THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37062/97 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 May 1997,

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, 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 parties, may be summarised as follows.

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

In April 1994 the applicant’s company published a book entitled Emekçiye Mektuplar-1, Türkiye’nin Düzeni ve Kürt Sorunu (Letters to the Worker-1, The Order of Turkey and the Kurdish Problem), written by Haluk Gerger . The book is a chronological compilation of newspaper articles written by the author and published in various newspapers between 1991 and 1993.

On 8 March 1995 the chief public prosecutor at the Istanbul State Security Court examined the book and decided not to take any action in respect of its publication.

On 17 January 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 which was by that time in its 4 th edition.

On the same day the 6 th Chamber of the Istanbul State Security Court, sitting with a single civilian judge, ordered the seizure of the book in accordance with Article 28 of the Constitution, Article 86 of the Code on Criminal Procedure and Article 2 § 1 of the Press Law no. 5680. The court considered that the book, at certain pages and taken as a whole, contained statements which provoked feelings of hatred and enmity among the people by discriminating on the grounds of race and region, offences under Article 8 of the Prevention of Terrorism Act (Law No. 3713) and under Article 312 § 2 of the Criminal Code respectively. The court referred, in particular, to the pages 133-139, 148-149, 159-160, 168-170, 180-187 and 191-193 of the book. The following expressions appear in the articles featuring between these pages:

Two articles, previously published in the Gündem newspaper in 1992, feature on pages 133 and 139, entitled “Supporting the Kurds: Why and how” and “Pan- Kurdism ”. In the first article the author explains why, as a Turk, he supports the Kurds. The author states that he has respect for the Kurdish organisations which fight within legal boundaries. He further states that the fact of the PKK’s existance should be accepted. The author goes on to state the following:

“The Kurdish movement employs illegal means and it resorts to armed violence. As a principle I do not agree with either of these methods. But this personal choice on its own does not matter that much. One has to refer to the basic doctrines of Marxism. That is to see the reality behind what is obvious. Looking at the problem of methods [of achieving aims] from this perspective we see that illegality is imposed on the Kurds by the State. Therefore the responsibility rests with the State and not with the Kurds.

As to the subject of armed violence, one does not have to be a scholar to see that the State blocks all avenues of democratic, political and peaceful solutions for the Kurds. The history shows us - and it is repeated today - that when all these avenues are closed [people] resort to armed violence. It is a political reality. If the State opens all democratic and peaceful avenues but the leadership [of the PKK] insists on resorting to violence, then it will be the leadership’s responsibility. But for me, when all these avenues are closed, each time blood is spilt I feel a deep sorrow and see the bloody hand of the merciless Turkish bourgeoisie behind the trigger. It may be the case that the leader prefers political solutions and that [he] will be prepared to compromise. It will then fall on to the State to prove otherwise and the way to do this is to open all democratic avenues...”

In the article entitled “Pan- Kurdism ”, the author examines the expression “Pan- Kurdism ” employed “by left wing or right wing people against people who utter positive things about Kurds”. The author states that he has heard no such things as “pan- Palestinianism ”, “pan- Algerianism ” or “pan- Vietnamism ” and concludes that “by using the expression “pan- Kurdism ”, people attempt to label those who support the Kurdish cause as chauvinists and fascists or anti-socialists and imperialists anyway. It is not appropriate to brand the defense of legal Kurdish national-democratic rights as ‘pan- Kurdism ’”.

In the article entitled “ Kunta Kinte ”, featured on pages 148-149, the author compares Alex Healey’s Kunta Kinte to those fighting for the Kurdish cause who

“set examples to all people held in slavery and to oppose racism and tyranny. They pay the price of freedom with their lives and blood but their dead bodies cherish their peoples’ rights to exist, their future and their hopes. How prosperous for humanity it is that there will always be Kunta Kintes .”

In the article entitled “The State fights against its People” on pages 159-160, the author compares the Vietnam war to the “civil war in Turkey” and points to similarities between how in both cases civilians became one of the warring parties. The author concludes that

“... the State is not only fighting the PKK militants on the mountains but it is also fighting the Kurdish population whom it sees as the roots of the [militants]. But it is obvious that this is an unequal war; on the one hand there is the State’s great war machine and on the other hand there is the unarmed, poor and oppressed Kurdish people. In my opinion, this is one of the main realities of the civil war...”

