EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 25067/94
Ümit ERDOGDU
against
Turkey
and
Application No. 25068/94
Selami iNCE
against
Turkey
REPORT OF THE COMMISSION
(adopted on 11 December 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-21). . . . . . . . . . . . . . . . . . . . . .1
A. The applications
(paras. 2-5). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 6-16) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 17-21). . . . . . . . . . . . . . . . . . .3
II. ESTABLISHMENT OF THE FACTS
(paras. 22-34) . . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the cases
(paras. 22-30). . . . . . . . . . . . . . . . . . .4
B. Relevant domestic law
(paras. 31-34). . . . . . . . . . . . . . . . . . .7
III. OPINION OF THE COMMISSION
(paras. 35-67) . . . . . . . . . . . . . . . . . . . . .9
A. Complaints declared admissible
(para. 35). . . . . . . . . . . . . . . . . . . . .9
B. Points at issue
(para. 36). . . . . . . . . . . . . . . . . . . . .9
C. As regards Articles 9 and 10 of the Convention
(paras. 37-59). . . . . . . . . . . . . . . . . . .9
CONCLUSION
(para. 60). . . . . . . . . . . . . . . . . . . . 13
D. As regards Article 7 of the Convention
(paras. 61-64). . . . . . . . . . . . . . . . . . 13
CONCLUSION
(para. 65). . . . . . . . . . . . . . . . . . . . 14
E. Recapitulation
(paras. 66-67). . . . . . . . . . . . . . . . . . 14
PARTLY DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK. . . . . . . 15
APPENDIX No. 1:DECISION OF THE COMMISSION AS TO
THE ADMISSIBILITY OF
APPLICATION No. 25067/94 . . . . . . . . . . 16
APPENDIX No. 2:DECISION OF THE COMMISSION AS TO
THE ADMISSIBILITY OF
APPLICATION No. 25068/94 . . . . . . . . . . 25
I. INTRODUCTION
1. The following is an outline of the cases as submitted to the
European Commission of Human Rights by the parties, and of the
procedure before the Commission.
A. The applications
2. The first applicant is a Turkish national. He was born in 1970
and lives in istanbul. He was represented before the Commission by
Mrs. Oya Ataman, a lawyer practising in Ankara.
The second applicant is a Turkish national. He was born in 1966
and lives in Ankara. He was represented before the Commission by
Mr. Senal Sarihan, a lawyer practising in Ankara.
3. Both applications are directed against Turkey. The respondent
Government were represented by Mr. Bakir Çaglar, Professor at istanbul
University.
4. The cases concern the applicants' convictions by the State
Security Court on account of the publication of an interview in a
monthly review. The first applicant is the responsible editor of the
review. The second applicant, a journalist and a writer, made the
incriminated interview with a Turkish sociologist.
5. The applicants complain under Articles 9 and 10 of the Convention
that their convictions on account of the incriminated interview
constituted an unjustified interference with their freedom of thought
and freedom of expression, in particular, their right to receive and
impart information and ideas.
Moreover, they complain under Article 7 of the Convention that
they were convicted for an act which did not constitute a criminal
offence under national or international law at the time it was
committed. They submit in particular that the relevant provision of the
Anti-Terror Law was so vague that it did not enable them to distinguish
between permissible and prohibited behaviour.
B. The proceedings
6. Both applications were introduced on 20 August 1994 and
registered on 2 September 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 both
applications to the Turkish Government and to invite the parties to
submit written observations on the admissibility and merits of the
applicants' complaints based (under Article 10 of the Convention) on
the alleged violation of their freedom of expression and (under
Article 7 of the Convention) on the alleged violation of their right
not to be convicted for an act which did not constitute a criminal
offence under Turkish law at the time it was committed.
8. As to Application No. 25067/94, the Government's written
observations were submitted on 17 July 1995. The first applicant
replied on 7 September 1995.
9. As to Application No. 25068/94, the Government's written
observations were submitted on 11 August 1995. The second applicant
replied on 21 March 1996, after an extension of the time-limit fixed
for that purpose.
10. Meanwhile, 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 applicants submitted
comments in reply on 19 February and 21 March 1996, respectively.
