EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 22479/93

Ünsal Öztürk

against

Turkey

REPORT OF THE COMMISSION

(adopted on 30 June 1998)

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) 1

II. ESTABLISHMENT OF THE FACTS

(paras. 16 - 34) 3

A. The particular circumstances of the case

(paras. 16 - 31) 3

B. The book at issue

(paras. 32 - 33)  . .5

C. Relevant domestic law

(para. 34) 7

III. OPINION OF THE COMMISSION

(paras. 35 - 65) 8

A. Complaints declared admissible

(para. 35) 8

B. Points at issue

(para. 36) 8

C. As regards Article 10 of the Convention

(paras. 37 - 57) 8

CONCLUSION

(para. 58) 11

D. As regards Article 1 of Protocol No. 1

to the Convention

(paras. 59 - 62) 11

CONCLUSION

(para. 63) 12

E. Recapitulation

(paras. 64 - 65) 12

APPENDIX : DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              13

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 1957 and resident in Ankara.  He was represented before the Commission by Hüsnü Öndül , a lawyer practising in Ankara.

3. The application is directed against Turkey.  The respondent Government were represented by Mr. Bakĸr Çağlar , Professor at Istanbul University.

4. The case concerns the applicant's conviction by the State Security Court on account of the publication of a book.  The applicant invokes the Article 10 of the Convention and  Article 1 of Protocol No 1 to the Convention.

B. The proceedings

5. The application was introduced on 24 May 1993 and registered on 19 August 1993.

6. On 26 October 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 7 May 1996, after an extension of the time-limit fixed for this purpose.  The applicant replied on 17 June 1996.

8. On 7 April 1997 the Commission declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 16 April 1997 and they were invited to submit such further information or observations on the merits as they wished.  The applicant submitted observations on 24 May 1997, to which the Government did not reply.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, 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 Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

M.P. PELLONPÄÄ

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

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 30 June 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. 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 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 owner of the publishing house, Yurt Kitap-Yayĸn which published a book entitled " Hayatĸn Tanĸklĸğĸnda - Ä°ÅŸkencede Ölümün Güncesi " ("Witness to Life - Diary of a Death under Torture")  in April 1988.

17. The first edition of the book was sold freely and exhausted.  The applicant therefore prepared the publication of the second and third editions.

17. On 23 December 1988 the Ankara State Security Court ordered the seizure of all published copies of the book, that is, 3133 copies of the second edition and 5000 copies of the front cover of the third edition.

18. In an indictment dated 14 February 1989 the Public Prosecutor at the Ankara State Security Court charged the applicant, as the owner of the publishing house, with disseminating communist propaganda and provoking hatred and enmity among the people on the basis of class, race and regional differences.  The charges were brought under Articles 142 and 312 of the Turkish Criminal Code (TCC).  The indictment mentioned, as grounds for charging the applicant, some of the poems contained in the seized book.

19. In the proceedings before the Ankara State Security Court, the applicant denied the charges and submitted that the author, in his book, had criticised the present government and that this was within the limits of permissible criticism.

20. In a judgment dated 30 March 1989, the court found the applicant guilty of the offences charged.

21. The court stated that it was not necessary to base its judgment on a specific part of the book, as the book contained, from the beginning to the end, the biography of "the terrorist" Ä°brahim Kaypakkaya , a description of his ideology and his struggle against the state security forces.  The court noted that Kaypakkaya was one of the leaders of the TKP-ML (Turkish Communist Party - Marxist Leninist movement), whose aim was to undermine the Turkish Republic and replace it with a Marxist-Leninist communist society and concluded that, as the book praised the activity of Kaypakkaya , the applicant was guilty of communist propaganda and incitement to hatred and enmity among the people on the basis of race, class and regional differences.

22. The court sentenced the applicant to three years' imprisonment under Article 142 of the TCC, and two years' imprisonment and a fine of 6,000 Turkish liras under Article 312 of the TCC.  The court then converted the prison sentence to a fine.  The applicant was finally sentenced to a fine of 328,500 Turkish liras under Article 142 and 285,000 Turkish liras under Article 312 of the TCC.  The court also ordered the confiscation of the previously seized copies of the book.

