Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 23462/94

Günay Arslan

against

Turkey

REPORT OF THE COMMISSION

(adopted on 11 December 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-19). . . . . . . . . . . . . . . . . . . . . .1

A. The application

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

B. The proceedings

(paras. 6-14) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 15-19). . . . . . . . . . . . . . . . . . .3

II. ESTABLISHMENT OF THE FACTS

(paras. 20-31) . . . . . . . . . . . . . . . . . . . . .4

A. The particular circumstances of the case

(paras. 20-30). . . . . . . . . . . . . . . . . . .4

B. Relevant domestic law

(para. 31). . . . . . . . . . . . . . . . . . . . .5

III. OPINION OF THE COMMISSION

(paras. 32-59) . . . . . . . . . . . . . . . . . . . . .7

A. Complaints declared admissible

(para. 32). . . . . . . . . . . . . . . . . . . . .7

B. Points at issue

(para. 33). . . . . . . . . . . . . . . . . . . . .7

C. As regards Articles 9 and 10 of the Convention

(paras. 34-53). . . . . . . . . . . . . . . . . . .7

CONCLUSION

(para. 54). . . . . . . . . . . . . . . . . . . . 10

D. As regards Article 14 of the Convention

(paras. 55-56). . . . . . . . . . . . . . . . . . 10

CONCLUSION

(para. 57). . . . . . . . . . . . . . . . . . . . 11

E. Recapitulation

(paras. 58-59). . . . . . . . . . . . . . . . . . 11

DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK

JOINED BY MR C. BÃŽRSAN. . . . . . . . . . . . . . . . . . . 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 by the parties, and of the

procedure before the Commission.

A. The application

2. The applicant is a Turkish national. He was born in 1960 and

lives in istanbul. He was represented before the Commission by

Mr. Hasip Kaplan, a lawyer practising in istanbul.

3. The application is directed against Turkey. The respondent

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

University.

4. The case concerns the applicant's conviction by the State

Security Court for having had published his book entitled "Yas Tutan

Tarih / 33 Kursun" (History in Mourning / 33 Bullets).

5. The applicant complains under Articles 6, 9 and 10 of the

Convention that his conviction on account of the publication of his

book constituted an unjustified interference with his freedom of

thought and freedom of expression. He also complains that he was

convicted on the basis of the Court's assessment of a single chapter

of his book and of a preface thereto which was not written by him.

Moreover, he complains under Article 14 of the Convention that his

conviction for expressing his opinion on the "Kurdish problem",

allegedly contrary to State policy, constituted discrimination on the

ground of political opinion.

The applicant also makes a "ne bis in idem" claim in so far as

he was allegedly twice tried and convicted for the same offence.

B. The proceedings

6. The application was introduced on 7 January 1994 and registered

on 15 February 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 the application

to the Turkish Government and to invite the parties to submit written

observations on the admissibility and merits of the applicant's

complaints based (under Article 10 of the Convention) on the alleged

violation of his freedom of expression, (under Article 14 in

conjunction with Article 10 of the Convention) on the alleged

discrimination against the applicant on the ground of political

opinion, and (under Article 6 para. 1 of the Convention) on the alleged

violation of the principle of a fair trial.

8. The Government's written observations were submitted on

11 August 1995, after an extension of the time-limit fixed for that

purpose. The applicant replied on 28 September 1995.

9. On 4 December 1995 the Government submitted information

concerning the amendments made to the Anti-Terror Law (Law No. 3713)

and developments in the cases of persons convicted and sentenced under

Article 8 of the said Law. The applicant submitted comments in reply

on 13 May 1996.

10. On 14 October 1996 the Commission declared inadmissible the

complaint related to "ne bis in idem" and declared the remainder of the

application admissible.

11. The text of the Commission's decision on admissibility was sent

to the parties on 24 October 1996 and they were invited to submit such

further information or observations on the merits as they wished.

12. On 29 October 1996 the Government submitted observations on the

documents annexed to the Commission's decision on admissibility. The

Government considered unjustified the publication by the Commission of

"confidential documents which are part of the investigation file" and

which "constitute an offence according to the judgment of the State

Security Court". The Government requested the Commission to desist from

publishing the appendix to decisions in this application. On

30 November 1996 the Commission decided to admit this request.

13. The applicant did not submit any observations.

14. After declaring the case 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 parties' reaction, the Commission now finds

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

C. The present Report

15. 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

16. 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.

17. 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.

18. The Commission's decision on the admissibility of the application

is appended to this Report.

19. 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

20. The applicant is the author of a book entitled "Yas Tutan

Tarih / 33 Kursun" (History in Mourning / 33 Bullets). The first

edition of the book was published in December 1989 and the preface was

signed by Musa Anter, who was a prominent figure and writer on matters

concerning the people of Kurdish origin in Turkey. In his book the

applicant alleged that the State oppressed the people of Kurdish

origin, attempted to destroy their identity by means of genocide, exile

and torture and carried out massacres against them.

