ERSÖZ, ÇETIN, KAYA AND ÜLKEM BASIN VE YAYINCILIK SANAYI TICARET LTD v. TURKEY



                      AS TO THE ADMISSIBILITY OF

                      Application No. 23144/93

                      by    1. Gurbetelli ERSÖZ

                            2. Fahri Ferda ÇETIN

                            3. Yasar KAYA

                            4. Ülkem Basin ve Yayincilik Sanayi

                             Ticaret Ltd.

                      against Turkey

      The European Commission of Human Rights sitting in private on

20 October 1995, 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

           MM.   F. MARTINEZ

                 L. LOUCAIDES

                 J.-C. GEUS

                 B. MARXER

                 G.B. REFFI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 J. MUCHA

                 D. SVÁBY

                 C. BÎRSAN

                 P. LORENZEN

           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 9 December 1993

by the above applicants against Turkey and registered on

21 December 1993 under file No. 23144/93;

      Having regard to :

-     the reports provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the Commission's decision of 6 July 1994 to communicate the

      application ;

-     the observations submitted by the respondent Government on

      5 December 1994 and the observations in reply submitted by the

      applicants on 9 March 1995;

-     the parties' oral submissions at the hearing on 20 October 1995;

      Having deliberated;

      Decides as follows:

THE FACTS

      The first applicant, Gurbetelli Ersöz, born in 1965, was the

editor of the newspaper Özgür Gündem, which was published in istanbul.

The second applicant Fahri Ferda Çetin, born in 1960, was the assistant

editor in chief of the newspaper. The third applicant Yasar Kaya, born

in 1938, is a journalist. He was, together with the fourth applicant,

the owner of the newspaper.

      The applicants are represented before the Commission by Professor

Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex,

England.

A.    The particular circumstances of the case

      The facts of the case have not been agreed by the parties.

      The applicants claim that the following events relating to this

case have occurred:

      Özgür Gündem was a daily newspaper which had been published in

istanbul since 30 May 1992, with a national circulation of some

thousand copies and a further international circulation. It was a

Turkish language publication, seeking to reflect Turkish Kurdish

opinion. Özgür Gündem incorporated its predecessor, the weekly Yeni

Ülke, which was published from 1990 to 1992. In view of the various

actions set out below, Özgür Gündem was obliged to cease publication

some time after the present application had been lodged with the

Commission. Özgür Gündem was first succeeded by another newspaper,

Özgür Ülke, which was however also the subject of serious attacks and

other measures.

      The applicants claim that the Government of Turkey have, directly

or indirectly, sought to hinder, prevent and render impossible the

production and distribution of Özgür Gündem. This has been done by the

following measures:

      - by encouragement of or acquiescence to unlawful killings and

      forced disappearances;

      - by harassment and intimidation of journalists and distributors;

      - by means of unjustified legal proceedings;

      - by failure and refusal to provide any or any adequate

      protection for journalists and distributors when their lives were

      clearly in danger, and despite requests to do so;

      - by enacting and implementing the Anti-Terrorism Act whose

      provisions are so vague and potentially all-inclusive as to

      violate the letter and spirit of Article 10 of the Convention.

       Newsagents, distributors and newsboys have also been threatened

and attacked. From 15 January 1993 until 26 April 1993 Özgür Gündem was

forced to cease publication. Since 26 April 1993, during a period of

68 days, 41 copies of Özgür Gündem were ordered to be seized. In early

1993 a delegation from Özgür Gündem visited the Interior Minister,

ismet Sengün, and the Government spokesman, Akin Gönen, and the

situation facing the newspaper was fully explained. Nevertheless, since

that meeting, three more persons, including two distributors, connected

with Özgür Gündem have been killed.

