Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25067/94

by Ümit ERDOGDU

against Turkey

The European Commission of Human Rights sitting in private on

2 September 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

J.-C. SOYER

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 20 August 1994 by

Mr. Ãœmit Erdogdu against Turkey and registered on 2 September 1994

under file No. 25067/94;

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 17

July 1995 and the observations in reply submitted by the

applicant on 7 September 1995;

Having deliberated;

Decides as follows:

THE FACTS

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

Istanbul, is an author and journalist. He is represented before the

Commission by Mrs. Oya Ataman, 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 "responsible editor" of "Demokratik

Muhalefet (Democratic Opposition)", a review published in istanbul. In

its January 1992 edition, the review published an interview with the

Turkish sociologist, ismail Besikçi.

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

the istanbul State Security Court, on account of the interview with

ismail Besikçi, charged the applicant, as the responsible editor of the

review, with disseminating propaganda in the review against the

indivisibility of the State. The charges were brought under Article 8

of the Anti-Terror Law.

In the proceedings before the State Security Court, the applicant

denied the charges. He pleaded that he had only published the

transcript of ismail Besikçi's declarations. He stated that the

publication of an interview could not constitute an offence. He

maintained that such declarations were being made by the highest

authorities in Turkey.

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

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

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

50,000,000 Turkish lira. The Court, considering the good conduct of the

applicant during the trial, reduced his sentence to five months'

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

The Court relied on certain extracts from the published

declarations of ismail Besikçi. It held, inter alia, that such

sentences as "... Kurdish reality have nowadays been expressed by the

state bodies due to the fact that there is an armed resistance at

Kurdistan... no armed resistance by the Turkish forces could stop the

escalation and progress of PKK... the ideology and activities of the

PKK could change the persistent official policy of the State... the

above explained progress have been due to the armed struggle of the PKK

for nearly 8 years... which is illegal in Kurdistan the guerrilla 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 have evacuated certain areas called

Botan (the southeastern part of Turkey) here the Kurds are completely

in control... this means the begining of the formation of an

independent state... the Kurds, especially the PKK, will become more

effective over both Turkish and Kurdish societies ... conscience of

nationalism and independence will develop among the Kurdish people..."

amounted to propaganda against the indivisibility of the State.

The applicant appealed against this judgment.

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

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

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

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

applicant received this judgment on 21 February 1994.

After the amendments made to the Anti-Terror Law by Law No. 4126

of 27 October 1995, the istanbul State Security Court re-examined the

applicant's case. On 15 December 1995 the Court sentenced the applicant

to five months' imprisonment and a fine of 41,666,666 Turkish lira

under Article 8 paragraph 1 of the Anti-Terror Law as amended. The only

difference in the new judgment was that the Court ordered a "stay of

execution" of the applicant's sentence.

B. Relevant domestic law

Article 8 of the Anti-Terror Law No. 3713 of 12 April 1991

(before the amendments of 27 October 1995)

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

written and oral propaganda or hold assemblies, demonstrations

or 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.

If the offence of propaganda referred to in the preceding

paragraph is committed by means of periodicals, as defined in

Article 3 of the Press Law No. 5680, the owners of such

periodicals shall also 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 of the previous month;

- [for printed works that are not periodicals or for

periodicals which have recently started business, the fine

shall be ninety per cent of the average monthly sales 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 between six months and two years' imprisonment and to

half of the fine determined in accordance with the

foregoing provisions."

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

the clause in brackets in the text of Article 8 of the Anti-Terror Law

above to be contrary to the Constitution and annulled it. The

Constitutional Court held that the annulled text would cease to have

effect six months after the date of publication of the annulment

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

January 1993 and therefore this clause ceased to have effect as of 27

July 1993.

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

No. 4126 of 27 October 1995

"No one shall make written and oral propaganda or hold

assemblies, demonstratitons 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 one and three years and a

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

occurrence of this offence, sentences shall not be commuted to

fines."

C. Extracts from the relevant interview

The following is an English translation of extracts from the

relevant interview constituting the grounds for the domestic court

rulings:

" To what extend Demirel shall accept the "Kurdish Reality"?

Kurdish reality have nowadays been expressed by the state bodies due

to the fact that there is an armed resistance at Kurdistan...

...no armed resistance by the Turkish forces could stop the escalation

and progress of PKK... the ideology and activities of the PKK could

change the persistent official policy of the State...

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?

In Turkey, the government and the State are two very different

things. The State works with appointed institutions and bodies which

are established by designation. It is those institutions and bodies

which represent the power of the State. The government, that is to say,

political power carries very little weight against the power of the

State. From that point of view, the power of the State can very often

cause governments to deviate from their function. Official ideology can

only be changed in the long term. And the forces which can change it

are non-governmental political and societal forces. Changing it is the

challenge of those forces. The essence of the ideas and action of the

PKK, for example, is such as can change the official ideology, diminish

the weight of the bodies which have been established on the political

scene in Turkey, and increase the weight carried by the parliaments

elected by the people. In my opinion, as regards effectiveness, the

influence of the Kurds, and in particular of the PKK, will grow

further. The influence of the PKK in both Kurdish and Turkish society

will spread and will deepen. And, as that influence grows, more serious

steps will be taken in government policy towards recognising the

"Kurdish reality". The power of the State will obviously obstruct the

government in that process and will try to distort certain ideas and

policies. And it is manifest that the government will be able to

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

appointed institutions and bodies, i.e. as 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, Kurdish history and Kurdish folklore. Kurdish culture will

be revived. The specificity of being a Kurdish society will be

emphasised more amongst the Kurdish masses. National awareness and

desire for autonomy will become stronger and will spread further. The

idea and feeling of acquiring independence will develop.