21. In an indictment dated 22 January 1990 the Public Prosecutor at

the istanbul State Security Court (istanbul Devlet Güvenlik Mahkemesi)

charged the applicant with disseminating separatist propaganda through

his book. He requested the applicant's conviction under Article 142 (3)

of the Turkish Criminal Code.

22. On 29 March 1991 the istanbul State Security Court sentenced the

applicant to six years and three months' imprisonment. On 12 April 1991

Article 142 of the Turkish Criminal Code, under which the applicant had

been convicted, was repealed. In a supplementary decision dated

3 May 1991, the Court quashed the applicant's conviction. On

21 July 1991 the book was reprinted with a preface signed by

Musa Anter.

23. On 12 December 1991 the Public Prosecutor at the istanbul State

Security Court charged the applicant with disseminating propaganda

against the indivisibility of the State in view of the fact that the

book had been reprinted. The charges were made in accordance with

Article 8 paragraph 1 of the Anti-Terror Law.

24. The indictment against the applicant incriminated certain

passages of the book, including the following:

"The special war between the security forces and the P.K.K. came

to an end and a new era of generalised warfare began, this time

engendered by attacks on the population and their resistance. The

State, which had forcibly evacuated people towards the Botan

region in general and to the Cudi mountain in particular, could

still not prevent armed action in the region. Using the press,

the State tried to exaggerate the importance of its own attacks,

but this policy also proved abortive. The State then decided on

a final solution - genocide -, taking the repression of the Agri

rebellion as a historical example. From then on, all efforts

were concentrated on this solution. They started from Silopi. The

death squads were on a man-hunt. The contra-guerillas, gangs,

village guards and, finally, clan chiefs on the Government's pay-

roll were all striving to drink Kurdish blood. But the Kurdish

peasants in Silopi stood up against them and this was a sign that

resistance was getting stronger. The Kurdish intifada was

organising itself against the genocide of the Kurds. The Kurdish

people, who had led Middle Eastern peoples in their fight against

the Assyrian oppressors in the past, now resisted massively,

heralding the days when the bastions of Turkish chauvinism would

be taken by storm."

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

applicant denied the charges. He stated that the book was based on true

facts and on his observations as a journalist. He asserted that he had

reported certain events within the scope of journalism.

26. In a judgment dated 28 January 1993, the Court found the

applicant guilty of disseminating propaganda against the indivisibility

of the State. It first sentenced the applicant to two years'

imprisonment, plus a fine of 50,000,000 Turkish lira. Then, considering

the good conduct of the applicant during the trial, it reduced his

sentence to one year and eight months' imprisonment plus a fine of

41,666,666 Turkish lira.

27. The Court held, inter alia, that the applicant, in his book, had

alleged that the State oppressed the people of Kurdish origin, seized

their belongings and killed them. It held that the applicant's comments

and allegations were more than mere criticism. The Court noted that the

applicant incited the people of Kurdish origin to rebel against the

State. The Court considered that the applicant was also liable for the

preface to the book which had been written by another author. The Court

noted that the publication of the further edition of the book was an

act which constituted an offence under Article 8 paragraph 1 of the

Anti-Terror Law which had come into force after the abrogation of

Article 142 of the Turkish Criminal Code.

28. The applicant appealed. He contended that certain sections of the

book consisted of articles taken from previously published periodicals.

He pleaded that the preface had not been written by him. He asserted

that his conviction for criticising the oppression of the Kurdish

people constituted a serious threat to his freedom of expression.

29. On 17 March 1993 the istanbul State Security Court rejected the

applicant's appeal on the ground that it had been filed out of time.

The applicant also appealed against this decision.

30. On 16 September 1993 the Court of Cassation considered that the

applicant had appealed in time against his conviction. However, after

examining the grounds for the applicant's conviction, it dismissed the

appeal, upholding the cogency of the State Security Court's assessment

of the evidence and its reasoning in rejecting the applicant's defence.

B. Relevant domestic law

31. Article 8 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."

"Written and spoken propaganda, meetings, assemblies and

demonstrations aimed at undermining the indivisible territorial

and national unity of the State of the Turkish Republic are

prohibited, irrespective of the methods used or the intention or

ideas behind them. Anyone who carries on such an activity shall

be sentenced to imprisonment between two and five years and a

fine of between fifty and one hundred million Turkish liras."

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

32. The Commission has declared admissible:

- the applicant's complaint that his conviction on account of the

publication of his book constituted an unjustified interference with

his freedom of thought and freedom of expression and that he was

convicted on the basis of the Court's assessment of a single chapter

and a preface to his book which was not written by him;

- the applicant's complaint that his conviction for expressing his

opinion on the "Kurdish problem", allegedly contrary to State policy,

constituted discrimination on the ground of political opinion.