      Seven persons connected with Özgür Gündem have been killed by

persons unknown. They are the following: (a) Yahya Orhan, a reporter

for Özgür Gündem, who was shot dead on 31 July 1992; (b) Hüseyin Deniz,

a member of the staff of Özgür Gündem, who was shot dead on

8 August 1992 at about 7.45 a.m.; (c) Musa Anter, a regular columnist

for Özgür Gündem, who was shot dead on 20 September 1992; (d) Hafiz

Akdemir, a member of the Özgür Gündem staff, who was shot dead on

8 June 1992; (e) Cengiz Altun, a reporter of Yeni Ülke, who was shot

dead on 24 February 1992; (f) Kemal Kiliç, the Sanliurfa representative

of Özgür Gündem, who was killed on 18 February 1993; (g) Ferhat Tepe,

the Bitlis correspondent of Özgür Gündem, who was found dead on

4 August 1993 in Sivrice, in the Elazig province, after being abducted

on 28 July 1993 in Bitlis.

      Moreover, the distribution of Özgür Gündem has been prevented by

arson attacks, murder and threats, on some occasions in circumstances

which indicate the complicity or acquiescence of the Turkish

authorities.

      In this respect, reference is made to the following events :

      (a) In Diyarbakir: (i) on 15 November 1992, an arson attack by

unknown persons on a newsstand (subject of Application No. 22495/93,

Yasa v. Turkey); (ii) on 16 November 1992, an arson attack by unknown

persons on a newsstand; (iii) on 19 November 1992, stationer's premises

burnt down by unknown persons after threats concerning the sale of

Özgür Gündem; (iv) on 20 November 1992, 22 newsagents refused to sell

Özgür Gündem because of the risks involved; (v) on 23 November 1992,

an attack by three armed men on Özgür Gündem's office chief and a

reporter; (vi) on 29 November 1992, a newsagent attacked with clubs

by two unknown persons; (vii) on 16 December 1992, a newsagent shot

dead by unknown persons; (viii) in November 1992, warning by a

policeman not to sell Özgür Gündem and Yeni Ülke; (ix) in early 1993,

a newsboy prevented by police officers from selling Özgür Gündem ; (x)

on 15 June 1993, the owner of a newsstand shot dead after being

threatened by persons unknown and told not to sell Özgür Gündem; (xi)

about 26 September 1993, a newsboy attacked with a knife by persons

unknown as he was distributing Özgür Gündem; (xii) on

27 September 1993, a person killed; (xiii) in September 1993, a person

who distributed Özgür Gündem seriously injured when he was attacked

with meat cleavers by two unknown persons close to a police station,

but without any intervention by the police.

      (b) In Bismil: in December 1992, the main newsagent's life

threatened by persons unknown if he did not stop selling Özgür Gündem,

the result being that he stopped selling the newspaper.

      (c) In Silvan: on 18 November 1992, the chief newsagent

threatened by persons unknown, the result being that he stopped selling

Özgür Gündem.

      (d) In Batman: (i) on 13 November 1992, the chief newsagent

received death threats by persons unknown and stopped selling Özgür

Gündem; (ii) on 21 November 1992, a taxi driver burnt alive in his

vehicle while distributing Özgür Gündem; (iii) on 2 January 1993, six

persons selling Özgür Gündem stopped and beaten up, with their papers

confiscated, by persons unknown, but in full sight of the police who

did not act.

      (e) In Ergani: (i) in early 1993, the main distributor threatened

by persons unknown and stopped selling Özgür Gündem; (ii) in early

1993, confiscation by the police of all copies of Özgür Gündem which

were being taken to Ergani by minibus; (iii) thereafter, despite

assurances by the District Governor and the Police Chief, boys selling

Özgür Gündem attacked with a meat cleaver.

      (f) In Adiyaman: main newsagent threatened, and harassed by the

police.

      (g) In Mardin: main newsagents in Mardin, Kiziltepe and Mazidagi

threatened; arson attack in Mazidagi.

      (h) In Elazig: (i) main newsagent threatened; arson attack on

stationers; (ii) newsagent who applied to Public Prosecutor for

protection against attack was asked to sign a paper confirming that he

sold Özgür Gündem because that was supposed to reflect his views.

