EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 23500/94
E. P.
against
Turkey
REPORT OF THE COMMISSION
(adopted on 11 December 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-5). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 6-13) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 14-18). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 19-32) . . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 19-28). . . . . . . . . . . . . . . . . . .4
B. Relevant domestic law
(paras. 29-32). . . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 33-60) . . . . . . . . . . . . . . . . . . . . .8
A. Complaints declared admissible
(para. 33). . . . . . . . . . . . . . . . . . . . .8
B. Points at issue
(para. 34). . . . . . . . . . . . . . . . . . . . .8
C. As regards Articles 9 and 10 of the Convention
(paras. 35-52). . . . . . . . . . . . . . . . . . .8
CONCLUSION
(para. 53). . . . . . . . . . . . . . . . . . . . 11
D. As regards Article 1 of Protocol No. 1
(paras. 54-57). . . . . . . . . . . . . . . . . . 11
CONCLUSION
(para. 58). . . . . . . . . . . . . . . . . . . . 11
E. Recapitulation
(paras. 59-60). . . . . . . . . . . . . . . . . . 12
PARTLY DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK. . . . . . . 13
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 14
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 1962 and
lives in istanbul. He was represented before the Commission by
Mr. Kazim Bayraktar, a lawyer practising in Ankara.
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 his book entitled "Nevrozladik
Safaklari" ("We Turned each Dawn into a Newroz"), and the seizure of
published copies of the book, ordered by the District Court of Ankara.
5. The applicant complains under Article 9 of the Convention that
his conviction for writing a book constituted an unjustified
interference with his freedom of thought. He also complains under
Article 1 of Protocol No. 1 that the confiscation of his book
constituted an interference with the peaceful enjoyment of his
possessions.
B. The proceedings
6. The application was introduced on 18 November 1993 and registered
on 16 February 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 1
of Protocol No. 1) on the alleged violation of his right to the
peaceful enjoyment of his possessions.
8. The Government's written observations were submitted on
9 August 1995, after an extension of the time-limit fixed for that
purpose. The applicant replied on 15 September 1995.
9. On 4 December 1995 the Government submitted information
concerning the amendments made to the Anti-Terror Law (Law No. 3713)
and the developments in the cases of persons convicted and sentenced
under Article 8 of the said Law. The applicant submitted comments in
reply on 19 February 1996.
10. On 24 June 1996 the Commission declared the application
admissible.
11. The text of the Commission's decision on admissibility was sent
to the parties on 9 July 1996 and they were invited to submit such
further information or observations on the merits as they wished.
12. None of the parties submitted any observations.
13. 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
14. 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
15. 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.
16. 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.
17. The Commission's decision on the admissibility of the application
is appended to this Report.
18. 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
19. The applicant is the author of the book entitled "Nevrozladik
Safaklari" ("We Turned each Dawn into a Newroz") which was published
in 1991 by Basak Yayinlari, a publishing company with its seat in
Ankara.
20. On 13 December 1991 the District Court of Ankara ordered the
seizure of published copies of the book.
21. In an indictment dated 22 April 1992, the Public Prosecutor at
the Ankara State Security Court (Ankara Devlet Güvenlik Mahkemesi)
charged the applicant with disseminating in his book separatist
propaganda against the indivisibility of the State. The applicant was
further charged with disclosing to the public the identity of officials
in the province of Diyarbakir and rendering them targets for terrorist
attack. The indictment quoted certain extracts from the book, which
formed the basis for charges under Article 6 paragraph 1 and Article 8
paragraph 1 of the Anti-Terror Law.
22. In the proceedings before the Ankara State Security Court, the
applicant denied the charges. He pleaded that the extracts referred to
in the indictment were merely quotations from other sources. He
maintained that the book as a whole, including the extracts quoted by
the Public Prosecutor, did not contain any element of propaganda. He
stated that he had only commented on the problems of the people of
Kurdish origin based on historical facts. He also denied the
accusations concerning the disclosure of the identity of officials and
rendering them targets. He stated that any opinion should be freely
expressed and argued. He asserted that a book cannot constitute a
threat to the indivisibility of the State.
23. In a judgment dated 23 December 1992, the Ankara State Security
Court found the applicant guilty of the offences charged. The Court
sentenced the applicant to two years' imprisonment and a fine of
50 million Turkish lira under Article 8 paragraph 1 of the Anti-Terror
Law. In its assessment of the evidence, the Court referred to certain
parts of the applicant's book, including the following:
"... On 13 February 1925 a raid was carried out on the village
of Piraz ... following the decision to arrest ten Kurdish
patriots. Those patriots, who preferred to fight rather than give
themselves up to the gendarmes, took their weapons and started
the war in the mountains. So the events you are witnessing years
later actually began with those clashes. ... "
"... The Turkish Grand National Assembly had been established for
two years and the Kurds were still waiting for the administration
to keep its promise of a solution to the Kurdish question. The
Kurds' silent wait was broken by this uprising led by Said-i
Paloyi. As the result of the administration's failure to meet
the Kurds' expectations for action to resolve the Kurdish
question once the Republic had been proclaimed, potentially
explosive anger had built up. And it was those angry expectations
that basically triggered the uprising ... Although the spreading
uprising did not involve all Kurds since it had developed on
tribal structures, the area surrounding Diyarbakir participated
in the movement to a large extent ..."