11. On 2 September and 14 October 1996, respectively, the Commission
declared the applications admissible.
12. Meanwhile, on 13 and 25 September 1996, respectively, the
Government submitted information as to the further developments of the
proceedings against the applicants.
13. The text of the Commission's decisions on admissibility was sent
to the parties on 16 September and 31 October 1996, respectively, and
they were invited to submit such further information or observations
on the merits as they wished.
14. None of the parties submitted any observations.
15. On 2 December 1997 the Commission joined the two applications.
16. After declaring the cases 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
17. 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
18. 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.
19. 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.
20. The Commission's decisions on the admissibility of the
applications are appended to this Report.
21. 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
22. The first applicant is the responsible editor of the monthly
review "Demokrat Muhalefet!" ("Democratic Opposition!"), published in
istanbul. In the January 1992 issue of the review, an interview which
the second applicant had made with a Turkish sociologist, Dr. i.B., was
published.
23. A translation of the relevant parts of the interview is as
follows:
"Q: How and to what extent will Demirel accept the «Kurdish
reality»? Can his understanding of the «reality» be deemed to
represent State policy?
A: ... The Government is forced to accept certain facts now
that there is armed resistance in Kurdistan. ... Violence by the
Turkish forces could not stop the escalation and progress of the
P.K.K. ...
Q: How will the State shape its new official policy on
Kurdistan? Which aspects of the official ideology will be changed
and how will they be changed? What effects can this have on the
daily lives of the Kurdish people?
A: ... In Turkey, the Government and the State are two very
different things. The State functions through institutions and
bodies, members of which are designated by appointment. These
institutions and bodies represent the power of the State. The
Government, i.e. the political power, carries very little weight
against the power of the State. That is why governments can be
overthrown by the State authority so often. Official ideology can
only be changed in the long term and the forces, which are
capable of changing it, are non-governmental political and social
forces and their struggle. The essence of the ideas and action
of the P.K.K., for example, is such as can change the official
ideology, reduce the influence of the appointed bodies of
Turkey's political scene, and increase the weight of parliaments
elected by the people. In my opinion, de facto, the influence of
the Kurds and, in particular, that of the P.K.K., will grow
further. The influence of the P.K.K. in both the Kurdish and the
Turkish societies will spread and deepen. And, as that influence
grows, more serious steps will be taken by governments in their
policies towards recognising the «Kurdish reality». It is evident
that the State will try to obstruct the Government in that
process and will try to distort certain ideas and policies. And
it is also manifest that the Government will be able to survive
so long as it can resist the power of the State and control the
appointed institutions and bodies, i.e. so long as it has real
power.
These changes will be reflected in the daily lives of the Kurds.
Investigations and research will develop in fields such as the
Kurdish language, history and folklore. Kurdish culture will be
revived. The specificity of a Kurdish society will be emphasised
more amongst the Kurdish masses. National awareness and desire
for liberation will become stronger and will spread further. The
idea and feelings for independence will develop.
Q: It is now observed that Kurds who, until now, would have
never said «I am Kurdish and I am engaging in politics for my
present life and for my future» are now clearly beginning «to get
into politics for their own interests» throughout Kurdistan and
Turkey. What sort of developments have brought about this
situation? Do Kurds need a political subject in the legal sphere?
If so, what form should it take?
A: Without any doubt, the most important cause of these
developments has been the armed combat which the P.K.K. has been
waging for almost eight years. The guerrilla warfare has brought
about major social and political changes in traditional Kurdish
society. Traditional values are in turmoil. There has been very
widespread support amongst the people for Kurdish guerrilla
fighters ever since 15 August 1984. National awareness is now
growing in Kurdish society and this process is spreading rapidly.
And we see that, within this process, the political establishment
has been used for Kurdish interests, for the move towards
autonomy and independence. Kurds, who have always been engaged
in politics for others and in order to serve other nations, are
now engaged in politics in order to serve the Kurdish people.
