EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 25723/94

Ãœmit ErdoÄŸdu

against

Turkey

REPORT OF THE COMMISSION

(adopted on 1 March 1999)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 - 15) 1

A. The application

(paras. 2 - 4) 1

B. The proceedings

(paras. 5 - 10) 1

C. The present Report

(paras. 11 - 15) 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16 - 27) 3

A. The particular circumstances of the case

(paras. 16 - 24) 3

B. Relevant domestic law

(paras. 25 - 27) 4

III. OPINION OF THE COMMISSION

(paras. 28 - 66) 6

A. Complaints declared admissible

(para. 28) 6

B. Points at issue

(para. 29) 6

C. As regards Articles 9 and 10 of the Convention

(paras. 30 - 58) 6

CONCLUSION

(para. 59) 11

D. As regards Article 7 of the Convention

(paras. 60 - 63) 11

CONCLUSION

(para. 64) 12

E. Recapitulation

(paras. 65 - 66) 12

TABLE OF CONTENTS

Page

DISSENTING OPINION OF MRS J. LIDDY 13

APPENDIX : DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION 15

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Turkish citizen, born in 1970 and living in Istanbul.  He was represented before the Commission by Ms Oya Ataman , a lawyer practising in Ankara.

3. The application is directed against Turkey. The respondent Government were represented by their Agent.

4. The case concerns the applicant's conviction by the State Security Court on account of the publication of an article in the newspaper whose responsible editor he is. The applicant invokes Articles 9, 10 and 7 of the Convention.

B. The proceedings

5. The application was introduced on 4 November 1994 and registered on 18 November 1994.

6. On 15 May 1995 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 28 August 1995.  The applicant replied on 30 October 1995.  The Government submitted additional observations on 20 October 1997.

8. On 23 January 1998 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 6 February 1998 and they were invited to submit such further information or observations on the merits as they wished.  The applicant submitted supplementary observations on 27 February 1998.

10. After declaring the case admissible, the Commission, acting in accordance with former Article 28 para. 1 (b) of the Convention¹, also 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

11. The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

Sir Nicolas BRATZA

MM. I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

12. The text of this Report was adopted on 1 March 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to former Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose breach by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is annexed hereto.

15. 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

16. The applicant is the editor ( sorumlu yazi isleri muduru ) of " Iscilerin Sesi (Worker's Voice)", a fortnightly newspaper published in Istanbul.

17. On the first page of the fortieth issue of the Worker's Voice of 2 October 1992, an article by Y.A. entitled " Kürt Sorunu Türk Sorunudur (The Kurdish Problem is a Turkish Problem)" was published.

18. In an indictment dated 29 December 1992, based on the published article, the Public Prosecutor at the Istanbul State Security Court charged the applicant, as the editor of the newspaper, with disseminating propaganda against the indivisibility of the State.

19. The charges were brought under Article 8 of the Anti-Terror Law ( Terorle Mucadele Yasasi ) and concerned the following parts of the article :

"It has become crystal clear that what we see in Kurdistan is not a question limited to the geography of Kurdistan , but a general question of Turkish society.  The Kurdish question is even more than before, a Middle East question [...]

The Republic of Turkey, which is faced with a Kurdish national movement, is fast being driven into complex developments in the Middle East due to the fact that Turkey confines itself to the Kurdish problem [...]

On the other hand, the perception of the war by the movement in Kurdistan as an "international war" reflects the prevailing point of view. Whatever the official line, in practice the solution sought by the military is taking the form of a war against the Kurdish people.  Indeed, today in Kurdistan an open war is being conducted against the Kurdish people by the State.  With a deliberate distortion of the facts, the sovereign (dominant) classes are deploying every effort to show that this war is a war by the Turks against the Kurds.  And, unfortunately, the passive attitude of the Turkish people towards the Kurdish question renders this distortion persuasive [...]

