CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 24 juin 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 23500/94                       by E. P.                       against Turkey            The European Commission of Human Rights sitting in private on 24 June 1996, the following members being present:              MM.    S. TRECHSEL, President                  H. DANELIUS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS            Mrs.   G.H. THUNE            Mr.    F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 18 November 1993 by Mr. E.P. against Turkey and registered on 16 February 1994 under file No. 23500/94;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 20 February 1995 to communicate the      application ;   -     the observations submitted by the respondent Government on 9      August 1995 and the observations in reply submitted by the      applicant on 15 September 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish citizen born in 1962 and resident in Istanbul, is a writer. Before the Commission he is represented by Kazim Bayraktar, a lawyer practising in Ankara.   A.    Particular circumstances of the case        The facts of the present case as submitted by the parties may be summarised as follows:        The applicant is the author of the book entitled "Nevrozladik Safaklari" ("We Turned each Dawn into a Newroz")   which was published in 1991.        On 13 December 1991 the District Court of Ankara ordered the seizure of published copies of the book.        In an indictment dated 22 April 1992 the Public Prosecutor at the Ankara State Security Court charged the applicant with disseminating in his book separatist propaganda against the indivisiblity of the State. The applicant was further charged with disclosing to the public the identity of the officials in the province of Diyarbakir and rendering them targets for terrorist attack. The indictment quoted certain extracts from the book, which formed the basis for charges under Articles 6 paragraph 1 and 8 paragraph 1 of the Anti-Terror Law.        In the proceedings before the Ankara State Security Court, the applicant denied the charges. He pleaded that the extracts referred to in the indictment were merely quotations from other sources. He maintained that the book as a whole, including the extracts quoted by the Public Prosecutor, did not contain any element of propaganda. He stated that he had only commented on the problems of the people of Kurdish origin based on historical facts. He also denied the accusations concerning the disclosure of the identity of officials and rendering them targets. He stated that any opinion should be freely expressed and argued. He asserted that a book cannot constitute a threat to the indivisibility of the State.        In a judgment dated 23 December 1992 the Ankara State Security Court found the applicant guilty of the offences charged. The Court sentenced the applicant to two years' imprisonment and a fine of 50 million Turkish lira under Article 8 paragraph 1 of the Anti-Terror Law. The Court quoted extracts from the applicant's book and gave detailed reasons, which included the following:        "The author refers to the rebels, who had revolted against the Government in 1925 and had started an insurrection causing the death of thousands of soldiers, as 'patriots'. He tries to establish a connection between the insurrection of 1925 and the events which were provoked by the PKK during the 1990 Newroz celebrations. He alleges that the Government deny the existence of the Kurds. He refers to the Republic of Turkey as an occupying and colonialist State. He implies that there are two separate nations and countries within the territories of the Republic of Turkey. The author's inaccurate version of events aim at provoking enmity and hatred between the Turkish and Kurdish societies."        The Court considered that the applicant's reference to the identity of officials appointed to fight terrorism violated Article 6 paragraph 1 of the Anti-Terror Law. However, considering the provisions of Article 79 of the Turkish Criminal Code, it did not find any grounds for a separate conviction under this provision. The Court also ordered the confiscation of all editions of the book.        The applicant appealed. In a statement to the Court of Cassation dated 14 April 1993, the applicant's legal representative stated, inter alia, that the applicant's conviction for writing and publishing his comments and his ideas on historical facts and sociological issues constituted a violation of his freedom of expression. He asserted that the applicant had commented as a historian on the facts concerning a nation's past. He challenged the Court's interpretation of the applicant's comments in his book.        In a decision of 27 May 1993 which was delivered on 9 June 1993, the Court of Cassation dismissed the appeal. It upheld the cogency of the State Security Court's assessment of the evidence and its reasoning in rejecting the applicant's defence. It held that an examination of the file did not disclose any error in the contested judgment.        After the amendments made by Law No. 4126 to the Anti-Terror Law, the Ankara State Security Court re-examined the applicant's case. On 14 December 1995 the Court sentenced the applicant to one year's imprisonment and a fine of 100 million Turkish lira under Article 8 paragraph 1 of the Anti-Terror Law as amended.   B.    Relevant domestic Law              The Anti-Terror Law (Law no. 3713 / of 12 April 1991)        Article 6 paragraph 1        <Translation>        "Those who announce that a crime will be committed by terrorist      organisations against certain persons either expressly or without      mentioning their names or who disseminate or disclose to the      public the identity of officials appointed to fight terrorism or      who render such officials targets shall be sentenced to a fine      between 5 and 10 million Turkish lira."        <Original>        "isim ve kimlik belirterek veya belirtmeyerek kime yönelik      oldugunun anlasilmasini saglayacak surette kisilere karsi terör      örgütleri tarafindan suç islenecegini veya terörle mücadelede      görev almis kamu görevlilerinin hüviyetlerini açiklayanlar veya      yayinlayanlar veya bu yolla kisileri hedef gösterenler besmilyon      liradan onmilyon liraya kadar agir para cezasi ile      cezalandirilir."        Article 8 paragraph 1        <Translation>        "No one shall, by any means or with any intention or idea, make      written and oral propaganda or hold assemblies, demonstrations      or manifestations against the indivisible integrity of the State      of the Turkish Republic with its land and nation. Those carrying      out any such activity shall be sentenced to imprisonment between      two and five years and a fine between 50 and 100 million Turkish      lira."        <Original>        "Hangi yöntem, maksat ve düsünceyle olursa olsun Türkiye      Cumhuriyeti Devletinin ülkesi ve milletiyle bölünmez bütünlügünü      bozmayi hedef alan yazili ve sözlü propaganda ile toplanti,      gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda 2 yildan 5 yila      kadar agir hapis ve ellimilyon liradan yüzmilyon liraya kadar      agir para cezasi hükmolunur."        Article 8 of the Anti-Terror Law as amended by Law No. 4126 of      27 October 1995        Article 8 paragraph 1        <Translation>        "No one shall make written and oral propaganda or hold      assemblies, demonstrations or (and) manifestations against the      indivisible integrity of the State of the Turkish Republic with      its land and nation. Those carrying out such activity shall be      sentenced to imprisonment between one and three years and to a      fine between 100 and 300 million Turkish lira. In case of re-      occurrence of this offence, sentences shall not be commuted to      fines."        <Original>        "Türkiye Cumhuriyeti Devleti'nin ülkesi ve milletiyle bölünmez      bütünlügünü bozmayi hedef alan yazili ve sözlü propaganda ile      toplanti, gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda bir      yildan üç yila kadar hapis ve yüz milyon liradan üçyüzmilyon      liraya kadar agir para cezasi hükmolunur. Bu suçun mükerreren      islenmesi halinde, verilecek cezalar paraya cevrilemez."        Article 79 of the Turkish Criminal Code:        <Translation>        "If a single act by a person constitutes a violation of several      provisions of the law, that person shall be punished in      accordance with the single provision which imposes the heaviest      punishment."        <Original>        "isledigi bir fiil ile kanunun muhtelif ahkamini ihlal eden      kimse, o ahkamdan en sedit cezayi tazammun eden maddeye göre      cezalandirilir."   COMPLAINTS   1.    The applicant complains under Article 9 of the Convention that his conviction and sentence for writing a book constituted an unjustified interference with his freedom of thought.   2.    The applicant further complains under Article 1 of Protocol No. 1 that the confiscation of his book constituted an interference with the peaceful enjoyment of his possessions.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 18 November 1993 and registered on 16 February 1994.        On 20 February 1995 the Commission decided to communicate the application, under Article 10 of the Convention and Article 1 of Protocol No. 1 , to the respondent Government, pursuant to Rule 48 para. 2 (b)   of the Rules of Procedure. The Government's observations were submitted on 9 August 1995, after an extension of the time-limit fixed for that purpose. The applicant replied on 15 September 1995.        On 4 December 1995, the Government submitted information concerning the amendments made to the Anti-Terror Law (Law No. 3713) and the developments in the cases of persons convicted and sentenced under Article 8 of the said Law. The applicant submitted comments in reply on 19 February 1996.   THE LAW        The applicant complains under Article 9 (Art. 9) that his conviction and sentence constituted an unjustified interference with his freedom of thought. The Commission has examined this complaint under Article 10 (Art. 10) of the Convention which provides as follows:          "1.    Everyone has the right to freedom of expression.   This      right shall include freedom to hold opinions and to receive and      impart information and ideas without interference by public      authority and regardless of frontiers. This Article shall not      prevent States from requiring the licensing of broadcasting,      television or cinema enterprises.        2.     The exercise of these freedoms, since it carries with it      duties and responsibilities, may be subject to such formalities,      conditions, restrictions or penalties as are prescribed by law      and are necessary in a democratic society, in the interests of      national security, territorial integrity or public safety, for      the prevention of disorder or crime, for the protection of health      or morals, for the protection of the reputation or rights of      others, for preventing the disclosure of information received in      confidence, or for maintaining the authority and impartiality of      the judiciary."        The applicant also complains that the confiscation of his book constituted an infringement of his right to the peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 (P1-1).        This provision reads as follows:        "Every natural or legal person is entitled to the peaceful      enjoyment of his possessions.   No one shall be deprived of his      possessions except in the public interest and subject to the      conditions provided for by law and by the general principles of      international law.        