It is now observed that Kurds who until now would never have 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?

Without a doubt the most important cause of these developments

has been the armed combat which the PKK has been waging for almost

eight years. The guerilla warfare has brought about major societal and

political changes in traditional Kurdish society. Traditional values

are in turmoil. There has been very widespread support amongst the

people for Kurdish guerilla 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 until now have

always engaged in politics for others and in order to serve other

nations have now begun to engage 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

oversimplifying to say that all of this began after the onset of

Kurdish guerilla 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 PKK. Which is illegal in Kurdistan the

guerrilla 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 have evacuated certain areas

called Botan (the southeastern part of Turkey) here the Kurds are

completeley in control. This means it is begining of the formation of

an independent state."

COMPLAINTS

The applicant complains of violations of Articles 9, 10 and 7 of

the Convention.

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

that his conviction as the responsible editor of a review, which

published an interview with the Turkish sociologist ismail Besikçi,

constituted an unjustified interference with his freedom of thought and

freedom of expression, in particular his right to receive and impart

information and ideas.

As to Article 7 of the Convention the applicant 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. He states that offences under the Anti-Terror Law should

have a direct link with the fight against terrorism. He asserts that

propaganda cannot therefore constitute an offence under Article 8 of

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

out that the publication of the interview for which he was convicted

did not incite people to terrorism and, therefore, could not

foreseeably have been offensive. The applicant also complains that the

provisions of the Article in question were unclear and could not have

enabled him to distinguish between permissible and prohibited

behaviour. Thus, he asserts that his conviction had no legal basis.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 August 1994 and registered

on 2 September 1994.

On 27 February 1995 the Commission decided to communicate the

application, under Articles 10 and 7 of the Convention, to the

respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of

Procedure. The Government's observations were submitted on 19 July

1995. The applicant replied on 11 September 1995.

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 applicant submitted his comments

in reply on 19 February 1996.

THE LAW

The applicant alleges that his conviction as the responsible

editor of a review constitutes an unjustified interference with his

freedom of thought and freedom of expression, in particular his right

to receive and impart ideas and information. He also complains that his

conviction under Article 8 of the Anti-Terror Law was not foreseeable.

He invokes Articles 7 (Art. 7) (no punishment without law), 9 (Art. )

(freedom of thought) and 10 (Art. 10) (freedom of expression) of the

Convention.

Six month time-limit

The respondent Government object that the applicant failed to

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

Convention. In their view, according to Article 26 (Art. 26), the date

of the introduction of an application will be the date of its arrival

before the Commission. They state that the applicant was aware of the

Court of Cassation's decision on 21 February 1994 and his application

was received by the Commission on 24 August 1994, which is not within

the six-month period.

The applicant contests this argument. He states that his first

letter indicated all the details with regard to the facts of his

application and that it was dated 20 August 1995. He maintains that he

has therefore observed the six-month rule.

The Commission recalls its constant case-law according to which

the date of introduction of an application is considered to be, in

principle, the date of the first letter indicating an intention to

lodge an application and giving at least a summary indication of the

nature of the complaints to be made (No. 8299/78, Dec. 10.10.80, D.R.

22 p. 51).

In the present case, the Commission notes that the Court of

Cassation's decision was served upon the applicant on 21 February 1994.

The first communication to the Commission indicating all the details

with regard to the facts and the complaints of the present application

was made by the applicant in his first letter of 20 August 1994 that

is less than six months later. The Commission notes that there is no

indication that this letter was back-dated and the fact that it was

received at a later date by the Commission cannot in these

circumstances be held against the applicant.

It follows that the applicant's complaints must be considered as

having been introduced within the six-month time-limit imposed by

Article 26 (Art. 26) of the Convention.

As to the substance of the applicant's complaints

The Government maintain that the interference with the

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

prescribed by law, in this case by Article 8 of the Anti-Terror Law.

They state that the applicant, in his review, published an interview

in which such sentences as "...the Kurds, especially the PKK, will

become more effective over both Turkish and Kurdish societies ...

conscience of nationalism and independence will develop among the

Kurdish people ..." amounted to propaganda against the indivisibility

of the State. They consider that therefore the domestic courts

interpreted the law reasonably.

The Government also maintain that the purpose of the conviction

of the applicant 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 on terrorism, authorising

"certain adaptations of the liberal model", 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 the threat posed to Turkey by the PKK

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 activities of the illegal terrorist organisation,

the PKK, for the establishment of an independent Kurdish State against

the Turkish State.

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.

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 statements. He alleges that the

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

concept of "dissemination of propaganda" against the indivisible

integrity of the State with its land and nation was so vague that his

conviction thereunder was not foreseeable. He emphasises that the text

of the provisions did not therefore enable him to distinguish between

permissible and prohibited behaviour.

The applicant also alleges that his conviction was not for any

legitimate purpose under the Convention. He considers that it was

completely out of proportion to rely on such reasons, particularly in

view of the limited circulation of the review.

Furthermore, the applicant maintains that the penal sanctions

inflicted upon him were not necessary in a democratic society. He

explains in this connection that he had published only the transcript

of ismail Besikçi's declarations to public opinion and observed that

similar declarations had also been made by certain official

institutions in Turkey.

With regard to the amendments made by Law No. 4126 to Article 8

of the Anti-Terror Law, the applicant states that his case was re-

examined in the light of these amendments and the new judgment

delivered on 15 December 1995 was the same as the previous one.

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. The Commission further notes that it is not inadmissible

on any other grounds.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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ERDOGDU v. TURKEY

ERDOGDU v. TURKEY

LEXI