Ceylan v. Turkey [GC]

Information Note on the Court’s case-law 8

July 1999

Ceylan v. Turkey [GC] - 23556/94

Judgment 8.7.1999 [GC]

Article 10

Article 10-1

Freedom of expression

Convictions for disseminating separatist propaganda: violation

[This summary also covers the following judgments of 8 July 1999: Arslan v. Turkey [GC], (no. 23462/94); Gerger v. Turkey [GC], (no. 24919/94); Polat v. Turkey [GC], (no. 23500/94); Karataş v. Turkey [GC], (no. 23168/94); Erdoğdu and İnce v. Turkey [GC], (no. 25067/94 and 25068/94); Başkaya and Okçuoğlu v. Turkey [GC], (no. 23536/94 and 24408/94); Okçuoğlu v. Turkey [GC], (no. 24246/94); Sürek and Özdemir v. Turkey [GC], (no. 23927/94 and 24277/94); Sürek v. Turkey (no. 1) [GC], (no. 26682/95); Sürek v. Turkey (no. 2) [GC], (no. 24122/94); Sürek v. Turkey (no. 3) [GC], (no. 24735/94); and Sürek v. Turkey (no. 4) [GC], (24762/94).]

(Extract from press release)

1. Case of Ceylan v. Turkey

The applicant, Münir Ceylan, is a Turkish national. He was born in 1951 and lives in Istanbul. While president of the petroleum workers’ union (Petrol-İş Sendikası), Mr Ceylan wrote an article entitled ‘The time has come for the workers to speak out – tomorrow it will be too late’ in the 21-28 July 1991 issue of Yeni Ülke (New Land), a weekly newspaper published in Istanbul. Criminal proceedings were brought against him in the Istanbul National Security Court as a result and on 3 May 1993 he was convicted under Article 312 §§ 2 and 3 of the Turkish Criminal Code of inciting the people to hostility and hatred by making distinctions based on ethnic or regional origin or social class. He was sentenced to one year and eight months’ imprisonment and a fine of 100,000 Turkish liras (TRL).

2. Case of Arslan v. Turkey

The applicant, Günay Arslan, is a Turkish national. He was born in 1960 and lives in Istanbul. He is the author of the book Yas Tutan Tarih, 33 Kurşun (‘History in mourning, 33 bullets’). A first edition was published in December 1989. On 29 March 1991 the Istanbul National Security Court sentenced Mr Arslan to six years and three months’ imprisonment for making separatist propaganda contrary to Article 142 §§ 3 and 6 of the Criminal Code. However, as that provision was repealed by the Prevention of Terrorism Act 1991 (Law no. 3713 of 12 April 1991), the National Security Court declared his conviction null and void in a supplementary judgment of 3 May 1991. A second edition of the book was published on 21 July 1991. In a judgment of 28 January 1993 the National Security Court convicted Mr Arslan of making propaganda against the “indivisibility of the State” contrary to section 8 of Law no. 3713 and sentenced him to one year and eight months’ imprisonment and a fine of TRL 41,666,666.

3. Case of Gerger v. Turkey

The applicant, Haluk Gerger, is a Turkish national. He was born in 1950 and is a journalist living in Ankara. On 23 May 1993 a memorial ceremony was held in Ankara for Denis Gezmiş, Yusuf Aslan and Hüseyin İnan, the founders of an extreme left-wing movement among university students at the end of the 1960s. They had been sentenced to death for seeking to destroy the constitutional order by violence and had been executed in May 1972. The applicant had been invited to speak at the ceremony but was unable to attend and sent the organising committee a message that was read out in public. Holding that the message contained separatist propaganda against the unity of the Turkish nation and the territorial integrity of the State, the Ankara National Security Court found Mr Gerger guilty of an offence under section 8 of the Prevention of Terrorism Act 1991 (Law no. 3713) and sentenced him to one year and eight months’ imprisonment and a fine of TRL 203,333,333.

4. Case of Polat v. Turkey

The applicant, Edip Polat, is a Turkish national. He was born in 1962 and lives in Diyarbakır.

