THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29910/96 by Necati TANIYAN against Turkey

The European Court of Human Rights ( Third Section) , sitting on 5 December 2002 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr B. Zupančič , Mrs H.S. Greve , Mr K. Traja , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 10 October 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Necati Tanıyan, is a Turkish national, who was born in 1947 and lives in İstanbul . He is represented before the Court by Ms Buran, Ms Kaplan and Ms Kostak, lawyers practising in İstanbul.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Yeni Politika (“New Politics”) is a daily newspaper published in İstanbul , with 11 liaison offices in different cities. The applicant is the owner of this newspaper.

From the first day of publication, i.e. 13 April 1995, until 16 August 1995, confiscation orders were issued for 117 out of 126 issues of the newspaper, either under Articles 6, 7 and 8 of the Prevention of Terrorism Act or under Article 312 of the Criminal Code.

For each issue, four copies of the sample printout were submitted to the Press Department of the İstanbul Security Directorate to be examined by the Public Prosecutor at the İstanbul State Security Court. The Public Prosecutor’s decision usually entailed the confiscation of the newspaper. On receiving the confiscation order, the applicant and his team prepared a new issue taking out those articles which constituted the grounds for confiscation. Despite the new layout, journalists of the newspaper sometimes suffered new confiscation orders and had to prepare third or fourth issues.

The applicant appealed against the confiscation orders of the newspaper twenty-one times between 19 April and 22 May 1995. His appeals were dismissed by the Ä°stanbul State Security Court.

The issue of the newspaper published on 24 April 1995 was confiscated because of three articles, one of which was entitled “ Atakürt ”. When another newspaper, Milliyet , previously published the same article it had not been not confiscated.

On 16 August 1995, following the applicant’s objection to a new confiscation order, the İstanbul State Security Court dismissed his appeal and ruled, inter alia , that Yeni Politika had attempted to follow the line of Özgür Gündem and Özgür Ülke , two newspapers formerly charged with making separatist propaganda and praising the activities of a terrorist organisation, namely the PKK, and which were no longer in circulation. After this decision Yeni Politika closed down.

B. Relevant domestic law

1. The Criminal Code

The relevant provisions of the Criminal Code read as follows:

Article 36 § 1

“In the event of conviction, the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence ...”

Article 79

“A person who infringes various provisions of this Code by a single act shall be punished under the provision which prescribes the heaviest punishment.”

Article 159 § 1

“Whoever overtly insults or vilifies the Turkish nation, the Republic, the Grand National Assembly, or the moral personality of the Government, the ministries or the military or security forces of the State or the moral personality of the judicial authorities shall be punished by a term of imprisonment of one to six years.”

Article 311 § 2

“Where incitement to commit an offence is done by means of mass communication, of whatever type – whether by tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled ...”

Article 312

“A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras.

A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years’ imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half.

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.”

The conviction of a person under Article 312 § 2 entails further consequences, particularly with regard to the exercise of certain activities governed by special legislation. For example, persons convicted of an offence under that Article may not found associations (Law no. 2908, section 4(2)(b)) or trade unions, nor may they be members of the executive committee of a trade union (Law no. 2929, section 5). They are also forbidden to found or join political parties (Law no. 2820, section 11(5)) and may not stand for election to Parliament (Law no. 2839, section 11(f 3)).

2. The Press Act (Law no. 5680 of 15 July 1950)

Section 3 of the Press Act 1950 reads as follows:

“For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals.

‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it.

An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.”

3. Prevention of Terrorism Act (Law no. 3713 of 12 April 1991)

The relevant provisions of the Prevention of Terrorism Act 1991 read as follows:

Section 6

“It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person’s ... identity is divulged, provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target.

It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to print or publish declarations or leaflets emanating from terrorist organisations.

Section  7

“...

Those who assist members of organisations constituted in the manner described in the first paragraph, or make propaganda in connection with such an organisation shall be liable to a sentence of imprisonment of between 1 and 5 years and a fine of between 50,000,000 and 100,000,000 Turkish Liras, in addition to any other penalty to which they may be liable for the same conduct.”

Section 8

(before amendment by Law no. 4126 of 27 October 1995)

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.

Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.”

COMPLAINTS

The applicant submits that the Government of Turkey have, directly or indirectly, sought to hinder, prevent and render impossible the production and distribution of the Yeni Politika newspaper.

In this respect, the applicant alleges that there has been an interference with his right to impart information and ideas in breach of Article 10 of the Convention. He states that the effect of so many unjustified prosecutions was eventually to drive Yeni Politika out of business and, in fact, the newspaper financially suffered from the confiscation orders.

The applicant complains that the İstanbul State Security Court, which approved the confiscation orders of the public prosecutor and dismissed the applicant’s appeals against these orders, is not an independent and impartial court within the meaning of Article 6 § 1 of the Convention, on account of the presence of a military judge sitting on the bench.

