Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 25067/94

Ãœmit ERDOGDU

against

Turkey

and

Application No. 25068/94

Selami iNCE

against

Turkey

REPORT OF THE COMMISSION

(adopted on 11 December 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-21). . . . . . . . . . . . . . . . . . . . . .1

A. The applications

(paras. 2-5). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 6-16) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 17-21). . . . . . . . . . . . . . . . . . .3

II. ESTABLISHMENT OF THE FACTS

(paras. 22-34) . . . . . . . . . . . . . . . . . . . . .4

A. The particular circumstances of the cases

(paras. 22-30). . . . . . . . . . . . . . . . . . .4

B. Relevant domestic law

(paras. 31-34). . . . . . . . . . . . . . . . . . .7

III. OPINION OF THE COMMISSION

(paras. 35-67) . . . . . . . . . . . . . . . . . . . . .9

A. Complaints declared admissible

(para. 35). . . . . . . . . . . . . . . . . . . . .9

B. Points at issue

(para. 36). . . . . . . . . . . . . . . . . . . . .9

C. As regards Articles 9 and 10 of the Convention

(paras. 37-59). . . . . . . . . . . . . . . . . . .9

CONCLUSION

(para. 60). . . . . . . . . . . . . . . . . . . . 13

D. As regards Article 7 of the Convention

(paras. 61-64). . . . . . . . . . . . . . . . . . 13

CONCLUSION

(para. 65). . . . . . . . . . . . . . . . . . . . 14

E. Recapitulation

(paras. 66-67). . . . . . . . . . . . . . . . . . 14

PARTLY DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK. . . . . . . 15

APPENDIX No. 1:DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF

APPLICATION No. 25067/94 . . . . . . . . . . 16

APPENDIX No. 2:DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF

APPLICATION No. 25068/94 . . . . . . . . . . 25

I. INTRODUCTION

1. The following is an outline of the cases as submitted to the

European Commission of Human Rights by the parties, and of the

procedure before the Commission.

A. The applications

2. The first applicant is a Turkish national. He was born in 1970

and lives in istanbul. He was represented before the Commission by

Mrs. Oya Ataman, a lawyer practising in Ankara.

The second applicant is a Turkish national. He was born in 1966

and lives in Ankara. He was represented before the Commission by

Mr. Senal Sarihan, a lawyer practising in Ankara.

3. Both applications are directed against Turkey. The respondent

Government were represented by Mr. Bakir Çaglar, Professor at istanbul

University.

4. The cases concern the applicants' convictions by the State

Security Court on account of the publication of an interview in a

monthly review. The first applicant is the responsible editor of the

review. The second applicant, a journalist and a writer, made the

incriminated interview with a Turkish sociologist.

5. The applicants complain under Articles 9 and 10 of the Convention

that their convictions on account of the incriminated interview

constituted an unjustified interference with their freedom of thought

and freedom of expression, in particular, their right to receive and

impart information and ideas.

Moreover, they complain under Article 7 of the Convention that

they were convicted for an act which did not constitute a criminal

offence under national or international law at the time it was

committed. They submit in particular that the relevant provision of the

Anti-Terror Law was so vague that it did not enable them to distinguish

between permissible and prohibited behaviour.

B. The proceedings

6. Both applications were introduced on 20 August 1994 and

registered on 2 September 1994.

7. On 20 February 1995, the Commission decided, pursuant to Rule 48

para. 2 (b) of its Rules of Procedure, to give notice of both

applications to the Turkish Government and to invite the parties to

submit written observations on the admissibility and merits of the

applicants' complaints based (under Article 10 of the Convention) on

the alleged violation of their freedom of expression and (under

Article 7 of the Convention) on the alleged violation of their right

not to be convicted for an act which did not constitute a criminal

offence under Turkish law at the time it was committed.

8. As to Application No. 25067/94, the Government's written

observations were submitted on 17 July 1995. The first applicant

replied on 7 September 1995.

9. As to Application No. 25068/94, the Government's written

observations were submitted on 11 August 1995. The second applicant

replied on 21 March 1996, after an extension of the time-limit fixed

for that purpose.

