ALTUĞ TANER AKÇAM v. TURKEY JUDGMENT
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84. Such interference will infringe the Convention if it does not satisfy
the requirements of paragraph 2 of Article 10. It should therefore be next
determined whether it was “prescribed by law”.
B. Whether the interference was prescribed by law
85. The applicant alleged that Article 301 of the Criminal Code did not
provide sufficient clarity and failed to provide adequate protection against
arbitrary interference.
86. The Government did not comment on this point since they
considered that there had been no interference in the present case. However,
they provided explanations regarding the concepts of “Turkishness” and the
“Turkish nation”. They maintained that following the amendment of the text
of Article 301 the concept of “Turkishness” had been replaced by that of the
“Turkish nation”. Yet these concepts did not have any racial or ethnic
connotations. They should instead be understood as referring to Turkish
citizenship as defined by Article 66 of the Turkish Constitution.
87. The Court reiterates that the relevant national law must be
formulated with sufficient precision to enable the persons concerned – if
need be with appropriate legal advice – to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given action
may entail (see, among many other authorities, Grigoriades v. Greece,
25 November 1997, § 37, Reports 1997-VII). Those consequences need not
be foreseeable with absolute certainty: experience shows this to be
unattainable. Whilst certainty is highly desirable, it may entail excessive
rigidity and the law must be able to keep pace with changing circumstances.
Accordingly, many laws are inevitably couched in terms which, to a greater
or lesser extent, are vague and whose interpretation and application are a
question of practice (see Sunday Times v. the United Kingdom (no. 1),
26 April 1979, § 49, Series A no. 30, and Flinkkilä and Others v. Finland,
no. 25576/04, § 65, 6 April 2010).
88. The Court notes that in the above-mentioned Dink judgment, the
question arose whether the legal norms implied by the term “Turkishness”
were sufficiently accessible and foreseeable for the applicant. While the
Court expressed some doubts on this question, it preferred not to examine it
in the circumstances of that case (see Dink, cited above, § 116).
89. However, the Court considers that it is required to address this
question in the present case. It notes that Article 301 of the Criminal Code –
and Article 159 of the former Criminal Code – had been subjected to several
amendments since the adoption of the first Turkish Criminal Code in 1926.
It appears that the last amendment introduced to the text of the impugned
provision came after a number of controversial cases and criminal
investigations brought against well known figures in Turkish society, such
as prominent writers and journalists like Elif Şafak, Orhan Pamuk and Hrant