Information Note on the Court’s case-law 19

June 2000

ErdoÄŸdu v. Turkey - 25723/94

Judgment 15.6.2000 [Section IV]

Article 10

Article 10-1

Freedom of expression

Conviction for making separatist propaganda: violation

(Extract from press release)

Facts : The applicant, Ümit Erdoğdu, is a Turkish national born in 1970. At the material time he was the editor of the fortnightly review İşçilerin Sesi (“The Workers’ Voic e), published in Istanbul. On 2 October 1992 the review published an article, written by a reader, entitled “ Kürt Sorunu Türk Sorunudur ” (“The Kurdish problem is a Turkish problem”).

On 29 December 1992 the Public Prosecutor at the Istanbul National Securi ty Court charged the applicant and the publisher of the review with spreading propaganda against the territorial integrity of the State and the indivisible unity of the Turkish nation, an offence under section 8 § 1 and § 2 of the Prevention of Terrorism A ct (Law no. 3713). On 20 December 1993 the National Security Court convicted the defendant of the offence on the ground that the article had referred to parts of Turkish territory as Kurdistan and applauded acts of violence by the Kurdistan Workers’ Party (PKK), which was portrayed as a movement of national resistance against the State. Consequently, it sentenced Mr Erdoğdu to six months’ imprisonment and a fine of 50,000,000 Turkish liras (TRL). The judgment became final on 4 May 1994 and the applicant beg an to pay off the fine, which had been divided into monthly instalments.

On 30 October 1995 Law no. 4126 came into force. It provided for the automatic review of sentences that had been handed down under section 8 of Law No. 3713. Mr ErdoÄŸdu applied for a review of the merits of his case by the National Security Court which ultimately sentenced him to a suspended fine of TRL 50,900,000.

On 24 April 1996 the applicant appealed to the Court of Cassation. On 4 August 1997, while his appeal was still pending, L aw no. 4304 was enacted. It provided for the deferral of sentence and its execution for offences committed by editors before 12 July 1997. In the light of that new statutory provision, the Court of Cassation reversed the impugned judgment and remitted the case to the National Security Court. On 10 December 1997, the National Security Court deferred sentencing Mr ErdoÄŸdu, ordering that he would be sentenced if, within three years from the date of deferral, he was convicted in his capacity as editor of an off ence with intent.

The applicant complained that his conviction and sentence constituted a violation of his freedom of expression under Article 10 of the European Convention on Human Rights.

Law : Government’s preliminary objections - The Government had argued that domestic remedies had not been exhausted on two accounts. As regards the failure to refer the case to State Counsel at the Court of Cassation so that the applicant could apply for rectification of that court’s judgment of 4 May 1994, the Court noted that by virtue of Article 322 § 5 of the Code of Criminal Procedure, such an application could be made only by State Counsel's office, either itself or at the request of the convicted person. Such an application did not therefor e constitute a legal remedy that was directly accessible to those convicted and, consequently, could not be regarded as a remedy requiring exhaustion under Article 35 of the Convention. As to the Government’s argument that the applicant had not at any stag e in the proceedings before the domestic courts relied, even in substance, on the provisions of the Convention, the Court observed that when he requested a review of the merits of the case against his client, Mr Erdoğdu’s lawyer had challenged the convicti on, not only under domestic law but also in the light of Article 10. It could not therefore be said that the Turkish courts had had no opportunity to prevent or redress the violations they were alleged to have committed before those allegations were made t o the Court.

Article 10 - For the Court, the applicant’s conviction clearly amounted to an “interference” with the exercise of his freedom of expression. Such an interference would infringe Article 10 unless it was “prescribed by law”, motivated by at leas t one of the legitimate aims set out in Article 10 and “ necessary in a democratic society” to attain such aim or aims.

The Court noted that it had previously examined the issue of the “lawfulness” and “foreseeability” of a conviction under section 8 of La w No. 3713 and had held that provision to be compatible with the requirements of Articles 7 (no punishment without law) and 10 of the Convention. Furthermore, having regard, in particular, to the sensitivity of the fight against terrorism and to the need f or the authorities to be alert to acts capable of fuelling additional violence, the Court considered that the interference pursued two aims compatible with Article 10, namely the prevention of disorder and the prevention of crime.

The Court observed that i n the case before it the author of the article at issue had sought to provide an explanation for developments in south-east Turkey and had expressed his point of view on both the internal and external repercussions. The article had taken the form of a poli tical speech, as regards both content and terminology, and it was clear that the author had intended, if only indirectly, to criticise the dominant political ideology of the State and the way in which the Turkish authorities were dealing with the Kurdish p roblem.

The Istanbul National Security Court had twice condemned the article, both because it had referred to part of the country as belonging to “Kurdistan” and because it had favoured the breaking up of the nation and glorified the PKK as a national resistance m ovement. As the Court had previously stated: “...although these are no doubt relevant considerations, they cannot on their own be deemed sufficient to regard the interference as necessary within the meaning of Article 10 § 2”. In addition, the Court observ ed in particular that the four phrases criticised by the Government expressed personal and subjective views which, taken in context, could, at most, be regarded as reflecting the author’s fierce opposition to official policy applied in the south-east. In s hort, while the Court was ready to accept that there were aspects of the article lending a degree of virulence to the political criticism it contained, it found nothing that would, in the words of the Government, have caused readers to gain “the impression that recourse to violence was a necessary and justified measure of self-defence ” against Turkey.

Admittedly, the Court could not exclude the possibility that the article might conceal objectives and intentions different from the ones it proclaimed. The C ourt was conscious, too, of the concerns of the authorities regarding the fight against terrorism and accepted that it was for the domestic courts to determine whether the applicants had published the article with reprehensible motives. However, in the abs ence of any evidence of action which might prove the contrary, the Court saw no reason to doubt the sincerity of Mr Erdoğdu’s motives in publishing the article. Nor was it persuaded that the publication would have highly detrimental consequences in the lon g-term for the prevention of disorder and crime in Turkey or that young people would be driven by the article into “reluctantly joining the PKK camps”, as the Government claimed.

It therefore appeared that by concluding that the applicant had provided the author of the article with a platform for inciting violence and hatred, the national authorities had not taken sufficient account of the freedom of the press or the right of the public to have access to a different perspective on the Kurdish problem.

As to the applicant’s benefiting from a deferral of sentence, the Court noted that this order  only produced its effects if Mr Erdoğdu committed no further offences with intent as an editor for  three years after the order was made, which the Court considered t o be akin to a ban effectively censoring the applicant in the exercise of his profession. The extent of the ban was also unreasonable, as it forced Mr Erdoğdu to refrain from publishing any article which could be considered contrary to the interests of the State. Such a limitation on freedom of journalistic expression, which meant that only ideas that were generally accepted, that were welcome or regarded as inoffensive or neutral could be expressed, was excessive.

Consequently, the Court concluded that the re had been a violation of Article 10.

Conclusion : violation (unanimous).

Article 41 - The Court noted that the fine imposed on the applicant on 20 December 1993 was a direct consequence of the violation that it had found in the case. The Court awarded the applicant FRF 6,000 for pecuniary damage. He had claimed FRF 20,000 for non-pecuniary damage, which the Court considered reasonable and awarded in full. It also awarded the applicant FRF 20,000 for costs and expenses.

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

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