10. Meanwhile, on 4 December 1995, the Government submitted

information concerning the amendments made to the Anti-Terror Law (Law

No. 3713) and the developments in the cases of persons convicted and

sentenced under Article 8 of the said Law. The applicants submitted

comments in reply on 19 February and 21 March 1996, respectively.

11. On 2 September and 14 October 1996, respectively, the Commission

declared the applications admissible.

12. Meanwhile, on 13 and 25 September 1996, respectively, the

Government submitted information as to the further developments of the

proceedings against the applicants.

13. The text of the Commission's decisions on admissibility was sent

to the parties on 16 September and 31 October 1996, respectively, and

they were invited to submit such further information or observations

on the merits as they wished.

14. None of the parties submitted any observations.

15. On 2 December 1997 the Commission joined the two applications.

16. After declaring the cases admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement. In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be

effected.

C. The present Report

17. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

18. The text of this Report was adopted by the Commission on

11 December 1997 and is now transmitted to the Committee of Ministers

of the Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

19. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose

a breach by the respondent Government of their obligations

under the Convention.

20. The Commission's decisions on the admissibility of the

applications are appended to this Report.

21. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

22. The first applicant is the responsible editor of the monthly

review "Demokrat Muhalefet!" ("Democratic Opposition!"), published in

istanbul. In the January 1992 issue of the review, an interview which

the second applicant had made with a Turkish sociologist, Dr. i.B., was

published.

23. A translation of the relevant parts of the interview is as

follows:

"Q: How and to what extent will Demirel accept the «Kurdish

reality»? Can his understanding of the «reality» be deemed to

represent State policy?

A: ... The Government is forced to accept certain facts now

that there is armed resistance in Kurdistan. ... Violence by the

Turkish forces could not stop the escalation and progress of the

P.K.K. ...

Q: How will the State shape its new official policy on

Kurdistan? Which aspects of the official ideology will be changed

and how will they be changed? What effects can this have on the

daily lives of the Kurdish people?

A: ... In Turkey, the Government and the State are two very

different things. The State functions through institutions and

bodies, members of which are designated by appointment. These

institutions and bodies represent the power of the State. The

Government, i.e. the political power, carries very little weight

against the power of the State. That is why governments can be

overthrown by the State authority so often. Official ideology can

only be changed in the long term and the forces, which are

capable of changing it, are non-governmental political and social

forces and their struggle. The essence of the ideas and action

of the P.K.K., for example, is such as can change the official

ideology, reduce the influence of the appointed bodies of

Turkey's political scene, and increase the weight of parliaments

elected by the people. In my opinion, de facto, the influence of

the Kurds and, in particular, that of the P.K.K., will grow

further. The influence of the P.K.K. in both the Kurdish and the

Turkish societies will spread and deepen. And, as that influence

grows, more serious steps will be taken by governments in their

policies towards recognising the «Kurdish reality». It is evident

that the State will try to obstruct the Government in that

process and will try to distort certain ideas and policies. And

it is also manifest that the Government will be able to survive

so long as it can resist the power of the State and control the

appointed institutions and bodies, i.e. so long as it has real

power.

These changes will be reflected in the daily lives of the Kurds.

Investigations and research will develop in fields such as the

Kurdish language, history and folklore. Kurdish culture will be

revived. The specificity of a Kurdish society will be emphasised

more amongst the Kurdish masses. National awareness and desire

for liberation will become stronger and will spread further. The

idea and feelings for independence will develop.

Q: It is now observed that Kurds who, until now, would have

never said «I am Kurdish and I am engaging in politics for my

present life and for my future» are now clearly beginning «to get

into politics for their own interests» throughout Kurdistan and

Turkey. What sort of developments have brought about this

situation? Do Kurds need a political subject in the legal sphere?

If so, what form should it take?

A: Without any doubt, the most important cause of these

developments has been the armed combat which the P.K.K. has been

waging for almost eight years. The guerrilla warfare has brought

about major social and political changes in traditional Kurdish

society. Traditional values are in turmoil. There has been very

widespread support amongst the people for Kurdish guerrilla

fighters ever since 15 August 1984. National awareness is now

growing in Kurdish society and this process is spreading rapidly.

