ASLAN v. TURKEY
Doc ref: 23462/94 • ECHR ID: 001-3312
Document date: October 14, 1996
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AS TO THE ADMISSIBILITY OF
Application No. 23462/94
by Günay ASLAN
against Turkey
The European Commission of Human Rights sitting in private on
14 October 1996, 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
H. DANELIUS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
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
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 7 January 1994 by
Günay Aslan against Turkey and registered on 15 February 1994 under
file No. 23462/94;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 20 February 1995 to communicate the
application ;
- the observations submitted by the respondent Government on 11
August 1995 and the observations in reply submitted by the
applicant on 28 September 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen, born in 1960 and resident in
istanbul. Before the Commission he is represented by Hasip Kaplan, a
lawyer practising in istanbul.
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 author of the book entitled "Yas Tutan Tarih
33 kursun" (33 Bullets/History in Mourning). 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 an indictment dated 22 January 1990 the Public Prosecutor at
the istanbul State Security Court 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.
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been convicted, was repealed.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.
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.
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.
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. 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.
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.
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.
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:
Article 8 of the Anti-Terror Law No. 3713 of 12 April 1991
"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 imprisonment between
two and five years and a fine between 50 and 100 million Turkish
lira."
COMPLAINTS
The applicant complains of violations of Articles 6, 9, 10 and
14 (in conjunction with 10) of the Convention.
As to Articles 6, 9 and 10 of the Convention, the applicant
complains that his conviction and sentence for writing a 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 and a preface to
his book which was not written by him.
As to Article 14 of the Convention, the applicant complains 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 of the same offence.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 7 January 1994 and registered
on 15 February 1994.
On 20 February 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 11 August 1995,
after an extension of the time-limit fixed for that purpose. The
applicant replied on 28 September 1995.
THE LAW
1. The applicant first complains that his conviction for writing a
book constitutes an unjustified interference with his freedom of
thought and freedom of expression. In this context he also complains
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.
In this context, he invokes Articles 6, 9 and 10 (Art. 6, 9, 10) of
the Convention.
Thus formulated, the applicant's complaint is in fact directed
against an alleged infringement of his freedom of expression. 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 under Article 14 of the Convention
in conjunction with Article 10 (Art. 14+10) that his conviction for
expressing his opinion on the "Kurdish problem", allegedly contrary to
State policy, constituted discrimination on the ground of political
opinion. Article 14 (Art. 14) reads 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."
The Government first argue that at no stage in the proceedings
did the applicant invoke the relevant provisions of the Convention.
The applicant contests this argument and claims that he has
raised the substance of all complaints made before the Commission in
the domestic proceedings.
The Commission refers to its established case-law to the effect
that a person who has raised in substance before the highest competent
national authority the complaint he makes before the Commission has
exhausted domestic remedies. Even where the Convention is directly
applicable in a State's domestic law (as is the case in Turkey), the
person concerned may also rely before the domestic courts on "other
arguments to the same effect"(No. 7367/76, Dec. 10.3.77, D.R. 8 pp.
185, No. 11425/85 Dec. 5.3.85, D.R. 53 pp. 76). In this respect the
Commission notes in the present case that the applicant asserted before
the Court of Cassation that his conviction for criticising the
oppression of the Kurdish people constituted a serious threat to his
freedom of expression.
Consequently, the Commission finds that the requirement as to the
exhaustion of domestic remedies has been satisfied and that the
application cannot be rejected on the basis of Articles 26 and 27 para.
3 (Art. 26, 27-3) of the Convention.
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 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.
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.
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 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 States by the Convention.
The applicant observes 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.
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.
The applicant, in conjunction with the interference with his
freedom of expression, complains that his conviction for writing about
the problems of the people of Kurdish origin, and for criticising State
policy in this respect, constituted discrimination on the ground of
political opinion.
The Commission has conducted a preliminary examination of the
parties' arguments. It considers that this part of 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 above complaints 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
them inadmissible have been established.
2. The applicant further complains that he was twice tried and
convicted of the same offence. He invokes his right to a fair hearing
under Article 6 para 1 (Art. 6-1) of the Convention also in this
respect.
The Commission recalls that in the Convention system the
principle of "ne bis in idem" as relied upon by the applicant is
regulated in Article 4 of Protocol No. 7 (P7-4) which has not been
ratified by Turkey. This part of the application is therefore
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) (No. 8945/80, Dec.
