AS TO THE ADMISSIBILITY OF
Application No. 23500/94
by E. P.
against Turkey
The European Commission of Human Rights sitting in private
on 24 June 1996, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
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
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 November 1993
by Mr. E.P. against Turkey and registered on 16 February 1994 under
file No. 23500/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 20 February 1995 to communicate the
application ;
- the observations submitted by the respondent Government on 9
August 1995 and the observations in reply submitted by the
applicant on 15 September 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, a Turkish citizen born in 1962 and resident in
Istanbul, is a writer. Before the Commission he is represented by Kazim
Bayraktar, a lawyer practising in Ankara.
A. Particular circumstances of the case
The facts of the present case as submitted by the parties may be
summarised as follows:
The applicant is the author of the book entitled "Nevrozladik
Safaklari" ("We Turned each Dawn into a Newroz") which was published
in 1991.
On 13 December 1991 the District Court of Ankara ordered the
seizure of published copies of the book.
In an indictment dated 22 April 1992 the Public Prosecutor at the
Ankara State Security Court charged the applicant with disseminating
in his book separatist propaganda against the indivisiblity of the
State. The applicant was further charged with disclosing to the public
the identity of the 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 Articles 6 paragraph 1 and 8 paragraph 1 of the Anti-Terror Law.
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.
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. The Court quoted extracts from the applicant's book and gave
detailed reasons, which included the following:
"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 PKK 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 aim at provoking enmity and hatred between the Turkish and
Kurdish societies."
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.
The applicant appealed. In a statement 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.
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.
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
The Anti-Terror Law (Law no. 3713 / of 12 April 1991)
Article 6 paragraph 1
"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." "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." Article 8 paragraph 1 "No one shall, by any means or with any intention or idea, make written and oral propaganda or hold assemblies, demonstrations or manifestations against the indivisible integrity of the State of the Turkish Republic with 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." "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." Article 8 of the Anti-Terror Law as amended by Law No. 4126 of 27 October 1995 Article 8 paragraph 1 "No one shall make written and oral propaganda or hold assemblies, demonstrations or (and) manifestations against the indivisible integrity of the State of the Turkish Republic with 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." "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." Article 79 of the Turkish Criminal Code: "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." "isledigi bir fiil ile kanunun muhtelif ahkamini ihlal eden kimse, o ahkamdan en sedit cezayi tazammun eden maddeye göre cezalandirilir." COMPLAINTS 1. The applicant complains under Article 9 of the Convention that his conviction and sentence for writing a book constituted an unjustified interference with his freedom of thought. 2. The applicant further complains under Article 1 of Protocol No. 1 that the confiscation of his book constituted an interference with the peaceful enjoyment of his possessions. PROCEEDINGS BEFORE THE COMMISSION The application was introduced on 18 November 1993 and registered on 16 February 1994. On 20 February 1995 the Commission decided to communicate the application, under Article 10 of the Convention and Article 1 of Protocol No. 1 , to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure. The Government's 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. 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. THE LAW The applicant complains under Article 9 (Art. 9) that his conviction and sentence constituted an unjustified interference with his freedom of thought. The Commission has examined this complaint under Article 10 (Art. 10) of the Convention which provides as follows: "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." The applicant also complains that the confiscation of his book constituted an infringement of his right to the peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 (P1-1). This provision reads as follows: "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." 1. The respondent Government first argue that the applicant has not exhausted domestic remedies. They state that the applicant could have brought an objection to the seizure order made by the District Court of Ankara on 13 December 1991. Secondly, the Government contend that at no stage in the proceedings did the applicant invoke the relevant provisions of the Convention. The applicant contests the first argument of the Government. With regard to his complaint, he emphasises that the unjustified interference with his right is not the seizure but the confiscation of his published books. The confiscation decision has been delivered by the Ankara State Security Court and he appealed against this decision before the Court of Cassation. Accordingly, he maintains that he has exhausted the domestic remedies. Furthermore, the applicant claims that he has raised the substance of all complaints made before the Commission in the domestic proceedings. The Commission recalls that Article 26 (Art. 26) of the Convention requires the exercise of only those domestic remedies which relate to the breaches alleged and can at the same time provide effective and sufficient redress. An applicant does not need to exhaust remedies which would be a pure repetition of remedies already exercised by him (No. 9248/81, Leander v Sweden, Dec. 10.10.83, D.R. 34 p.78). The Commission refers to its established case-law to the effect that the person who has raised in substance before the highest competent national authority the complaint he makes before the Commission has exhausted domestic remedies. Even where the Convention is directly applicable in a State's domestic law (as is the case in Turkey), the person concerned may also rely before the domestic courts on "other arguments to the same effect"(No. 7367/76, Dec. 10.3.77, D.R. 8 pp. 185, No. 11425/85 Dec. 5.3.85, D.R 53 pp. 76). The Commission notes that in the present case the final decision regarding both the applicant's conviction and the confiscation of his book is the decision of the Court of Cassation delivered on 9 June 1993. The Commission underlines that, as regards the possibility of raising an objection to the seizure order, this would not have enabled the applicant to remove any alleged interference with his Convention rights as regards the confiscation (Otto-Preminger-Institut v Austria, Comm. Report 14.1.93, para 56, Eur. Court H.R., Series A no. 295, p. 28). The Commission notes that the applicant alleged before the Ankara State Security Court and the Court of Cassation that there had been an interference with his freedom of expression and the peaceful enjoyment of his possessions. It therefore considers that the applicant raised in substance in the domestic proceedings the complaints he now makes before the Commission. Consequently, the Commission finds that the requirement as to the exhaustion of domestic remedies has been satisfied and that the application cannot be rejected on the basis of Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention. 2. The respondent Government further contend that the applicant has failed to observe the six-month rule under Article 26 (Art. 26) of the Convention regarding his complaint of a violation of the peaceful enjoyment of his possessions. In their view the six-month period started to run in this respect from the seizure order issued by the District Court of Ankara on 13 December 1991. The Commission recalls that under Article 26 (Art. 26) of the Convention, the six-month period runs from the decision of the highest national authority competent to decide on the complaint which forms the object of the application to the Commission (No. 17128/90, Dec. 10.7.91, D.R. 71 p. 282). The Commission recalls that the final decision regarding the conviction of the applicant and the confiscation of his book was the decision of the Court of Cassation of 27 May 1993 which was delivered on 9 June 1993. The present application was submitted to the Commission on 18 November 1993, that is within the six-month period. Therefore, the application cannot be rejected under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention, for failure to comply with the six-month time-limit. 3. Finally, as to the merits, the Government assert 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 a 1925 and the events which were provoked by the PKK during Newroz celebrations. The Government contend that the applicant thus approves of acts of violence committed by the PKK. 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. For the same reason the confiscation of book was justified under Article 1 of Protocol No. 1 (P1-1) of the Convention. The applicant observes that he was convicted of an offence 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. He maintains that the 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 and the confiscation of his book. The Commission has conducted a preliminary examination of the parties' arguments. It considers that the application raises complex factual and legal issues which cannot be resolved at this stage of the proceedings of the application, but require an examination of the merits. Consequently, the application cannot be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. The Commission further notes that it is not inadmissible on any other grounds. For these reasons, the Commission, unanimously, DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case. Secretary to the Commission President to the Commission (H.C. KRUGER) (S. TRECHSEL)
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