B. Points at issue

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

- whether the applicant's conviction on account of the publication

of his book infringed his freedom of thought and expression as

guaranteed by Articles 9 and 10 (Art. 9, 10) of the Convention;

- whether the applicant's conviction for expressing his opinion on

the "Kurdish problem" constituted discrimination on the ground of

political opinion, contrary to Article 14 in conjunction with

Article 10 (Art. 14+10) of the Convention.

C. As regards Articles 9 and 10 (Art. 9, 10) of the Convention

34. The applicant complains that his freedom of thought and

expression have been infringed, contrary to Articles 9 and 10

(Art. 9, 10) of the Convention, in that he was convicted on account of

the publication of his book.

35. 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

(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."

36. The applicant submits that he was convicted of an offence for

expressing his views on the Kurdish problem in Turkey. He asserts that

he had commented as a journalist on the facts concerning the Kurdish

people living in Turkey. He also observes that he was convicted on the

basis of the Court's assessment of a preface to his book, although the

preface was not written by himself.

37. The applicant also maintains that his conviction cannot be

justified for any of the reasons permitted under the Convention. He

considers that the content of the incriminated book was within the

limits of permitted criticism.

38. The respondent Government maintain that the interference with the

applicant's rights under Article 10 (Art. 10) of the Convention was

prescribed by law, i.e. by Article 8 of the Anti-Terror Law. They state

that the comments made by the applicant in his book constitute a

provocation of enmity and hatred between the Kurdish and Turkish

societies which serves to mobilise people to revolt. They assert that

according to Article 8 of the Anti-Terror Law these forms of expression

constitute propaganda against the indivisible integrity of the State.

The Government consider that the domestic courts therefore interpreted

the law reasonably.

39. The Government also maintain that the applicant's conviction was

part of the campaign to prevent 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 on terrorism, 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.

40. As to the necessity of the measure in a democratic society, the

respondent Government state that terrorism strikes at the heart of

democracy, the fundamental rights which that concept enshrines and the

judicial and political systems. They state that the 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 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.

41. 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 States by the Convention.

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

applicant constituted an "interference" in the exercise of his 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 this interference was

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

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

realise that legitimate aim.

44. The Commission notes that the applicant's conviction was based

on Article 8 of the Anti-Terror Law and therefore considers that the

interference was prescribed by law.

45. As regards the aims of the interference, the Commission notes

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 (Art. 10-2) of the Convention.

46. The remaining issue is whether the interference was "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".

47. 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).

48. 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).

49. 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.

50. The Commission notes that the applicant, in his book, alleged

that the State oppressed the people of Kurdish origin, attempted to

destroy their identity by means of genocide and evacuation and

organised massacres against them. He referred to Kurdish resistance

against these measures and made a comparison with Kurdish resistance

against other oppressors in the past.

51. The Commission considers that the incriminated passage in the

applicant's book was meant to be mainly a description of the background

of the present situation in south-east Turkey and it did not include

any statements which could be read as incitement to further violence.

52. The Commission finds that the applicant's conviction amounted to

a kind of censure, which was likely to discourage him 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).

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

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

the interference with the applicant's freedom 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

54. The Commission concludes, by 30 votes to 2, that there has been

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

D. As regards Article 14 (Art. 14) of the Convention

55. The applicant complains, in conjunction with the interference

with his freedom of expression, that his conviction for expressing his

opinion on the problems of the people of Kurdish origin, and for

criticising State policy in this respect, constituted discrimination

on the ground of political opinion, and thus infringed his rights under

Article 14 (Art. 10) of the Convention. Article 14 (Art. 14) provides

as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

56. Having found a violation of Article 10 (Art. 10) of the

Convention in respect of the applicant's conviction, the Commission

considers that no separate issue arises in respect of Article 14 in

conjunction with Article 10 (Art. 14+10).

CONCLUSION

57. The Commission concludes, by 30 votes to 2, that no separate

issue arises in regard to Article 14 in conjunction with Article 10 of

the Convention (Art. 14+10).

E. Recapitulation

58. The Commission concludes, by 30 votes to 2, that there has been

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

para. 54).

59. The Commission concludes, by 30 votes to 2, that no separate

issue arises in regard to Article 14 in conjunction with Article 10

(Art. 14+10) of the Convention (see above para. 57).

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK

JOINED BY MR C. BÃŽRSAN

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 Mr Arslan's conviction and sentence

answered a "pressing social need" and whether they were "proportionate

to the legitimate aims pursued", it is important to analyse the content

of the applicant's 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

applicant's book exceeded the limits of mere criticism and amounted to

incitement of the people of Kurdish origin to rebel against the State.

In particular, the applicant alleged in his book that the State

oppressed the people of Kurdish origin, attempted to destroy their

identity by means of genocide and evacuation and organised massacres

against them. I find that certain indissociable sections of the

applicant's book are in fact of an inflammatory nature and could,

therefore, be deemed dangerous propaganda. In these circumstances, the

applicant's conviction and the penalty imposed on him on account of the

publication of his book 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 applicant's 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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ARSLAN v. TURKEY

ARSLAN v. TURKEY

LEXI