And we see that, within this process, the political establishment

has been used for Kurdish interests, for the move towards

autonomy and independence. Kurds, who have always been engaged

in politics for others and in order to serve other nations, are

now engaged in politics in order to serve the Kurdish people.

Healthy national awareness is now developing in response to

Turkish racism and colonialism. It would no doubt be over-

simplifying to say that all this began after the onset of Kurdish

guerrilla warfare on 15 August. This process has roots that go

further back into the past but what has been decisive is the new

process launched by the P.K.K. ... Who is illegal in Kurdistan?

The guerrillas or the special team of the Turkish armed

forces? ...

Q: What should be done to counteract the wave of chauvinist

Turkish nationalism encouraged by the right-wing press and the

M.C.P. [Nationalist Work Party]? Is there a possibility of a

confrontation between the Turkish and Kurdish peoples? How could

that be prevented?

A: ... Kurds are dying for their nation. What are the Turks

dying for? What are they doing in Kurdistan?

Q: It has been under discussion for some time that the P.K.K.

hegemony in Kurdistan has reached a stage where one can now talk

of a «double power». Öcalan has mentioned in his writings an

orientation towards the «formation of a Government-State» in the

Botan-Behdinan region. Are there any signs of what the future

interventions of the P.K.K. will be in Kurdistan and in Turkish

politics?

A: ... The Turkish State has already withdrawn its soldiers

and evacuated police stations in some regions such as Botan.

... This could be perceived as the beginning of the formation of

a State. ..."

24. In an indictment dated 23 March 1992, the Public Prosecutor at

the istanbul State Security Court (istanbul Devlet Güvenlik Mahkemesi),

on account of the publication of the interview, charged the applicants

with disseminating propaganda against the indivisibility of the State.

The charges were brought under Article 8 of the Anti-Terror Law.

25. In the proceedings before the State Security Court, the

applicants denied the charges. They pleaded that the interview, as

published, was a mere transcript of Dr. i.B.'s statements. They

maintained that the publication of an interview could not constitute

an offence and that similar views had been expressed by the highest

authorities in Turkey.

26. In its judgment dated 12 August 1993, the Court found the

applicants guilty under Article 8 of the Anti-Terror Law. The first

applicant was sentenced to six months' imprisonment and a fine of

50,000,000 Turkish lira; the second applicant was sentenced to two

years' imprisonment and a fine of 50,000,000 Turkish lira. Thereupon

the Court, considering the applicants' good conduct during the trial,

reduced their sentences to five months' imprisonment and a fine of

41,666,666 Turkish lira and to one year and eight months' imprisonment

and a fine of 41,666,666 Turkish lira, respectively.

27. In the reasoning of its judgment, the Court relied on certain

extracts from the interviewee's statements as published. It held, inter

alia, that the following phrases amounted to propaganda against the

indivisibility of the State: "... the Government is forced to accept

certain facts now that there is armed resistance in Kurdistan ...";

"... violence by the Turkish forces could not stop the escalation and

progress of the P.K.K. ..."; "... the essence of the ideas and action

of the P.K.K. ... can change the official ideology ..."; "... the

influence of the Kurds and, in particular, that of the P.K.K., will

grow further. The influence of the P.K.K. in both the Kurdish and the

Turkish societies will spread and deepen ..."; "... national awareness

and desire for liberation will become stronger and will spread further.

The idea and feelings for independence will develop ..."; "... the most

important cause of these developments has been the armed combat which

the P.K.K. has been waging for almost eight years ..."; "... Who is

illegal in Kurdistan? The guerrillas or the special team of the Turkish

armed forces? ..."; "... Kurds are dying for their nation, what are the

Turks dying for? What are they doing in Kurdistan? ..."; "... the

Turkish State has already withdrawn their soldiers and evacuated police

stations in some regions such as Botan ..."; "... this could be

perceived as the beginning of the formation of a State ...".

28. The applicants appealed against the judgment.

29. In a decision of 1 February 1994, pronounced on 9 February 1994

in the absence of the applicants, the Court of Cassation dismissed the

appeals. It upheld the cogency of the State Security Court's assessment

of evidence and its reasoning in rejecting the applicants' defence. The

judgment was served upon the applicants on 21 February 1994.