Furthermore, the applicant complains that both the confiscation orders given by the public prosecutor and the decision of the İstanbul State Security Court rejecting his appeals against the confiscation orders are not reasoned under Article 6 § 1.

He also complains under Article 13 of the Convention in conjunction with Article 6 that the court dismissed his appeals against the confiscation orders without giving reasons. He therefore alleges that there are no effective remedies in Turkey concerning complaints of this kind.

The applicant alleges a violation of Article 14 of the Convention in conjunction with Article 10, in that his newspaper was discriminated against because he employed staff of Kurdish origin and published news about Kurdish people.

The applicant lastly submits under Article 18 of the Convention that the restrictions applied to his freedom of expression were inconsistent with the legitimate aims prescribed in Article 10 § 2.

THE LAW

The applicant complained that the confiscation of nearly every issue of the newspaper that he published violated his rights under Article 6, 10, 13, 14 and 18 of the Convention. He alleged that the respondent State tried to hinder, prevent and render impossible the production and distribution of his newspaper.

A. The Government’s preliminary objections

1. Six months’ time limit

The Government submit that the applicant applied to the Commission on 9 January 1996 arguing that the confiscation orders between 13 April 1995 and 16 August 1995 violated his rights guaranteed under Article 10 of the Convention. They therefore contend that the confiscation orders which became final before 9 July 1995 should not be taken into consideration as the six-month time-limit had expired for them when the applicant applied to the Commission.

The applicant did not make any submissions on this point.

The Court observes that the application was lodged with the Commission on 10 October 1995. It notes that the date which the Government refer to as the application date is the date of registration of the application by the Secretariat of the Commission, i.e. 23 January 1996. Consequently, the Court finds that the applicant filed his application within the six-month time-limit and that the application cannot be rejected on the basis of Article 35 §§ 1 and 4 of the Convention.

2. Exhaustion of domestic remedies

The Government submit that the applicant appealed only against some of the confiscation orders and that the dismissal of these appeals do not constitute a presumption that any appeal against the remainder of the confiscation orders would have been dismissed. They claim that each confiscation order is independent from the other and has a separate reason and that therefore the applicant cannot be considered to have exhausted the domestic remedies since he failed to appeal against all confiscation orders.

The applicant submits that all his appeals against the confiscation orders had been dismissed. He argues that, even assuming that there is a chance for an appeal to be successful, it would nonetheless be far from compensating his loss caused by the confiscation orders. He points out that the newspaper is published daily and that the proceedings for appeals last much longer than a day.

The Court recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. However, there is no obligation under Article 35 § 1 to have recourse to remedies which are inadequate or ineffective. (see Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, pp. 1210 ‑ 11, §§ 65-69). The Court reiterated in many cases that the remedy indicated by the Government must be sufficiently certain, in practice as well as in theory (see, among other authorities, YaÄŸcı and Sargın v. Turkey , judgment of 8 June 1995, Series A no. 319-A, p. 17, § 42)

In the present case, every issue of the applicant’s newspaper was confiscated during four months. The applicant availed himself of the appropriate legal remedies to challenge the lawfulness of the confiscation orders until such time as he decided that these remedies were not effective. The Court observes that the Government did not supply any evidence which demonstrates that, if the applicant continued to appeal against further confiscation orders, the decisions of the İstanbul State Security Court could have changed. Consequently, the Court holds that in the circumstances of the present case the applicant was not required to pursue any further remedy in domestic law and that therefore the application cannot be rejected for failure to exhaust domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.

B. Merits

1. The applicant complains under Article 6 § 1 of the Convention that the confiscation orders and his objections to these orders were not considered by an independent and impartial tribunal on account of the presence of a military judge on the bench of the İstanbul State Security Court . He also argues that these orders and decisions were not reasoned.

Furthermore the applicant complains under Article 13 of the Convention, in conjunction with Article 6, that the Ä°stanbul State Security Court dismissed all of his appeals against the confiscation orders without giving reasons. He therefore alleges that there are no effective remedies in Turkey concerning complaints of this kind.

The Court must first determine whether Article 6 of the Convention is applicable in the present case.

The Court notes that criminal charges have never been brought against the applicant. Furthermore, the confiscation order is a preventive measure and cannot be compared to a criminal sanction, since it is designed to take out of circulation the newspaper which was allegedly making separatist propaganda against the indivisibility of the State (see, mutatis mutandis , Butler v. the United Kingdom (dec.), no. 41661/98, ECHR 2002). It follows that the proceedings which led to the making of the confiscation orders and the dismissal of the appeals against these did not involve “the determination ... of a criminal charge” within the meaning of Article 6 § 1 of the Convention (see, mutatis mutandis , Raimondo v. Italy, judgment of 22 February 1994, Series A no. 281-A, p. 20, § 43; Arcuri v. Italy (dec.), no. 54024/99, 5 July 2001, unreported). Article 6 of the Convention is therefore not applicable under its criminal heading to the proceedings which the applicant complained of.