13.12.83, D.R. 39 pp. 47).
For these reasons, the Commission, unanimously
DECLARES INADMISSIBLE, the complaint related to "ne bis in idem"
DECLARES THE REMAINDER OF THE APPLICATION ADMISSIBLE
without prejudging the merits.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
ANNEX
23462/94
ASLAN v. Turkey
T.R.
ISTANBUL
STATE SECURITY COURT
ATTORNEY GENERAL
Number :
Preliminary : 1991/747
Case : 1991/711
Indictment : 1991/627
Case 91/445
19 December 1991
(Signature)
INDICTMENT
STATE SECURITY COURT
Plaintiff : Order of Law
Defendants: 1- MUZAFFER Erdogdu, son of Hasan and
Menevse, DOB.1956, registered at Arisu
village, Almus district, Tokat. Resident
at Salkimsogut sokak 2/4 Cagaloglu,
Istanbul.
2- GUNAY ARSLAN, son of Mehmet and Ano,
DOB.1960, registered at Saray village
Ozalp district, Van. Resident at
Cumhuriyet mah. No:56, Ozalp district.
Offence : DISSEMINATING PROPAGANDA AGAINST THE
INDIVISIBILITY OF THE STATE.
Date of offence: 21 July 1991
A.A.L.[] : Article 8/1 of Act No:3713 for Gunay ARSLAN
Article 8/2 of Act No:3713 for Muzaffer
Erdogdu
[*] Applicable Article of the Law
Preliminary documents were examined.
Gunay ARSLAN, one of the defendants, is the author of a book
entitled 'MOURNING HISTORY, 33 BULLETS'. Muzaffer Erdogdu, the other
defendant is the owner of PENCERE Publications, the publishing company
of the aforementioned book.
The aforementioned book was published in December 1989 and as a
result a public trial was started against Gunay ARSLAN for offending
Article 142/3 of the TPC. The trial established the offence and
Istanbul State Security Court No: (2) decided a punitive action on the
29 March 1991 with the case number 1990/44 and decision number 1991/92.
The above-referred decision was announced. Consequently, Article 23/C
of the Act number 3713 abolished Article 142 of the TPC, therefore the
penalty on defendant Gunay ARSLAN was quashed.
However, the defendants published the same book without any
change or indication that the new print was the second edition. The
imprint was 1550 copies and was scheduled for completion on the 21 July
1991. Despite the fact that the book's introduction had Musa ANTER
signature, Musa ANTER gave evidence in the court; stating that he did
not write the introduction. [The witness stated that] the published
article was taken from a magazine which was published in 1948, and
edited by Gunay ARSLAN. Therefore the article was considered to have
been written by Gunay ARSLAN.
8th page of the introduction;
"The Turks' situation in the Middle East is very interesting.
With persecution and violence excluded, they would not be able to
sustain their hold. Because they arrived in a wave of migration. They
conquered the lands of nations much more civilised than themselves.
They tried to establish authority by means of cruelty, violence and
inhuman behaviour. For example here are Arabs, Persian, Kurds,
Georgians, Laz, Armenians and Byzantians.
How can one expect a democratic approach from a (state structure)
mechanism of barbarism based on violence? It is out of the question.
Even today, such a mentality is dominant in Turkey. Lets say, Kurdistan
belongs to Kurds, Armenia to Armenians, Lazistan to Laz, Trachia to
Greeks. What would be left to Turks? That's why I recognised their
rights. However, what is always left for Turks is injustice, denial of
others' rights and being in a laughable position in the face of
history. This is the subject, However, today even Turks cannot
understand. This is the subject of their complaints. Because there is
no nation they did not persecute in the Middle East."
9th page of the introduction;
"Many elements were liberated from this barbaric administration.
Such as Bulgarians, Greeks and Arabs. Some parts gave up their rights
in a state of hopelessness, such as Laz. Another section is trying to
make their pains public to the world as a result of being eradicated
from within, such as Armenians. All that is left tied up to the cannon
barrel is the Kurds. Both Kurds and Turks are in a state of confusion.
Turks, coming from Turkistan deny those in Kurdistan."...
11th page ;
" (SHOOT TO KILL). These are the words which could explain the
policy of Turkey on Kurds. Being a Kurd in Republican Turkey is
synonymous as being a Jew in Hitler's Germany, a black in Botha's
Africa and a Palestinians in the occupied territories in Israel."...