30. Subsequent to the amendments made to the Anti-Terror Law by Law

No. 4126 of 27 October 1995, the istanbul State Security Court

re-examined the applicants' cases. On 15 December 1995 the Court

sentenced the applicants' to five months' imprisonment and a fine of

41,666,666 Turkish lira and to one year and ten days' imprisonment and

a fine of 111,111,110 Turkish lira, respectively. The Court ordered

that the execution of the sentences be suspended on probation (cezanin

ertelenmesi).

B. Relevant domestic law

31. Article 8 paragraph 1 of Anti-Terror Law No. 3713 of

12 April 1991 (before the amendments of 27 October 1995)

"Hangi yöntem, maksat ve düsünceyle olursa olsun Türkiye

Cumhuriyeti Devletinin ülkesi ve milletiyle bölünmez bütünlügünü

bozmayi hedef alan yazili ve sözlü propaganda ile toplanti,

gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda 2 yildan 5 yila

kadar agir hapis ve ellimilyon liradan yüzmilyon liraya kadar

agir para cezasi hükmolunur."

"No one shall, by any means or with any intention or idea, make

written or oral propaganda or hold assemblies, demonstrations or

manifestations against the indivisible integrity of the State of

the Turkish Republic, its territories and the nation. Those

carrying out any such activity shall be sentenced to imprisonment

between two and five years and a fine between 50 and

100 million Turkish lira."

32. Article 8 paragraph 2 of Anti-Terror Law

"Yukaridaki fikrada belirtilen propaganda suçunun 5680 sayili

Basin Kanunun 3 üncü maddesinde belirtilen mevkuteler vasitasi

ile islenmesi halinde, ayrica sahiplerine de mevkute bir aydan

az süreli ise, bir önceki ay ortalama satis miktarinin: [mevkute

niteliginde bulunmayan basili eserler ile yeni yayina giren

mevkuteler hakkinda ise, en yükek tirajli günlük mevkutenin bir

önceki ay ortalama satis tutarinin]; yüzde dosani kadar agir para

cezasi verilir. Ancak, bu para cezalari yüzmilyon liradan az

olamaz. Bu mevkutelerin sorumlu müdürlerine, sahiplerine

verilecek para cezasinin yarisi uygulanir ve alti aydan iki yila

kadar hapis cezasi hükmolunur."

"If the offence of propaganda, referred to in paragraph 1 above,

is committed by means of periodicals, as defined in Article 3 of

Press Law No. 5680, the owners of such periodicals shall be

punished by a fine to be determined in accordance with the

following provisions: for periodicals published at less than

monthly intervals, the fine shall be ninety per cent of the

average real sales revenue of the previous month; [for printed

works that are not periodicals or for periodicals which have

recently started business, the fine shall be the average monthly

sales revenue of the highest circulating daily periodical]. In

any case, the fine may not be less than 100 million Turkish lira.

Responsible editors of these periodicals shall be sentenced to

imprisonment of between six months and two years and to half of

the fine determined in accordance with the provisions concerning

the owners."

33. In its judgment No. 1991-18/20, dated 31 March 1992, the

Constitutional Court found the above clause in square brackets to be

contrary to the Constitution and annulled it. The decision was

published in the Official Gazette on 27 January 1993. The annulled

clause ceased to have effect on 27 July 1993.

34. Article 8 paragraph 1 of the Anti-Terror Law as amended by

Law No. 4126 of 27 October 1995

"Türkiye Cumhuriyeti Devleti'nin ülkesi ve milletiyle bölünmez

bütünlügünü bozmayi hedef alan yazili ve sözlü propaganda ile

toplanti, gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda bir

yildan üç yila kadar hapis ve yüz milyon liradan üçyüzmilyon

liraya kadar agir para cezasi hükmolunur. Bu suçun mükerreren

islenmesi halinde, verilecek cezalar paraya cevrilemez."

