FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40287/98 by Mahmut ALINAK against Turkey

The European Court of Human Rights, sitting on 31 January 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr G. Bonello , Mr R. T ürmen ,

Mr P. Lorenzen , Mr E. Levits , Mrs S. Botoucharova , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 15 December 1997 and registered on 17 March 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 regard to the partial decision of 30 March 2000,

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, Mr Mahmut Alınak , is a Turkish national, who was born in 1952 and lives in Ankara. He is a lawyer and former member of the Turkish Grand National Assembly. He was represented before the Court by Ms Hülya Sarsam , a lawyer practising in Ankara.

A. The circumstances of the case

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

The applicant wrote a book entitled “The Heat of Şiro ” ( Şiro’nun Ateşi ). The book described how villagers from the Ormaniçi ( Basma ) village in the province of Şırnak in south-east Turkey were tortured by members of the security forces. The book was published on 1 November 1997 by the Berfin Publishing Company.

On 14 October 1997 the Public Prosecutor at the Istanbul State Security Court requested the seizure of copies of the book. The Public Prosecutor contended that the content of the book incited to hatred and hostility by making distinctions between Turkish citizens based on grounds of their ethnic or regional identity. Particular reliance was placed on passages in the book in which the applicant accused the security forces of torturing villagers from the Ormaniçi and indicated the names and ranks of those whom he claimed were responsible for these acts. The Government have drawn attention to following passages on pages 202 and 203 of the book:

“... Ah, I wish I were strong like before so that I could catch Mızrak in the meadow of Bana . Then he would have understood what the world is like. I would have stripped him under the summer sun, have him walked before Kümeyt and whipped him all day long.

- Then how would you be any different then those tyrants? No matter who does it, cruelty is an ugly thing. Either you, or the Field Fox. It does not matter. Cruelty is such a dishonourable thing that who ever does it, that person is not a human being.

- I swear that I would turn him inside out. If I only caught him then he would have understood. I swear upon your head that, I would have put a rope around his neck in order to have him walk naked all around Ankara, then skin him and fill him up with salt, so that it would be an example to all the tyrants.

- Then you, Şiro , would become the Mızrak of the Bana . Our Mızrak or somebody else’s Mızrak , what difference does it make? People like Mızrak should exist neither in Bana nor in Ankara nor in Damascus nor anywhere else. These kinds of people contaminate the world. They destroy love and brotherhood.

- I beg you Brother, why do you talk like this? There is no other way to fight against these tyrants! You have to talk to them in their own language; there is no other way!

- I used to think just like you, Şiro . However I went there and realised that Mızrak is not alone.

- See, you have to make all of them disappear, you have to kill all of them.

- You can not terminate it by killing them. They are too many to kill. Whom you want to kill is only the cog of the machine. Even if you break the cog of the machine there are too many degenerated people out there waiting to become the cog! When you are struggling with these ones, the same old tyrannising machinery continues to function and this goes on forever. We have to stop this machinery! That is what we should do. There is no other way. Then you would see how they are running away like cows.

- Where is that power?

- Is there any one stronger then us, Şiro ? When all the human being stand up against this tyrannising machine, see if the machine still continue to function? Then they would see whether it is them or us who is stronger.”

On 14 October 1997 a single judge of the State Security Court accepted the submissions of the Public Prosecutor and made an interim order for the seizure of copies of the first edition of the book. According to the applicant, copies were seized in consequence.

On 20 October 1997 the applicant appealed against the seizure order. The three-member Istanbul State Security Court dismissed his appeal on 5 November 1997 and upheld the order together with the single judge’s reasons for issuing it. In so doing, the court referred in its decision to the book of another author ( Latif Özdemir ) entitled “Poetic History” ( Tarihin Şiircesi ) which was published by the Kora Publishing Company.

Charges were brought against the applicant pursuant to the provisions of the Prevention of Terrorism Act 1991.

On 21 November 1997 the public prosecutor attached to the State Security Court requested the court to convict the applicant under the Prevention of Terrorism Act 1991.

On 2 September 1999 Law No. 4454 came into force. That Law provided for the suspension of all cases concerning media-related offences pending, inter alia , before domestic courts for a period of three years. The public prosecutor requested the State Security Court to suspend the proceedings against the applicant. On 24 September 1999 the court acceded to this request, it being understood that the case against the applicant would be re ‑ opened in the event of his intentional commission of another media ‑ related offence.

B. Relevant domestic law and practice

1. Article 28 of the Constitution (as in force in 1997)

“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. Section 86 of the Code on Criminal Procedure

“Materials likely to be useful as evidence in the 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. Law no 4454 of 28 August 1999 concerning the suspension of pending cases and penalties concerning media-related offences

Section 1 § 3 of the above Law provides for the suspension of all prosecutions pending before the Public Prosecutor’s Office and of all cases pending before the courts concerning media-related offences which attract not more than twelve years imprisonment.

Section 2 § 3 provides that a case, which has been suspended, may be re ‑ opened in the event of an intentional commission of any media-related offence within 3 years of the date of suspension. Section 2 § 3 also states that cases which have been suspended and which concern media-related offences pending before the courts or the Office of the Public Prosecutor cannot be re-opened by the non-intentional commission of another media-related offence.

COMPLAINTS

The applicant complained that the interim seizure order violated his rights under Articles 9 and 10 of the Convention.

THE LAW

The applicant maintained that the seizure by the authorities of his book violated his rights under Articles 9 and 10 of the Convention which provide:

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 Government submitted that the applicant failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. With reference to the ruling of the Court in its Ahmet Sadık v. Greece judgment of 15 November 1995 ( Reports of Judgments and Decisions , 1996-V) they contended that the applicant did not rely on Article 10 of the Convention, or on arguments to the same effect based on domestic law, in the courts dealing with his case. They claimed therefore that the application should be declared inadmissible for non-exhaustion of domestic remedies.

The applicant denied the Government’s allegations. He asserted that, in his petition of 20 October 1997 submitted to the Istanbul State Security Court, he had objected to the seizure order relying on his right to freedom of expression guaranteed in Article 10 of the European Convention on Human Rights.

The Court notes that the applicant expressly invoked his right to freedom of expression under the Convention in his petition of 20 October 1997 filed with the State Security Court. Against this background, the Court finds that the applicant must be considered to have complied with Article 35 § 1 that domestic remedies must be exhausted.

The objection must accordingly be dismissed.

The Government submitted that the interference in question was prescribed by law, pursued a legitimate aim and was necessary in a democratic society. They maintained that the impugned interference was based on Article 312 § 2 of the Criminal Code and aimed at preventing incitement to hatred and hostility among the people. As to the necessity of the interference, the Government contended that the words and expressions contained in pages 201 and 202 of the book amounted to insult against the security forces and that they are capable of provoking the local people against the security forces. The measures taken against the applicant were therefore proportionate to the aim pursued.

The applicant maintained that the novel in the book merely criticised members of security forces who inflicted torture on people. He alleged in this connection that the seizure by the authorities of his book violated his rights guaranteed in Articles 9 and 10 of the Convention.

The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Court concludes, therefore, that 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 the application admissible, without prejudging the merits of the case.

Erik Fribergh Christos Rozakis Registrar President