Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25723/94

by Ümit ERDOGDU

against Turkey

The European Commission of Human Rights sitting in private on

23 January 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

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

B. MARXER

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

Mr M. de SALVIA, Secretary to the Commission; Having

regard to Article 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms;

Having regard to the application introduced on 4 November 1994

by Ãœmit ERDOGDU against Turkey and registered on 18 November 1994 under

file No. 25723/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

28 August 1995 and the observations in reply submitted by the

applicant on 30 October 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen, born in 1970 and resident in

Istanbul, is a journalist and writer.

The facts of the present case, as submitted by the parties, may

be summarised as follows:

A. Particular circumstances of the case

The applicant is the editor (sorumlu yazi isleri muduru) of

"Iscilerin Sesi (Worker's Voice)", a fortnightly newspaper published

in Istanbul.

On the first page of the fortieth issue of the Worker's Voice of

2 October 1992, an article by Y.A. entitled "Kürt Sorunu Türk Sorunudur

(The Kurdish Problem is a Turkish Problem)" was published.

In an indictment dated 29 December 1992, based on the published

article, the Public Prosecutor at the Istanbul State Security Court

charged the applicant, as the editor of the newspaper, with

disseminating propaganda against the indivisibility of the State. The

charges were brought under Article 8 of the Anti-Terror Law (Terorle

Mucadele Yasasi) and concerned the following parts of the article :

"It has become crystal clear that what we see in Kurdistan is not

a question limited to the geography of Kurdistan, but a general

question of Turkish society. The Kurdish question is even more

than before, a Middle East question [...]

The Republic of Turkey, which is faced with a Kurdish national

movement, is fast being driven into complex developments in the

Middle East due to the fact that Turkey confines itself to the

Kurdish problem [...]

On the other hand, the perception of the war by the movement in

Kurdistan as an "international war" reflects the prevailing point

of view. Whatever the official line, in practice the solution

sought by the military is taking the form of a war against the

Kurdish people. Indeed, today in Kurdistan an open war is being

conducted against the Kurdish people by the State. With a

deliberate distortion of the facts, the sovereign (dominant)

classes are deploying every effort to show that this war is a war

by the Turks against the Kurds (sic!). And, unfortunately, the

passive attitude of the Turkish people towards the Kurdish

question renders this distortion persuasive [...]

The leadership of the Kurdish National Resistance Movement is not

acting sufficiently sensibly either and prefers to remain silent.

It is clear that such a conflict would benefit neither the

Turkish nor the Kurdish people. Such a conflict would be a

retrogressive conflict, the revolutionary dynamics of which are

glossed over. It would weaken the Turkish and Kurdish peoples

against the attacks of imperialism and the local sovereign

(dominant) classes. Of course, nothing could be more absurd

than suggesting to the Kurdish people that they give up the

national resistance. On the contrary, the defeat of the

Kurdish national resistance would not remove ethnic

tensions budding in the West; it would serve the formation of

hostile feelings between peoples. Essentially, what has to

be done rests with the Turkish people in the West. The

only solution seems to lie in the Turkish people perceiving the

Kurdish resistance movement as part of their struggle for

freedom and democracy [...]

It is high time that the revolutionary movement in the West got

involved [...] in the Kurdish question."

In the proceedings before the Istanbul State Security Court, the

applicant denied the charges. He stated that the said article had been

sent to the newspaper by a reader residing in Germany, A.Y. In support

of his statement he produced a letter from a notary in Hannover

(Germany) saying that the article had been sent to the newspaper by

A.Y. The applicant then pleaded that the article did not constitute

any element of an offence, but was discussing the problem from internal

and external points of view and was proposing a democratic solution.

In a judgment dated 20 December 1993, the court found the

applicant guilty of an offence under Article 8 of the Anti-Terror Law.

It sentenced the applicant to six months' imprisonment and a fine of

50 million Turkish Lira. The court held that, in the published article,

a certain part of the Turkish territory had been referred to as

"Kurdistan" and the acts of the illegal terrorist organisation, PKK,

had been defined as national resistance of the Kurds. It further held

that the article sought support for that "national resistance".

The applicant appealed.

On 4 May 1994 the Court of Cassation, after a hearing, dismissed

the appeal. It upheld the cogency of the State Security Court's

reasoning and its assessment of the evidence.

On 27 October 1995 the Anti-Terror Law No. 4126 was amended.

However, it appears that these modifications did not affect the

applicant's situation.

B. Relevant domestic law

Article 90 of the Turkish Constitution

"[...]International treaties which come into effect under lawful

procedure shall have the force of law [...]"

Article 8 of Anti-Terror Law( No. 3713)

"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.

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."

In a judgment dated 31 March 1992, the Constitutional Court found

the clauses in square brackets in the text of Articles 6 and 8 of the

Anti-Terror Law to be contrary to the Constitution and annulled them.

The decision was published in the Official Gazette on 27 January 1993.

The annulled clauses ceased to have effect on 27 July 1993.

COMPLAINTS

The applicant alleges a violation of Articles 9, 10 and 7 of the

Convention.

As to Articles 9 and 10 of the Convention, the applicant

complains that his conviction and sentence for publishing a newspaper

article constituted an unjustified interference with his freedom of

thought and freedom of expression.

As to Article 7 of the Convention, he complains that he was

convicted on account of an act which did not constitute a criminal

offence under national or international law at the time it was

committed. In particular, he asserts that an act may not be deemed

propaganda against the indivisibility of the State under Article 8 of

the Anti-Terror Law unless it incites people to terrorism.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 4 November 1994 and registered

on 18 November 1994.