      (i) In Bingöl: (i) on 17 November 1992, a vehicle belonging to

newsagent destroyed by fire; (ii) a journalist employed by Özgür Gündem

arrested and threatened; (iii) on 24 November 1992, arson attack

against a tea shop where Özgür Gündem was sold.

      (j) In Yüksekova: in early October 1993, newsagency selling Özgür

Gündem bombed by Special Teams at about 3 a.m..

      Özgür Gündem has also been the subject of legal proceedings which

allegedly can only have had the ulterior purpose of closing or

hindering the newspaper and from which there is no effective appeal.

Reference is made to the following events:

      (a) From 31 May 1992 to April 1993, confiscation orders were

issued against 39 out of 228 issues of the newspaper, either under

unspecified provisions, or under Articles 6, 7 and 8 of the

Anti-Terrorism Act and Article 36 of the Turkish Criminal Code.

      (b) Between April and July 1993, a further 41 issues of the

newspaper were confiscated. The Istanbul State Security Court ruled,

inter alia, that Özgür Gündem had attempted to portray Turkish citizens

as Kurds and that this was an "act of separatism". The Court also found

that the use of the words "Kurd" and "Kurdistan" was a breach of the

Constitution in which Turkey is defined as a unitary State.

      (c) Cases were filed in the istanbul State Security Court as

follows:

      (i) on 7 June 1992, against the applicant, Yasar Kaya, under

Article 7 of the Anti-Terrorism Act; (ii) on 14 August 1992, against

Yasar Kaya and two others under Article 7 of the Anti-Terrorism Act and

Article 36 of the Criminal Code; (iii) on 24 August 1992 and 25 August

1992, against Yasar Kaya and another person under Article 8 of the

Anti-Terrorism Act and Article 36 of the Criminal Code; (iv) on

15 September 1992, against Yasar Kaya and two others under Articles 2

and 8 of the Anti-Terrorism Act; (v) on 18 September 1992, against

Yasar Kaya and two others under Articles 3 and 8 of the Anti-Terrorism

Act; (vi) on 24 September 1992, against Yasar Kaya and one other person

under Article 7 of the Anti-Terrorism Act; (vii) on 27 September 1992,

against Yasar Kaya and one other person under Article 8 of the

Anti-Terrorism Act and Article 36 of the Criminal Code.

      (d) A press release by the Editorial Board of Özgür Gündem on

3 July 1993 announced that the newspaper was charged with offences

punishable by fines totalling TL 8,617,441,000 ($736,500), and prison

terms ranging in total from 155 years and 9 months to 493 years and 4

months.

      (e) On 12 July 1993, the Istanbul Court of First Instance decided

to ban Özgür Gündem on the ground that "the Chief Editor of the

newspaper Davut Karadag did not communicate his new address to the

Istanbul Governor". On 15 July 1993, Mr. Karadag was arrested when

attending the State Security Court to give evidence for thirty articles

published in Özgür Gündem on 12, 13, 14 and 15 July 1993, which were

said to have "disseminated separatist propaganda". On

15 September 1993, Yasar Kaya was arrested and subsequently charged for

making an allegedly illegal speech in Iraq. When the application was

lodged with the Commission, Yasar Kaya was still in custody.

      (f) The applicants further refer to 170 ongoing prosecutions of

Özgür Gündem and its employees.

      (g) A case, which has been observed by certain human rights

non-governmental organisations, concerns an article by Mr. Ahmet Alkan,

published on 24 September 1992 and entitled "From the dialogue of arms

to political propaganda". In respect of this article, Özgür Gündem was

charged with "making separatist propaganda" and "praising the PKK",

contrary to Articles 7 and 8 of the Anti-Terrorism Act. On

15 July 1993, the State Prosecutor brought further charges under

Supplementary Article 2 of the Press Law.

