CEYLAN v. TURKEY



              EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 23556/94

Münir Ceylan

                            against

                            Turkey

                   REPORT OF THE COMMISSION

                 (adopted on 11 December 1997)

                       TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1-17). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

          (paras. 2-5). . . . . . . . . . . . . . . . . . . .1

     B.   The proceedings

          (paras. 6-12) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 13-17). . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 18-27) . . . . . . . . . . . . . . . . . . . . .4

     A.   The particular circumstances of the case

          (paras. 18-25). . . . . . . . . . . . . . . . . . .4

     B.   Relevant domestic law

          (paras. 26-27). . . . . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION

     (paras. 28-54) . . . . . . . . . . . . . . . . . . . . .7

     A.   Complaints declared admissible

          (para. 28). . . . . . . . . . . . . . . . . . . . .7

     B.   Points at issue

          (para. 29). . . . . . . . . . . . . . . . . . . . .7

     C.   As regards Articles 9 and 10 of the Convention

          (paras. 30-47). . . . . . . . . . . . . . . . . . .7

          CONCLUSION

          (para. 48). . . . . . . . . . . . . . . . . . . . 10

     D.   As regards Article 14 of the Convention

          (paras. 49-51). . . . . . . . . . . . . . . . . . 10

          CONCLUSION

          (para. 52). . . . . . . . . . . . . . . . . . . . 10

     E.   Recapitulation

          (paras. 53-54). . . . . . . . . . . . . . . . . . 11

DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK . . . . . . . . . . 12

APPENDIX :     DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF THE APPLICATION . . . . . . 13

I.   INTRODUCTION

1.   The following is an outline of the case as submitted to the

European Commission of Human Rights by the parties, and of the

procedure before the Commission.

A.   The application

2.   The applicant is a Turkish national. He was born in 1951 and

lives in istanbul.  He was represented before the Commission by

Mr. Hasip Kaplan, Mr. Süleyman Bayram and Ms. Müesser Bas, all lawyers

practising in istanbul.

3.   The application is directed against Turkey.  The respondent

Government were represented by Mr. Bakir Çaglar, Professor at istanbul

University.

4.   The case concerns the applicant's conviction by the State

Security Court for having had published a newspaper article entitled

"Söz isçinin, yarin çok geç olacaktir" ("Now is the time for workers

to speak, tomorrow will be too late").

5.   The applicant complains under Articles 9 and 10 of the Convention

that his conviction for publishing his article in a newspaper

constituted an unjustified interference with his freedom of thought and

freedom of expression, in particular, with his right to receive and

impart information and ideas. He also complains under Article 14 of the

Convention that his conviction for expressing his views in an article

constituted discrimination on the ground of political opinion.

B.   The proceedings

6.   The application was introduced on 10 February 1994 and registered

on 2 March 1994.

7.   On 20 February 1995, the Commission decided, pursuant to Rule 48

para. 2(b) of its Rules of Procedure, to give notice of the application

to the Turkish Government and to invite the parties to submit written

observations on the admissibility and merits of the applicant's

complaints based (under Article 10 of the Convention) on the alleged

violation of his freedom of expression and (under Article 14 in

conjunction with Article 10 of the Convention) on the alleged

discrimination against the applicant on the ground of political

opinion.

8.   The Government did not submit any observations.

9.   On 15 April 1996 the Commission declared the application

admissible.

10.  The text of the Commission's decision on admissibility was sent

to the parties on 24 April 1996 and they were invited to submit such

further information or observations on the merits as they wished.

11.  On 6 June 1996 the Government submitted observations, to which

the applicant did not reply.

12.  After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement. In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be

effected.