The Court notes, however, on the basis of its established case-law (see the Air Canada v. the United Kingdom judgment of 5 May 1995, Series A no. 316, p. 20, § 56), that the present case concerns a dispute relating to the applicant’s civil rights.

In view of the above considerations and in the light of the parties’ submissions, the Court considers that these complaints raise serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

2. The applicant complains that his right to impart ideas and information guaranteed under Article 10 of the Convention was violated.

The Government submit that the confiscation orders for the incriminated issues of the newspaper were given upon the application of Article 28 of the Constitution and additional Article 1 to the Press Act. They therefore submit that the interference with the applicant’s right to express and impart ideas was prescribed by law.

As regards the aim of the interference, the Government argue that the applicant’s convictions and the confiscation orders for some of the issues of Yeni Politika were part of the efforts of the authorities to maintain national security, public safety and territorial integrity of the State. They submit that the confiscated issues of the newspaper contained articles praising the PKK, a separatist terrorist organisation which aims at founding an independent state in the eastern part of Turkey. The Government draw attention to an article published in Yeni Politika on 8 May 1995, which constituted the basis for a confiscation order:

“ (...)

You might like or you may not like the PKK but the PKK and the Kurdish problem are part of each other, (...) they are like finger and nail. Today, the people in Kurdistan and in everywhere where the Kurds live, support the policies of the PKK rather than any other. If you want to speak to Kurds, you should address the PKK. Anyone who wants to make peace with the Kurds, will make peace with the PKK. Anyone who wages war against the PKK will wage war against Kurdish people.  (...)”

They stress that, considering that terrorism had increased in eastern Turkey during the past 10 years due to the efforts of the PKK to secure a part of the Turkish territory for a proclaimed Kurdish State, the effects of such articles should not be underestimated. In this respect, the democratic order has to have the right to defend itself against any danger to its existence.

The applicant argues that Yeni Politika projects an objective view on the Kurdish problem in eastern Turkey. The fact that Yeni Politika has an opinion on the Kurdish problem different from that of the Government should not be interpreted as the newspaper having a connection with an illegal terrorist organisation.

In reply to the Government’s observations, the applicant submitted to the Court a letter dated 30 November 1994 and stamped confidential, which the Prime Minister of the time, Ms Tansu Çiller , sent to the Ministry of Justice. The letter reads as follows:

“It has been noted that certain media companies, especially the Özgür Ülke newspaper, are supporting and encouraging the activities of illegal organisations which aim at the indivisibility of the state. The mild approach of Turkey, which is a democratic, and a secular State, to the freedom of press is being abused. This situation is disturbing our people.

In order to bring to an end this crucial threat against the indivisibility of the State, I request from the Ministry of Justice to follow up and determine the relevant publications, provide that all complaints lodged against this type of publication have an effective legal remedy and to establish a method to fight against them.”

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicant alleged that the authorities confiscated issues of his newspaper because his employees were of Kurdish origin and that the news mostly concerned the Kurdish people. In this regard, the applicant maintains that the publishing of the article titled “ Atakürt ” by Mr Ahmet Altan in Yeni Politika constituted a basis to confiscate that issue of the newspaper, while the same article was tolerated when published in another daily newspaper, namely Milliyet .

The Government submit that the reason for the confiscation of the issue dated 21 April 1995 of Yeni Politika was not only the article entitled “ Atakürt ” but also two other articles, namely “Pressure on villagers in Batman” and “Turkish press in ruins ”. It is said in the confiscation order that these three articles altogether constituted an offence under Article 312 of the Criminal Code. They allege that these articles provoked feelings of hatred and enmity among the people by discriminating on the grounds of social class, race, religion, sect or region. Furthermore, they argue that when considering the imminence of danger, it is important to determine where an article is published. An article published in a newspaper that follows the same line as the newspapers formerly charged with making separatist propaganda could not be compared with just any daily newspaper.

The Government further alleged that Yeni Politika was not the only newspaper subjected to confiscation orders in 1995. Many other publications that praised terrorist organisations and supported extreme right or extreme left-wing opinions had also been examined by public prosecutors and confiscated when necessary.

The applicant maintains his account of facts.

The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

4. The applicant complains that the respondent State pursue a policy of restricting the freedom of expression and right to impart ideas laid down in the Convention in a manner which is incompatible with the limitations which the Convention prescribed in respect of those rights. In this respect, he invokes Article 18 of the Convention.

The Government submit in reply that the State intervenes only when publications constitute incitement to hatred and enmity jeopardising national security and public safety.

The Court considers, in the light of the parties’ submissions that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court

unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 10, 14 and 18 of the Convention;

by a majority

Declares admissible, without prejudging the merits, the applicant’s complaints under Article 6 § 1 of the Convention .

Vincent Berger Georg Ress Registrar President