In the article entitled “Observations on Şırnak ” on pages 168-170, the author criticises the actions of the Turkish security forces in bombing the town of Şırnak and villages near the town of Cizre which took place before and during his visit to these towns.

In the article entitled “Before our souls die” on pages 180-181, the author examines the consequences of the fight in south-east Turkey and he concludes that as a result of all the bloodshed the gap between the Kurdish and the Turkish populations will be widened.

In the article entitled “How will the mistakes be rectified?” on pages 182-183, the author deals with the issue of Kurdish and Turkish extreme nationalism and its negative effects.

In the article entitled “The first vote” on pages 184-185, the author examines the Kurdish National Assembly elections held on 20-22 November 1992 in Turkish, Iranian, Iraqi and Syrian Kurdistan , in Caucasia and in Europe .

In the article entitled “Like a clean Kurd” on pages 186-187, the author criticises the burning and the bombing of villages in south-east Turkey by the Turkish armed forces and argues that despite all their sufferings the Kurds did not even harass a single Turkish person because of his or her identity. He concludes that the Kurds, through their leader’s proletarian and revolutionary character, have also been prevented from slaughtering each other.

On 29 January 1997 the applicant filed an objection with the Istanbul State Security Court against its order of 17 January 1997. She pleaded that the book as a whole, including the pages impugned by the principal public prosecutor, did not contain any element of the offence described in Article 8 of the Law No. 3713 or in Article 312 § 2 of the Criminal Code. She further stated that the court’s order lacked reasons and merely repeated the request of the public prosecutor. She maintained that in publishing the book she aimed at enjoying 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. She finally asked the court to set aside the seizure order of 17 January 1997.

On 3 February 1997 the 6 th Chamber of the Istanbul State Security Court, sitting with three full members including a military member, dismissed the applicant’s objection and upheld the order for the seizure of the book.

On 2 July 1997 the principal public prosecutor at the Istanbul State Security Court filed an indictment charging the applicant with disseminating separatist propaganda under Article 8 of the Prevention of Terrorism Act, and with incitement to hatred under Article 312 § 2 of the Criminal Code.

On 16 June 1998 the Istanbul State Security Court noted that the chief public prosecutor at the Istanbul State Security Court had already examined the book on 8 March 1995 and had decided not to take any action. The court stated that it was not clear how and why an indictment was filed on 2 July 1997, outside the statutory period. The court finally decided to discontinue the trial on the ground that the statute of limitations in respect of the offences in question was one year from the publication of the book.

B. Relevant domestic law

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

This Law, promulgated with a view to preventing acts of terrorism, refers to a number of offences defined in the Criminal Code that it describes as acts “of terrorism” or acts “perpetrated for the purposes of terrorism” and to which it applies.

Article 8 provides as follows:

“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. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a re-offender may not be commuted to a fine.

Where the act of propaganda, deemed to be an offence for the purposes of the first paragraph, is committed through the medium of periodicals within the meaning of Article 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.

Where the act of propaganda, deemed to be an offence for the purposes of the first paragraph, is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras ...

...”

2. 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.”

3. The Constitution (as in force in 1997)

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.

...”

4. The Code of Criminal Procedure

Article 86 provides 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.

5. The Code of Criminal Procedure

Article 343 § 1, concerning references to the Court of Cassation by written order of the Minister of Justice ( Yazılı emir ile bozma – “reference by written order”), provides as follows:

“Where the Minister of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation , he may issue a formal order to the Principal State Counsel requiring him to ask the Court of Cassation to set aside the judgment concerned

...”

6. The Press Act no. 5680

Article 2 § 1 reads 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 ...”

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.

Under Article 13 of the Convention, the applicant complains of a lack of effective remedies in domestic law in respect of the above complaints.

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 on account of the use of certain words such as “Kurdish”, “Kurdish Nation” and “ Kurdistan ” constitutes discrimination on the ground of political opinion.

THE LAW

The applicant complains of violations of Articles 6, 9, 10, 13 and 14 of the Convention in connection with the seizure of the book.

