INCAL JUDGMENT OF 9 JUNE 1998
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In the present case the Government pleaded the “duties” and
“responsibilities” with which Article 10 links exercise of the freedom of
expression (see paragraph 44 above). However, these do not dispense with
the obligation to ensure that an interference satisfies the requirements of
paragraph 2 (see, mutatis mutandis, the Thorgeir Thorgeirson v. Iceland
judgment of 25 June 1992, Series A no. 239, p. 27, § 64).
54. The limits of permissible criticism are wider with regard to the
government than in relation to a private citizen, or even a politician. In a
democratic system the actions or omissions of the government must be
subject to the close scrutiny not only of the legislative and judicial
authorities but also of public opinion. Furthermore, the dominant position
which the government occupies makes it necessary for it to display restraint
in resorting to criminal proceedings, particularly where other means are
available for replying to the unjustified attacks and criticisms of its
adversaries. Nevertheless it remains open to the competent State authorities
to adopt, in their capacity as guarantors of public order, measures, even of a
criminal-law nature, intended to react appropriately and without excess to
such remarks (see the Castells judgment cited above, p. 23, § 46).
55. In the present case the İzmir executive committee of the HEP
submitted one copy of the leaflet to the İzmir prefecture on 2 July 1992 with
an application for permission to distribute it (see paragraph 11 above). The
security police, who were then asked to study its content, considered that the
leaflet could be regarded as separatist propaganda (see paragraph 12 above).
At that stage the authorities were accordingly in a position to require
changes to the text. However, the day after this application was lodged at
the prefecture the leaflets were seized and prosecutions brought against its
authors, including Mr Incal, under Article 312 of the Criminal Code, among
other provisions (see paragraph 21 above).
56. The Court notes the radical nature of the interference in question. Its
preventive aspect by itself raises problems under Article 10 (see, among
other authorities, the Vereniging Weekblad Bluf! v. the Netherlands
judgment of 9 February 1995, Series A no. 306-A, p. 16, §§ 45 and 46, and,
mutatis mutandis, the Vereinigung demokratischer Soldaten Österreichs and
Gubi v. Austria judgment of 19 December 1994, Series A no. 302, pp. 18–
19, § 40).
In addition, the İzmir National Security Court sentenced the applicant to
six months and twenty days’ imprisonment and a fine of 55,555 Turkish
liras and disqualified him from driving for fifteen days (see paragraph 16
above).
Furthermore, as a result of his conviction of a “public order” offence,
Mr Incal was debarred from the civil service and forbidden to take part in a
number of activities within political organisations, associations or trade
unions (see paragraph 22 above).