23. On an unspecified date the applicant appealed.

24. On 26 September 1989 the Court of Cassation set aside the applicant's conviction and sentence under Article 142 of the TCC referring the case back to the State Security Court.

25. As regards his conviction under Article 312 of the TCC, the Court of Cassation , considering that the sentence originally imposed under that Article was in the nature of a fine and having regard to the amount of that fine, held that the applicant was not entitled to  appeal against his conviction under that Article and declared that part of the appeal inadmissible.

26. In a judgment dated 11 June 1991 the Ankara State Security Court acquitted the applicant on the charges under Article 142 of the TCC. The court, considering that the applicant's appeal against his conviction under Article 312 of the TCC had been declared inadmissible, found no grounds for taking a further decision on this point. It further considered that the confiscation of the copies of the book was the consequence of the applicant's conviction under that Article and, likewise, found no grounds for taking any further decision on this issue.

27. On 22 May 1991 the author of the book, Mustafa Nihat BehramoÄŸlu ( Nihat Behram ), who had also been indicted and tried under Articles 142 and 312 of the TCC, was acquitted.

28. On 19 September 1991 the applicant requested a written order from  the Ministry of Justice in order to bring an appeal before the Court of Cassation .  His legal representative asserted that the applicant's conviction for an offence under Article 312 of the TCC was contrary to law, since the author of the book had been acquitted on the charges brought on account of the same book and under the same provisions.  On 16 January 1992 the Chief Public Prosecutor at the Court of Cassation , on the instructions of the Ministry of Justice, filed an appeal and requested that the applicant's conviction be set aside.

29. In a judgment dated 27 January 1992, the Court of Cassation dismissed the appeal.  It held that the appellant's conviction by the court under Article 312 of the TCC for incitement to hatred and enmity through discrimination on the grounds of class and region, along with the confiscation decision of 30 March 1989, had become final since the Court of Cassation had already examined and rejected the appeal.  It further considered that the the Ankara State Security Court's decision of 11 June 1991 was not contrary to the law.

30. The applicant submitted a second application to the Ministry of Justice on the grounds that his previous application had been misinterpreted by the Ministry of Justice.  He emphasised that the author of the impugned book had been charged under the same provisions and acquitted by another decision of the same court. On 24 December 1992 the Chief Public Prosecutor at the Court of Cassation , on the instructions of the Ministry of Justice, filed an appeal requesting that the applicant's conviction be set aside.

31. In a judgment dated 8 January 1993, the Court of Cassation dismissed the appeal. It first noted that, since the Public Prosecutor  had not appealed against the  author's acquittal, that decision, unlike the applicant's conviction, had not been examined by the Court of Cassation . It further considered that, to the extent that the applicant and the author had been tried on different charges and that the author's case had been heard in different proceedings, the author's acquittal was not a sufficient reason for quashing the applicant's conviction.  Consequently, it held that, having regard to the contents of the book at issue and the State Security Court's assessment and conclusion, the judgment was not ill-founded.

B. The book at issue

32. The book " Hayatĸn Tanĸklĸğĸnda - İşkencede Ölümün Güncesi " ("Witness to Life - Diary of a Death under Torture") relates in 111 pages the life of İbrahim Kaypakkaya , founder of the Turkish Communist Party / Marxist-Leninist (TKP-ML), which was active in the early part of the 1970s. Kaypakkaya is pictured in the book as a "revolutionary", an idealist who considered it his moral duty to work for the ordinary people against the violence and oppression of the "reactionary" Turkish State and its agents. The book describes how he formed a radical association at a teacher's college, how he wrote political articles and tried to improve the conditions of the population in villages in south-eastern Turkey. It deals with his thinking and relates various episodes from his life. A central part of the book concerns the last months of Kaypakkaya's life, a period during which he was detained. According to the book, he was severely tortured during his detention and finally killed in May 1973 in Diyarbakĸr prison by the security forces who then claimed untruthfully that he had committed suicide. In general, the book can be said to glorify Kaypakkaya's personality, his thinking and his work, while the authorities are being described as oppressive "reactionaries".