"No one shall make written or oral propaganda or hold assemblies,

demonstrations or manifestations against the indivisible

integrity of the State of the Turkish Republic, its territories

and the nation. Those carrying out any such activity shall be

sentenced to imprisonment between one and three years and to a

fine between 100 and 300 million Turkish lira. In case of

re-occurrence of this offence, sentences of imprisonment shall

not be commuted to fines."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

35. The Commission has declared admissible:

- the applicants' complaints that their convictions on account of

the publication of an interview constituted an unjustified interference

with their freedom of thought and freedom of expression;

- the applicants' complaints that, due to the lack of sufficient

clarity of the relevant law, their convictions were not foreseeable.

B. Points at issue

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

- whether there has been a violation of Articles 9 and 10

(Art. 9, 10) of the Convention;

- whether there has been a violation of Article 7 (Art. 7) of the

Convention.

C. As regards Articles 9 and 10 of the Convention

37. The applicants complain under Articles 9 and 10 (Art. 9, 10) of

the Convention that their convictions on account of the publication of

an interview constituted an unjustified interference with their freedom

of thought and freedom of expression.

38. The applicants' complaints essentially concern an alleged

violation of their freedom of expression. The Commission will therefore

examine these complaints under Article 10 (Art. 10) of the Convention,

which states:

"1. Everyone has the right to freedom of expression. This right

shall include freedom to hold opinions and to receive and impart

information and ideas without interference by public authority

and regardless of frontiers. This Article shall not prevent

States from requiring the licensing of broadcasting, television

or cinema enterprises.

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

39. The applicants submit that their respective convictions, which,

in any event, were disproportionate in view of the limited circulation

of the review in question, did not serve any legitimate purpose under

the Convention. They maintain that the penal sanctions inflicted upon

them were not necessary in a democratic society: the incriminated

interview involved only a transcription of Dr. i.B.'s views, which were

similar to opinions already expressed by official authorities in

Turkey.

40. The respondent Government maintain that the respective

interferences with the applicants' rights under Article 10 (Art. 10)

of the Convention were prescribed by law, i.e. by Article 8 of the

Anti-Terror Law. In their view, certain statements contained in the

incriminated interview amounted to propaganda against the

indivisibility of the State and, therefore, the domestic courts

interpreted the law reasonably. The purpose of the applicants'

convictions was linked to the control of terrorism carried out by

illegal organisations and, consequently, served to protect territorial

integrity and national security. They submit that it is generally

accepted in comparative and international law that restrictions on

Convention rights will be deemed necessary in a democratic society

threatened by terrorist violence as being proportionate to the aim of

protecting public order.

41. As to the necessity of the measures in a democratic society, the

respondent Government state that the threat posed to Turkey by the

P.K.K. (the Kurdistan Workers Party) and its affiliations is

internationally recognised, as is the need to react firmly to it.

Terrorism strikes at the heart of democracy, the fundamental rights

which it enshrines and the judicial and political systems. They assert

that the interview in question was based on the glorification of the

P.K.K.'s activities, the P.K.K. being an illegal terrorist organisation

aiming at the establishment of an independent Kurdish State. It is true

that freedom of expression constitutes one of the essential foundations

of a democratic society. However, in a situation where politically

motivated violence poses a constant threat to the lives and security

of the population, and where advocates of this violence seek access to

the mass media for publicity purposes, it is particularly difficult to

strike a fair balance between the requirements of protecting freedom

of information and the imperatives of protecting the State and the

public against armed conspirators seeking to overthrow the democratic

order which guarantees this freedom and other human rights. In this

respect the Government claim that the decisions of the istanbul State

Security Court and the Court of Cassation did not exceed the margin of

appreciation conferred on the Contracting States by the Convention. In

sum, the Government consider that the applications are ill-founded.

42. The Commission is of the opinion that the penalties imposed on

the applicants constituted "interferences" in the exercise of their

freedom of expression as guaranteed by Article 10 para. 1 (Art. 10-1)

of the Convention. This point has not been in dispute between the

parties.

43. Therefore, the question is whether these interferences were

prescribed by law, pursued a legitimate aim under Article 10 para. 2

(Art. 10-2) and were "necessary in a democratic society" in order to

realise that legitimate aim.