"... At a time long before you were born, when it was not yet
even known if you would be brought into the world as a Kurdish
daughter, the seed of the hatred that was to erupt fifty years
later was sown ...".
24. Such texts were interpreted by the Court as follows:
"The author refers to the rebels, who had revolted against the
Government in 1925 and had started an insurrection causing the
death of thousands of soldiers, as 'patriots'. He tries to
establish a connection between the insurrection of 1925 and the
events which were provoked by the P.K.K. during the 1990 Newroz
celebrations. He alleges that the Government deny the existence
of the Kurds. He refers to the Republic of Turkey as an occupying
and colonialist State. He implies that there are two separate
nations and countries within the territories of the Republic of
Turkey. The author's inaccurate version of events aims at
provoking enmity and hatred between the Turkish and Kurdish
societies."
25. The Court considered that the applicant's reference to the
identity of officials appointed to fight terrorism violated Article 6
paragraph 1 of the Anti-Terror Law. However, considering the provisions
of Article 79 of the Turkish Criminal Code, it did not find any grounds
for a separate conviction under this provision. The Court also ordered
the confiscation of all editions of the book.
26. The applicant appealed. In his submissions to the Court of
Cassation dated 14 April 1993, the applicant's legal representative
stated, inter alia, that the applicant's conviction for writing and
publishing his comments and his ideas on historical facts and
sociological issues constituted a violation of his freedom of
expression. He asserted that the applicant had commented as a historian
on the facts concerning a nation's past. He challenged the Court's
interpretation of the applicant's comments in his book.
27. In a decision of 27 May 1993 which was delivered on 9 June 1993,
the Court of Cassation dismissed the appeal. It upheld the cogency of
the State Security Court's assessment of the evidence and its reasoning
in rejecting the applicant's defence. It held that an examination of
the file did not disclose any error in the contested judgment.
28. After the amendments made by Law No. 4126 to the Anti-Terror Law,
the Ankara State Security Court re-examined the applicant's case. On
14 December 1995 the Court sentenced the applicant to one year's
imprisonment and a fine of 100 million Turkish lira under
Article 8 paragraph 1 of the Anti-Terror Law as amended.
B. Relevant domestic law
29. Article 6 paragraph 1 of Anti-Terror Law No. 3713 of
12 April 1991
"isim ve kimlik belirterek veya belirtmeyerek kime yönelik oldugunun anlasilmasini saglayacak surette kisilere karsi terör örgütleri tarafindan suç islenecegini veya terörle mücadelede görev almis kamu görevlilerinin hüviyetlerini açiklayanlar veya yayinlayanlar veya bu yolla kisileri hedef gösterenler besmilyon liradan onmilyon liraya kadar agir para cezasi ile cezalandirilir." "Those who announce that a crime will be committed by terrorist organisations against certain persons either expressly or without mentioning their names or who disseminate or disclose to the public the identity of officials appointed to fight terrorism or who render such officials targets shall be sentenced to a fine between 5 and 10 million Turkish lira." 30. Article 8 paragraph 1 of Anti-Terror Law No. 3713 of 12 April 1991 (before the amendments of 27 October 1995) "Hangi yöntem, maksat ve düsünceyle olursa olsun Türkiye Cumhuriyeti Devletinin ülkesi ve milletiyle bölünmez bütünlügünü bozmayi hedef alan yazili ve sözlü propaganda ile toplanti, gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda 2 yildan 5 yila kadar agir hapis ve ellimilyon liradan yüzmilyon liraya kadar agir para cezasi hükmolunur." "No one shall, by any means or with any intention or idea, make written or oral propaganda or hold assemblies, demonstrations or manifestations against the indivisible integrity of the State of the Turkish Republic, its land and nation. Those carrying out any such activity shall be sentenced to imprisonment between two and five years and a fine between 50 and 100 million Turkish lira." 31. Article 8 paragraph 1 of the Anti-Terror Law as amended by Law No. 4126 of 27 October 1995 "Türkiye Cumhuriyeti Devleti'nin ülkesi ve milletiyle bölünmez bütünlügünü bozmayi hedef alan yazili ve sözlü propaganda ile toplanti, gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda bir yildan üç yila kadar hapis ve yüz milyon liradan üçyüzmilyon liraya kadar agir para cezasi hükmolunur. Bu suçun mükerreren islenmesi halinde, verilecek cezalar paraya cevrilemez." "No one shall make written or oral propaganda or hold assemblies, demonstrations or manifestations against the indivisible integrity of the State of the Turkish Republic, its land and nation. Those carrying out such activity shall be sentenced to imprisonment between one and three years and to a fine between 100 and 300 million Turkish lira. In case of re-occurrence of this offence, sentences shall not be commuted to fines." 32. Article 79 of the Turkish Criminal Code "isledigi bir fiil ile kanunun muhtelif ahkamini ihlal eden kimse, o ahkamdan en sedit cezayi tazammun eden maddeye göre cezalandirilir." "If a single act by a person constitutes a violation of several provisions of the law, that person shall be punished in accordance with the single provision which imposes the heaviest punishment." III. OPINION OF THE COMMISSION A. Complaints declared admissible 33. The Commission has declared admissible: - the applicant's complaint that his conviction for writing a book constituted an unjustified interference with his freedom of thought; - the applicant's complaint that the confiscation of his book constituted an interference with the peaceful enjoyment of his possessions. B. Points at issue 34. The points at issue in the present case are as follows: - whether the applicant's conviction for writing the book in question infringed his freedom of thought and expression as guaranteed by Articles 9 and 10 (Art. 9, 10) of the Convention; - whether the confiscation of the applicant's book constituted an interference with the peaceful enjoyment of his possessions, as guaranteed by Article 1 of Protocol No. 1 (P1-1). C. As regards Articles 9 and 10 (Art. 9, 10) of the Convention 35. The applicant complains that his freedom of thought has been infringed, contrary to Article 9 (Art. 9) of the Convention, in that he was convicted for writing a book. 36. 