A. Exhaustion of domestic remedies

The Government submit that the application is inadmissible as the applicant has failed to exhaust domestic remedies within the meaning of Article 35 § 1 the Convention. In this regard, they submit that according to Article 343 of the Code of Criminal Procedure the applicant could have requested the Ministry of Justice to issue a written order to the principal public prosecutor requiring him to ask the Court of Cassation to set aside the seizure order.

The applicant maintains that this particular appeal referred to by the Government is an extraordinary remedy which she did not have to exhaust.

The Court notes that the reference by written order ( y azılı emir ile bozma ) provided for in Turkish law is an extraordinary remedy available against judgments given at last instance against which no appeal lies to the Court of Cassation . According to Article 343 of the Code of Criminal Procedure (see above), only principal public prosecutors at the Court of Cassation are empowered to refer a case, but they may do so only on the formal instructions of the Minister of Justice. The remedy in question is therefore not directly accessible to people whose cases have been tried. Consequently, regard being had to the generally recognised rules of international law, it is not necessary for this remedy to have been used for the requirements of Article 35 of the Convention to be held to have been satisfied.

In this context, the Court observes that in another case, the respondent Government themselves have referred to this particular remedy as an extraordinary remedy ( Öztürk v. Turkey [GC], no. 22479/93, § 42, ECHR 1999-VI).

In the light of the foregoing, the Court concludes that the application cannot be rejected for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.

B. Merits

1. Complaints under Article 6 of the Convention

The applicant maintains that her right to a fair hearing guaranteed by Article 6 § 1 of the Convention was breached on account of the presence of a military judge on the bench of the Istanbul State Security Court which ordered the seizure of the book. 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. Relevant parts of Article 6 of the Convention 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 notes that the parties, despite having been invited by the Court, did not make any comments on the applicability of Article 6 to the seizure proceedings.

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 which subsequently decided to discontinue the trial. 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 single judge to order the seizure of copies of the book entitled Emekçiye Mektuplar-1, Türkiye’nin Düzeni ve Kürt Sorunu 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. Complaints under Article 9 and 10 of the Convention

The Court observes that in her application to the Commission the applicant complained that her rights under Articles 9 and 10 of the Convention were breached. In her observations in reply, however, she did not submit argument in support of the complaint under Article 9 of the Convention other than making a passing reference to it. The Court considers, in any event, that the essence of the applicant’s complaints concerns the alleged interference with her right to express views and opinions, and therefore it should be considered from the standpoint of Article 10 of the Convention that 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 Government maintain that the seizure order cannot be regarded as an interference with the applicant’s rights under Article 9 and 10 of the Convention. In this connection they point out that only one copy of the book was seized.

They further submit that no criminal charges were brought against the author of the book at the time of publishing the articles contained in the book in the newspapers.

The applicant maintains her allegations. She submits that although initially one copy of the book was seized, subsequently more copies were seized. She was also prevented from publishing subsequent editions of the book.

The applicant argues that the book contained the views of the author and these views cannot be regarded as incitement to violence. In this connection, the applicant points out that this was not contested by the Government.

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.

3. Complaint under Article 13 of the Convention

Under Article 13 of the Convention the applicant complains of a lack of effective remedies in domestic law in respect of the above complaints. 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 Government submit that a remedy within the meaning of Article 13 does not mean that the applicant’s claim must be vindicated and that the applicant must win her case. It merely requires that the applicant must have an opportunity for her claim to be examined by a national authority.

The Court notes at the outset 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 any event, the applicant was able to appeal, albeit unsuccessfully, against the seizure order. 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. Complaint under Article 14 of the Convention

The applicant alleges that the seizure of the book on account of the use of certain words such as “Kurdish”, “Kurdish Nation” and “ Kurdistan ” constitutes discrimination on the ground of political opinion within the meaning of Article 14 of the Convention which 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 Government reject the allegation and submit that the circumstances in which books can be seized are set out in relevant domestic legislation.

They further submit, referring to the Court’s finding in the case of O bserver and Guardian v. The United Kingdom ( judgment of 26 November 1991, Series A no. 216, p. 35, § 73), that Article 14 affords protection against different treatment, without an objective and reasonable justification, of persons in similar situations.

The applicant maintains her allegations.

The Court considers, in the light of the parties’ submissions, that this complaint also 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

by majority

Declares admissible, without prejudging the merits, 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 ;

unanimously

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President