44. As to the question of lawfulness, the Commission recalls that,

in the particular case of restrictions on freedom of expression taking

the form of criminal sanctions, Article 7 (Art. 7) must be taken into

account in addition to the more general requirement of lawfulness laid

down in Article 10 para. 2 (Art. 10-2) of the Convention (No. 8710/79,

Dec. 7.5.82, D.R. 28, p. 77). In the sphere of criminal law, Article 7

para. 1 (Art. 7-1) of the Convention confirms the general principle

that legal provisions which interfere with individual rights must be

adequately accessible and formulated with sufficient precision to

enable the citizen to regulate his conduct (No. 13079/87, Dec. 6.3.89,

D.R. 60, pp. 256, 261).

45. With regard to the requirement of the accessibility of the law,

the Commission notes that this issue is not in dispute between the

parties. The Commission also notes that the applicants were convicted

for a publication dated January 1992 and that they were tried under

Article 8 of the Anti-Terror Law which had entered into force on

12 April 1991.

46. With regard to the requirement of sufficient precision, the

Commission recalls that the need to avoid excessive rigidity and to

keep pace with changing circumstances means that many laws are

inevitably couched in terms which, to a greater or lesser extent, are

vague (Eur. Court HR, Kokkinakis v. Greece judgment of 25 May 1993,

Series A no. 260-A, p. 19, para. 40).

47. In this respect both applicants maintain that the text of

Article 8 of the Anti-Terror Law was so unclear and the concept of

"dissemination of propaganda" against the indivisibility of the State

was so vague that their convictions thereunder were not foreseeable.

The wording of that provision did not, therefore, enable them to

distinguish between permissible and prohibited behaviour. They also

submit that, in any event, they were convicted for an act which had not

constituted a criminal offence under national or international law at

the time it had been committed. They consider, in particular, that

offences within the scope of the Anti-Terror Law should have a direct

link with the fight against terrorism and that, therefore, propaganda

could not constitute an offence under Article 8 of that Law unless it

incites people to terrorism. Since, however, the incriminated interview

did not incite anybody to terrorism, their convictions were not

foreseeable.

48. The respondent Government maintain that the applicants'

allegations in this respect are ill-founded: the contents of the

incriminated interview were manifestly contrary to the provisions of

the Anti-Terror Law.

49. The Commission considers that the wording of Article 8 of the

Anti-Terror Law, as in force when the offence was committed, was

sufficiently specific to enable the applicants, if necessary after

taking legal advice, to regulate their conduct in the matter and that

the requirement of foreseeability was thus met. It follows that the

respective interferences with their rights were prescribed by law.

50. As regards the aims of the interferences, the Commission notes

that the applicants' convictions were part of the efforts of the

authorities to combat illegal terrorist activities and to maintain

national security and public safety, which are legitimate aims under

Article 10 para. 2 (Art. 10-2) of the Convention.

51. The remaining issue is whether the interferences were "necessary

in a democratic society". In this respect the Commission recalls the

following principles adopted by the Court (see, as the latest

authority, Eur. Court HR, Zana v. Turkey judgment of 25 November 1997,

Judgments and Decisions 1997 ...., para. 51):

(i) Freedom of expression, as enshrined in paragraph 1 of

Article 10 (Art. 10-1) constitutes one of the essential foundations of

a democratic society and one of the basic conditions for its progress.

It is applicable not only to "information" or "ideas" that are

favourably received or are regarded as inoffensive or as a matter of

indifference, but also to those that offend, shock or disturb; such are

the demands of that pluralism, tolerance and broad-mindedness without

which there is no "democratic society".

(ii) The adjective "necessary", within the meaning of

Article 10 para. 2 (Art. 10-2), implies the existence of a "pressing

social need". The Contracting States have a certain margin of

appreciation in assessing whether such a need exists, but it goes hand

in hand with European supervision, embracing both the legislation and

the decisions applying it, even those given by an independent court.

(iii) In exercising its supervisory jurisdiction, the organs of

the Convention must look at the impugned interference in the light of

the case as a whole, including the content of the remarks held against

the applicant and the context in which he made them. In particular,

they must determine whether the interference in issue was

"proportionate to the legitimate aims pursued" and whether the reasons

adduced by the national authorities to justify it are "relevant and

sufficient".