The leadership of the Kurdish National Resistance Movement is not acting sufficiently sensibly either and prefers to remain silent.  It is clear that such a conflict would benefit neither the Turkish nor the Kurdish people.  Such a conflict would be a retrogressive conflict, the revolutionary dynamics of which are glossed over.  It would weaken the Turkish and Kurdish peoples against the attacks of imperialism and the local sovereign (dominant) classes.  Of course, nothing could be more absurd than suggesting to the Kurdish people that they give up the national resistance.  On the contrary, the defeat of the Kurdish national resistance  would not remove ethnic tensions budding in the West; it would serve the formation of hostile feelings between peoples.

Essentially, what has to be done rests with the Turkish people in the West.  The only solution seems to lie in the Turkish              people perceiving the Kurdish resistance movement as part of              their struggle for freedom and democracy [...]

It is high time that the revolutionary movement in the West got involved [...] in the Kurdish question."

20. In the proceedings before the Istanbul State Security Court, the applicant denied the charges.  He stated that the said article had been sent to the newspaper by a reader residing in Germany, A.Y.  In support of his statement he produced a letter from a notary in Hannover (Germany) saying that the article had been sent to the newspaper by A.Y.  The applicant then pleaded that the article did not constitute any element of an offence, but was discussing the problem from internal and external points of view and was proposing a democratic solution.

21. In a judgment dated 20 December 1993, the court found the applicant guilty of an offence under Article 8 of the Anti-Terror Law.  It sentenced the applicant to six months' imprisonment and a fine of 50 million Turkish Lira. The court held that, in the published article, a certain part of the Turkish territory had been referred to as " Kurdistan " and the acts of the illegal terrorist organisation , PKK, had been defined as national resistance of the Kurds. It further held that the article sought support for that "national resistance".

22. The applicant appealed.

23. On 4 May 1994 the Court of Cassation , after a hearing, dismissed the appeal.  It upheld the cogency of the State Security Court's reasoning and its assessment of the evidence.

24. On 27 October 1995 the Anti-Terror Law No. 4126 was amended.  On 18 April 1996 the State Security Court re-examined the applicant's conviction and sentenced him to a fine of 50 million Turkish lira.  The applicant appealed.  The Commission has not been informed of the outcome of the proceedings before the Court of Cassation .

B. Relevant domestic law

25. Article 8 paragraph 1 of Anti-Terror Law of 12 April 1991 (before the amendments introduced by Law No. 4126 of 27 October 1995)

" Hangi yöntem , maksat ve dü ünceyle olursa olsun Türkiye Cumhuriyeti Devletinin ülkesi ve milletiyle bölünmez bütünlügünü bozmayı hedef alan yazılı ve sözlü propaganda ile toplantı , gösteri ve yürüyü  yapılamaz . Yapanlar kakkında 2 yıldan 5 yıla kadar ağır hapis ve ellimilyion liradan yüzmilyion liraya kadar ağır para cezası 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."

26. Article 8 paragraph 2 of the Anti-Terror Law

" Yukarıdaki fıkrada belirtilen propaganda suçunun 5680 sayılı Basın Kanunun 3 üncü maddesinde belirtilen mevkuteler vasıtası ile işlenmesi halinde , ayrıca sahiplerine de mevkute bir aydan az süreli ise , bir önceki ay ortalama satış miktarının : [ mevkute niteliğinde bulunmayan basılı eserler ile yeni yayına giren mevkuteler hakkında ise , en yükek tirajlı günlük mevkutenin bir önceki ay ortalama satış tutarının ]; yüzde doksan kadar ağır para cezası verilir . Ancak , bu para cezaları yüzmilyon liradan az olamaz . Bu mevkutelerin sorumlu müdürlerine , sahiplerine verilecek para cezasının yarısı uygulanır ve altı aydan iki yıla kadar hapis cezası 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."

27. 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.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

28. The Commission has declared admissible :

- the applicant's complaints that his conviction on account of the publication of an article constituted an unjustified interference with his freedom  of thought and freedom of expression ;

- the applicant's complaint that, due to the lack of sufficient clarity of the relevant law, his conviction was not foreseeable.

B. Points at issue

29. The points at issue in the present case are as follows :

- whether there has been in the present case a violation of Articles 9 and 10 of the Convention ;

- whether there has been in the present case a violation of Article 7 of the Convention.