33. Each chapter of the book is prefaced by a poem. Most of these poems have a radical political tendency and were written by Turkish poets, but there are also poems by the Chilean writer Pablo Neruda . The following are some of the poems in the book, referred to in the indictment of 14 February 1989 of the Public Prosecutor at the Ankara State Security Court:             

a) "... Beni baskĸnlar götürür

gerillanĸn şahdamar ĸ halkĸma

korkunç ve soylu bir tutkudur dayatma

yalnĸz bu kadar da değil

yarĸn hayali gibi üstelik

nazlĸdĸr

usludur

ince

bilgedir

biz ki ustasĸyĸz vatan sevmenin

umut

saklĸmĸzda olumsuz bayrak

kĸrmĸzĸ-kĸrmĸz ĸ

dalga-dalgadĸr ..."   (A. Arif )

b)   "ÖLEN YOLDAŞLAR IÇIN

Siz ki canĸnĸz ĸ verdiniz halkĸmĸz için

Siz ki her ÅŸeyinizi verdiniz bu kavga uÄŸruna

Göğsümüzde onurla dalgalanan

Kavganĸn bayrağĸna siz ki al rengini verdiniz

Ey , ölümsüz halkĸmĸz için toprağa düşenlerimiz

Ey , yüce oğullar ĸ halkĸmĸzĸn

Gururla ve sabĸrla dinlenin şimdi

Kavganĸz ĸ sürdürüyor yoldaşlarĸnĸz ..."  (I. Kaypakkaya )

c) "... Bizi uyandĸran

tek ĸ şĸk

Dünyanĸn ĸ şĸğĸyd ĸ bu !

Evlerine girdim ,

Yemek yiyorlard ĸ sofralarĸnda ;

Çalĸşmadan dönmüşlerdi ,

Gülümsüyor ya da ağlaşĸyorlard ĸ

Ve de tümü birbirine benziyordu .

Gözlerini ĸ şĸğa çeviriyor

Yollarĸn ĸ arĸyorlard ĸ..."   (P. Neruda )

d) "... Ölüm buyruğunu uyguladĸlar

Mavi dağ dumanĸn ĸ

Ve uyur uyanĸk seher yelini

Kanlara buladĸlar .

Sonra oracĸkta tüfek çattĸlar

Koynumuzu usul usul yoklayĸp

Aradĸlar .

Didik-didik ettiler ..."    (A. Arif )

< translation >

a) "...Raids take me away

to my carotid artery of guerrilla people

insistence is a dreadful and a noble passion

but this is not all

moreover it is, like the image of the lover,

hesitant

well-behaved

delicate

wise

we who are the master of patriotism

hope

is hidden in our hearts, the immortal flag is

in red

in waves..."  (A. Arif )

b) "FOR THE COMRADES WHO PASSED AWAY

You who have died for our people

You who have given everything for the sake of a fight

You who have given the red colour of the

flag of the fight which is waving in our chest with pride

O! those of us who are under the earth for our immortal people

O! the sons of our sublime people

Rest in pride and patience now

Your comrades are carrying through your fight."  (I. Kaypakkaya )

c) "...The only light

That wakes us up

That was the light of the world!

I have entered their houses,

They were eating at their tables

Back from work,

Either smiling or weeping together

And they were all alike

Turning their eyes to the light

They were in pursuit of their ways..."  (P. Neruda )

d) "...They have applied the order to kill

They have blooded

The mist of the blue mountain

And the half sleeping dawn breeze

And right there they have stacked arms

Searching our breast silently

And pulled into pieces..."  (A. Arif )

C. Relevant domestic law

34. Article 312 of the Turkish Criminal Code

" Kanunun cürüm saydĸğ ĸ bir fiili açĸkça öven veya iyi göründüğünü söyleyen veya halk ĸ kanuna itaatsizliğe tahrik eden kimse altĸ aydan iki yĸla kadar hapis ve altĸbin liradan otuzbin liraya kadar ağĸr para cezasĸna mahkum olur .

