Criminal conviction of a student for his remarks about the Prime Minister violated the Convention

In the case of Ömür Çağdaş Ersoy v. Turkey (application no. 19165/19, 15.06.2021) the European Court of Human Rights held, unanimously, that there had been: a violation of Article 10 (freedom of expression) of the European Convention on Human Rights.

The case concerned the criminal conviction of a student (Mr Ersoy) of the ODTÜ (Ortadoğu Teknik Üniversitesi) who was charged with insulting a public official on account of his functions. The authorities had accused Mr Ersoy on the basis of statements he had made about the then Prime Minister (Mr Recep Tayyip Erdoğan) in a speech given in front of the Ankara Law Courts on 22 December 2012, during a rally in support of students who had been placed in police custody on 18 December 2012 in the ODTÜ university campus for having protested against a visit by the Prime Minister.

The Court held that Mr Ersoy’s remarks were linked to a public-interest debate about the police intervention in the student demonstration of 18 December 2012 and the attitude and policies of the State authorities and the Prime Minister in respect of the ODTÜ students. The comments in question had indicated a certain defiance and hostility against the Prime Minister, in that they condemned the latter’s attitude towards the ODTÜ institution and its students, which Mr Ersoy considered outrageous and over-the-top, and his method of governing, described as a dictatorship.

The Court reiterated that the limits of acceptable criticism were wider with regard to a politician, in that capacity, than with regard to a private individual. However, it noted that in convicting Mr Ersoy, the domestic courts had relied on a provision of the Criminal Code which afforded State officials a greater degree of protection than other persons with regard to the disclosure of information or opinions concerning them. In this connection, the Court reiterated its previous finding that providing increased protection by means of a special law on insults was not, as a rule, in keeping with the spirit of the Convention. It also pointed out that, while it was perfectly legitimate for persons representing the institutions of the State, as guarantors of the institutional public order, to be protected by the competent authorities, the dominant position occupied by those institutions required the authorities to display restraint in resorting to criminal proceedings.

In consequence, the national authorities had not conducted an adequate balancing exercise, compatible with the principles set out in the Court’s case-law, between Mr Ersoy’s right to freedom of expression and the opposing party’s right to respect for his private life. In any event, there had been no reasonable relationship of proportionality between the interference with Mr Ersoy’s right to freedom of expression and the legitimate aim of protecting the reputation of the individual concerned.

References from the official website of the Council of Europe