Healthy national awareness is now developing in response to
Turkish racism and colonialism. It would no doubt be over-
simplifying to say that all this began after the onset of Kurdish
guerrilla warfare on 15 August. This process has roots that go
further back into the past but what has been decisive is the new
process launched by the P.K.K. ... Who is illegal in Kurdistan?
The guerrillas or the special team of the Turkish armed
forces? ...
Q: What should be done to counteract the wave of chauvinist
Turkish nationalism encouraged by the right-wing press and the
M.C.P. [Nationalist Work Party]? Is there a possibility of a
confrontation between the Turkish and Kurdish peoples? How could
that be prevented?
A: ... Kurds are dying for their nation. What are the Turks
dying for? What are they doing in Kurdistan?
Q: It has been under discussion for some time that the P.K.K.
hegemony in Kurdistan has reached a stage where one can now talk
of a «double power». Öcalan has mentioned in his writings an
orientation towards the «formation of a Government-State» in the
Botan-Behdinan region. Are there any signs of what the future
interventions of the P.K.K. will be in Kurdistan and in Turkish
politics?
A: ... The Turkish State has already withdrawn its soldiers
and evacuated police stations in some regions such as Botan.
... This could be perceived as the beginning of the formation of
a State. ..."
24. In an indictment dated 23 March 1992, the Public Prosecutor at
the istanbul State Security Court (istanbul Devlet Güvenlik Mahkemesi),
on account of the publication of the interview, charged the applicants
with disseminating propaganda against the indivisibility of the State.
The charges were brought under Article 8 of the Anti-Terror Law.
25. In the proceedings before the State Security Court, the
applicants denied the charges. They pleaded that the interview, as
published, was a mere transcript of Dr. i.B.'s statements. They
maintained that the publication of an interview could not constitute
an offence and that similar views had been expressed by the highest
authorities in Turkey.
26. In its judgment dated 12 August 1993, the Court found the
applicants guilty under Article 8 of the Anti-Terror Law. The first
applicant was sentenced to six months' imprisonment and a fine of
50,000,000 Turkish lira; the second applicant was sentenced to two
years' imprisonment and a fine of 50,000,000 Turkish lira. Thereupon
the Court, considering the applicants' good conduct during the trial,
reduced their sentences to five months' imprisonment and a fine of
41,666,666 Turkish lira and to one year and eight months' imprisonment
and a fine of 41,666,666 Turkish lira, respectively.
27. In the reasoning of its judgment, the Court relied on certain
extracts from the interviewee's statements as published. It held, inter
alia, that the following phrases amounted to propaganda against the
indivisibility of the State: "... the Government is forced to accept
certain facts now that there is armed resistance in Kurdistan ...";
"... violence by the Turkish forces could not stop the escalation and
progress of the P.K.K. ..."; "... the essence of the ideas and action
of the P.K.K. ... can change the official ideology ..."; "... the
influence of the Kurds and, in particular, that of the P.K.K., will
grow further. The influence of the P.K.K. in both the Kurdish and the
Turkish societies will spread and deepen ..."; "... national awareness
and desire for liberation will become stronger and will spread further.
The idea and feelings for independence will develop ..."; "... the most
important cause of these developments has been the armed combat which
the P.K.K. has been waging for almost eight years ..."; "... Who is
illegal in Kurdistan? The guerrillas or the special team of the Turkish
armed forces? ..."; "... Kurds are dying for their nation, what are the
Turks dying for? What are they doing in Kurdistan? ..."; "... the
Turkish State has already withdrawn their soldiers and evacuated police
stations in some regions such as Botan ..."; "... this could be
perceived as the beginning of the formation of a State ...".
28. The applicants appealed against the judgment.
29. In a decision of 1 February 1994, pronounced on 9 February 1994
in the absence of the applicants, the Court of Cassation dismissed the
appeals. It upheld the cogency of the State Security Court's assessment
of evidence and its reasoning in rejecting the applicants' defence. The
judgment was served upon the applicants on 21 February 1994.