C. As regards Articles 9 and 10 of the Convention

30. The applicant complains under Articles 9 and 10 of the Convention that his conviction on account of the publication of an article constituted an unjustified interference with his freedom of thought and expression.

31. The applicant's complaints essentially concern an alleged violation of his freedom of expression.  The Commission will therefore examine these complaints under Article 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."

32. The applicant claims that the restrictions introduced by Article 8 of the Anti-Terror Law are not proportionate to the purpose of national security and that his conviction was therefore contrary to Article 10 of the Convention.

33. He maintains that the penal sanction inflicted upon him was not necessary in a democratic society, as the incriminated article contained various solutions to the Kurdish claims, offering thus a platform for discussion of the Kurdish question.

34. The applicant also submits that not thinking in harmony with the official point of view and criticising the executive power for its actions originating in wrong policies is not and cannot be considered as propaganda against the indivisibility of the State.  Therefore, his conviction for the publication of an article departing from the official point of view is an unjustified interference with his freedom of expression.

35. The Government firstly submit that Article 9 of the Convention invoked by the applicant is irrelevant, as his conviction was not related to an opinion, belief or religion, but rather concerned Article 10 of the Convention.

36. The Government maintain that the applicant's conviction was in accordance with Article 8 of the Anti-Terror Law No. 3713, pursued the aim of fighting the threat of terrorism and was necessary in a democratic society in the interests of national security, territorial integrity, public safety and for the prevention of disorder and crime.

37. The Government point out that the incriminated article approaches the "Kurdish question" from a Marxist angle, looking at the problem in terms of class confrontation, blaming the imperialists for the "war in Kurdistan ".  The article qualifies terrorist armed actions by the PKK as the Kurdish national liberation movement and accuses the Government of waging an open war against the Kurdish people.  The Government consider that the use of the word " Kurdistan " is not an innocent way of describing a geographical area, but is a deliberate use of a term denoting separatism, since this term is also used by the PKK.

38. The Government claim that thus, the article glorifies terrorism and seeks to provide legitimacy and justification to the PKK.

39. Therefore, the applicant's conviction was fully justified under the second paragraph of Article 10 of the Convention, for reasons of national security, territorial integrity and public safety.  Also, the penalty imposed on the applicant was, in these circumstances, a proportionate one.

40. The Commission is of the opinion that the penalty imposed on the applicant constituted an interference with the exercise of his right to freedom of expression as protected by Article 10 para. 1 of the Convention.  This point has not been in dispute between the parties.

41. Therefore, the question is whether this interference was prescribed by law, pursued a legitimate aim under Article 10 para. 2 and was "necessary in a democratic society" in order to realise that legitimate aim.

42. 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 sentences, Article 7 must be taken into account in addition to the more general requirement of lawfulness laid down in Article 10 para. 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 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).

43. 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 applicant was convicted for a publication dated 2 October 1992 and that he was tried under Article 8 of the Anti-Terror Law which had entered into force on 12 April 1991.

44. 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).

45. In this respect, the applicant submits that he was convicted for an act which had not constituted a criminal offence under national or international law at the time it had been committed.  He considers, 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 article did not incite anybody to terrorism, his conviction was not foreseeable.

46. The respondent Government maintain that the applicant's allegations in this respect were manifestly ill-founded : the contents of the incriminated article were clearly contrary to the provisions of the Anti-Terror Law.

47. 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 applicant, if necessary after taking legal advice, to regulate his conduct in the matter and that the requirement of foreseeability was thus met (Nos. 23536/94 and 24408/94, Ba kaya and Okçuoglu v. Turkey, Comm. Rep. 13.1.98).  It follows that the respective interference with his right was prescribed by law.

48. As regards the aim of the interference, the Commission considers that the applicant's conviction was part of the efforts of the authorities to combat illegal terrorist activities and to maintain national security and public safety, which are legitimate aims under Article 10 para. 2 of the Convention.

