SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 55641/00
by Faruk KAPTAN
against Switzerland
The European Court of Human Rights (Second Section), sitting on 12 April 2001 as a Chamber composed of
MrC.L. Rozakis, President,
MrA.B. Baka,
MrL. Wildhaber,
MrsV. Strážnická,
MrP. Lorenzen,
MrM. Fischbach,
MrA. Kovler, judges,
and Mr E. Fribergh, Section Registrar,
Having regard to the above application introduced on 9 March 1999 and registered on 15 March 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant, a Turkish citizen born in 1962, is an employee residing in Richterswil in Switzerland. Before the Court he is represented by Mr Nideröst, a lawyer practising in Zürich.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 11 September 1997 the Swiss customs authorities came across 88 kilos of propaganda materials addressed to the applicant, consisting of books and magazines of the Kurdish Workers’ Party PKK. The materials were transmitted to the Federal Attorney’s Office (Bundesanwaltschaft) which examined them and concluded that they propagated violence as the only alternative against the “Turkish terror State” and insulted members of the Turkish Government. The Office considered that the sale or dissemination of these publications endangered the interior and exterior security of Switzerland for which reason on 15 January 1998 it decided to seise the materials based on S. 1 of the Decree of the Federal Council concerning propaganda materials endangering the State (Bundesratsbeschluss betreffend staatsgefährliches Propagandamaterial) of 29 December 1948.
The applicant’s appeal about the seisure was dismissed by the Federal Office of Justice and Police on 22 June 1998.
On 26 June 1998 the Federal Council (Bundesrat) decided on the basis of its Decree of 1948 to confiscate and destroy the materials.
The applicant filed administrative law appeals (Verwaltungsgerichts-beschwerden) with the Federal Court (Bundesgericht) against the decisions of 22 and 26 June 1998.
On 26 July 1999 the Federal Court decided to join the appeals and to dismiss them. In its judgment (published in BGE [Entscheidungen des Bundesgerichts] 125 II 417) the court considered at the outset that the Federal Council’s decision of 26 June 1998 to confiscate and destroy the materials replaced the decision of the authorities to seise the materials for which reason the applicant had lost interest in his complaint against the customs authorities.
The Federal Court then considered that in principle decisions of the Federal Council could not be contested before the Federal Court. On the other hand, the confiscation of the materials at issue related to the applicant’s “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention for which reason the applicant was entitled to have access to court. There was no other judicial body on the Federal level which could decide the applicant’s case, yet Switzerland could not invoke domestic law in order to avoid complying with obligations arising under international law. As a result, the court regarded itself competent to deal with the applicant’s complaints.
The Federal Court, which noted that the applicant had not requested a public hearing, considered that the applicant had been duly informed of the reasons of the authorities for seising the materials for which reason he was in a position duly to contest the confiscation and to present his case.
The Federal Court then examined the grounds for confiscating the materials at issue in light of the applicant’s freedom of information. It considered that the Decree of the Federal Council of 1948 served as a legal basis for the measure. The judgment continued:
“The confiscated materials concern editions of the magazine ‘Topolumsal Alternatif’ (Alternative Society) No. 5 of September 1997 and, on the other hand, paperbacks with the title ‘Kadin ve Iktidar Olgusu’ (Woman and the ability to govern). With these two publications the Kurdish Workers’ Party intends to win as many Kurds and other like-minded people for the armed resistance against Turkish authorities. Therein violence is advocated and glorified. The militarisation and the martyrs’ death of women particularly are advocated. News about successful bomb attacks, suicidal attacks, and attacks upon institutions of the Turkish State add further weight to the exhortation to employ violence.
In the Federal Council’s view, these writings served to radicalise groups tending to extremism among foreigners and the Swiss. A danger for the peaceful co-existence and therefore for the interior security of Switzerland resulted therefrom ...
Translated extracts in the case-file from the confiscated material demonstrate that the materials do not at all solely promote the concerns of the Kurdish population in Turkey. Rather, it is intended to transmit the existing tensions in Turkey into Switzerland and to create pressure among the emigrants living here. Even if the exhortation to armed struggle refers mainly to the Turkish territory, there is also the intention to radicalise the Kurds living here. Pressure should be exerted on emigrants who refuse to grant the expected support. Exhorting violence in general in order to implement Kurdish concerns will enhance the tendency also to employ violence towards compatriots living here who think differently. Such exhortation generally furthers extremist acts of violence. The writings therefore serve to endanger interior security. Since they are not at all limited to a criticism of the Turkish authorities - this would be admissible - but also insult them, they also serve to jeopardise foreign relations and therefore the neutrality of Switzerland. ... In the present case, furthermore, it does not transpire that a less far reaching measure would have been possible in order to avoid endangering the interior and exterior security, all the more so as the exhortation to armed struggle can be found in all the publications and is not limited to certain parts which could, possibly, have been blacked out.”