      (h) Furthermore, in respect of 48 out of 114 issues of Yeni Ülke

there were confiscations or prosecutions. In 1990, 13 issues were

confiscated under Article 148 of the Criminal Code and 6 under Article

8 of the Anti-Terrorism Act. In 1991, 20 issues were confiscated under

the Anti-Terrorism Act and in 1992 9 issues under that Act. In the case

of 21 prosecutions (out of 70, the remaining being pending) Yeni Ülke

was acquitted; in no case was it convicted. The effect of so many

prosecutions was eventually to drive Yeni Ülke out of business.

      (i) Finally, the police confiscated all Istanbul office

administrative documents, archives, library facilities on

10 December 1993.

      The applicants further point to the numerous cases of detention

and abduction of persons employed by Özgür Gündem, which have affected

the activities of the newspaper. They refer to the following cases:

      (a) Remanded in custody: (i) Yasar Kaya, remanded in custody on

      15 September 1993 and still there when the application was

      introduced; (ii) Nezahat Özem, remanded from 17 July to

      14 September 1993; (iii) Mehmet Yazici, remanded from 20 July to

      16 September 1993; (iv) Salih Tekin, remanded on 19 August 1993;

      (v) Haydar Geçilmez and Mehmet Sonol, Diyarbakir correspondents

      of the newspaper, arrested on 11 and 13 March 1993 respectively;

      (vi) Serdar Uzun and Besir Ant, Cizre correspondents of the

      newspaper, arrested on 12 and 14 March 1993 respectively; (vii)

      Ahmet H. Akkaya, a news editor for Özgür Gündem, arrested on

      25 May 1993; (viii) Tacettin Demir, a reporter in Diyadin,

      detained on 13 July 1993; (ix) Davut Karadag, an editor, taken

      into custody on 15 July 1993 when attending the State Security

      Court to give evidence; (x) Nezahat Özmen, a reporter, seven

      months pregnant, taken into custody on 16 July 1993; (xi) Mehmet

      Sah Yildiz, detained on 12 September 1993; (xii) Cevzet Birkay,

      detained on 12 September 1993; (xiii) all the employees of the

      istanbul office of the newspaper, including its lawyers, taken

      into custody on 10 December 1993.

      (b) Abduction: Aysel Malkaç, a reporter in Istanbul, abducted by

      plain-clothes police on 7 August 1993 just after she had left the

      Özgür Gündem building, her whereabouts being unknown when the

      application was introduced.

      After Özgür Gündem had ceased publication and been succeeded by

      Özgür Ülke, the latter newspaper was subject to the following

      actions:

      (a) On 3 December 1994, its four-storey printing press and

headquarters in Istanbul and its Ankara office were bombed; one person

was killed and 18 injured.

      (b) In the first week of January 1995, the National Security

Council decided that the paper should be prevented from printing, but

by legal means.

      (c) From 6 January 1995, police started to wait outside the

printing press to seize the paper as soon as it was printed.

      (d) On 2 February 1995, the istanbul First Justice Court ordered

confiscation of all copies pursuant to the Press Law.

      The applicants further refer to a number of statements by

non-governmental organisations which have criticised the actions of the

Turkish State in relation to the press, and Özgür Gündem in particular.

      The Government state the following as regards the events alleged

by the applicants.

      The criminal incidents against the workers of the Özgür Gündem

newspaper are the consequence of multi-terrorist acts which the

Government combat with the purpose of safeguarding the right to life.

No Government agent or officer was involved in these incidents, no

security operation was carried out, nor did an armed clash occur. These

incidents were the result of attacks by unknown perpetrators.

      At the time of the application on 9 December 1993, 69 cases

presented by the applicants regarding the legal proceedings against the

Özgür Gündem newspaper and its journalists were pending.  As of

20 October 1995, the date of the hearing before the Commission,

39 measures had been approved by the Court of Cassation, one decision

had been reversed by this Court and 29 cases were still pending before

it. The public prosecutor's closure requests, according to

Supplementary Article 2 of the Press Code No. 5680, were not considered

or decided in 38 cases;  they were rejected by the courts in 9 cases;

and a temporary closure decision was given in 20 cases. Of these

20 closure decisions which concerned a period between three days and

one month, 3 decisions were for a month, 15 decisions were for 15 days

and 2 decisions were for 10 days.