C.   The present Report

13.  The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

          Mr.  S. TRECHSEL, President

          Mrs. G.H. THUNE

          Mrs. J. LIDDY

          MM.  E. BUSUTTIL

               G. JÖRUNDSSON

               A.S. GÖZÜBÜYÜK

               A. WEITZEL

               J.-C. SOYER

               H. DANELIUS

               F. MARTINEZ

               C.L. ROZAKIS

               L. LOUCAIDES

               J.-C. GEUS

               M.P. PELLONPÄÄ

               M.A. NOWICKI

               I. CABRAL BARRETO

               B. CONFORTI

               N. BRATZA

               I. BÉKÉS

               J. MUCHA

               D. SVÁBY

               G. RESS

               A. PERENIC

               C. BÎRSAN

               P. LORENZEN

               K. HERNDL

               E. BIELIUNAS

               E.A. ALKEMA

               M. VILA AMIGÓ

          Mrs. M. HION

          MM.  R. NICOLINI

               A. ARABADJIEV

14.  The text of this Report was adopted by the Commission on

11 December 1997 and is now transmitted to the Committee of Ministers

of the Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

15. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

     (i)  to establish the facts, and

     (ii) to state an opinion as to whether the facts found disclose

          a breach by the respondent Government of their obligations

          under the Convention.

16.  The Commission's decision on the admissibility of the application

is appended to this Report.

17.  The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.  ESTABLISHMENT OF THE FACTS

A.   The particular circumstances of the case

18.  In issue No. 29/1991 of "Yeni Ülke" ("New Land"), a weekly

newspaper published in istanbul, an article written by the applicant,

the president of Petrol-is Sendikasi (the Petroleum Workers' Union),

was published under the title "Söz isçinin, yarin çok geç olacaktir"

("Now is the time to speak, tomorrow will be too late").

19.  A translation of this article is as follows:

     "The State Terrorism which is steadily intensifying in Eastern

     and South-Eastern Anatolia is nothing other than the reflection

     of the policies controlled by imperialism which are being applied

     to the Kurdish people in the international plan.

     In order to destroy the Kurdish movement in Iraq, U.S.

     imperialism first stirred up the Kurds against Saddam's regime

     and then sent the Saddam administration, which it had left strong

     enough to crush that movement, after the Kurds.

     As a result, the world has seen the heart-breaking sight of tens

     of thousands of Kurds dying of hunger, exposure and epidemics,

     as many again wiped out by the Iraqi army, and hundreds of

     thousands forced to leave their homes and their country.

     And imperialism shed crocodile tears at the sight of its own

     creation, for all the world to see.

     And it is just sitting back with its arms folded as it watches

     the genocide that is intensifying in Turkey.

     The steadily increasing summary executions, collective detentions

     and disappearances of detainees, particularly since the recent

     Anti-Terror Act, virtually herald how difficult the days that lie

     ahead will be.

     The recent killing of the President of the Diyarbakir Section of

     the H.E.P. (People's Labour Party), most probably by counter-

     guerillas, while he was being detained in police custody, and the

     further killings that took place (3 according to the police, 10

     according to the local people) at the subsequent funeral, when

     the police opened fire on the crowd, hundreds of people were

     also-injured and more than a thousand people were taken into

     custody, are the latest examples of state terrorism.

     For anyone who examines the Anti-Terror Act closely it is easy

     to see that that act is aimed at defeating not only the Kurdish

     people's struggle, but the struggle of the entire working class

     and proletariat for a livelihood and for freedom and democracy.

     It is consequently not only the Kurdish people but our entire

     proletariat as a whole which must counter those laws and the

     current «state terrorism».

     And, also from the trade union point of view, the problem is too

     important and too vital to be eliminated simply by a few

     statements and declarations.

     Political power and monopolistic capital which finds an

     opportunity to present every action as a terrorist act and every

     organisation as a terrorist organisation in a few complex

     concepts will not hesitate, when the moment is opportune, to turn

     that weapon against our working class.

     As we have always said, our working class and its economic and

     democratic organisations must bring not only their economic

     demands, but also their political and democratic demands, to the

     fore and must play an effective role in this struggle.

     Despite all of the hindrances contained in the laws, united

     action must therefore be achieved with the democratic masses and

     their organisations, with the political parties and with all

     persons and bodies with whom an alliance can be formed;  we must

     oppose these massacres and bloodshed and this state terrorism

     with maximum organisation and coordination.

     Otherwise, for the monopolistic capitalist circles, which,

     directed by imperialism, are aiming to silence the Kurdish

     people, the turn of the working class and proletariat will

     inevitably come.

     Tomorrow will be too late. We call on all our people and all our

     democratic forces to take an active part in this struggle."

20.  In an indictment dated 16 September 1991, the Public Prosecutor

at the istanbul State Security Court (istanbul Devlet Güvenlik

Mahkemesi) charged the applicant with provoking feelings of hatred and

enmity among the people in his article. The charges were brought under

Article 312 paras. 1 and 2 of the Turkish Criminal Code.

21.  In the proceedings before the Istanbul State Security Court, the

applicant denied the charges. He submitted that the subject of the

article was human rights violations in the south-east region of Turkey.

He maintained that he did not intend to create discord and strife among

the people. He asserted that, in a democratic society, every subject

should be discussed without any restriction. He further submitted that

it was his responsibility as a trade union leader, to express his

opinions concerning the problem of democracy in south-east Turkey.

22.  In a judgment dated 3 May 1993, the Court found the applicant

guilty of an offence under Article 312 para. 2 of the Turkish Criminal

Code. The applicant was sentenced to one year and eight months'

imprisonment, plus a fine of 100,000 Turkish Lira.

23.  In the reasoning of its judgment, the Court held that the

applicant, in his article, alleged that Kurdish people were oppressed,

massacred and silenced in Turkey. In particular, the Court interpreted

parts of - apparently - the fifth and fourteenth sentence of the

article, respectively, as meaning that "... a genocide is carried out

against the Kurds in Turkey ..." and that "... the outcry of the

Kurdish people is being violently oppressed...".  The Court reached the

conclusion that the applicant had provoked enmity and hatred among the

people by discriminating on the grounds of region and social class.

24.  The applicant appealed. His legal representatives contested,

inter alia, the State Security Court's assessment of the applicant's

article. They asserted that the trial court should have received an

expert opinion on the published article. They also argued that the

applicant should have received a probationary sentence.

25.  On 14 December 1993 the Court of Cassation dismissed the appeal.

It upheld the State Security Court's assessment of evidence and its

reasoning in rejecting the applicant's defence.

B.   Relevant domestic law

26.  Article 312 paras. 2 and 3 of the Turkish Criminal Code:

     "Halki; sinif, irk, din, mezhep veya bölge farkliligi gözeterek

     kin ve düsmanliga açikça tahrik eden kimse bir yildan üç yila

     kadar hapis ve ucbin liradan onikibin liraya kadar agir para

     cezasi ile cezalandirilir. Bu tahrik umumun emniyeti için

     tehlikeli olabilecek bir sekilde yapildigi takdirde faile

     verilecek ceza üçte birden yariya kadar arttirilir.

     Yukaridaki fikralarda yazili suçlari 311 inci maddenin ikinci

     fikrasinda sayilan vasitalarla isleyenlere verilecek cezalar bir

     misli arttirilir."

     "It shall be an offence punishable by not less than one and not

     more than three years' imprisonment, and by a fine of not less

     than three thousand and not more than twelve thousand lira, to

     provoke feelings of hatred and enmity among the people by

     discriminating on the grounds of social class, race, religion,

     sect or region. If such provocation imperils public safety, the

     punishment shall be increased by one third to one half of the

     sentence.

     The punishment for the acts defined in the preceding paragraph

     shall be doubled where they have been committed by the means

     enumerated in paragraph 2 of Article 311."

27.  The means enumerated in Article 311 para. 2 of the Criminal Code

are: mass media, audio tapes, records, films, newspapers, magazines,

handwritten texts distributed in the form of leaflets, placards and

posters.

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

28.  The Commission has declared admissible:

-    the applicant's complaint that his conviction for publishing his

article constituted an unjustified interference with his freedom of

thought and freedom of expression, in particular, with his right to

receive and impart information and ideas;

-    the applicant's complaint that his conviction for expressing his

political opinion constituted discrimination on the ground of political

opinion.