B. Relevant domestic law
S. 1 of the Decree of the Federal Council concerning propaganda materials endangering the State (Bundesratsbeschluss betreffend staatsgefährliches Propagandamaterial) of 29 December 1948, in force until 1 July 1998, states:
“The Federal Attorney’s Office is instructed, together with the Federal customs and postal authorities, to seise propaganda materials which serve to endanger the interior or exterior security of the Confederation, in particular its independence, its neutrality, its relations with foreign States, the political and namely the democratic institutions of Switzerland or the interests of the defence of the country, as well as antireligious texts objects.
The Federal Council shall decide on the confiscation.”
COMPLAINTS
1. The applicant complains of the confiscation and destruction of the materials which amounted to an unnecessary, disproportionate and arbitrary interference with his rights under Article 10 of the Convention. There was moreover no sufficient legal basis for this measure.
2. Under Article 6 of the Convention the applicant complains that he did not have access to court in respect of the decisions taken by the Federal Attorney’s Office and the Federal Police. He further complains that the proceedings before the Federal Court were not conducted in public.
3. Under Article 13 of the Convention the applicant complains that the remedy to the Federal Department of Justice and Police could not sufficiently serve to complain about the seisure of the materials, particularly since the Federal Court found in its judgment of 26 July 1999 that he had lost interest therein.
THE LAW
1. The applicant complains under Article 10 of the Convention of the confiscation and destruction of the materials at issue. This provision 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."
The Court considers that the seizure and confiscation of the materials at issue interfered with the applicant’s rights under § 1 of Article 10 of the Convention. The Court must therefore examine whether such interference is justified under § 2 of this provision.
In the Court’s opinion, S. 1 of the Decree of the Federal Council concerning propaganda materials endangering the State of 1948, in force at the relevant time, served as a legal basis for the contested measure which was, therefore, “prescribed by law” within the meaning of Article 10 § 2 of the Convention.
Moreover, as the Federal Court found in its judgment of 26 July 1999, the measure served to protect the interior and exterior security of Switzerland. The interference occurred, therefore, “in the interests of national security (and) for the prevention of disorder or crime” within the meaning of Article 10 § 2 of the Convention.
In assessing whether the interference was "necessary in a democratic society" within the meaning of § 2 of Articles 10 and 11 of the Convention, the Court recalls that the interference must correspond to a "pressing social need" and be proportionate to the legitimate aim pursued. However, when assessing the existence and extent of the necessity of an interference, the Contracting States enjoy a certain margin of appreciation, though this margin is subject to a European supervision (see the Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 25, § 39).
The Court has examined the circumstances of the present case. It transpires from the large quantity of materials - 88 kilos - that the publications were intended mainly for sale or distribution in Switzerland, rather than for personal use. Moreover, the materials seised advocated and glorified violence and aimed at winning over as many persons as possible for the armed struggle against the Turkish authorities. As the Federal Court pointed out in its judgment of 26 July 1999, criticism in itself against the authorities would have been admissible, though the materials went further and insulted them. Furthermore, the materials aimed at transmitting the tensions which exist in Turkey to Switzerland in order to radicalise the Kurdish emigrants living there and to exert pressure on them. The Federal Court, and before it the Federal Council, therefore concluded that the publications served to endanger the interior and exterior security of Switzerland. Since the exhortation to violence extended throughout the publications, it was not possible to delete only certain parts and to hand out the rest.
As a result, the Court considers that this kind of speech is not covered by Article 10 of the Convention. Bearing in mind also the careful examination of the case by the Federal Court, the Court finds that the interference with the applicant’s rights under Article 10 of the Convention could reasonably be considered proportionate as being "necessary in a democratic society in the interests of national security (and) for the prevention of disorder or crime” within the meaning of § 2 of this provision.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.
2. The applicant further complains under Article 6 § 1 of the Convention that he did not have access to court in respect of the decisions taken by the Federal Attorney’s Office and the Federal Police; and that the proceedings before the Federal Court were not conducted in public. Article 6 § 1 of the Convention states, insofar as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by (a) tribunal ...”
The Court notes that the Federal Court decided to entertain the applicant’s complaints even though in principle no remedy lay against the decisions of the Federal Department of Justice and Police and of the Federal Council. It is true that the Federal Court also stated that the applicant had lost interest in his complaint against the decision of the lower authorities to seise the materials, since this decision had been replaced by the Federal Council’s decision of 26 June 1998 to confiscate and destroy the materials. However, the Court has just found that the Federal Court carefully examined the applicant’s complaints under Article 10 of the Convention about the confiscation and destruction of the materials which necessarily also included its seisure, and the applicant has not claimed that he raised particular points of substance which the Federal Court did not examine.
Insofar as the applicant complains that he did not have an oral hearing in these proceedings, he has not shown that he filed such a request before the Federal Court (see the Schuler-Zgraggen v. Switzerland judgment of 24 June 1993, Series A no. 263, pp. 19-20, § 58).
This part of the application is, therefore, also manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.
3. Insofar as the applicant raises further complaints under Article 13 of the Convention and in view of its findings under Article 6 § 1 of the Convention, the Court finds no issue under this provision. The remainder of the application is also manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Erik FriberghChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy