Does Criminalisation of Support for an ‘Illegal’ Organisation Violate the Right to Free Expression?

Aydin v Germany [2011] ECHR 141 (27 January 2011) Summary

The applicant, a Turkish national, brought a claim in the European Court of Human Rights against the Federal Republic of Germany under Article 34 of the European Convention on Human Rights (the ‘ECHR’). The applicant alleged that her criminal conviction for breaching a ban on the activities of the Workers’ Party of Kurdistan (‘PKK’) violated her right to freedom of expression.

At each stage of the case, the issue was not the legality of the applicant’s expression of her opinions and advocacy of lifting the ban, but rather whether Germany could impose penalties for material support for the PKK and the applicant’s alleged declaration of intention to continue defying the ban. The ECHR found that the penalties so imposed were not in breach of Article 10 of the ECHR.

Facts

The German Interior Ministry issued a ban on the activities of the PKK in 1993. In 1999 the leader of the PKK, Abdullah Öcalan, was captured and in 2000 the PKK announced that it had adopted a new strategy of non-violent legal resistance. In 2001, the PKK launched a “peace initiative” which resulted in more than 100,000 declarations being submitted to German public prosecutors’ offices. The declarations voiced members’ support for and membership of the PKK and demanded the lifting of bans and a change in the policy of European states. The applicant was involved in collecting declarations and submitting them to the office of the Berlin public prosecutor. She also made a donation to a banned sub-organisation of the PKK. She was sentenced by the Berlin Regional Court to 150 daily fines of €8 each. It was agreed that the activities of the PKK had been largely peaceful for about two years before the making of the declarations.

Decision

Berlin Regional Court

The Berlin Regional Court said that the declaration and the campaign were likely to have a positive effect on the PKK’s unlawful activities. Part of the declaration said that “I do not acknowledge this prohibition and … I assume all responsibility arising therefrom”, which was taken as an expression of intention to defy the declaration in the future and continue supporting the PKK.

Because the declaration was interpreted to say that the applicant would continue to support the PKK even if the ban were not lifted, the Regional Court said that it did not fall within the applicant’s right to freedom of expression under Article 5 of the German Basic Law (Constitution).

Federal Court of Justice

The Federal Court of Justice dismissed the applicant’s appeal on points of law. It was relevant that rather than addressing the declarations to the Federal Interior Ministry, which had the power to lift the ban, they were addressed to the public prosecutor’s office, with the stated aim of overburdening the prosecution service.

Federal Constitutional Court

The Federal Constitutional Court said that the activities of an association could only be banned if it generally and continuously pursued dangerous aims. Such a ban does not affect the expression of opinions or the pursuit of individual political aims, but rather support purposefully lent to the activities of the banned organisation. The right to freedom of expression would be overridden if a person advocated opinions which would be seen by an unbiased observer as directly related to the activities of the association.

The declarations would have been exempt from criminal liability if they had been limited to demanding freedom and self-determination and a lifting of the ban. However because they contained a commitment not to respect the ban in the future, even with the threat of criminal sanctions, they ‘transgressed the boundaries … of declarations of solidarity and sympathy in favour of an association affected by a ban’.

European Court of Human Rights

In her argument, the applicant emphasised the peaceful non-violent nature of the declaration and the activities of the PKK at the time, and the importance of government actions in particular being subject to free and open debate. The applicant also contested the interpretation of the declaration adopted by the domestic courts, which had found that the declaration expressed an intention to defy the ban and break the criminal law.

The Court said that it was not in issue that the applicant could lawfully express an opinion condemning the ban and calling for it to be lifted. The question was ‘whether [her] criminal conviction for lending support to an illegal organisation violated her right to freedom of expression under Article 10 of the Convention’.

It was not disputed that the conviction was an “interference” with her right. Therefore the interference, to be lawful, had to fall within the requirements of Article 10.

The conviction was “prescribed by law” within the meaning of Article 10 of the ECHR because the relevant law and case law were sufficiently precise to make the consequences of the applicant’s actions foreseeable. The conviction pursued a legitimate aim within the meaning of Article 10 because it was designed to protect public order and safety. Furthermore, because the relevant authority was able to lift the ban and the applicant’s right to advocate this publicly was protected, she was in a position to work towards a lifting of the ban without risking prosecution.

The Court also found that the thorough examination by the domestic courts of the words of the declaration did not give rise to an interpretation that was inconsistent with the applicant’s rights under Article 10. The domestic courts also took into consideration the fact that the applicant had separately contravened the ban by making a donation to a sub-organisation of the PKK and, as a mitigating factor in sentencing, the fact that she was relying on her right to freedom of expression. The penalty was not considered excessive by the Court.

As a result, there was no violation of Article 10 of the ECHR.

Dissenting opinion of Judge Kalaydjieva

Judge Kalaydijeva disagreed with the majority’s application of Article 10 on a number of points.

In particular, there was an issue about the retrospectivity of the criminal penalties, which was not addressed by the majority because the argument had not been raised in the domestic courts. However Judge Kalaydjieva considered that this retrospectivity meant that the interference with the applicant’s rights was not “prescribed by law” for the purposes of Article 10.

Relevance to the Victorian Charter

This decision provides an analysis of the politically charged area of banning so-called terrorist organisations. The result of the decision is that it is lawful to advocate a change to the law, but that a government is able to impose criminal penalties for defying a lawful ban applied to an organisation.

The right to freedom of expression in s 15 of the Victorian Charter of Human Rights and Responsibilities Act 2006 can be subject to restrictions reasonably necessary for the protection of national security, public order, public health or public morality (s 15(3)(b)).

Because terrorism offences are under Commonwealth legislation and likely to be enforced by Commonwealth agencies, the Charter may be of limited relevance to situations arising as a result of those provisions. However, this decision does provide clear support for protecting the right to freedom of expression by recognising the right to advocate a change to the law without breaking the law. It also recognises that laws banning particular organisations are intrusive and do have an effect on people’s right to freedom of expression. If this question is ever tested in Australian law similar issues may have to be balanced by Australian courts.

The decision is at: www.bailii.org/eu/cases/ECHR/2011/141.html

Alex Bowen is a Solicitor in the Human Rights Law Group at Mallesons Stephen Jaques