Information Note on the Court’s case-law 51

March 2003

Yaşar Kemal Gökçeli v. Turkey - 27215/95 and 36194/97

Judgment 4.3.2003 [Section II]

Article 6

Article 6-2

Presumption of innocence

Provisional seizure of a book with a view to later criminal proceedings: no violation

Article 10

Article 10-1

Freedom of expression

Conviction for incitement to hatred and hostility: violation

Facts : The applicant published tw o articles in a book criticising and commenting on the Turkish authorities’ policy on the “Kurdish problem” since the foundation of the Republic. The public prosecutor at the Istanbul National Security Court applied for an order for seizure of the book. Re lying on the two articles by the applicant, the public prosecutor claimed, in particular, that the articles “”incited the people to hostility and to hatred based on a distinction according to race and origin”, such incitement constituting an offence agains t the Criminal Code (Article 312). On the same day, the judge of the Security Court made an interim order for seizure of the book. He considered that the application for seizure was in accordance with the law, since the offence complained of had been commi tted by the two articles in question. The application lodged an objection, which was dismissed. Following publication in a Turkish newspaper of extracts from one of the two articles by the applicant, the state prosecutor initiated criminal proceedings on t he basis of Article 312. The National Security Court acquitted the applicant. The prosecutor again brought criminal proceedings against the applicant and the publisher of the articles in question. The National Security Court found the applicant guilty of a n offence contrary to Article 312 of the Criminal Code and sentenced him to a term of imprisonment and a fine, which were suspended. The Court of Cassation upheld that decision by a majority of one.

Law : Article 10 – The criminal conviction is to be analysed as an interference, which was “prescribed by law” and which may have pursued the “legitimate aims” on which the Government relied, regard being had to the sensitive nature of the situation prevailing in south-east Turkey in matters of security and the need for the authorities to exercise be vigilant against acts capable of increasing violence. When examining the proportionality of that interference, it is necessary to take into account, in particular, the difficulties associated with the fight against terrorism. The impugned article was in the form of a political discourse, both by its content and by the words used. The applicant, a writer well known in Turkey and abroad, criticised and blamed the auth orities’ military actions in south-east Turkey and condemned the policy which they followed there. The terms of the article had a factual content, an emotional tone marked by distinct aggression and virulence and with a hostile connotation. However, the Co urt considers that this reflects the intransigent attitude adopted by one of the parties to the dispute rather than constituting an incitement to violence. In the Court’s view, the essential matter to be taken into consideration is that, overall, the tenor of the article cannot be taken as an incitement to the use of violence, to armed resistance or to insurrection. The Court also points to the severity of the penalty imposed on the applicant. The conviction is therefore disproportionate to the aims pursued and is not “necessary in a democratic society”.

Conclusion : violation (unanimous).

Article 6 § 2 – It had to be considered whether the fact that the order for seizure of the book was based on the hypothesis that the impugned articles constituted an offenc e amounted to an infringement of the principle of the presumption of innocence. The interim measures provided for in the Turkish legislation do not in themselves imply a decision as to guilt but seek to prevent the commission of crime. Accordingly, the pro cedure relating to the seizure of the suspect book did not concern the “merits” of a “criminal charge”. None the less, the problem that arises does not just concern the procedure for the seizure of the book but also relates to the subsequent proceedings in itiated against the applicant. Under the applicable domestic law, the publications may be seized when the court so decides following the opening of an investigation or of proceedings for offences defined by law. In the present case the seizure of the book therefore constituted an interim measure from the perspective of subsequent proceedings. In the Court’s opinion, in spite of certain terms used in the order for seizure of the book, that decision, made as an interim measure, described a “state of suspicion ” and did not contain a finding of guilt. Nor do the subsequent criminal proceedings brought against the applicant reveal any prejudice. Although decisions which reflect the feeling that the person concerned is guilty infringe the principle of the presumpt ion of interest, that cannot be said of decisions which merely describe a state of suspicion.

Conclusion : no violation (unanimous).

Article 41 – The Court considers that the finding of a violation provides in itself sufficient just satisfaction for the non -pecuniary harm sustained by the applicant.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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