Halk ĸ; sĸnĸf , ĸ rk , din, mezhep veya bölge farklĸlĸğ ĸ göstererek kin ve düşmanlĸğa açĸkça tahrik eden kimse bir yĸldan üç yĸla kadar hapis ve dokuzbin liradan otuzaltĸbin liraya kadar ağĸr para cezasĸyla cezalandĸrĸlĸr .  Bu tahrik umumun emniyeti için tehlikeli olabilecek bir şekilde yapĸldĸğ ĸ takdirde faile verilecek ceza üçte birden yarĸya kadar artĸrĸlĸr .

Yukarĸdaki fĸkralarda yazĸl ĸ suçlar ĸ 311 inci maddenin ikinci fĸkrasĸnda sayĸlan vasĸtalarla işleyenlere verilecek cezalar bir misli artĸrĸlĸr . "

"Whoever openly praises or speaks favourably of an action which, by law, is a felony, or who incites people to disobey laws, or who leads different classes of society to vengeance and enmity in such a way as to constitute a danger to public security, shall be punished by between six months' and two years' imprisonment and shall be subject to a heavy fine of between 6,000 and 30,000 Turkish liras.

No one shall, by any means or with any intention or idea, make written and oral propaganda or hold assemblies, demonstrations and manifestations against the indivisible integrity of the State of the Turkish Republic with its land and nation. Those carrying out such an activity shall be sentenced to between two and five years' imprisonment and to a fine of between 50 and 100 million Turkish liras. 

The punishment shall be doubled in respect of anyone  who commits the foregoing crimes through publication."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

35. The Commission has declared admissible :

- the applicant's complaint that his conviction for publishing the book in question constituted an unjustified interference with his freedom of thought and freedom of expression, in particular, with his right to receive and impart information and ideas;

- the applicant's complaint that the confiscation of all copies the of the book constituted an unjustified interference with the peaceful enjoyment of his possessions.

B. Points at issue

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

- whether the applicant's conviction for publishing the book in question infringed his freedom of thought and freedom of expression as guaranteed by Article 10 of the Convention;

- whether the confiscation of the copies of the book in question infringed his right to the peaceful enjoyment of his possessions as guaranteed by article 1 of Protocol No. 1 to the Convention.

C. As regards Article 10 of the Convention

37. The applicant complains under Article 9 of the Convention that his conviction for publishing a book constituted an unjustified interference with his freedom of thought and freedom of expression.

38. The Commission considers that the applicant's complaint essentially concerns an alleged violation of his freedom of expression.  The Commission will therefore examine this complaint 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."

39. The applicant submits that his conviction for an offence under Article 312 of the TCC was contrary to law, since the author of the book, Nihat Behram , had been acquitted on charges brought on account of the same book and under the same provisions.

40. The applicant further submits that the same book had also been published by another publishing house, " Altĸnçağ Publishing House", under the title of "The Biography of a Communist" (" Bir Komünistin Biyografisi "), and freely sold in Turkey.  Furthermore, the book was also published in 1989 in Germany, by Peter Hammer Verlag , under the title of " Tödlicher Mai - Leben und Tod im türkischen Widerstand ".

41. The applicant submits that, in the light of the foregoing, the national authorities exceeded the margin of appreciation conferred on the Contracting States by the Convention.

42. The Government maintain that the interference with the applicant's rights under Article 10 of the Convention was prescribed by law, i.e. by Article 312 of the TCC.  They state that the acquittal of the author of the book had become final without any appeal process, whereas, having regard to the amount of the fine, the decision to convict the applicant was not appealable .

43. The Government also submit that the impugned book was likely to provoke enmity and hatred between the Turkish and Kurdish societies and to mobilise people to revolt.  They contend that the book was based on the life story of a dissident who had used violence and terrorist tactics after joining an illegal political party, had diverted his activities to the south-eastern part of Turkey and declared that armed resistance and struggle were necessary for the Kurds.

44. In this respect the Government claim that the decisions of the Court of Cassation did not exceed the margin of appreciation conferred on the Contracting States by the Convention and was fully justified under the second paragraph of Article 10 of the Convention, for reasons of national security, territorial integrity and public safety.

45. The Commission is of the opinion that the penalty imposed on the applicant constituted an interference in 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.