On 15 May 1995 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

28 August 1995. The applicant replied on 3 October 1995.

THE LAW

The applicant complains, under Articles 9 and 10 (Art. 9, 10) of

the Convention, that his conviction for publishing a newspaper article

constituted an unjustified interference with his freedom of thought and

freedom of expression. The applicant also invokes Article 7 (Art. 7)

of the Convention, complaining that he was convicted for an act which

did not constitute a criminal offence under national or international

law at the time it was committed.

Exhaustion of domestic remedies

Invoking the case of Ahmet Sadik v. Greece (Eur. Court HR,

judgment of 15 November 1996, Reports of Judgments and Decisions 1996-

V, N° 20), the Government submit that the applicant did not raise

before the national courts the points of which he now complains in his

application with the Commission. They point out that before the

national courts he neither mentioned the relevant provisions of the

Convention, nor put forward any claims related to the Articles of the

Convention he now invokes.

In answer, the applicant contends that Article 8 of the Anti-

Terror Law is in breach of the Convention, as it criminalises the

exercise of freedom of thought and that, where the source of breach of

the Convention is the law, domestic remedies are ineffective.

The Commission recalls that in order to comply with the

requirements of Article 26 (Art. 26) of the Convention an applicant is

obliged to make "normal use" of remedies "likely to be effective and

adequate" to remedy the matters of which he complains (cf. No.

10741/84, Dec. 13.12.84, D.R. 41, p. 226). An applicant does not need

to exercise remedies which, although theoretically of a nature to

constitute remedies, do not in reality offer any chance of redressing

the alleged breach (cf. No. 20357/92, Dec. 7.3.94, D.R. 76-A, p. 80).

In the present case, the applicant appealed to the Court of

Cassation against the judgment of the State Security Court but did not

specifically argue that his conviction for a violation of Article 8 of

the Anti-Terror Act constituted a breach of Article 10 (Art. 10) of the

Convention or adduce arguments to the same effect. The question

arises, however, whether reliance on arguments relating to the freedom

of expression would have and any prospects of success for the applicant

and could therefore be regarded as an effective remedy in the

circumstances of this case.

The Commission notes in this respect that Article 8 of the Anti-

Terror Law, which prohibits propaganda and manifestations against the

indivisible integrity of the Turkish Republic, is a provision which in

many cases has given rise to issues as regards its conformity with the

principles of freedom of expression. The Commission is further aware

that numerous convictions in Turkey have been based on this provision

and that appeals have often been brought against such convictions

before the Court of Cassation. However, the Government have not

indicated any case-law which would show that arguments based, directly

or indirectly, on Article 10 (Art. 10) of the Convention would have any

prospect of leading to the quashing of a conviction for violation of

Article 8 of the Anti-Terror Law.

The Commission notes, on the other hand, that in a considerable

number of cases regarding convictions for violations of Article 8 of

the Anti-Terror Law which the Commission has been called upon to

examine, the applicants had relied unsuccessfully on Article 10

(Art. 10) of the Convention or on arguments to the same effect in their

appeals to the Court of Cassation (see e.g. Nos. 23927/94 and 24277/94,

Sürek and Özdemir v. Turkey, Dec. 2.9.96; No. 24762/94, Surek v.

Turkey, Dec. 2.9.96; No. 23462/94, Arslan v. Turkey, Dec. 14.10.96; No.

23500/94, E.P. v. Turkey, Dec. 24.6.96; Nos. 23536/94 and /24408/94

Baskaya and Okçuoglu v. Turkey, Dec. 2.9.96; No.24735/94, Sürek v.

Turkey, Dec. 2.9.96; No. 24919/94, Gerger v. Turkey, Dec. 14.10.96; No.

26682/94, Sürek v. Turkey, Dec. 14.10.96). The judgments of the Court

of Cassation in these cases have been of a summary nature and do not

indicate that the Court of Cassation has found the freedom of

expression aspects of these cases to raise any serious problem.

In these circumstances, the Commission does not find it

established that the applicant's reliance on Article 10 (Art. 10) of

the Convention or arguments to the same effect would have constituted

an effective remedy which the applicant was required to exhaust under

Article 26 (Art. 26) of the Convention.

Consequently, the application cannot be rejected for non-

exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3)

of the Convention.

As to the substance of the complaints

The Government firstly submit that Article 9 (Art. 9) of the

Convention invoked by the applicant is irrelevant, as his conviction

was not related to an opinion, belief or religion, but rather concerned

Article 10 (Art. 10) of the Convention.

The Government consider that the applicant's conviction was

justified under paragraph 2 of Article 10 (Art. 10-2). They state that

it was prescribed by Article 8 of the Anti-Terror Law, pursued the aim

of protection of the integrity of the nation and territory and was also

necessary in a democratic society, as it was proportionate to the aim

pursued.

Concerning the complaint under Article 7 (Art. 7) of the

Convention, the Government maintain that the applicant was punished for

disseminating separatist propaganda, an offence punishable under

Article 8 of the Anti-Terror Law at the time when he was convicted.

The applicant claims that the restrictions introduced by Article

8 of Anti-Terror Law are not proportionate to the purpose of national

security and that his conviction was therefore contrary to Article 10

(Art. 10) of the Convention.

The Commission considers, in the light of the parties'

submissions, that the case raises complex issues of law and of fact

under the Convention, the determination of which should depend on an

examination of the merits of the application as a whole. The

Commission concludes, therefore, that the application is not manifestly

ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention. No other grounds for declaring it inadmissible have

been established.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION ADMISSIBLE.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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ERDOGDU v. TURKEY

ERDOGDU v. TURKEY

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