49. The remaining issue is whether the interference was necessary in a democratic society in order to serve the interest of national security.  In this respect, the Commission recalls the following principles laid down by the Court (see, inter alia , Eur. Court HR, Zana v. Turkey judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, N  57, p. 2547, para. 51) :

( i ) Freedom of expression, as enshrined in paragraph 1 of Article 10 constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress.  It is applicable not only to "information" or "ideas" that are favourably received or are regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broad-mindedness without which there is no "democratic society".

(ii) The adjective "necessary", within the meaning of Article 10 para. 2, 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.  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".

50. 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 (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 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).

51. An 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 threats by the activities of terrorist organisations (cf. above-mentioned Zana v. Turkey judgment, para. 55).

52. The Commission observes in this connection that Article 10 para. 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.

53. The Commission notes that the incriminated article analysed the Kurdish question from a marxist point a view.  Accusing the Turkish State of conducting a war against the Kurdish people, the article was also accusing the dominant classes in the Turkish society of artificially maintaining a conflict between Kurdish people and the rest of Turkish citizens in order to promote their imperialistic interests.  According to the article, the real conflict was a class conflict.  The article therefore called on the Turkish people, including those living abroad, in the West, to join the Kurdish people's fight for freedom and democracy.  Furthermore, the article referred to Kurdish resistance against the above-mentioned actions of the Turkish State.

54. The Commission also notes that the State Security Court convicted the applicant because he had disseminated propaganda against the indivisibility of the State, because he had published an article where a part of Turkish territory was referred to as " Kurdistan " and where support was sought for the PKK, described as the Kurdish national resistance movement.

55. The Commission considers, however, that the criterion for establishing whether or not the conviction was proportionate should not be whether the language used was exaggerated nor whether the text referred to part of the Turkish territory as " Kurdistan ", but whether it could be considered to encourage or incite to violence(cf. Başkaya and Okçuoğlu v Turkey, Comm. Report 13.1.98, para. 73; Sürek and Özdemir v. Turkey, Comm. Report 13.1.98, para. 66).

56. In the Commission's opinion, the article expressed views on the Kurdish question in relatively moderate terms.  Its author did not associate himself with the use of violence in the context of the Kurdish struggle and the article was not so worded as to incite to any violent action.

57. In these circumstances, the Commission considers that the applicant's conviction amounted to a kind of censure, which was likely to discourage him or others from expressing their views on the

situation in south-east Turkey again in the future.  In the context

of political debate such sentences are likely to deter citizens from contributing to public discussion of important political issues (cf. Lingens v. Austria judgment, op. cit., p. 27, para. 44).

58. Consequently, the Commission, even taking into account the margin of appreciation of the national authorities, finds that the interference with the applicant's freedom of expression was not proportionate to the legitimate aims pursued and could, therefore, not be regarded as necessary in a democratic society to achieve the aims of national security and public safety.

CONCLUSION

59. The Commission concludes, by 25 votes to 1, that in the present case there has been a violation of Article 10 of the Convention.

D. As regards Article 7 of the Convention

60. The applicant complains that his conviction contravenes Article 7 of the Convention which provides as follows :

"1. 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.

2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations."

61. The applicant complains that he was convicted on account of an act which did not constitute a criminal offence under national or international law at the time it was committed, as an act may not be deemed propaganda against the indivisibility of the State under Article 8 of the Anti-Terror Law unless it incites people to terrorism.

62. The Government maintain that the applicant was punished for disseminating separatist propaganda, an offence punishable under Article 8 of the Anti-Terror Law at the time when he was convicted.

63. The Commission has just found (see above para. 47) 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 applicant, if necessary after taking legal advice, to regulate his 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 of the Convention (see also Nos. 23536/94 and 24408/94, Ba kaya and Okçuoğlu v/Turkey, Comm. Rep. 13.1.98).

CONCLUSION

64. The Commission concludes, unanimously, that in the present case there has been no violation of Article 7 of the Convention.

E. Recapitulation

65. The Commission concludes, by 25 votes to 1, that in the present case there has been a violation of Article 10 of the Convention (see above para. 59).

66. The Commission concludes, unanimously, that in the present case there has been no violation of Article 7 of the Convention (see above para. 64).