B.   Points at issue

29.  The points at issue in the present case are as follows:

-    whether the applicant's conviction for publishing the article in

question infringed his freedom of thought and of expression as

guaranteed by Articles 9 and 10 (Art. 9, 10) of the Convention;

-    whether the applicant's conviction for publishing the article in

question constituted discrimination on the ground of political opinion,

contrary to Article 14 in conjunction with Article 10 (Art. 14+10) of

the Convention.

C.   As regards Articles 9 and 10 (Art. 9, 10) of the Convention

30.  The applicant complains that his freedom of thought and freedom

of expression have been infringed, contrary to Articles 9 and 10

(Art. 9, 10) of the Convention, in that he was convicted for publishing

an article.

31.  The Commission considers that the applicant's complaint

essentially concerns an alleged violation of his freedom of expression.

The Commission will therefore examine this complaint under Article 10

(Art. 10) of the Convention, which states:

     "1.  Everyone has the right to freedom of expression.  This right

     shall include freedom to hold opinions and to receive and impart

     information and ideas without interference by public authority

     and regardless of frontiers.  This Article shall not prevent

     States from requiring the licensing of broadcasting, television

     or cinema enterprises.

     2.  The exercise of these freedoms, since it carries with it

     duties and responsibilities, may be subject to such formalities,

     conditions, restrictions or penalties as are prescribed by law

     and are necessary in a democratic society, in the interests of

     national security, territorial integrity or public safety, for

     the prevention of disorder or crime, for the protection of health

     or morals, for the protection of the reputation or rights of

     others, for preventing the disclosure of information received in

     confidence, or for maintaining the authority and impartiality of

     the judiciary."

32.  The applicant submits that he was convicted for expressing his

political views concerning, inter alia, the Kurdish problem in Turkey.

33.  The respondent Government submit that, according to the

assessment of the case by the State Security Court, the applicant

abused his freedom of expression and freedom of thought. In particular,

they refer to the findings of the State Security Court, according to

which the applicant, in his article, asserted that "... a genocide is

carried out against the Kurds in Turkey ..." and that "... the outcry

of the Kurdish people is being violently oppressed ...". The State

Security Court evaluated such expressions as incitement to hatred and

enmity based on race, class and region.

34.  The Government maintain that the restriction, imposed by

Article 312 of the Turkish Criminal Code, should be acceptable as

within the margin of appreciation of the respondent State, since its

only aim is to protect the public from enmity and vengeance based on

race, class or region.

35.  The Commission is of the opinion that the penalty imposed on the

applicant constituted an "interference" in the exercise of his freedom

of expression as guaranteed by Article 10 para. 1 (Art. 10-1) of the

Convention.  This point has not been in dispute between the parties.

36.  Therefore, the question is whether this interference was

prescribed by law, pursued a legitimate aim under Article 10 para. 2

(Art. 10-2) and was "necessary in a democratic society" in order to

realise that legitimate aim.

37.  The Commission notes that the applicant's conviction was based

on Article 312 of the Turkish Criminal Code and therefore considers

that the interference was prescribed by law.

38.  As regards the aims of the interference, the Commission notes

that the applicant's conviction was part of the efforts of the

authorities to combat illegal terrorist activities and to maintain

national security and public safety, which are legitimate aims under

Article 10 para. 2 (Art. 10-2) of the Convention.

39.  The remaining issue is whether the interference was "necessary

in a democratic society". In this respect the Commission recalls the

following principles adopted by the Court (see, as the latest

authority, Eur. Court HR, Zana v. Turkey judgment of 25 November 1997,

Judgments and Decisions 1997 ...., para. 51):

     (i) Freedom of expression, as enshrined in paragraph 1 of

Article 10 (Art. 10-1) constitutes one of the essential foundations of

a democratic society and one of the basic conditions for its progress.