52. The Commission further notes that, while freedom of political

debate is at the very core of the concept of a democratic society

(Eur. Court HR, Lingens v. Austria judgment of 8 July 1986, Series A

no. 103, p. 26, para. 42), that freedom is not absolute. A Contracting

State is entitled to subject it to certain "restrictions" or

"penalties", but the Convention organs are empowered to give the final

ruling on whether they are reconcilable with freedom of expression as

protected by Article 10 (Art. 10) (Eur. Court HR, the Observer and

Guardian v. the United Kingdom judgment of 26 November 1991, Series A

no. 216, p. 30, para. 59(c)). In doing so, the Convention organs must

satisfy themselves that the national authorities did apply standards

which were in conformity with the principles embodied in Article 10

(Art. 10) and, moreover, that they based themselves on an acceptable

assessment of the relevant facts (Eur. Court HR, Jersild v. Denmark

judgment of 23 September 1994, Series A no. 298, p. 24, para. 31).

53. Even where, as in the present case, an interference with freedom

of expression is based on considerations of national security and

public safety and is part of a State's fight against terrorism, the

interference can be regarded as necessary only if it is proportionate

to the aims pursued. Consequently, the Commission must, with due regard

to the circumstances of each case and the State's margin of

appreciation, ascertain whether a fair balance has been struck between

the individual's fundamental right to freedom of expression and a

democratic society's legitimate right to protect itself against the

activities of terrorist organisations (cf. above-mentioned Zana

judgment, para. 55).

54. The Commission observes in this connection that

Article 10 para. 2 (Art. 10-2) also refers to "duties and

responsibilities" which the exercise of the freedom of expression

carries with it. Thus, it is important for persons addressing the

public on sensitive political issues to take care that they do not

support unlawful political violence. On the other hand, freedom of

expression must be considered to include the right openly to discuss

difficult problems such as those facing Turkey in connection with the

prevailing unrest in part of its territory in order, for instance, to

analyse the background causes of the situation or to express opinions

on the solutions to those problems.

55. The Commission notes that the incriminated publication was an

interview with a Turkish sociologist, whose views, as published, appear

to have concerned, in the first place, the process by which the

P.K.K.'s ideology was taking hold in Turkish society and how the roots

of a Kurdish state were being formed. Without expressly advocating the

P.K.K.'s role in the Kurdish struggle for independence, the interviewee

analysed, mainly from a sociological aspect, this situation in the face

of the reactions of the Turkish State.

56. The Turkish courts held that the publication of the interviewee's

opinion amounted to propaganda against the indivisibility of the State

in so far as he stated, inter alia, that there is armed resistance in

Kurdistan, that violence by the Turkish forces cannot stop the

escalation and progress of the P.K.K., that its ideas and action can

change the official ideology and its influence in the Kurdish and the

Turkish societies will spread and deepen, that national awareness and

desire for liberation will become stronger and will spread further,

that the idea and feelings for independence will develop and that the

P.K.K.'s armed combat for eight years has been the most important cause

of certain developments including the withdrawal of Turkish soldiers

and the evacuation of police stations in some regions, resulting in the

beginning of the formation of a State.

57. However, in the Commission's view, the contents of the

incriminated interview are mainly of an analytical nature. The

interviewee expressed his view of the Kurdish question and related

matters in moderate terms. He did not associate himself in any manner

with the use of violence in the context of the Kurdish separatist

struggle. The applicants did not add any comment to the interview that

would indicate their adherence to the use of violence.

58. The Commission finds that the applicants' convictions amounted

to a kind of censure, which was likely to discourage them or others

from publishing ideas of a similar kind again in the future. In the

context of political debate such a sentence is likely to deter citizens

from contributing to public discussion of important political issues

(cf. Eur. Court HR, Lingens judgment, op. cit., p. 27, para. 44).

59. Consequently, the Commission, even taking into account the margin

of appreciation of the national authorities in this context, finds that

the interferences with the applicants' freedom were not proportionate

to the legitimate aims pursued and could, therefore, not be regarded

as necessary in a democratic society to achieve the aims of national

security and public safety.