        M.-T. SCHOEPFER                     S. TRECHSEL

         Secretary                           President

      to the Commission                   of the Commission

(Or. English)

DISSENTING OPINION OF MRS J. LIDDY

I have voted against a finding of violation of Article 10 because I do not consider that the Commission has juridical competence under the Convention to address the merits of this complaint.  Under former Article 26 (now Article 35) the Convention institutions may only deal with the merits of the complaint after all domestic remedies have been exhausted.  It does not appear that domestic remedies have been exhausted in the present case or that there were sufficient special circumstances exempting the applicant from the requirement such as established in existing Commission and Court case-law.

It is not disputed that the applicant could have invoked his right to freedom of expression before the national courts asserting, directly or indirectly, Article 10 and Convention case-law on the matter.  The applicant’s sole stated reason for not doing so is that the law itself (Article 8 of the Anti-Terror law prohibiting propaganda against the “indivisible integrity” of the Turkish Republic) is the source of the violation.

However, there seems to be no reason why the interpretation and application of that law could not be addressed by a competent Turkish Court on the basis of a given factual situation and within the context of relevant precedents of Convention law if invited to do so by a party to proceedings before it.  According to Article 90, last paragraph, of the Turkish Constitution international Conventions properly brought into force have the force of law.

A not dissimilar provision in Greek law was considered by the Court in the case of Sadik v. Greece (Judgment of 15 November 1996, Reports No.20) and led to a finding that as domestic remedies had not been exhausted the Court could not consider the merits of the case under Article 10.  It is true that the Greek Constitution was rather more explicit.  It stated that international conventions as of the time they are sanctioned by law and become operative according to their terms shall be an integral part of domestic Greek law “and shall prevail over any contrary provision of the law.”  In Turkey it appears to be still a matter for doctrinal debate as to whether international human rights norms prevail over ordinary law. However, in the absence of argument on the matter before a Turkish Court and clear evidence that Article 8 of the Anti-Terror law is not susceptible of being interpreted in conformity with Article 10 of the Convention, it cannot be said that applicants need not invoke that provision before the Turkish Courts.

In fact, as noted by the Commission’s decision on admissibility, other applicants have seen fit to invoke Article 10, albeit unsuccessfully.  The summary nature of the domestic court’s judgments do not indicate that such arguments will always be doomed to failure in the future.  In fact, it can be difficult to establish even in Convention terms whether an interference with an individual’s freedom of expression falls within the State’s margin of appreciation or not.

The present case under Article 10 falls to be distinguished from previous case-law, under Articles 2 and 3 in particular, where there were compelling reasons for exempting the applicants from exhausting domestic remedies or for concluding that apparent remedies were ineffective.  In these latter cases ( c.f. for example Aydin v. Turkey, Judgment of 25 September 1997, Reports 1997-VI and Kaya v. Turkey, Judgment of 19 February 1998, Reports 1998-I) the inadequacies of the investigation by the authorities into events of the utmost gravity rendered ineffective in practice any possibilities the applicants may have appeared to have been afforded by written law to prove or have proved the events at issue.  In contrast, where a prosecution is based upon a text that has been indisputably published and where the principle issue is the legal qualification to be given to that publication there seems to be no reason to exempt the applicant from providing the national court, by invoking Article 10 at least in substance, with “an opportunity to put matters right through their own legal systems” (de Wilde , Ooms and Versyp v. Belgium, judgment of 18 June 1971 Series A No.12 para. 50).

As stated by the Court in the Sadik Case ( op.cit .) “Even if the Greek Courts were able, or even obliged, to examine the case of their own motion under the Convention, this cannot have dispensed the applicant from relying on the Convention in those courts or from advancing arguments to the same or like effect before them, thus drawing their attention to the problem he intended to submit subsequently, if need be, to the institutions responsible for European supervision”. It is for these reasons that I do not consider that the Commission is competent to address the merits of the complaint under Article 10: the Turkish Courts did not have the Convention issue drawn to their attention and there was no sufficient reason to exempt the applicant from doing so.

As to Article 7, I agree with the majority that there has been no violation.