It is applicable not only to "information" or "ideas" that are

favourably received or are regarded as inoffensive or as a matter of

indifference, but also to those that offend, shock or disturb; such are

the demands of that pluralism, tolerance and broad-mindedness without

which there is no "democratic society".

     (ii) The adjective "necessary", within the meaning of

Article 10 para. 2 (Art. 10-2), implies the existence of a "pressing

social need". The Contracting States have a certain margin of

appreciation in assessing whether such a need exists, but it goes hand

in hand with European supervision, embracing both the legislation and

the decisions applying it, even those given by an independent court.

     (iii) In exercising its supervisory jurisdiction, the organs of

the Convention must look at the impugned interference in the light of

the case as a whole, including the content of the remarks held against

the applicant and the context in which he made them. In particular,

they must determine whether the interference in issue was

"proportionate to the legitimate aims pursued" and whether the reasons

adduced by the national authorities to justify it are "relevant and

sufficient".

40.  The Commission further notes that, while freedom of political

debate is at the very core of the concept of a democratic society

(Eur. Court HR, Lingens v. Austria judgment of 8 July 1986, Series A

no. 103, p. 26, para. 42), that freedom is not absolute.  A Contracting

State is entitled to subject it to certain "restrictions" or

"penalties", but the Convention organs are empowered to give the final

ruling on whether they are reconcilable with freedom of expression as

protected by Article 10 (Art. 10) (Eur. Court HR, the Observer and

Guardian v. the United Kingdom judgment of 26 November 1991, Series A

no. 216, p. 30, para. 59(c)). In doing so, the Convention organs must

satisfy themselves that the national authorities did apply standards

which were in conformity with the principles embodied in Article 10

(Art. 10) and, moreover, that they based themselves on an acceptable

assessment of the relevant facts (Eur. Court HR, Jersild v. Denmark

judgment of 23 September 1994, Series A no. 298, p. 24, para. 31).

41.  Even where, as in the present case, an interference with freedom

of expression is based on considerations of national security and

public safety and is part of a State's fight against terrorism, the

interference can be regarded as necessary only if it is proportionate

to the aims pursued. Consequently, the Commission must, with due regard

to the circumstances of each case and the State's margin of

appreciation, ascertain whether a fair balance has been struck between

the individual's fundamental right to freedom of expression and a

democratic society's legitimate right to protect itself against the

activities of terrorist organisations (cf. above-mentioned Zana

judgment, para. 55).

42.  The Commission observes in this connection that

Article 10 para. 2 (Art. 10-2) also refers to "duties and

responsibilities" which the exercise of the freedom of expression

carries with it. Thus, it is important for persons addressing the

public on sensitive political issues to take care that they do not

support unlawful political violence. On the other hand, freedom of

expression must be considered to include the right openly to discuss

difficult problems such as those facing Turkey in connection with the

prevailing unrest in part of its territory in order, for instance, to

analyse the background causes of the situation or to express opinions

on the solutions to those problems.

43.  The Commission notes that the applicant's article attempts to

give a political explanation for the resumption of violence over recent

years in Eastern and South-Eastern Anatolia. In this respect, the

applicant's main concept appears to be that the Kurdish movement is or,

at least, should be a part of the general struggle of the Turkish

"working class and its economic and democratic organisations" for

freedom and democracy. He suggests that, "despite all the hindrances

contained in the laws, united action must ... be achieved ... to oppose

... massacres and bloodshed".

44.  The State Security Court held that the applicant, in his article,

had asserted that "... a genocide is carried out against the Kurds in

Turkey ..." and that "... the outcry of the Kurdish people is being

violently oppressed ...". The State Security Court evaluated such

expressions as incitement to hatred and enmity based on race, class and

region.

45.  The Commission, having regard to the verbatim meaning of the

applicant's sentences, is not convinced that the State Security Court's

interpretation of the article is necessarily correct. It is true that

the applicant portrayed the actions of the State in Eastern and

South-Eastern Anatolia as a symptom of the co-ordinated efforts carried

out by international imperialism to oppress the working class,

including Kurdish people, and that he urged united action to stop

bloodshed. However, the Commission considers that the applicant

expressed his ideas in relatively moderate terms, did not associate

himself with the use of violence in any context and did not call upon

people to resort to illegal action.