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." 37. The applicant submits that he was convicted for expressing his views on the Kurdish problem in Turkey. He asserts that he had commented as a historian on the facts concerning the Kurdish people living in Turkey. 38. The applicant maintains that freedom of expression should also protect opinions which carry a risk of damaging, or which actually damage, the interests of others, or opinions which are contrary to the official line unless there exists a pressing social need for restraining them. He contends that, in the circumstances of the present case, there was no pressing social need for his conviction. 39. The respondent Government maintain that the comments made by the applicant in his book constitute a provocation of enmity and hatred between the Turkish and Kurdish societies which serves to mobilise people to revolt. The book establishes a connection between the insurrection of 1925 and the events which were provoked by the P.K.K. (the Kurdish Workers Party - a terrorist organisation) during the 1990 Newroz celebrations. The Government contend that the applicant thus approves of acts of violence committed by the P.K.K. 40. The Government conclude that the applicant's conviction was fully justified under the second paragraph of Article 10 (Art. 10) of the Convention, for reasons of national security, territorial integrity and public safety. 41. 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. 42. 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. 43. The Commission notes that the applicant's conviction was based on Article 8 of the Anti-Terror Law and therefore considers that the interference was prescribed by law. 44. 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. 45. 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) 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". 46. 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). 47. 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). 48. 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. 49. The Commission notes that the applicant's book contains quotations from texts denouncing the evolution of alleged Ottoman colonialism and feudalism. It attempts to give a historical explanation for the resumption of violence over recent years, particularly in the Diyarbakir region. The Turkish courts found that the applicant's interpretation of events was inaccurate and was aimed at provoking enmity and hatred between the Turkish and Kurdish societies. 50. However, in the Commission's opinion, the applicant expressed his views on the Kurdish question in relatively moderate terms, and did not associate himself with the use of violence in the context of the Kurdish separatist struggle. 51. The Commission finds that the applicant's conviction and the confiscation of his book 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 writers from contributing to public discussion of important political issues (cf. Eur. Court HR, Lingens judgment, op. cit., p. 27, para. 44). 52. 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 53. The Commission concludes, by 31 votes to 1, that there has been a violation of Article 10 (Art. 10) of the Convention. D. As regards Article 1 of Protocol No. 1 (P1-1) 54. The applicant complains that the confiscation of his book amounted to a violation of Article 1 of Protocol No. 1 (P1-1) which provides: "Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties." 55. The applicant maintains that there was no pressing social need for the confiscation of the book. 56. The Government maintain that, for reasons of national security, territorial integrity and public safety, the confiscation of the book was justified under Article 1 of Protocol No. 1 (P1-1). 57. The Commission considers that there is little evidence in the case-file to suggest that the applicant was the actual owner of the confiscated books. In any event, having regard to its above findings under Article 10 (Art. 10) of the Convention, the Commission is of the opinion that no separate issue arises in the present case under Article 1 of Protocol No. 1 (P1-1). CONCLUSION 58. The Commission concludes, unanimously, that no separate issue arises under Article 1 of Protocol No. 1 (P1-1). E. Recapitulation 59. The Commission concludes, by 31 votes to 1, that there has been a violation of Article 10 (Art. 10) of the Convention (see above para. 53). 60. The Commission concludes, unanimously, that no separate issue arises under Article 1 of Protocol No. 1 (P1-1) (see above para. 58). M. de SALVIA S. TRECHSEL Secretary President to the Commission of the Commission (Or. English) PARTLY 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 P.'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 book was aimed at provoking enmity and hatred between the Turkish and Kurdish societies. In particular, the applicant alleged in his book that the State oppressed the people of Kurdish origin, attempted to destroy their identity by means of genocide and evacuation and organised massacres against them. I find that certain indissociable sections of the applicant's book 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 book 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.
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