In 1991 a book of his entitled Nevrozladık Şafakları (‘We made each dawn a Spring Festival’) was published. In a judgment of 23 December 1992 the Ankara National Security Court held that the work contained propaganda against the territorial integrity of the State and the indivisible unity of the nation, contrary to section 8 of the Prevention of Terrorism Act 1991 (Law no. 3713). It sentenced the applicant to two years’ imprisonment and a fine of TRL 50,000,000.

5. Case of Karataş v. Turkey

The applicant, Hüseyin Karataş, is a Turkish national. He was born in 1963 and lives in Istanbul. In November 1991 his anthology of poems entitled Dersim – Bir İsyanın Türküsü (‘The song of a rebellion – Dersim’) was published. In a judgment of 22 February 1993 the Istanbul National Security Court held that the work contained propaganda against the indivisible unity of the State, contrary to section 8 of the Prevention of Terrorism Act 1991 (Law no. 3713) and sentenced the applicant to one year and eight months’ imprisonment and a fine of 41,666,666 Turkish liras. After Law no. 4126 of 27 October 1995 came into force the sentence was reviewed, the term of imprisonment being reduced to one year, one month and ten days and the fine increased to TRL 111,111,110.

6. Case of Erdoğdu and İnce v. Turkey

Ümit Erdoğdu and Selami İnce are Turkish nationals. Mr Erdoğdu was born in 1970 and lives in Istanbul. Mr İnce was born in 1966 and lives in Ankara. At the material time, Mr Erdoğdu was the editor of the monthly review Demokrat Muhalefet! (‘Democratic Opposition!’). The January 1992 issue of the review included an interview with a Turkish sociologist conducted by the second applicant, Mr İnce. The Istanbul National Security Court held that, by publishing the interview, the applicants had committed the offence of disseminating propaganda against the indivisibility of the State contrary to section 8 of the Prevention of Terrorism Act 1991 (Law no. 3713). In a judgment of 12 August 1993 the first applicant was sentenced to five months’ imprisonment and a fine of TRL 41,666,666 and the second applicant to one year and eight months’ imprisonment and a fine of TRL 41,666,666. After Law no. 4126 of 27 October 1995 and Law no. 4304 of 14 August 1997 came into force, the Istanbul National Security Court decided to defer passing a final sentence upon Mr Erdoğdu and to suspend execution of Mr İnce’s sentence.

7. Başkaya and Okçuoğlu v. Turkey

Fikret Başkaya and Mehemet Selim Okçuoğlu are Turkish nationals. They were born in 1940 and 1964 respectively. Mr Başkaya is a professor of economics and a journalist and lives in Ankara; Mr Okçuoğlu is the owner of a publishing house, Doz Basin Yayin Ltd Sti, and lives in Istanbul. In April 1991, Doz Basin Yayin Ltd Sti published a book written by the first applicant entitled Batılılaşma, Çağdaşlaşma, Kalkınma - Paradigmanın İflası / Resmi İdeolojinin Eleştirisine Giriş (‘Westernisation, Modernisation, Development - Collapse of a Paradigm / An Introduction to the Critique of the Official Ideology’). The Public Prosecutor at the Istanbul National Security Court brought criminal proceedings against the applicants on the grounds that, through the book, they had disseminated propaganda against the indivisibility of the State contrary to section 8 of the Prevention of Terrorism Act 1991 (Law no. 3713 of 12 April 1991). On 14 October 1992 the National Security Court acquitted the applicants, holding that the book as a whole was an academic work containing no elements of propaganda. The Public Prosecutor appealed to the Court of Cassation, which quashed the decision of the trial court and remitted the case back to it for retrial. In a judgment of 5 August 1993 the Istanbul National Security Court convicted the applicants, sentencing the first applicant to one year and eight months’ imprisonment and a fine of TRL 41,666,666 and the second applicant to five months’ imprisonment and a fine of the same amount.