46.   The Commission finds that the applicant's conviction amounted to

a kind of censure, which was likely to discourage him or others from

publishing ideas of a similar kind again in the future. In the context

of political debate such a sentence is likely to deter citizens from

contributing to public discussion of important political issues

(cf. Eur. Court HR, Lingens judgment, op. cit., p. 27, para. 44).

47.  Consequently, the Commission, even taking into account the margin

of appreciation of the national authorities in this context, finds that

the interference with the applicant's freedom was not proportionate to

the legitimate aims pursued and could, therefore, not be regarded as

necessary in a democratic society to achieve the aims of national

security and public safety.

     CONCLUSION

48.  The Commission concludes, by 30 votes to 2, that there has been

a violation of Article 10 (Art. 10) of the Convention.

D.   As regards Article 14 (Art. 14) of the Convention

49.  Article 14 (Art. 14) of the Convention provides as follows:

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as sex, race, colour, language, religion, political or other

     opinion, national or social origin, association with a national

     minority, property, birth or other status."

50.  The applicant maintains that his conviction for expressing his

views in an article constituted discrimination on the ground of

political opinion.

51.  Having found that Article 10 (Art. 10) of the Convention has been

violated, the Commission considers that no separate issue arises in

regard to Article 14 in conjunction with Article 10 (Art. 14+10) of the

Convention.

     CONCLUSION

52.  The Commission concludes, by 30 votes to 2, that no separate

issue arises in regard to Article 14 in conjunction with Article 10

(Art. 14+10) of the Convention.

E.   Recapitulation

53.  The Commission concludes, by 30 votes to 2, that there has been

a violation of Article 10 (Art. 10) of the Convention (see above

para. 48).

54.  The Commission concludes, by 30 votes to 2, that no separate

issue arises in regard to Article 14 in conjunction with Article 10

(Art. 14+10) of the Convention (see above para. 52).

       M. de SALVIA                       S. TRECHSEL

        Secretary                          President

     to the Commission                  of the Commission

                                                 (Or. English)

DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK

     I do not find it possible to join the majority in concluding that

there has been a breach of Article 10 of the Convention. In my opinion,

there are no solid grounds for concluding that, in this case, the

interference was not necessary in a democratic society and, in

particular, not proportionate to the aim of maintaining national

security and public safety.

     In order to assess whether Mr Ceylan's conviction and sentence

answered a "pressing social need" and whether they were "proportionate

to the legitimate aims pursued", it is important to analyse the content

of the applicant's remarks in the light of the situation prevailing in

south-east Turkey at the time. In so doing, the Commission, taking

account of the margin of appreciation left to the Government, should

have confined itself to the question whether the judicial authorities

had good reasons to believe that there was a pressing social need for

such a measure, based on an acceptable assessment of the relevant

facts.

     I note in this regard that, according to the national courts, the

applicant's article exceeded the limits of mere criticism and amounted

to incitement of the people of Kurdish origin to hatred and enmity

based on race, class and region. In particular, the applicant had

asserted in his article that "... a genocide is carried out against the

Kurds in Turkey ..." and that "... the outcry of the Kurdish people is

being violently oppressed ...". I find that certain indissociable

sections of the applicant's article are in fact of an inflammatory

nature and could, therefore, be deemed dangerous propaganda. In these

circumstances, the applicant's conviction and the penalty imposed on

him on account of the publication of his article could reasonably be

said to arise out of a pressing social need.

     In the light of these considerations and having regard to the

State's margin of appreciation in this area, I am of the opinion that

the restriction placed on the applicant's freedom of expression was

proportionate to the legitimate aims pursued and that, therefore, it

could reasonably be regarded as necessary in a democratic society to

achieve those aims.

 

Full & Egal Universal Law Academy