JOINT PARTLY DISSENTING OPINION OF MM L. LOUCAIDES, G. RESS,

K. HERNDL AND A. ARABADJIEV

     We did not vote with the majority in the present case as regards

the issue of a violation of Article 10 of the Convention, partly for

the reasons which are so well presented in the dissenting opinion of

Mr Martinez, partly because we feel that the Commission, as regards the

application of Article 10, is making distinctions and drawing lines

which might give the impression, at least to the outside reader, of a

certain degree of inconsistency.

     In a series of cases decided more or less simultaneously with the

present one, the Commission viewed the imposition of prison sentences,

under Article 8 of the Turkish Anti-Terror Law, on certain writers and

publishers as a violation of Article 10 of the Convention, i.e. an

unlawful interference with those persons' freedom of expression

(Nos. 23462/94, 235000/94, 23556/94, 24246/94, 24919/94, 25067/94 and

25068/94). In those cases the Commission found that the various

incriminated utterances of the applicants, referring as they did to the

situation of the Kurdish minority in the South-East of Turkey and their

quest for freedom, alleging also various forms of oppression and

attempts at genocide, were not to be regarded as incitement to any

violent action. The case of Gerger v. Turkey (No. 24919/94) is a

particular case in point.

     The facts of the current case are not basically different. Here,

the applicant has published a book of poetry and was indicted, on the

basis of a number of short excerpts from altogether 22 pages of his

book, for "dissemination of propaganda against the indivisibility of

the State" (Article 8 of the Anti Terror Law). Six of these brief

excerpts were retained by the State Security Court for the conviction

of the applicant. They are reproduced verbatim in para. 24 of the

Commission's report. Five of those excerpts are referred to by the

Commission in para. 58 of its report as "capable of creating among

readers the impression that the applicant was encouraging, or even

calling for, an armed struggle against the Turkish State and was

supporting violence for separatist purposes".

     As the Court has stated most recently in the Zana judgment

(Eur. Court HR, Zana v. Turkey judgment of 25 November 1997), alleged

interferences with freedom of expression must be looked at "in the

light of the case as a whole", "including the content of the remarks

held against the applicant and the context in which he made them". In

the Zana case the incriminated remarks - expressing support for the

"P.K.K. liberation movement" - were made (1) by the former mayor of

Diyarbakir (i.e. a politician), (2) in an interview (3) published in

a major national daily newspaper. The remarks were consequently

regarded by the Court "as likely to exacerbate an already explosive

situation in that region". Would the same reasoning hold true for the

much more abstract lyrics of a poet published in the form of an

anthology ? The majority themselves recognize that poetry "is a form

of expression in which exaggerations, metaphors and other literary

means are frequently used to reflect emotions, sentiments and opinions.

Poems cannot therefore be assessed according to the same standards as,

for instance, other statements describing facts or expressing opinions"

(see para. 57 of the present report).

     One must not lose sight of the fact that the five quotations

which the majority in the final analysis regards as "supporting

violence" are excerpts from a book of poems (poems, which although they

might be regarded as somewhat offensive as far as their choice of words

is concerned, were otherwise not incriminated). These excerpts are now

placed in the context of an armed uprising. Did the author, whose poems

must be seen as largely reflecting his imagination as an artist, ever

contemplate, by having the anthology published (or allowing its

publication) that he was supporting violence ? In our view neither the

context of the case nor the personality aspect (the words having been

written not by a politician or someone prominent in matters of State,

but by a poet) would favour this conclusion. It is therefore difficult

to find that sentencing someone to two years' imprisonment and a fine

of 50,000,000 Turkish lira (reducing this sentence to one year and

eight months' imprisonment and a fine of 41,666,666 Turkish lira in

view of his "good conduct") for the authorship of certain poetic lines

is indeed proportionate to the legitimate aim pursued, namely to

protect a democratic society against the activities of terrorist

organisations (see para. 60 of the present report together with

para. 55).

     Finally, reference must be made to the analogous case of

Sürek v. Turkey (No. 26682/95), where a joint dissenting opinion with

which we wholeheartedly concurred, lets out in further detail

additional considerations concerning the criteria applicable, and the

interpretation to be given, to oral or written statements of

individuals for which they are subsequently sentenced in disregard of

Article 10 of the Convention.

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