DISSENTING OPINION OF MRS J. LIDDY

I have voted against a finding of violation of Article 10 because I do not consider that the Commission has juridical competence under the Convention to address the merits of this complaint.  Under former Article 26 (now Article 35) the Convention institutions may only deal with the merits of the complaint after all domestic remedies have been exhausted.  It does not appear that domestic remedies have been exhausted in the present case or that there were sufficient special circumstances exempting the applicant from the requirement such as established in existing Commission and Court case-law.

It is not disputed that the applicant could have invoked his right to freedom of expression before the national courts asserting, directly or indirectly, Article 10 and Convention case-law on the matter.  The applicant’s sole stated reason for not doing so is that the law itself (Article 8 of the Anti-Terror law prohibiting propaganda against the “indivisible integrity” of the Turkish Republic) is the source of the violation.

However, there seems to be no reason why the interpretation and application of that law could not be addressed by a competent Turkish Court on the basis of a given factual situation and within the context of relevant precedents of Convention law if invited to do so by a party to proceedings before it.  According to Article 90, last paragraph, of the Turkish Constitution international Conventions properly brought into force have the force of law.

A not dissimilar provision in Greek law was considered by the Court in the case of Sadik v. Greece (Judgment of 15 November 1996, Reports No.20) and led to a finding that as domestic remedies had not been exhausted the Court could not consider the merits of the case under Article 10.  It is true that the Greek Constitution was rather more explicit.  It stated that international conventions as of the time they are sanctioned by law and become operative according to their terms shall be an integral part of domestic Greek law “and shall prevail over any contrary provision of the law.”  In Turkey it appears to be still a matter for doctrinal debate as to whether international human rights norms prevail over ordinary law. However, in the absence of argument on the matter before a Turkish Court and clear evidence that Article 8 of the Anti-Terror law is not susceptible of being interpreted in conformity with Article 10 of the Convention, it cannot be said that applicants need not invoke that provision before the Turkish Courts.

In fact, as noted by the Commission’s decision on admissibility, other applicants have seen fit to invoke Article 10, albeit unsuccessfully.  The summary nature of the domestic court’s judgments do not indicate that such arguments will always be doomed to failure in the future.  In fact, it can be difficult to establish even in Convention terms whether an interference with an individual’s freedom of expression falls within the State’s margin of appreciation or not.

The present case under Article 10 falls to be distinguished from previous case-law, under Articles 2 and 3 in particular, where there were compelling reasons for exempting the applicants from exhausting domestic remedies or for concluding that apparent remedies were ineffective.  In these latter cases ( c.f. for example Aydin v. Turkey, Judgment of 25 September 1997, Reports 1997-VI and Kaya v. Turkey, Judgment of 19 February 1998, Reports 1998-I) the inadequacies of the investigation by the authorities into events of the utmost gravity rendered ineffective in practice any possibilities the applicants may have appeared to have been afforded by written law to prove or have proved the events at issue.  In contrast, where a prosecution is based upon a text that has been indisputably published and where the principle issue is the legal qualification to be given to that publication there seems to be no reason to exempt the applicant from providing the national court, by invoking Article 10 at least in substance, with “an opportunity to put matters right through their own legal systems” (de Wilde , Ooms and Versyp v. Belgium, judgment of 18 June 1971 Series A No.12 para. 50).

As stated by the Court in the Sadik Case ( op.cit .) “Even if the Greek Courts were able, or even obliged, to examine the case of their own motion under the Convention, this cannot have dispensed the applicant from relying on the Convention in those courts or from advancing arguments to the same or like effect before them, thus drawing their attention to the problem he intended to submit subsequently, if need be, to the institutions responsible for European supervision”. It is for these reasons that I do not consider that the Commission is competent to address the merits of the complaint under Article 10: the Turkish Courts did not have the Convention issue drawn to their attention and there was no sufficient reason to exempt the applicant from doing so.

As to Article 7, I agree with the majority that there has been no violation.