ECtHR engages in dangerous “triple pirouette” to find criminal prosecution for media coverage of PKK statements did not violate Article 10

The European Court’s Second Section recently found that criminal proceedings against the owner and the editor of a newspaper for having published statements by the leader of a terrorist organisation were justified and did not violate the right to freedom of expression. The Court in Gürbüz and Bayar v. Turkey found that the newspaper’s article with statements by the leader of the PKK, Abdullah Öcalan, contained and implied a threat of resumption of violence. In its approach and finding no violation of freedom of expression under Article 10 ECHR, the Court itself made an assessment of the context and content of the article at issue, as the Turkish courts had restricted themselves to the finding of the illegal character of reproducing the statements of the PKK-leader as such, without further evaluating the necessity of the interference in a democratic society.

One can seriously question however whether it is the task of the ECtHR to regularise this omission by the domestic authorities. More substantially: by finding that the dissemination of one particular statement by Öcalan justified the criminal prosecution for journalistic reporting at the occasion of a ceasefire proposal in the Turkish-Kurdish conflict, the ECtHR neglects to verify the basic conditions of ‘intent’ and ‘clear and imminent danger’ in order to qualify the newspaper article at issue as an incitement to terrorist violence. The Court also showed insufficient attention to the role of journalism and media when reporting on matters of public interest and disseminating statements of others. These three turns by the Court were labelled by the dissent as a ‘triple  pirouette’ that ‘ignore[d] fundamental aspects’ of ‘well-established’ Article 10 jurisprudence.