Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23500/94

by E. P.

against Turkey

The European Commission of Human Rights sitting in private

on 24 June 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

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

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 18 November 1993

by Mr. E.P. against Turkey and registered on 16 February 1994 under

file No. 23500/94;

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 9

August 1995 and the observations in reply submitted by the

applicant on 15 September 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen born in 1962 and resident in

Istanbul, is a writer. Before the Commission he is represented by Kazim

Bayraktar, 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 author of the book entitled "Nevrozladik

Safaklari" ("We Turned each Dawn into a Newroz") which was published

in 1991.

On 13 December 1991 the District Court of Ankara ordered the

seizure of published copies of the book.

In an indictment dated 22 April 1992 the Public Prosecutor at the

Ankara State Security Court charged the applicant with disseminating

in his book separatist propaganda against the indivisiblity of the

State. The applicant was further charged with disclosing to the public

the identity of the officials in the province of Diyarbakir and

rendering them targets for terrorist attack. The indictment quoted

certain extracts from the book, which formed the basis for charges

under Articles 6 paragraph 1 and 8 paragraph 1 of the Anti-Terror Law.

In the proceedings before the Ankara State Security Court, the

applicant denied the charges. He pleaded that the extracts referred to

in the indictment were merely quotations from other sources. He

maintained that the book as a whole, including the extracts quoted by

the Public Prosecutor, did not contain any element of propaganda. He

stated that he had only commented on the problems of the people of

Kurdish origin based on historical facts. He also denied the

accusations concerning the disclosure of the identity of officials and

rendering them targets. He stated that any opinion should be freely

expressed and argued. He asserted that a book cannot constitute a

threat to the indivisibility of the State.

In a judgment dated 23 December 1992 the Ankara State Security

Court found the applicant guilty of the offences charged. The Court

sentenced the applicant to two years' imprisonment and a fine of 50

million Turkish lira under Article 8 paragraph 1 of the Anti-Terror

Law. The Court quoted extracts from the applicant's book and gave

detailed reasons, which included the following:

"The author refers to the rebels, who had revolted against the

Government in 1925 and had started an insurrection causing the death

of thousands of soldiers, as 'patriots'. He tries to establish a

connection between the insurrection of 1925 and the events which were

provoked by the PKK during the 1990 Newroz celebrations. He alleges

that the Government deny the existence of the Kurds. He refers to the

Republic of Turkey as an occupying and colonialist State. He implies

that there are two separate nations and countries within the

territories of the Republic of Turkey. The author's inaccurate version

of events aim at provoking enmity and hatred between the Turkish and

Kurdish societies."

The Court considered that the applicant's reference to the

identity of officials appointed to fight terrorism violated Article 6

paragraph 1 of the Anti-Terror Law. However, considering the provisions

of Article 79 of the Turkish Criminal Code, it did not find any grounds

for a separate conviction under this provision. The Court also ordered

the confiscation of all editions of the book.

The applicant appealed. In a statement to the Court of Cassation

dated 14 April 1993, the applicant's legal representative stated, inter

alia, that the applicant's conviction for writing and publishing his

comments and his ideas on historical facts and sociological issues

constituted a violation of his freedom of expression. He asserted that

the applicant had commented as a historian on the facts concerning a

nation's past. He challenged the Court's interpretation of the

applicant's comments in his book.

In a decision of 27 May 1993 which was delivered on 9 June 1993,

the Court of Cassation dismissed the appeal. It upheld the cogency of

the State Security Court's assessment of the evidence and its reasoning

in rejecting the applicant's defence. It held that an examination of

the file did not disclose any error in the contested judgment.

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

the Ankara State Security Court re-examined the applicant's case. On

14 December 1995 the Court sentenced the applicant to one year's

imprisonment and a fine of 100 million Turkish lira under Article 8

paragraph 1 of the Anti-Terror Law as amended.

B. Relevant domestic Law

The Anti-Terror Law (Law no. 3713 / of 12 April 1991)

Article 6 paragraph 1

"Those who announce that a crime will be committed by terrorist

organisations against certain persons either expressly or without

mentioning their names or who disseminate or disclose to the

public the identity of officials appointed to fight terrorism or

who render such officials targets shall be sentenced to a fine

between 5 and 10 million Turkish lira."

"isim ve kimlik belirterek veya belirtmeyerek kime yönelik

oldugunun anlasilmasini saglayacak surette kisilere karsi terör

örgütleri tarafindan suç islenecegini veya terörle mücadelede

görev almis kamu görevlilerinin hüviyetlerini açiklayanlar veya

yayinlayanlar veya bu yolla kisileri hedef gösterenler besmilyon

liradan onmilyon liraya kadar agir para cezasi ile

cezalandirilir."

Article 8 paragraph 1

"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 any such activity shall be sentenced to imprisonment between

two and five years and a fine between 50 and 100 million Turkish

lira."

"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."

Article 8 of the Anti-Terror Law as amended by Law No. 4126 of

27 October 1995

Article 8 paragraph 1

"No one shall make written and oral propaganda or hold

assemblies, demonstrations or (and) manifestations against the

indivisible integrity of the State of the Turkish Republic with

its land and nation. Those carrying out such activity shall be

sentenced to imprisonment between one and three years and to a

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

occurrence of this offence, sentences shall not be commuted to

fines."

