Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 22479/93

by Ünsal ÖZTÜRK

against Turkey

The European Commission of Human Rights sitting in private on

7 April 1997, 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

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

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. H.C. KRÜGER, 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 24 May 1993 by

Ünsal ÖZTÜRK against Turkey and registered on 19 August 1993 under file

No. 22479/93 ;

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

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen, born in 1957 and resident in

Ankara, is a publisher. Before the Commission, he is represented by

Hüsnü Öndül, a lawyer practising in Ankara.

A. Particular circumstances of the case

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

be summarised as follows.

The applicant is the owner of the publishing house, Yurt Kitap-

Yayin which published a book entitled "Hayatin Tanikliginda-iskencede

Ölümün Güncesi (Witness to life - Diary of a Death under Torture)"

in April 1988.

On 23 December 1988 the Ankara State Security Court ordered the

seizure of all published copies of the book.

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. The charges were brought

under Articles 142 and 312 of the Turkish Criminal Code (TCC).

In the proceedings before the Ankara State Security Court, the

applicant denied the charges. He submitted that the author, in his

book, criticised the present government and that it was within the

limits of permissible criticism.

In a judgment dated 30 March 1989, the court found the applicant

guilty of the offences charged. It first 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.

The applicant appealed. 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. 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.

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 books was the

consequence of the applicant's conviction under that Article and,

likewise, found no grounds for taking any further decision on this

issue.

On 22 May 1991 the author of the book, Mustafa Nihat Behramoglu,

who had also been indicted and tried under Articles 142 and 312 of the

TCC, was acquitted.

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.

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 inciting 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. The

Court of Cassation considered that the conviction by the Ankara State

Security Court on 11 June 1991 was safe. It held that the written order

should therefore be rejected.

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.

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 did not constitute sufficient grounds 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. Relevant domestic law

Article 312 of the Turkish Criminal Code

"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."

C. Extracts from the relevant book

The following is the poems from the relevant book constituting

the grounds for the domestic court rulings:

"...Beni baskinlar götürür

gerillanin sahdamari halkima

korkunç ve soylu bir tutkudur dayatma

yalniz bu kadar da degil

yarin hayali gibi üstelik

nazlidir

usludur

ince

bilgedir

biz ki ustayiz vatan sevmenin

umut

saklimizda olumsuz bayrak

kirmizi-kirmizi

dalga-dalgadir..."

ÖLEN YOLDASLAR iÇiN

"Siz ki caninizi verdiniz halkimiz için

Siz ki her seyinizi verdiniz bu kavga ugruna

Gögsümüzde onurla dalgalanan

Kavganin bayragina siz ki al rengini verdiniz

Ey, ölümsüz halkimiz için topraga düsenlerimiz

Ey, yüce ogullari halkimizin

Gururla ve sabirla dinlenin simdi

Kavganizi sürdürüyor yoldaslariniz..."

"...Bizi uyandiran

tek isik

Dünyanin isigiydi bu!

Evlerine girdim,

Yemek yiyorlardi sofralarinda;

Çalismadan dönmüslerdi,

Gülümsüyor ya da aglasiyorlardi

Ve de tümü birbirine benziyordu.

Gözlerini isiga çeviriyor

Yollarini ariyorlardi..."

"...Ölüm buyrugunu uyguladilar

Mavi dag dumanini

Ve uyur uyanik seher yelini

Kanlara buladilar.

Sonra oracikta tüfek çattilar

Koynumuzu usul usul yoklayip

Aradilar.

Didik-didik ettiler..."

The following is the English translation of the poems.

"...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..."

FOR THE COMRADES WHO HAVE 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."

"...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..."

"...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..."

COMPLAINTS

1. 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.

2. The applicant further complains under Article 1 of Protocol No.

1 that the confiscation of the book which he had published constituted

an unjustified interference with the peaceful enjoyment of his

possessions.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 24 May 1993 and registered on

19 August 1993.

On 26 October 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's observations were submitted on 7 May 1996, after

an extension of the time-limit fixed for that purpose. The applicant

replied on 17 June 1996.

THE LAW

The applicant complains under Article 9 (Art. 9) that his

conviction and sentence constituted an unjustified interference with

his freedom of thought. The Commission has examined this complaint

under Article 10 (Art. 10) of the Convention which provides as follows:

"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. ...

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."

The applicant also complains that the confiscation of the book

which he published constituted an infringement of his right to the

peaceful enjoyment of his possessions under Article 1 of Protocol No.

1 (P1-1).

This provision reads 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."

The respondent Government first argue that the applicant has

failed to observe the six-month rule under Article 26 (Art. 26) of the

Convention. In their view, in the applicant's case, the six-month

period started to run from the Court of Cassation's decision dated 27

January 1992. This was following the first written order of the

Ministry of Justice. According to the Government, the first written

order clearly evaluated all the proceedings and stated that his

conviction was based on Article 312 of the TCC.

The applicant contests these arguments. He states that the first

written order of the Ministry of Justice was not in line with his

request. He explains that he submitted a second application to the

Ministry of Justice and that, following that application, the Ministry

of Justice indeed made a second written order, different from the first

one. He states that therefore the final decision should be the Court

of Cassation's decision of 8 January 1993 which was issued following

the second written order by the Ministry of Justice.

The Commission observes that the Chief Public Prosecutor's second

appeal of 24 December 1992 led to a fresh examination of the whole case

by the Court of Cassation. The Commission notes that the Court of

Cassation finally dismissed the applicant's appeal on 8 January 1993

and that therefore it considers that the six-month period provided for

in Article 26 (Art. 26) of the Convention did not begin to run until

that date. The present application was introduced on 24 May 1993, that

is, within six months from the above-mentioned date. The Government's

objection that the application is out of time must accordingly be

rejected.

As to the substance of the case, the 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 312 of the TCC.

They state that the impugned book was likely to provoke enmity and

hatred between the Turkish and Kurdish societies and to mobilise

people to revolt. The Government 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.

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.

The Government conclude that the applicant's conviction was fully

justified under the second paragraph of Article 10 (Art. 10) of the

Convention, for reasons of national security, territorial integrity and

public safety. For the same reason, the confiscation of the book was

justified under Article 1 of Protocol No. 1 (P1-1) to the Convention.

Accordingly the Government submit that the application is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

The applicant contests all these arguments. He maintains that

his conviction for an offence under Article 312 of the TCC was contrary

to law, since the author of the book had been acquitted on charges

brought on account of the same book and under the same provisions. In

this context he alleges that, by giving two contradictory decisions,

the national authorities exceeded the margin of appreciation conferred

on the Contracting States by the Convention.

The Commission has conducted a preliminary examination of the

parties' arguments. It considers that the application raises complex

factual and legal issues which cannot be resolved at this stage of the

examination of the application, but require an examination of the

merits. Consequently, the application cannot be declared 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, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRUGER) (S. TRECHSEL)

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ÖZTÜRK v. TURKEY

ÖZTÜRK v. TURKEY

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