20
ALTUĞ TANER AKÇAM v. TURKEY JUDGMENT
Dink, for their unfavourable opinions on sensitive issues (see paragraphs 25
and 26 above). Thus, abusive or arbitrary applications of this provision by
the judiciary compelled the Government to revise it with a view to bringing
it into line with the requirements of Article 10 of the Convention as
interpreted by the Court.
90. To that end, three major changes were introduced to the text of
Article 301. Firstly, the terms “Turkishness” and “Republic” were replaced
by “Turkish Nation” and “State of the Republic of Turkey”. Secondly, the
maximum length of imprisonment imposable on those found guilty was
reduced and considerations of aggravating circumstances were excluded.
Thirdly and lastly, an additional security clause was added to the text, which
now provides that any investigation into an offence defined under that
provision shall be subject to the permission of the Minister of Justice (see
paragraphs 43 and 44 above). It is clear from this last amendment that the
legislator’s aim was to prevent arbitrary prosecutions under this provision.
91. Be that as it may, the Court must ascertain whether the revised
version is sufficiently clear to enable a person to regulate his/her conduct
and to foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail (see Grigoriades, cited
above, § 37).
92. In this connection, the Court notes that despite the replacement of
the term “Turkishness” by “the Turkish Nation”, there seems to be no
change or major difference in the interpretation of these concepts because
they have been understood in the same manner by the Court of Cassation
(see paragraph 45 above). Accordingly, the legislator’s amendment of the
wording in the provision in order to clarify the meaning of the term
“Turkishness” does not introduce a substantial change or contribute to the
widening of the protection of the right to freedom of expression.
93. In the Court’s opinion, while the legislator’s aim of protecting and
preserving values and State institutions from public denigration can be
accepted to a certain extent, the scope of the terms under Article 301 of the
Criminal Code, as interpreted by the judiciary, is too wide and vague and
thus the provision constitutes a continuing threat to the exercise of the right
to freedom of expression. In other words, the wording of the provision does
not enable individuals to regulate their conduct or to foresee the
consequences of their acts. As is clear from the number of investigations
and prosecutions brought under this provision (see paragraphs 28-33 and 47
above), any opinion or idea that is regarded as offensive, shocking or
disturbing can easily be the subject of a criminal investigation by public
prosecutors.
94. As noted above, the safeguards put in place by the legislator to
prevent the abusive application of Article 301 by the judiciary do not
provide a reliable and continuous guarantee or remove the risk of being
directly affected by the provision because any political change in time might