DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

( Translation )

To my great regret, I cannot agree with the majority of the Court that there has been a violation of Article 10 of the Convention. In my opinion, there is no valid reason to find that the interference in this case was not necessary in a democratic society and, in particular, not proportionate to the aim of preserving national security.

The general principles which emerge from the judgment of 25 November 1997 in the case of Zana v. Turkey ( Reports of Judgments and Decisions 1997-VII) and which I recall in my dissenting opinion annexed to Gerger v. Turkey ([GC], no. 24919/94, 8 July 1999) are relevant to, and hold good in, the instant case. To avoid repetition, I refer the reader to paragraphs 1-9 of that dissenting opinion.

The case of Ceylan v. Turkey cannot be distinguished from either the Zana case or the cases of Gerger, Sürek, etc. In his article, the applicant writes of “genocide ... intensify[ing]” in Turkey; of a “constant increase … in the numbers of persons executed without trial, ... and ... disappearing while in detention, particularly since the passing of the new Prevention of Terrorism Act”; of the “murder ... of the president of the Diyarbakır branch of the HEP [People’s Labour Party], probably by anti-guerrilla forces” and of the crushing “not only [of] the struggle of the Kurdish people, but the struggle of the whole working class and proletariat ...”. “Consequently”, says the applicant, “not only the Kurdish people but the whole of our proletariat must stand up against these laws and the State terrorism currently being practised”. And in conclusion, the applicant calls on all his fellow citizens and all democratic forces to “take an active part in this struggle” before it is too late. In my view, the quoted passages can in all good faith be construed as an incitement to hatred and extreme violence. Taking into account the margin of appreciation which must be left to the national authorities, I therefore conclude that the interference in issue cannot be described as disproportionate – with the result that it can be regarded as having been necessary in a democratic society.

[1] Notes by the Registry

-2. Protocol No. 11 and the Rules of Court came into force on 1 November 1998.

3. Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[2] . Note by the Registry. Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol.

[3] . Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s report is obtainable from the Registry.

[4] . Justice Oliver Wendell Holmes in Abrahams v. United States 250 U.S. 616 (1919) at 630.

[5] . Brandenburg v. Ohio 395 U.S. 444 (1969) at 447.

[6] . Schenck v. United States 294 U.S. 47 (1919) at 52.

[7] . Whitney v. California 274 U.S. 357 (1927) at 376.

[8] . Justice Louis D. Brandeis in Whitney v. California 274 U.S. 357 (1927) at 377.