46. It is then necessary to examine whether that interference was justified under paragraph 2 of Article 10 or, in other words, whether it was prescribed by law, pursued one or more of the legitimate aims set out in and was necessary in a democratic society.

47. As to the question of lawfulness, the Commission notes that the applicant's conviction was based on Article 312 of the TCC and therefore considers that the interference was prescribed by law.

48. As regards the aim of the interference, the Commission considers that the penalty was imposed in the interest of national security, this being one of the legitimate aims set out in 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 ..., 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 to the national security.

52. The Commission recalls that the applicant was convicted for the publication of a book that relates the life of Ä°brahim Kaypakkaya , founder of the Turkish Communist Party / Marxist Leninist (TKP-ML), who died in detention in May 1973.

53. The Commission notes that the Ankara State Security Court, without referring to any specific part of the book, held that the book dealt with the life of a terrorist, his revolutionary ideology and his struggle against the State security forces.  The court further held that the aim of the book was to make propaganda for the communist ideology.  Consequently, according to the court, the publication of the book constituted instigation to hatred and enmity on the basis of class, race and regional differences. 

54. In assessing the necessity of the interference, the Commission first points out that the book describes the life of Ä°brahim Kaypakkaya , who died in 1973, i.e. some 15 years before the book was published. Consequently, the book refers to past events and does not purport to deal with the situation in Turkey in 1988, when it was published. At the same time, the book has many characteristics of a political pamphlet. Ä°brahim Kaypakkaya is described in a glorifying manner as a hero and as an example for others. The book expresses deep respect and admiration for his political thinking and action. It is not unlikely that the book was intended to be a source of inspiration for those who later continued to struggle against Turkish security forces in south-eastern Turkey. However, while the views expressed in the book are highly controversial, the Government have not referred to any passage in the book that would suggest that the book advocated the continued use of violence or was justifying terrorist acts.

55. The Commission also observes that the author of the book was acquitted in respect of the charge under Article 312 of the TCC and that he was apparently able to obtain the publication of the same book by another Turkish publisher without any criminal proceedings being brought against him or the publisher.

56. The proportionality of the interference with the applicant's freedom of expression is further affected by the fact that the book, apart from being a biography, also expresses political views. In this respect, the Commission points out that freedom of expression plays a particularly important role in a political context, since a free political debate is a necessary element in any democratic society. Moreover, the applicant's conviction could have the effect of discouraging him or others from publishing political ideas again in the future and thus of restraining a free discussion of political issues  (cf. Eur. Court HR, Lingens v. Austria judgment, op. cit., p. 27,  para. 44).

57. 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 aim of national security and could, therefore, not be regarded as necessary in a democratic society to achieve that aim.

CONCLUSION

58. The Commission concludes, unanimously, that in the present case there has been a violation of Article 10 of the Convention.

D. As regards Article 1 of Protocol No. 1 to the Convention

59. Article 1 of Protocol No. 1 to the Convention provides as follows :

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions.  No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

60. The applicant complains that the confiscation of the book which he had published constituted an unjustified interference with the peaceful enjoyment of his possessions.

61. The Government submit that the confiscation of the book, provided for by Article 36 of the TCC, was the result of his conviction, and was therefore justified under Article 1 of Protocol No. 1 to the Convention.

62. The Commission has examined the complaint concerning the applicant's conviction under Article 10 of the Convention and found that Article to have been violated.  In these circumstances, it finds it unnecessary also to examine the complaint under Article 1 of Protocol No. 1 to the Convention.

CONCLUSION

63. The Commission concludes, by 30 votes to 1, that it is not necessary to examine the complaint under Article 1 of Protocol No. 1 to the Convention.

E. Recapitulation

64. The Commission concludes, unanimously, that in the present case there has been a violation of Article 10 of the Convention (para. 58 above).

65. The Commission concludes, by 30 votes to 1, that it is not necessary to examine the complaint under Article 1 of Protocol No. 1 to the Convention (para. 63 above).

        M. de SALVIA                                                     S. TRECHSEL

         Secretary                                                                    President

      to the Commission                                              of the Commission