8. Okçuoğlu v. Turkey

The applicant, Ahmet Zeki Okçuoğlu, is a Turkish national. He was born in 1950 and lives in Istanbul. In May 1991, issue no. 12 of a magazine called Demokrat (‘Democrat’) included an article on a round-table debate organised by the magazine and in which the applicant had taken part. The article was entitled ‘Kürt Sorununun Dünü ve Bugünü’ (‘The past and present of the Kurdish problem’). On 11 March 1993 the Istanbul National Security Court held that the views expressed by the applicant as reproduced in the article amounted to propaganda against the indivisibility of the State contrary to section 8 of the Prevention of Terrorism Act 1991 (Law no. 3713). It sentenced him to one year and eight months’ imprisonment and a fine of 41,666,666 Turkish liras. After Law no. 4126 of 27 October 1995 came into force, the National Security Court reviewed the applicant’s case on the merits and reduced his prison sentence to one year, one month and ten days but increased the fine to TRL 111,111,110.

9. Case of Sürek and Özdemir v. Turkey

Kamil Tekin Sürek and Yücel Özdemir are Turkish nationals. Mr Sürek was born in 1957 and lives in Istanbul. Mr Özdemir was born in 1968 and lives in Cologne, in Germany. At the material time, Mr Sürek was the majority shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish company which owns a weekly review entitled Haberde Yorumda Gerçek (‘The Truth of News and Comments’), published in Istanbul. Mr Özdemir was the editor-in-chief of the review. In the 31 May 1992 and 7 June 1992 issues of the review, an interview with a leader of the Kurdistan Workers’ Party (“the PKK”), an illegal organisation, was published in two parts. The edition of 31 May 1992 also contained a joint declaration by four socialist organisations. On 27 May 1993, the Istanbul National Security Court found the applicants guilty of disseminating propaganda against the indivisibility of the State in the form of the above publications, contrary to sections 6 and 8 of the Prevention of Terrorism Act 1991 (Law no. 3713). The first applicant was sentenced to two fines totalling TRL 300,000,000. The second applicant was sentenced to six months’ imprisonment and two fines totalling TRL 150,000,000.

10. Case of Sürek v. Turkey (no. 1)

Issue no. 23 of Haberde Yorumda Gerçek, dated 30 August 1992, contained two readers’ articles entitled ‘Silahlar Özgürlüğü Engelleyemez’ (‘Weapons cannot win against freedom’) and ‘Suç Bizim’ (‘It is our fault’). On 12 April 1992 the Istanbul National Security Court held that the applicant, in his capacity as the owner of the review in which the articles had been published, was guilty of disseminating propaganda against the indivisibility of the State contrary to section 8 of the Prevention of Terrorism Act 1991 (Law no. 3713) and sentenced him to a fine of TRL 166,666,666. The applicant appealed to the Court of Cassation, which quashed the judgment and remitted the case to the Istanbul National Security Court for retrial. On 12 April 1994 the court sentenced the applicant to a reduced fine of TRL 83,333,333.

11. Case of Sürek v. Turkey (no. 2)

The 26 April 1992 issue of Haberde Yorumda Gerçek contained coverage of a press conference given by a delegation visiting Şırnak village in the wake of tensions in the area. The delegation comprised two former members of the Turkish Parliament, Leyla Zana and Orhan Doğan, together with Lord Avebury and a member of the Anglican Church. The coverage included an article reporting the Governor of Şırnak as having told the delegation that the Şırnak Chief of Police had ordered his men to open fire on the local population. It also reproduced a dialogue between Leyla Zana, Orhan Doğan and İsmet Yediyıldız, a Gendarme Commander. On 2 September 1993, Istanbul National Security Court found the applicant, in his capacity as the owner of the review, guilty of revealing the identity of officials responsible for combating terrorism and thus making them terrorist targets. It sentenced him to pay a fine of TRL 54,000,000 under section 6 of the Prevention of Terrorism Act 1991 (Law no. 3713).

12. Case of Sürek v. Turkey (no. 3)

Issue No. 42 of the review Haberde Yorumda Gerçek, dated 9 January 1993, contained an article entitled ‘In Botan the poor peasants are expropriating the landlords!’. On 27 September 1993 the Istanbul National Security Court found the applicant, in his capacity as the owner of the review in which the article had been published, guilty of disseminating propaganda against the indivisibility of the State contrary to section 8 of the Prevention of Terrorism Act (Law no. 3713) and sentenced him to a fine of TRL 83,333,333.