"Türkiye Cumhuriyeti Devleti'nin ülkesi ve milletiyle bölünmez

bütünlügünü bozmayi hedef alan yazili ve sözlü propaganda ile

toplanti, gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda bir

yildan üç yila kadar hapis ve yüz milyon liradan üçyüzmilyon

liraya kadar agir para cezasi hükmolunur. Bu suçun mükerreren

islenmesi halinde, verilecek cezalar paraya cevrilemez."

Article 79 of the Turkish Criminal Code:

"If a single act by a person constitutes a violation of several

provisions of the law, that person shall be punished in

accordance with the single provision which imposes the heaviest

punishment."

"isledigi bir fiil ile kanunun muhtelif ahkamini ihlal eden

kimse, o ahkamdan en sedit cezayi tazammun eden maddeye göre

cezalandirilir."

COMPLAINTS

1. The applicant complains under Article 9 of the Convention that

his conviction and sentence for writing a book constituted an

unjustified interference with his freedom of thought.

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

1 that the confiscation of his book constituted an interference with

the peaceful enjoyment of his possessions.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 18 November 1993 and registered

on 16 February 1994.

On 20 February 1995 the Commission decided to communicate the

application, under Article 10 of the Convention and Article 1 of

Protocol No. 1 , to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure. The Government's observations

were submitted on 9 August 1995, after an extension of the time-limit

fixed for that purpose. The applicant replied on 15 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 comments in

reply on 19 February 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. 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."

The applicant also complains that the confiscation of his book

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."

1. The respondent Government first argue that the applicant has not

exhausted domestic remedies. They state that the applicant could have

brought an objection to the seizure order made by the District Court

of Ankara on 13 December 1991.

Secondly, the Government contend that at no stage in the

proceedings did the applicant invoke the relevant provisions of the

Convention.

The applicant contests the first argument of the Government. With

regard to his complaint, he emphasises that the unjustified

interference with his right is not the seizure but the confiscation of

his published books.

The confiscation decision has been delivered by the Ankara State

Security Court and he appealed against this decision before the Court

of Cassation. Accordingly, he maintains that he has exhausted the

domestic remedies.

Furthermore, the applicant claims that he has raised the

substance of all complaints made before the Commission in the domestic

proceedings.

The Commission recalls that Article 26 (Art. 26) of the

Convention requires the exercise of only those domestic remedies which

relate to the breaches alleged and can at the same time provide

effective and sufficient redress. An applicant does not need to exhaust

remedies which would be a pure repetition of remedies already exercised

by him (No. 9248/81, Leander v Sweden, Dec. 10.10.83, D.R. 34 p.78).

The Commission refers to its established case-law to the effect

that the 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).

The Commission notes that in the present case the final decision

regarding both the applicant's conviction and the confiscation of his

book is the decision of the Court of Cassation delivered on 9 June

1993. The Commission underlines that, as regards the possibility of

raising an objection to the seizure order, this would not have enabled

the applicant to remove any alleged interference with his Convention

rights as regards the confiscation (Otto-Preminger-Institut v Austria,

Comm. Report 14.1.93, para 56, Eur. Court H.R., Series A no. 295, p.

28).

The Commission notes that the applicant alleged before the Ankara

State Security Court and the Court of Cassation that there had been an

interference with his freedom of expression and the peaceful enjoyment

of his possessions. It therefore considers that the applicant raised

in substance in the domestic proceedings the complaints he now makes

before the Commission.

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.

2. The respondent Government further contend that the applicant has

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

Convention regarding his complaint of a violation of the peaceful

enjoyment of his possessions. In their view the six-month period

started to run in this respect from the seizure order issued by the

District Court of Ankara on 13 December 1991.

The Commission recalls that under Article 26 (Art. 26) of the

Convention, the six-month period runs from the decision of the highest

national authority competent to decide on the complaint which forms the

object of the application to the Commission (No. 17128/90, Dec.

10.7.91, D.R. 71 p. 282).

The Commission recalls that the final decision regarding the

conviction of the applicant and the confiscation of his book was the

decision of the Court of Cassation of 27 May 1993 which was delivered

on 9 June 1993. The present application was submitted to the Commission

on 18 November 1993, that is within the six-month period.

Therefore, the application cannot be rejected under Articles 26

and 27 para. 3 (Art. 26, 27-3) of the Convention, for failure to comply

with the six-month time-limit.

3. Finally, as to the merits, the Government assert that the

comments made by the applicant in his book constitute a provocation of

enmity and hatred between the Turkish and Kurdish societies which

serves to mobilise people to revolt. The book establishes a connection

between the insurrection of a 1925 and the events which were provoked

by the PKK during Newroz celebrations. The Government contend that the

applicant thus approves of acts of violence committed by the PKK.

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 book was

justified under Article 1 of Protocol No. 1 (P1-1) of 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 historian on the facts concerning the Kurdish

people living in Turkey.

He maintains that the freedom of expression should also protect

opinions which carry a risk of damaging, or which actually damage the

interests of others, or opinions which are contrary to the official

line unless there exists a pressing social need for restraining them.

He contends that, in the circumstances of the present case, there was

no pressing social need for his conviction and the confiscation of his

book.

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

proceedings 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.

Secretary to the Commission President to the Commission

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

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E.P. v. TURKEY

E.P. v. TURKEY

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