      The second State Security Court of istanbul in its decision of

14 March 1994 (files Nos. 93/237 and 178) stated that the mere use of

the words "Kurds" or "Kurdistan" in a newspaper article does not

violate a penal rule.  The Court concluded that "although in the two

news articles the words 'Kurds' and 'Kurdistan' are used frequently,

the theme and the context of the articles as a whole clearly show that

they were written with the aim of informing the public.  Therefore, the

elements of separatist propaganda are not present." The court then

decided that the journalists Kaya and Karadag should be acquitted of

charges of separatist propaganda.

      In its decision on 1 September 1994 regarding an article

published in the newspaper Özgür Gündem of 25 July 1993 the Istanbul

Second State Security Court discussed the application of Article 10 of

the Convention in detail and cited the fact that although the

Convention is accepted as an instrument of national law, conditions in

the south-east of Turkey oblige the court to consider the clear and

present danger created by the publication in the case as inciting

hatred among members of society and thus violating Article 8 of the

Anti-Terrorism Act. The court clearly stated that in the application

of Article 10 of the Convention, the restrictions stated in paragraph 2

of the Article should be kept in mind.

      In his letter dated 11 November 1994 sent to the Ministry of

Justice, the Public Prosecutor of the istanbul State Security Court

stated that none of the judgments pronounced against the Özgür Gündem

newspaper (in 69 cases referred to by the applicants) had been

executed.

B.    Relevant domestic law

      Constitutional Law

      Article 28 :  The press is free, and shall not be censored.

      The establishment of a printing house shall not be subject

      to prior permission and to the deposit of a financial

      guarantee.

      ...

      The State shall take the necessary measures to ensure the

      freedom of the press and freedom of information.

      ...

      Anyone who writes or prints any news or articles which

      threaten the internal or external security of the State or

      the indivisible integrity of the State with its territory

      and nation, which tend to incite offences, riots or

      insurrection, or which refer to classified State secrets

      and anyone who prints or transmits such news or articles to

      others for the above purposes, shall be held responsible

      under the law relevant to these offences.

      Distribution may be suspended as a preventive measure by a

      decision of a judge, or in the event delay is deemed

      prejudicial by the competent authority designated by law.

      The authority suspending distribution shall notify the

      competent judge of its decision within twenty-four hours at

      the latest.  The order suspending distribution shall become

      null and void unless upheld by the competent judge within

      forty-eight hours at the latest.

      No ban shall be placed on the reporting of events, except

      by a decision of a judge issued to ensure the proper

      functioning of the judiciary, within the limits specified

      by law.

      Periodicals and non-periodical publications may be seized

      by a decision of a judge in cases of ongoing investigation

      or prosecution of offences prescribed by law; and in

      situations where delay could endanger the indivisible

      integrity of the State with its territory and nation,

      national security, public order or public morals, and for

      the prevention of offences by order of the competent

      authority designated by law.  The authority issuing the

      seizure order shall notify the competent judge of its

      decision within twenty-four hours at the latest.  The

      seizure order shall become null and void unless upheld by

      the competent court within forty-eight hours at the latest.

      The general common provisions shall apply when seizure and

      confiscation of periodicals and non-periodicals for reasons

      of criminal investigation and prosecution take place.

      Periodicals published in Turkey may be temporarily

      suspended by court sentence if found guilty of publishing

      material which contravenes the indivisible integrity of the

      State with its territory and nation, the fundamental

      principles of the Republic, national security and public

      morals.  Any publication which clearly bears the

      characteristics of being the continuation of the suspended

      periodical is prohibited; and shall be seized by a decision

      of a judge.

      Article 29 :  Publication of periodicals or non-periodicals

      shall not be subject to prior authorisation or to the

      deposit of a financial guarantee.