30. Subsequent to the amendments made to the Anti-Terror Law by Law
No. 4126 of 27 October 1995, the istanbul State Security Court
re-examined the applicants' cases. On 15 December 1995 the Court
sentenced the applicants' to five months' imprisonment and a fine of
41,666,666 Turkish lira and to one year and ten days' imprisonment and
a fine of 111,111,110 Turkish lira, respectively. The Court ordered
that the execution of the sentences be suspended on probation (cezanin
ertelenmesi).
B. Relevant domestic law
31. 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 territories and the 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." 32. Article 8 paragraph 2 of Anti-Terror Law "Yukaridaki fikrada belirtilen propaganda suçunun 5680 sayili Basin Kanunun 3 üncü maddesinde belirtilen mevkuteler vasitasi ile islenmesi halinde, ayrica sahiplerine de mevkute bir aydan az süreli ise, bir önceki ay ortalama satis miktarinin: [mevkute niteliginde bulunmayan basili eserler ile yeni yayina giren mevkuteler hakkinda ise, en yükek tirajli günlük mevkutenin bir önceki ay ortalama satis tutarinin]; yüzde dosani kadar agir para cezasi verilir. Ancak, bu para cezalari yüzmilyon liradan az olamaz. Bu mevkutelerin sorumlu müdürlerine, sahiplerine verilecek para cezasinin yarisi uygulanir ve alti aydan iki yila kadar hapis cezasi hükmolunur." "If the offence of propaganda, referred to in paragraph 1 above, is committed by means of periodicals, as defined in Article 3 of Press Law No. 5680, the owners of such periodicals shall be punished by a fine to be determined in accordance with the following provisions: for periodicals published at less than monthly intervals, the fine shall be ninety per cent of the average real sales revenue of the previous month; [for printed works that are not periodicals or for periodicals which have recently started business, the fine shall be the average monthly sales revenue of the highest circulating daily periodical]. In any case, the fine may not be less than 100 million Turkish lira. Responsible editors of these periodicals shall be sentenced to imprisonment of between six months and two years and to half of the fine determined in accordance with the provisions concerning the owners." 33. In its judgment No. 1991-18/20, dated 31 March 1992, the Constitutional Court found the above clause in square brackets to be contrary to the Constitution and annulled it. The decision was published in the Official Gazette on 27 January 1993. The annulled clause ceased to have effect on 27 July 1993. 34. 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 territories and the nation. Those carrying out any 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 of imprisonment shall not be commuted to fines." III. OPINION OF THE COMMISSION A. Complaints declared admissible 35. The Commission has declared admissible: - the applicants' complaints that their convictions on account of the publication of an interview constituted an unjustified interference with their freedom of thought and freedom of expression; - the applicants' complaints that, due to the lack of sufficient clarity of the relevant law, their convictions were not foreseeable. B. Points at issue 36. The points at issue in the present case are as follows: - whether there has been a violation of Articles 9 and 10 (Art. 9, 10) of the Convention; - whether there has been a violation of Article 7 (Art. 7) of the Convention. C. As regards Articles 9 and 10 of the Convention 37. The applicants complain under Articles 9 and 10 (Art. 9, 10) of the Convention that their convictions on account of the publication of an interview constituted an unjustified interference with their freedom of thought and freedom of expression. 38. The applicants' complaints essentially concern an alleged violation of their freedom of expression. The Commission will therefore examine these complaints 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." 39. The applicants submit that their respective convictions, which, in any event, were disproportionate in view of the limited circulation of the review in question, did not serve any legitimate purpose under the Convention. They maintain that the penal sanctions inflicted upon them were not necessary in a democratic society: the incriminated interview involved only a transcription of Dr. i.B.'s views, which were similar to opinions already expressed by official authorities in Turkey. 40. The respondent Government maintain that the respective interferences with the applicants' rights under Article 10 (Art. 10) of the Convention were prescribed by law, i.e. by Article 8 of the Anti-Terror Law. In their view, certain statements contained in the incriminated interview amounted to propaganda against the indivisibility of the State and, therefore, the domestic courts interpreted the law reasonably. The purpose of the applicants' convictions was linked to the control of terrorism carried out by illegal organisations and, consequently, served to protect territorial integrity and national security. They submit that it is generally accepted in comparative and international law that restrictions on Convention rights will be deemed necessary in a democratic society threatened by terrorist violence as being proportionate to the aim of protecting public order. 