13. Case of Sürek v. Turkey (no. 4)

Issue no. 51 of the review Haberde Yorumda Gerçek, dated 13 March 1993, included an article entitled ‘Kawa and Dehak Once Again’. The article discussed what might occur during the forthcoming Newroz (Spring Festival) celebrations. The same issue also contained an interview by the Kurdish News Agency with a representative of the National Liberation Front of Kurdistan, the political wing of the PKK, an illegal organisation. On 27 September 1993 the Istanbul National Security Court found the applicant, in his capacity as the owner of the review in which the article and the interview had been published, guilty of disseminating propaganda against the indivisibility of the State contrary to sections 6 and 8 of the Prevention of Terrorism Act 1991 (Law no. 3713) and sentenced him to a fine of TRL 83,333,333.

Law:

(a) Article 10 of the Convention

The applicants all complained that their convictions amounted to an infringement of their right to freedom of expression, as guaranteed by Article 10 of the Convention. The Court found that in each case the convictions amounted to an “interference” in the applicant’s right to freedom of expression. Accepting that the interference was “prescribed by law” within the meaning of the second paragraph of Article 10 and pursued at least one of the “legitimate aims” set out in that provision, the Court went on to examine whether the interference was “necessary in a democratic society” for those aims to be achieved. It concluded that there had been a violation of Article 10 in eleven of the thirteen cases.

In the cases of Erdoğdu and İnce v. Turkey, Okçuoğlu v. Turkey, Sürek and Özdemir v. Turkey, Sürek v. Turkey (no. 1), Sürek v. Turkey (no. 2), Sürek v. Turkey (no. 3) and Sürek v. Turkey (no. 4), it referred in particular to the essential role of the press in ensuring the proper functioning of political democracy. While the press had not to overstep the bounds set, among other things, for the protection of vital interests of the State such as national security or territorial integrity against the threat of violence or the prevention of disorder or crime, it was nevertheless incumbent on it to impart information and ideas on political issues, including divisive ones. Not only had the press the task of imparting such information and ideas; the public had a right to receive them. Freedom of the press afforded the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.

Lastly, in the case of Karataş v. Turkey the Court observed that Article 10 included freedom of artistic expression, which afforded the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. Those who created, performed, distributed or exhibited works of art contributed to the exchange of ideas and opinions which was essential for a democratic society. Hence the obligation on the State not to encroach unduly on their freedom of expression.

The Court went to say in each of the judgments that, in line with its case-law, there was little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest. Furthermore, the limits of permissible criticism were 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 had to be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion. Moreover, the dominant position which the government occupied made it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means were available for replying to the unjustified attacks and criticisms of its adversaries. Nevertheless, it certainly remained 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. Finally, where such remarks constituted an incitement to violence against an individual or a public official or a sector of the population, the State authorities enjoyed a wider margin of appreciation when examining the need for an interference with freedom of expression.

The Court reached its decision in each case in the light of the foregoing principles and having regard to the offending passages – the Court verifying in every case whether they constituted an incitement to violence, armed resistance or an uprising –, the context in which they were made and the type and severity of the sentence imposed.

Conclusion:

Ceylan - violation (16 votes to 1).

Arslan - violation (unanimous).

Gerger - violation (16 votes to 1).

Polat - violation (unanimous).

Karataş - violation (12 votes to 5).

Erdoğdu and İnce - violation (unanimous).

Başkaya and Okçuoğlu - violation (unanimous).

Okçuoğlu - violation (unanimous).

Sürek and Özdemir - violation (11 votes to 6).

Sürek (no. 2)  - violation (16 votes to 1).

Sürek (no. 4) - violation (16 votes to 1).

Sürek (no. 1)  - no violation (11 votes to 6).

Sürek (no. 3)  - no violation (10 votes to 7).