CONCLUSION

60. The Commission concludes, by 31 votes to 1, that there has been

a violation of Article 10 (Art. 10) of the Convention.

D. As regards Article 7 (Art. 7) of the Convention

61. The applicants complain that their convictions contravened

Article 7 para. 1 (Art. 7-1) of the Convention which provides as

follows:

"No one shall be held guilty of any criminal offence on account

of any act or omission which did not constitute a criminal

offence under national or international law at the time when it

was committed. Nor shall a heavier penalty be imposed than the

one that was applicable at the time the criminal offence was

committed."

62. Both applicants maintain that the text of Article 8 of the Anti-

Terror Law was so unclear and the concept of "dissemination of

propaganda" against the indivisibility of the State was so vague that

their convictions thereunder were not foreseeable. The wording of that

provision did not, therefore, enable them to distinguish between

permissible and prohibited behaviour (see above para. 46).

63. The respondent Government maintain that the applicants'

allegations in this respect are ill-founded, the contents of the

incriminated interview being manifestly contrary to the provisions of

the Anti-Terror Law (see above para. 47).

64. The Commission has just found (see above para. 48) that the

wording of Article 8 paragraph 1 of the Anti-Terror Law, as in force

when the offence was committed, was sufficiently specific to enable the

applicants, if necessary after taking legal advice, to regulate their

conduct in the matter. It follows that there has been no infringement

of the principle of the statutory nature of offences and penalties, as

guaranteed by Article 7 (Art. 7) of the Convention.

CONCLUSION

65. The Commission concludes, unanimously, that there has been no

violation of Article 7 (Art. 7) of the Convention.

E. Recapitulation

66. The Commission concludes, by 31 votes to 1, that there has been

a violation of Article 10 (Art. 10) of the Convention (see above

para. 60).

67. The Commission concludes, unanimously, that there has been no

violation of Article 7 (Art. 7) of the Convention (see above para. 65).

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

PARTLY DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK

I do not find it possible to join the majority in concluding that

there has been a breach of Article 10 of the Convention. In my opinion,

there are no solid grounds for concluding that, in this case, the

interference was not necessary in a democratic society and, in

particular, not proportionate to the aim of maintaining national

security and public safety.

In order to assess whether the convictions and sentences of

Mr Erdogdu and Mr ince answered a "pressing social need" and whether

they were "proportionate to the legitimate aims pursued", it is

important to analyse the content of the applicants' remarks in the

light of the situation prevailing in south-east Turkey at the time. In

so doing, the Commission, taking account of the margin of appreciation

left to the Government, should have confined itself to the question

whether the judicial authorities had good reasons to believe that there

was a pressing social need for such a measure, based on an acceptable

assessment of the relevant facts.

I note in this regard that, according to the national courts,

the publication of the interviewee's opinion amounted to propaganda

against the indivisibility of the State in so far as he stated, inter

alia, that there is armed resistance in Kurdistan, that violence by the

Turkish forces cannot stop the escalation and progress of the P.K.K.,

that its ideas and action can change the official ideology and its

influence in the Kurdish and the Turkish societies will spread and

deepen, that national awareness and desire for liberation will become

stronger and will spread further, that the idea and feelings for

independence will develop and that the P.K.K.'s armed combat for eight

years has been the most important cause of certain developments

including the withdrawal of Turkish soldiers and the evacuation of

police stations in some regions, resulting in the beginning of the

formation of a State. In my opinion, those expressions, read in the

context of the interview as a whole, were capable of creating among

readers the impression that the interviewee was encouraging, or even

calling for, an armed struggle against the Turkish State and was

supporting violence for separatist purposes. In these circumstances,

the applicants' conviction and the penalty imposed on them on account

of the interview could reasonably be said to arise out of a pressing

social need.

In the light of these considerations and having regard to the

State's margin of appreciation in this area, I am of the opinion that

the restriction placed on the applicants' freedom of expression was

proportionate to the legitimate aims pursued and that, therefore, it

could reasonably be regarded as necessary in a democratic society to

achieve those aims.

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ERDOGDU AND INCE v. TURKEY

ERDOGDU AND INCE v. TURKEY