      To publish a periodical it shall suffice to submit the

      information and documents prescribed by law to the

      competent authority designated by law.  If the information

      and documents submitted are found to be in contravention of

      the law, the competent authority shall apply to the

      competent court for suspension of publication.

      The publication of periodicals, the conditions of

      publication, the financial resources and rules relevant to

      the profession of journalism shall be regulated by law.

      The law shall not impose any political, economic, financial

      and technical conditions obstructing or making difficult

      the free dissemination of news, thoughts or beliefs.

      Periodicals shall have equal access to the means and

      facilities of the State, other public corporate bodies and

      their agencies.

      Article 8 of the Anti-Terrorist Law (before the amendment

      of 27 October 1995)

      Propaganda against the indivisible unity of the State

      ... written and oral propaganda and assemblies, meetings

      and demonstrations aimed at damaging the indivisible unity

      of the State of the Turkish Republic, its territory and as

      a nation are forbidden, regardless of the method, intention

      and ideas behind it.  Those conducting such an activity are

      to be punished by a sentence of between 2 and 5 years'

      imprisonment and a fine of between 50 million and 100

      million Turkish Lira.

      If the offence of propaganda as mentioned in the paragraph

      above is committed by a periodical according to Article 3

      of the Press Law No. 5680, the publishers are to be

      punished additionally by the following fines:  for the

      periodicals issued in less than monthly intervals the fine

      shall be 90% of the average real sale of the previous

      month, for printed works that are not periodicals or

      periodicals starting business the fine shall be 90% of the

      monthly sale of the most selling daily periodical.  In any

      case the fine may not be less than 100 million Turkish

      Lira.  Responsible editors of these periodicals are to be

      given half the sentences of the publishers and a sentence

      of between six months and two years' imprisonment.

COMPLAINTS

      The applicants submit that the long list of incidents, ranging

from murder of journalists and other workers in the mass media,

disappearance and abduction, to threats of death and violence,

threatened and actual prosecution and seizure and imposition of heavy

fines, constitute an assault on the right to freedom of expression and

freedom of the press. They complain of violations of Articles 10 and

14 of the Convention, and Article 1 of Protocol No. 1, in that their

right to receive and impart information and ideas has been grossly

violated, and in that they have suffered confiscation of their

property, all on discriminatory grounds. They also refer to the failure

or refusal of the State organs to protect the journalists and

distributors of the newspaper.

      The applicants consider that the violations of which they

complain are continuing and that the six months' rule is therefore not

applicable. They also submit that they have exhausted domestic remedies

by making repeated complaints about the matters which are the subject

of this application and by requesting protection pursuant to the

Turkish Constitution, but without any effective response by the Turkish

Government. In addition, on 7 September 1992, Özgür Gündem has claimed

compensation in one case, but so far without result. In the applicants'

view, remedies have proved to be ineffective and are likely to prove

ineffective. The applicants also refer to arguments put forward in

Application No. 21895/93, Çagirga v. Turkey.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 9 December 1994 and registered

on 21 December 1993.

      On  6 July 1994, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

      The Government's observations were submitted on 5 December 1994.

The applicants submitted further information on 20 and 21 April 1994,

2 and 22 August 1994, 11 October 1994, 23 and 25 November 1994,

7 December 1994 respectively. They submitted observations in reply on

9 March 1995 after one extension in the time-limit.

      On 10 April 1995, the Commission decided to invite the parties

to make oral submissions on the admissibility and merits of the

application at a hearing fixed for 20 October 1995.

      At the hearing on 20 October 1995, the Government were

represented by Mr. B. Çaglar, Agent, Mr. S. Alpaslan, Mr. M. Özmen,

Ms. D. Akçay, Mr. T. Özkarol, Mr. A. Kurudal, Mr. A. Kaya and

Mrs. S. Eminagaoglu, all counsel. The applicants were represented by

Mr. W. Bowring, barrister at law, Mr. O. Ergin, advocate, and Mr.

