SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40287/98 by Mahmut ALINAK against Turkey

The European Court of Human Rights ( Second Section ), sitting on 30 March 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr M. Fischbach, Mr R. Türmen,

Mrs V. Strážnická, Mr P. Lorenzen, Mr A.B. Baka, Mr A. Kovler, judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced 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 deliberated, decides as follows:

THE FACTS

The applicant is a Turkish citizen born in 1952 and living in Ankara. He is a lawyer and former member of the Turkish National Assembly. The applicant is represented in the proceedings before the Court by Ms. Hülya Sarsam , a lawyer practising in Ankara.

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

A. Particular circumstances of the case

The applicant wrote a book entitled “The Heat of Şiro ” ( Şiro’nun Ateşi ). The book described how villagers from Basma 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 Basma   and indicated the names and ranks of those whom he claimed were responsible for these acts.

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 Siircesi ) 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

1. Article 28 of the Turkish 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 Turkish 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 complains that the interim seizure order violated his rights under Articles 9 and 10 of the Convention.

The applicant further maintains that he was denied a fair procedure in breach of Article 6 of the Convention. He refers in this connection to the fact that the Istanbul State Security included a military judge among its members and for that reason could not be considered an independent and impartial tribunal.

The applicant also states with reference to Article 6 that he was not notified of the making of the interim order and that the court did not consider it necessary to mention in its decision the passages in the book which infringed domestic law. Furthermore, the applicant claims that the court referred in its decision of 5 November 1997 to another book by a different author and not to his book.

THE LAW

1 . The applicant maintains 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 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.

2. The applicant maintains that the seizure of his book breached his right to a fair procedure guaranteed by Article 6 § 1 of the Convention, which states as relevant:

“ 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.(...).”

In the applicant’s submission, the seizure order was confirmed on appeal by the Istanbul State Security Court which included a military judge among its members. Furthermore, the seizure order was in itself flawed since, firstly, it did not refer to the provision of domestic law on which it was based and, secondly, referred to the work of another author.

The Court accepts that the applicant was substantially affected by the measure ordering the seizure of his book and that the public prosecutor later brought charges against the applicant based on the content of certain passages in the book. However, the proceedings never gave rise to the determination of a criminal charge against the applicant having regard to the enactment and entry into force of Law No. 4454. With reference to the provisions of that Law, the Istanbul State Security Court discontinued the proceedings against the applicant and no decision was ever taken on whether the applicant was guilty or innocent of the charges laid against him. Admittedly the case against the applicant can be re-activated if he commits, intentionally, another media-related offence. However, that in itself cannot prevent a conclusion that the applicant’s complaint is premature and as such inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

The Court would further observe that any prejudice caused to the applicant as a result of either the making of the seizure order or the application to him of the provisions of Law No. 4454 go to the issue of the alleged interference with the applicant’s rights under Articles 9 and 10 of the Convention and must be examined under those heads.

For these reasons, the Court, by a majorityt ,

DECIDES TO ADJOURN the examination of the applicant ’s complaint concerning the alleged interference with his right to freedom of expression.

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis Registrar President