41. As to the necessity of the measures in a democratic society, the respondent Government state that the threat posed to Turkey by the P.K.K. (the Kurdistan Workers Party) and its affiliations is internationally recognised, as is the need to react firmly to it. Terrorism strikes at the heart of democracy, the fundamental rights which it enshrines and the judicial and political systems. They assert that the interview in question was based on the glorification of the P.K.K.'s activities, the P.K.K. being an illegal terrorist organisation aiming at the establishment of an independent Kurdish State. It is true that freedom of expression constitutes one of the essential foundations of a democratic society. However, in a situation where politically motivated violence poses a constant threat to the lives and security of the population, and where advocates of this violence seek access to the mass media for publicity purposes, it is particularly difficult to strike a fair balance between the requirements of protecting freedom of information and the imperatives of protecting the State and the public against armed conspirators seeking to overthrow the democratic order which guarantees this freedom and other human rights. In this respect the Government claim that the decisions of the istanbul State Security Court and the Court of Cassation did not exceed the margin of appreciation conferred on the Contracting States by the Convention. In sum, the Government consider that the applications are ill-founded. 42. The Commission is of the opinion that the penalties imposed on the applicants constituted "interferences" in the exercise of their 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. 43. Therefore, the question is whether these interferences were prescribed by law, pursued a legitimate aim under Article 10 para. 2 (Art. 10-2) and were "necessary in a democratic society" in order to realise that legitimate aim. 44. As to the question of lawfulness, the Commission recalls that, in the particular case of restrictions on freedom of expression taking the form of criminal sanctions, Article 7 (Art. 7) must be taken into account in addition to the more general requirement of lawfulness laid down in Article 10 para. 2 (Art. 10-2) of the Convention (No. 8710/79, Dec. 7.5.82, D.R. 28, p. 77). In the sphere of criminal law, Article 7 para. 1 (Art. 7-1) of the Convention confirms the general principle that legal provisions which interfere with individual rights must be adequately accessible and formulated with sufficient precision to enable the citizen to regulate his conduct (No. 13079/87, Dec. 6.3.89, D.R. 60, pp. 256, 261). 45. With regard to the requirement of the accessibility of the law, the Commission notes that this issue is not in dispute between the parties. The Commission also notes that the applicants were convicted for a publication dated January 1992 and that they were tried under Article 8 of the Anti-Terror Law which had entered into force on 12 April 1991. 46. With regard to the requirement of sufficient precision, the Commission recalls that the need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague (Eur. Court HR, Kokkinakis v. Greece judgment of 25 May 1993, Series A no. 260-A, p. 19, para. 40). 47. In this respect both applicants maintain that the text of Article 8 of the Anti-Terror Law was so unclear and the concept of "dissemination of propaganda" against the indivisibility of the State was so vague that their convictions thereunder were not foreseeable. The wording of that provision did not, therefore, enable them to distinguish between permissible and prohibited behaviour. They also submit that, in any event, they were convicted for an act which had not constituted a criminal offence under national or international law at the time it had been committed. They consider, in particular, that offences within the scope of the Anti-Terror Law should have a direct link with the fight against terrorism and that, therefore, propaganda could not constitute an offence under Article 8 of that Law unless it incites people to terrorism. Since, however, the incriminated interview did not incite anybody to terrorism, their convictions were not foreseeable. 48. The respondent Government maintain that the applicants' allegations in this respect are ill-founded: the contents of the incriminated interview were manifestly contrary to the provisions of the Anti-Terror Law. 49. The Commission considers that the wording of Article 8 of the Anti-Terror Law, as in force when the offence was committed, was sufficiently specific to enable the applicants, if necessary after taking legal advice, to regulate their conduct in the matter and that the requirement of foreseeability was thus met. It follows that the respective interferences with their rights were prescribed by law. 50. As regards the aims of the interferences, the Commission notes that the applicants' convictions were 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. 51. The remaining issue is whether the interferences were "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". 52. 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). 53. 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). 54. 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. 55. The Commission notes that the incriminated publication was an interview with a Turkish sociologist, whose views, as published, appear to have concerned, in the first place, the process by which the P.K.K.'s ideology was taking hold in Turkish society and how the roots of a Kurdish state were being formed. Without expressly advocating the P.K.K.'s role in the Kurdish struggle for independence, the interviewee analysed, mainly from a sociological aspect, this situation in the face of the reactions of the Turkish State. 