M. Yildiz, legal adviser.

THE LAW

      The applicants allege that a number of Özgür Gündem newspaper

journalists have been murdered, attacked, detained, abducted or

threatened and that newspaper distributors or vendors have been

attacked or threatened, and that many decided, because of threats, not

to continue distributing or selling the newspaper. They also complain

of legal prosecutions against the editors and owners of the newspaper,

seizure of numerous copies and imposition of heavy fines by the

tribunals. The applicants allege violations of Articles 10 (art. 10)

(freedom of expression) and 14 (the prohibition of discrimination) of

the Convention and Article 1 of Protocol No. 1 (P1-1) (the right to

property).

      The Government argue that the application is inadmissible for the

following reasons:

      i. the application is an actio popularis, since the individual

applicants are not victims of any violation of the Convention;

      ii. the applicants have not exhausted domestic remedies;

      iii. alternatively, the applicants did not observe the six

months' time-limit;

      iv. the application is anyway manifestly ill-founded.

      i. Victim status

      As to the allegations under Article 10 (Art. 10) of the

Convention, the Government submit that the application is abstract in

nature and constitutes an actio popularis, the individual applicants

not being actual victims of the alleged violations. The allegations

stating that the Turkish Press Code and certain provisions of the

Struggle Against Terrorism Act are in violation of the Convention also

cannot be the basis of an application.

      The applicants point out that they are plainly the proper

applicants to bring the case being the owners and editors of the Özgür

Gündem newspaper.

      The Commission notes that the applicants complain about a large

number of acts directed against the newspaper which they represent as

owners and editors. They can therefore claim to be victims of

violations of the Convention in this respect. Consequently, there is

no basis for declaring the application inadmissible on this ground.

      ii. Exhaustion of domestic remedies

      The Government submit that the applicants have failed to comply

with the requirement under Article 26 (Art. 26) of the Convention to

exhaust domestic remedies before lodging an application with the

Commission.  They note that the applicants, in regard to most of the

acts of which they complain, have not availed themselves of domestic

remedies, or at least have not exhausted these remedies. The Government

also argue that court decisions dealing with Press Code violations are

open to constitutionality objections.

      The applicants state that at the date of the application and

thereafter they were faced with a continuing flood of prosecutions.

They consider that these prosecutions constituted continuous

violations. As to the possibility of making constitutionality

objections, the applicants contend that the Government did not specify

whether there have been any cases in which such objections have proved

successful.

      The Commission notes the following:

      It is true that the applicants' complaints refer to a series of

incidents and judicial acts and that, at least in regard to many of

these acts, the domestic remedies have not been exhausted.

      However, the Commission interprets the application as not being

primarily concerned with individual acts or events but with a

consistent pattern of actions taken over a relatively long period of

time and aimed at preventing the Özgür Gündem newspaper from being

published. Whatever remedies may be available in regard to individual

acts or decisions, the Commission cannot find it established that there

was in Turkey any remedy which would have been effective in changing

the general situation of which the applicants complain.

      The Commission recalls in this respect that only those remedies

which are capable of remedying the criticised state of affairs

directly, and not merely indirectly, are to be considered as effective

(No. 14807/89, Dec. 12.02.92, D.R. 72 p. 148).

      Furthermore, as to an appeal to the Constitutional Court, the

Commission recalls that the remedies which must be used have to be

effectively accessible to those concerned. In the present case, it

considers that such an appeal does not constitute an accessible remedy

in that it is the exclusive competence of the court examining the case

to decide whether an objection of unconstitutionality appears

sufficiently serious to merit referral to the Constitutional Court

(Nos. 14116/88, 14117/88, Dec. 11.05.89, D.R. 61 p. 250).