17th page;
"Criminals were punished. The incident could have been considered
dealt with. However what concerns me is not punishment of human beings
but the punishment of understandings [ideologies]. Unfortunately this
has not happened. This is what I want to see realised. In an era where
the world gallops towards peace, democracy and freedom; an attempt to
destroy the identity of a nation by means of genocides, exiles,
tortures is, I think, a black stain which humanity cannot bear, let
alone it being impossible."...
51st page;
"CUDI: NOT A MOUNTAIN AS IF A COUNTRY.......As God knew the
Kurds would be persecuted to a great extent by fellow human beings. If
Cudi didn't exist, the Kurds would have been wiped out of history by
the Mongolian invasion. All persecution and cruelty stopped at the
skirts of Cudi. Because of this, Cudi was not only the mother's bosom
but also a military training camp for Kurds. This dual character made
it sacred. Cudi experienced the pride of resistance and rebellion
primarily against the Asian invasion which was followed by boots and
bayonets."...
52nd page;
" According to Evdi of Cizre what abolished the life security in
the region was the state itself. Evdi tells us briefly: They block the
roads and summarily execute, they raid houses and kidnap people, they
torture, they ban going to the fields and even buying flour for the
household."...
" Just the same since the Mongolians. The only difference is,
arrow and sword was replaced by bomb and tank."...
"Cudi resisted, because survival was resistance. Wasn't it the
case since Mongolians?"...
57th page;
"However, they could have exiled not only the intellectuals and
poor peasants but also all the surviving life forms, animals, trees,
birds, ants, roses, narcissus', poppies, how about the mountains? Would
they be strong enough to remove the mountains? As the old proverb says:
If the decree is Sultan's, the mountains are ours [we disobey the
decree].
58 and 59th pages;
"SILOPI DEGENERATION.... The Kurdish nation, which experienced
the deepest form of disorganisation, isolation and fragmentation, said
enough is enough to their fate which was forced upon them. They started
pacing towards self-determination. The nucleus [seeds] of resistance
which started growing amidst against all forms of degeneration and
injustices started to come. This [resistance] panicked those who have
exploited their labour and chained the nation for centuries. The
hegemonist who carried out practises of exile, threats, arrests,
torture and oppression answered this resistance with genocides. Special
team[s], one of the basic elements of specialised tactics of war,
expressed their helplessness against the PKK militants by massacring
the peasants. The massacre of peasants in Silopi, where the Kurdish
population was concentrated, expressed a new era in the developments.
The special war between the Security Forces and PKK guerrillas meets
an end. It pointed out a new era of general warfare between the people
and people's reaction. Despite the fact that the state forcibly
evacuated to Botan and primarily Cudi mountain. The armed activities
were not prevented. As the press reflected in super-headlines, the last
blows [coups-?] contained dissolvency. The state brought a solution
with genocide, as it carried out against the Agri rebellions. Yes, from
then on every effort was to be spent to exercise genocide. They started
from Silopi. The death squads were heavily engaged with head-hunting.
Following the counter-guerillas, gangs and village guards it was sell-
out tribal landlords' turn to drink Kurdish blood. However, the Kurdish
peasants' rebellion in Silopi made way for greater reactions. The
Kurdish intifada was exploding against Kurdish genocides. The Kurdish
nation who guided the Middle Eastern nations against the Assyrian
despotism was heralding the days when the bastions of the Turkish
chauvinism would be brought down".
66th page;
"Under the influence of a belief surviving for many years, there
is a question repeatedly asked in the regions where the Kurdish
population is concentrated. Can an administrative mechanism which
practises raids, ambushes, summary executions without questioning, arms
ignorant gangs for head-hunting, evacuates villages and kidnaps people
be called a state? Ferzande ONER says not. Where is the immunity of
household? Where are the constitutional guarantees? If a Kurd is
victimised [killed] all the legal and democratic institutions keep
quiet."
It is concluded that by expressing such thoughts and expressions
without confirming the truthfulness of certain incidents, dissemination
of propaganda was carried out against the indivisibility of the state.
In the name of the public we demand and indict that the
defendants are to be tried before your court according to Article 39
of Act no: 5680 and Article 20 of Act no: 2845, and the above
identified defendants to be punished according to the relevant Articles
and Paragraphs of above quoted Act no: 3713. 12 December 1991.
P.Prosecutor-19015
Cevat OZEL
(Signature)