56. The Turkish courts held that the publication of the interviewee's opinion amounted to propaganda against the indivisibility of the State in so far as he stated, inter alia, that there is armed resistance in Kurdistan, that violence by the Turkish forces cannot stop the escalation and progress of the P.K.K., that its ideas and action can change the official ideology and its influence in the Kurdish and the Turkish societies will spread and deepen, that national awareness and desire for liberation will become stronger and will spread further, that the idea and feelings for independence will develop and that the P.K.K.'s armed combat for eight years has been the most important cause of certain developments including the withdrawal of Turkish soldiers and the evacuation of police stations in some regions, resulting in the beginning of the formation of a State. 57. However, in the Commission's view, the contents of the incriminated interview are mainly of an analytical nature. The interviewee expressed his view of the Kurdish question and related matters in moderate terms. He did not associate himself in any manner with the use of violence in the context of the Kurdish separatist struggle. The applicants did not add any comment to the interview that would indicate their adherence to the use of violence. 58. The Commission finds that the applicants' convictions amounted to a kind of censure, which was likely to discourage them 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). 59. Consequently, the Commission, even taking into account the margin of appreciation of the national authorities in this context, finds that the interferences with the applicants' freedom were 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 60. 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 7 (Art. 7) of the Convention 61. The applicants complain that their convictions contravened Article 7 para. 1 (Art. 7-1) of the Convention which provides as follows: "No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed." 62. Both applicants maintain that the text of Article 8 of the Anti- Terror Law was so unclear and the concept of "dissemination of propaganda" against the indivisibility of the State was so vague that their convictions thereunder were not foreseeable. The wording of that provision did not, therefore, enable them to distinguish between permissible and prohibited behaviour (see above para. 46). 63. The respondent Government maintain that the applicants' allegations in this respect are ill-founded, the contents of the incriminated interview being manifestly contrary to the provisions of the Anti-Terror Law (see above para. 47). 64. The Commission has just found (see above para. 48) that the wording of Article 8 paragraph 1 of the Anti-Terror Law, as in force when the offence was committed, was sufficiently specific to enable the applicants, if necessary after taking legal advice, to regulate their conduct in the matter. It follows that there has been no infringement of the principle of the statutory nature of offences and penalties, as guaranteed by Article 7 (Art. 7) of the Convention. CONCLUSION 65. The Commission concludes, unanimously, that there has been no violation of Article 7 (Art. 7) of the Convention. E. Recapitulation 66. 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. 60). 67. The Commission concludes, unanimously, that there has been no violation of Article 7 (Art. 7) of the Convention (see above para. 65). 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 the convictions and sentences of Mr Erdogdu and Mr ince answered a "pressing social need" and whether they were "proportionate to the legitimate aims pursued", it is important to analyse the content of the applicants' 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 publication of the interviewee's opinion amounted to propaganda against the indivisibility of the State in so far as he stated, inter alia, that there is armed resistance in Kurdistan, that violence by the Turkish forces cannot stop the escalation and progress of the P.K.K., that its ideas and action can change the official ideology and its influence in the Kurdish and the Turkish societies will spread and deepen, that national awareness and desire for liberation will become stronger and will spread further, that the idea and feelings for independence will develop and that the P.K.K.'s armed combat for eight years has been the most important cause of certain developments including the withdrawal of Turkish soldiers and the evacuation of police stations in some regions, resulting in the beginning of the formation of a State. In my opinion, those expressions, read in the context of the interview as a whole, were capable of creating among readers the impression that the interviewee was encouraging, or even calling for, an armed struggle against the Turkish State and was supporting violence for separatist purposes. In these circumstances, the applicants' conviction and the penalty imposed on them on account of the interview 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 applicants' 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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