      In the absence of remedies which would be effective in regard to

the specific complaints brought by the applicants, the Commission

concludes that the application cannot be rejected for non-exhaustion

of domestic remedies under Articles 26 and 27 para. 3 (Art. 26, 27-3)

of the Convention.

      iii. The six months' rule

      The Government contend that the applicants have failed to comply

with the second requirement of Article 26 (Art. 26) of the Convention,

namely that of lodging the application within six months of the final

domestic decision or, if none, within six months of the events of which

complaints are made. They point out that most of the incidents referred

to by the applicants do not fall within the period of six months.

      The applicants argue that they complain of a series of continuing

violations.

       The Commission refers to its considerations under point ii

above. It recalls that the applicants' complaints relate to a

continuing general situation and that in such circumstances the six

months period runs from the termination of the situation concerned

(No. 6852/74, Dec. 5.12.78 D.R. 15, p. 5). The last incidents of which

the applicants complain occurred less than six months before the

application was lodged, and according to the applicants the situation

in which Özgür Gündem found itself continued even after the application

had been introduced. In these circumstances, the Commission finds that

the Government's objection based on the six months rule must be

rejected.

      iv. As regards the merits

      According to the Government, the reality of each criminal

incident against those working for Özgür Gündem should be checked

before a conclusion can be reached. Such a conclusion must be based on

official records regarding the investigations undertaken.

      The Government point out that one of the well-known methods of

terrorist organisations is to murder or attack personalities whose

deaths and injuries would give rise to rage in society and might even

mobilise some groups against the Government. It is a common problem of

countries which face terrorist acts that arresting and penalising the

perpetrators of such acts is almost impossible due to the impossibility

of collecting evidence because of the fear of terrorists.

      The Government notes furthermore that the newspaper Özgür Gündem

has never been closed down indefinitely pursuant to an all-inclusive

judgment. Each judicial decision was confined to a specific published

text. In the articles, reports and interviews in question, terrorist

attacks are described as warfare and a legend of liberation whereas,

on the other hand, security operations are presented as war against

civilians. In one text, it was even announced that the only way to make

Turkey realise the facts was to fight with arms. In another text,

terrorists were directed to a security officer and given his address

and telephone number.

      The Government maintain that when political opposition ideas,

news, comments and debates on matters of public concern are in

question, the Government of Turkey welcome the work of the media as a

sine qua non condition for the democratic system. At present, 502

different newspapers and 750 periodicals are in circulation in Turkey.

In view of the abundance of media sources, journalists or writers have

never been discouraged for fear of sanctions from imparting opinions

on issues of public concern.

      The Government submit that the people of Turkey are not alien to

offensive, shocking or disturbing information or opinions disseminated

by the media. No journalist or author is penalised for that. However,

the freedom to publish this kind of information and expressions should

be stopped when they constitute propaganda of terrorism.

      According to the Government, the present case is different from

the other Article 10 (Art. 10) cases examined by the European Court of

Human Rights. It concerns incitement to hatred, provocation of

terrorism and inducement of separatism. The texts which appeared in

Özgür Gündem created an imminent danger of violence by inducing,

provoking and agitating terrorists and their supporters. The terrorism

in Turkey is not a potential but an actual danger.  Therefore, such

provocative and disturbing texts serve to add fuel to the flames,

especially in sensitive circumstances.

      The applicants maintain that their Convention claims are

substantiated. They contend in particular that the Government, in their

submissions to the Commission, have not dealt with any of the incidents

indicated in the application.

      The applicants contend that the provisions of existing Turkish

legislation applicable in the present case, in particular Articles 1

and 8 of the Anti-Terrorist Law, are so broad and so vague that they

could be applied by the respondent Government in such a way as to

inhibit and suppress freedom of expression in a manner which cannot be

explained or justified within the framework of the Convention.

      The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and fact under

the Convention, the determination of which should depend on an

examination of the merits of the application as a whole. The Commission

concludes, therefore, that the application is not manifestly

ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention. No other grounds for declaring it inadmissible have

been established.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

      merits of the case.

      Secretary to the Commission       President of the Commission

             (H.C. KRÜGER)                    (S. TRECHSEL)

 

Full & Egal Universal Law Academy