating the Republic of Turkey on account of the publication of a book concerning the disappearance of a journalist in south-east Turkey in 1994. The domestic courts based their decision on the offence set out in Article 159 § 1 of the former Criminal Code, which was replaced by Article 301 of the new Criminal Code, in force since 1 June 2005.

The Court found in particular that there had been interference with the exercise of Mr Taş’s freedom of expression. It also expressed doubts as to the foreseeability of Article 301 of the new Criminal Code and Article 159 of the former Criminal Code, on which the interference had been based, pointing in that regard to its case-law concerning the quality of the law.

The Court also found that the passages from the book complained of had in no way been “gratuitously offensive” or insulting and that they had not incited to violence or hatred, which in the Court’s view was the essential element to be taken into account. It therefore considered that the criminal proceedings in question, which had been liable to have a chilling effect on Mr Taş’s willingness to express his views on matters of public interest, had not met a pressing social need and had not been proportionate to the legitimate aims pursued (the protection of public safety and of national security). They had therefore not been necessary in a democratic society.

Under Article 46 of the Convention, the Court considered that bringing the domestic legislation into compliance with Article 10 of the Convention and the Court’s case-law would constitute an appropriate form of execution by which to put an end to violations of the rights guaranteed by Article 10 of the Convention in cases concerning proceedings brought under Article 159 of the former Criminal Code and Article 301 of the new Criminal Code.

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