THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52780/99 by AyÅŸenur ZARAKOLU 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 lodged with the European Commission of Human Rights on 20 February 1998,

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 deliberated, decides as follows:

THE FACTS

The applicant, Mrs Ayşenur Zarakolu, who died on 28 January 2002 was a Turkish national and lived in Istanbul. She was represented before the Court by Mr Özcan Kılıç, a lawyer practising in Istanbul.

On 25 April 2002 the Court was informed of Mrs Zarakolu’s death and that Mr Ragıp Zarakolu , her widower, wanted the proceedings to continue and wished to participate in them, retaining the applicant’s lawyer as his representative.

For practical reasons, Mrs Zarakolu will continue to be called “the applicant”, although Mr Zarakolu is now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI, and see also Ahmet Sadık v. Greece , judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1641, § 3).

A. The circumstances of the case

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

The applicant was the owner of a publishing company, Belge Uluslararası Yayıncılık , in Istanbul.

In February 1997 the applicant published a book entitled Alevi Kimliğini Tartışmak Kitap -I (Discussing the Alevi Identity, Book I), written by H.K. The book, 144 pages in total, examined the origins and the development of the Alevi sect.

On 28 April 1997 the principal public prosecutor at the Istanbul State Security Court lodged an application with the court requesting an order for the seizure of the book.

On the same day, the 1st Chamber of the Istanbul State Security Court, sitting with a single judge who is a lieutenant-colonel, ordered the seizure of the book in accordance with Article 28 of the Constitution, Article 86 of the Code of Criminal Procedure and Article 2 § 1 of the Press Act no. 5680. The court considered that the book, taken as a whole, provoked feelings of hatred and enmity among the people by discriminating on the grounds of race, religion, sect or region.

The seizure order has effectively prevented the applicant from publishing further copies as well as from storing, advertising, distributing or selling further copies of the book. The initial idea of the applicant was subsequently to publish volumes 2-5 of the book, but this was made impossible by the seizure order.

The public prosecutor at the State Security Court asked the Istanbul Police Headquarters to summon the applicant and the author of the book to his office so that statements could be taken from them.

On 5 May 1997 a statement was taken from the applicant at the prosecutor’s office. She disputed that the book had provoked feelings of hatred and enmity among the people by discriminating on the grounds of race, religion, sect or region. She stated that the book merely examined problems surrounding the Alevi identity.

On 7 May 1997 the applicant filed an objection with the 1 st Chamber of the Istanbul State Security Court against its seizure order of 28 April 1997. She submitted that the judge had ordered the confiscation of the book on the very day the prosecutor had requested him to take such a decision. In the applicant’s opinion, the judge could not have read the whole book in such a short time and therefore the judge’s conclusion that “the book taken as a whole incited to hatred”, lacked any legal basis. She maintained that in publishing the book she had exercised her right to express ideas and impart information to the public. She also contended that the court’s order for the seizure of the book contravened Articles 6, 9 and 10 of the Convention.

On 9 May 1997 the 1st Chamber of the Istanbul State Security Court, sitting with three full members including a lieutenant-colonel, unanimously dismissed the applicant’s objection and upheld the order for the seizure of the book.

In the meantime, on 7 May 1997 the public prosecutor at the Istanbul State Security Court filed an indictment with the court charging the applicant with incitement to hatred, an offence under Article 312 § 2 of the Criminal Code. The prosecutor also requested the confiscation of the impugned book. The public prosecutor alleged, in particular, that the applicant had published a book in which an attempt was made to portray the Ottoman Empire and the Republic of Turkey as guilty of massacring and denigrating Alevi s .

During the hearing on 30 July 1997 before the Istanbul State Security Court, the applicant denied the charges against her and asked the court to set aside its seizure order. This request was rejected by the court.

On 13 October 1997 the Istanbul State Security Court postponed the criminal proceedings against the applicant pursuant to Article 1 § 3 of Law no. 4304 of 14 July 1997. The court also decided, under Article 2 of the same Law, that the criminal proceedings would be set aside provided that the applicant did not intentionally commit any offence in her capacity as an editor within three years of this decision. The applicant’s request from the court to set aside the seizure order was rejected. The applicant, arguing that the court should have acquitted her instead of postponing the trial, appealed against the decision.

On 24 December 1997 the Court of Cassation dismissed the appeal.

B. Relevant domestic law

Article 28 provides as follows:

“The press is free, and shall not be censored .

...

The State shall take the necessary measures to ensure freedom of the press and  freedom of information.

...

Periodical and non-periodical publications may be seized by decision of a judge in cases of ongoing investigation or the prosecution of offences prescribed by law, and in situations where delay could endanger the indivisible integrity of the State with its territory and nation, national security, public order of the competent authority designated by law. The authority issuing the seizure order shall notify the competent judge of its decision within twenty-four hours at the latest. The seizure order shall become null and void unless upheld by the competent court within forty-eight hours at the latest.

...”

2. The Code on Criminal Procedure

Article 86 reads as follows:

“Materials likely to be used as evidence in an investigation, or which are subject to seizure, are kept separately from other materials or secured in another way.

If these materials are in the possession of a person who refuses to relinquish them upon proper demand, they may be forcibly taken.”

3. Press Act no. 5680

Article 2 § 1 provides as follows:

“In cases of conviction for the commission of acts by means of the press against national security or morals...the court may order the closure of the periodical in which the incriminated article was published for a period of three days to one month ...”

4. The Criminal Code

Article 312 reads as follows:

“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.”