(b) Article 6 § 1 of the Convention

In the nine cases in which it had jurisdiction to hear the complaint, the Court held that the applicants had been denied the right to have their cases heard by an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention, as they had been tried by the National Security Courts, in which three judges sat, one of whom was a military judge. The Court pointed out in that connection that in its Incal v. Turkey judgment of 9 June 1998 and its Çıraklar v. Turkey judgment of 28 October 1998 it had noted that, although the status of military judges sitting as members of National Security Courts did provide some guarantees of independence and impartiality, certain aspects of these judges’ status made their independence and impartiality questionable: for example, the fact that they were servicemen who still belonged to the army, which in turn took its orders from the executive; the fact that they remained subject to military discipline; and the fact that decisions pertaining to their appointment were to a great extent taken by the administrative authorities and the army. The Court saw no reason to reach a conclusion different from its decision in those cases and held that there had also been a breach of Article 6 § 1 in the nine cases before it (Gerger, Karataş, Başkaya and Okçuoğlu, Okçuoğlu, Sürek and Özdemir, Sürek (no. 1), Sürek (no. 2), Sürek (no. 3) and Sürek (no. 4)).

Conclusion: violation (16 votes to 1).

(c) Article 7 of the Convention

In the case of Başkaya and Okçuoğlu v. Turkey, the Court reiterated that, according to its case-law, Article 7 embodied, among other things, the principle that only the law could define a crime and prescribe a penalty (nullum crimen, nulla poena sine lege) and the principle that the criminal law had not to be extensively construed to an accused’s detriment, for instance by analogy. The Court considered that in the case before it the applicants’ conviction as such under section 8 of the Prevention of Terrorism Act 1991 had not contravened the “nulla lege sine lege” principle embodied in Article 7. On the other hand, it held that the fact that the second applicant had been given a prison sentence was incompatible with that Article as the sentence had been imposed under section 8 § 2, which expressly applies to editors, while publishers were liable only to a fine. The Court considered that section 8 § 2 was a lex specialis on the sentencing of editors and publishers and that the sentencing of the second applicant, who was in fact a publisher, had in that instance been based on an extensive construction, by analogy, of the rule in the same sub-section on the sentencing of editors.

Conclusion: violation in respect of the second applicant (unanimous).

Article 41 of the Convention (just satisfaction): The Court awarded the applicants the following sums: 40,000 French francs (FRF) for non-pecuniary damage and FRF 15,000 for costs and expenses in the case of Ceylan v. Turkey; FRF 30,000 for non-pecuniary damage and FRF 15,000 for costs and expenses in the case of Arslan v. Turkey; FRF 40,000 for non-pecuniary damage and FRF 20,000 for costs and expenses in the case of Gerger v. Turkey; USD 1,415 for pecuniary damage, FRF 40,000 for non-pecuniary damage and FRF 20,000 for costs and expenses in the case of Polat v. Turkey; FRF 40,000 for non-pecuniary damage and FRF 20,000 for costs and expenses in the case of Karataş v. Turkey; FRF 30,000 to each of the applicants for non-pecuniary damage, FRF 10,000 to Mr Erdoğdu and FRF 2,004 to Mr İnce for costs and expenses in the case of Erdoğdu and İnce v. Turkey; FRF 67,400 to the first applicant and FRF 17,400 to the second applicant for pecuniary damage, FRF 40,000 to the first applicant and FRF 45,000 to the second applicant for non-pecuniary damage, and FRF 22,000 to the first applicant and FRF 15,000 to the second applicant for costs and expenses in the case of Başkaya and Okçuoğlu v. Turkey; FRF 40,000 for non-pecuniary damage and FRF 20,000 for costs and expenses in the case of Okçuoğlu v. Turkey; FRF 8,000 to the first applicant for pecuniary damage and, to each of the applicants, FRF 30,000 for non-pecuniary damage and FRF 15,000 for costs and expenses in the case of Sürek and Özdemir v. Turkey; FRF 10,000 for costs and expenses in the case of Sürek v. Turkey (no. 1); FRF 13,000 for pecuniary damage, FRF 30,000 for non-pecuniary damage and FRF 15,000 for costs and expenses in the case of Sürek v. Turkey (no. 2); FRF 15,000 for costs and expenses in the case of Sürek v. Turkey(no. 3); and FRF 3,000 for pecuniary damage, FRF 30,000 for non-pecuniary damage and FRF 15,000 for costs and expenses in the case of Sürek v. Turkey (no. 4).

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This summary by the Registry does not bind the Court.

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