5. Law no. 4304 of 14 August 1997 on the deferment of judgment and of execution of sentences in respect of offences committed by editors before 12 July 1997

The following provisions are applicable to sentences in respect of offences under the Press Act:

Article 1

“The execution of sentences passed on those who were convicted under Article 16 of the Press Act (Law no. 5680) or other laws as editors for offences committed before 12 July 1997 shall be deferred.

The provision in the first paragraph shall also apply to editors who are already serving their sentences.

The institution of criminal proceedings or delivery of final judgments shall be deferred where no proceedings against the editor have yet been brought, or where a preliminary investigation has been commenced but criminal proceedings have not been instituted, or where the final judicial investigation has been commenced but judgment has not yet been delivered, or where the judgment has still not become final.”

Article 2

“If an editor who has benefited under the provisions of the first paragraph of Article 1 is convicted as an editor for committing an intentional offence within three years of the date of deferment, he must serve the entirety of the suspended sentence.

...

Where there has been a deferment, criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within three years of the date of deferment.

Any conviction as an editor for an offence committed before 12 July 1997 shall be deemed a nullity if the aforesaid period of three years expires without any further conviction for an intentional offence. Similarly, if no criminal proceedings have been instituted, it shall no longer be possible to bring any, and, if any have been instituted, they shall be discontinued.”

COMPLAINTS

Invoking Article 6 § 1 of the Convention, the applicant alleges that in the proceedings concerning the seizure of the book she did not receive a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court.

Under Article 6 § 2 of the Convention the applicant maintains that the Istanbul State Security Court’s order for the seizure of the book, which was not based on a finding of guilt following fair proceedings, violated her right to be presumed innocent until proved guilty.

She complains under Articles 9 and 10 of the Convention that there has been an interference with her right to freedom of expression by a public authority in that her right to impart information and ideas has been undermined by the Istanbul State Security Court which ordered the seizure of the book and before which subsequent criminal proceedings were instituted against her.

Under Article 13 of the Convention, the applicant complains of a lack of effective remedies in domestic law in respect of the above complaints. She claims, in particular, that she has no remedies at her disposal to challenge the deferment of the criminal proceedings.

The applicant finally invokes Article 14 of the Convention in conjunction with Articles 9 and 10 of the Convention and alleges that the seizure of the book for the reason that it contains opinions incompatible with the State’s official ideology, constitutes discrimination on the ground of political opinion.

THE LAW

1. The applicant argues that she was denied a fair procedure in respect of the seizure order on account of the presence of a military judge on the bench of the Istanbul State Security Court . She further submits that the handing down of the seizure order in the absence of a prior conviction violated her right to be presumed innocent until proved guilty.

The applicant invokes Article 6 §§ 1 and 2 of the Convention relevant parts of which provide as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.

...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court observes that the decision to seize copies of the book was a prelude to the laying of criminal charges against the applicant and her prosecution before the State Security Court. The guarantees of Article 6 of the Convention only attach to the determination of her guilt or innocence at her trial and on appeal, and not to the stage when evidence of the alleged offence was seized (see Gerger v. Turkey (dec.), no.42436/98,25.6.2000, unreported).

The Court further observes that the purpose of the seizure order was not the conviction or acquittal of the applicant and that the making of the seizure order had no implications for her criminal record. For the Court, these are also relevant considerations for concluding that Article 6 does not apply to the seizure proceedings in the instant case (see Butler v. The United Kingdom (dec.), no. 41661/98, 27.6.2002, unreported).

The Court finds, therefore, that the decision of the singe judge to order the seizure of copies of the book entitled Alevi Kimliğini Tartışmak did not involve the determination of a “criminal charge” within the meaning of Article 6 of the Convention.

The Court concludes accordingly that the complaints under Article 6 of the Convention must be considered as being incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 34 § 4 thereof.

2. T he applicant complains under Articles 9 and 10 of the Convention that there has been an interference with her right to freedom of expression by a public authority in that her right to impart information and ideas has been undermined by the Istanbul State Security Court which ordered the seizure of the book and before which subsequent criminal proceedings were instituted against her. Articles 9 and 10 provide as follows:

Article 9

“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Article 10

“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 Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

3. Under Article 13 of the Convention the applicant complains of a lack of effective remedies in domestic law in respect of the above complaints. She claims, in particular, that she has no remedies at her disposal to challenge the deferment of the criminal proceedings. Article 13 provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Court notes that, to the extent that the applicant complains of a lack of a national remedy in order to challenge the seizure order, it has already found that the seizure proceedings did not involve the determination of a “criminal charge” within the meaning of Article 6 of the Convention.

In so far as the applicant complains that she had no effective remedy to challenge the Istanbul State Security Court’s decision of 13 October 1997 postponing the criminal proceedings against her, it observes that the applicant was in fact able to appeal, albeit unsuccessfully, against this decision. In this connection, the Court observes that the word “remedy” within the meaning of Article 13 does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see, mutadis mutandis , Bensaid v. the United Kingdom , no. 44599/98 § 56, ECHR 2001-I; see also Said v. The Netherlands (dec.), no. 2345/02, 17.9.2002).

In the light of the foregoing, the Court finds that no issues arise under Article 13 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicant finally invokes Article 14 of the Convention in conjunction with Articles 9 and 10 of the Convention and alleges that the seizure of the book for the reason that it contains opinions incompatible with the State’s official ideology, constitutes discrimination on the ground of political opinion. Article 14 provides as follows:

“The enjoyment of the rights and freedoms set forth in [the] 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 Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this complaint to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the alleged interference with her freedom of expression and the alleged discrimination in the enjoyment of that right on account of her political opinion ;

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President