The preceding provisions shall not, however, in any way impair      the right of a State to enforce such laws as it deems necessary      to control the use of property in accordance with the general      interest or to secure the payment of taxes or other contributions      or penalties."   1.    The respondent Government first argue that the applicant has not exhausted domestic remedies. They state that the applicant could have brought an objection to the seizure order made by the District Court of Ankara on 13 December 1991.        Secondly, the Government contend that at no stage in the proceedings did the applicant invoke the relevant provisions of the Convention.        The applicant contests the first argument of the Government. With regard to his complaint, he emphasises that the unjustified interference with his right is not the seizure but the confiscation of his published books.        The confiscation decision has been delivered by the Ankara State Security Court and he appealed against this decision before the Court of Cassation. Accordingly, he maintains that he has exhausted the domestic remedies.        Furthermore, the applicant claims   that he has raised the substance of all complaints made before the Commission in the domestic proceedings.        The Commission recalls that Article 26 (Art. 26) of the Convention   requires the exercise of only those domestic remedies which relate to the breaches alleged and can at the same time provide effective and sufficient redress. An applicant does not need to exhaust remedies which would be a pure repetition of remedies already exercised by him (No. 9248/81, Leander v Sweden, Dec. 10.10.83, D.R. 34 p.78).        The Commission refers to its established case-law to the effect that the person who has raised in substance before the highest competent national authority the complaint he makes before the Commission has exhausted domestic remedies. Even where the Convention is directly applicable in a State's domestic law (as is the case in Turkey), the person concerned may also rely before the domestic courts on "other arguments to the same effect"(No. 7367/76, Dec. 10.3.77, D.R. 8 pp. 185, No. 11425/85 Dec. 5.3.85, D.R 53 pp. 76).        The Commission notes that in the present case the final decision regarding both the applicant's conviction and the confiscation of his book is the decision of the Court of Cassation delivered on 9 June 1993.        The Commission underlines that, as regards the possibility of raising an objection to the seizure order, this would not have enabled the applicant to remove any alleged interference with his Convention rights as regards the confiscation (Otto-Preminger-Institut v Austria, Comm. Report 14.1.93, para 56, Eur. Court H.R., Series A no. 295, p. 28).        The Commission notes that the applicant alleged before the Ankara State Security Court and the Court of Cassation that there had been an interference with his freedom of expression and the peaceful enjoyment of his possessions. It therefore considers that the applicant raised in substance in the domestic proceedings the complaints he now makes before the Commission.        Consequently, the Commission finds that the requirement as to the exhaustion of domestic remedies has been satisfied and that the application cannot be rejected on the basis of Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.   2.    The respondent Government further contend that the applicant has failed to observe the six-month rule under Article 26 (Art. 26) of the Convention regarding his complaint of a violation of the peaceful enjoyment of his possessions. In their view the six-month period started to run in this respect from the seizure order issued by the District Court of Ankara on 13 December 1991.        The Commission recalls that under Article 26 (Art. 26) of the Convention, the six-month period runs from the decision of the highest national authority competent to decide on the complaint which forms the object of the application to the Commission (No. 17128/90, Dec. 10.7.91, D.R. 71 p. 282).        The Commission recalls that the final decision regarding the conviction of the applicant and the confiscation of his book was the decision of the Court of Cassation of 27 May 1993 which was delivered on 9 June 1993. The present application was submitted to the Commission on 18 November 1993, that is within the six-month period.        Therefore, the application cannot be rejected under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention, for failure to comply with the six-month time-limit.   3.    Finally, as to the merits, the Government assert that the comments made by the applicant in his book constitute a provocation of enmity and hatred between the Turkish and Kurdish societies which serves to mobilise people to revolt. The book establishes a connection between the insurrection of a 1925 and the events which were provoked by the PKK during Newroz celebrations. The Government contend that the applicant thus approves of acts of violence committed by the PKK.        The Government conclude that the applicant's conviction   was fully justified under the second paragraph of Article 10 (Art. 10) of the Convention, for reasons of national security, territorial integrity and public safety. For the same reason the confiscation of book was justified under Article 1 of Protocol No. 1 (P1-1) of the Convention.        The applicant observes that he was convicted of an offence for expressing his views on the Kurdish problem in Turkey. He asserts that he had commented as a historian on the facts concerning the Kurdish people living in Turkey.        He maintains   that the freedom of expression should also protect opinions which carry a risk of damaging, or which actually damage the interests of others, or opinions which are contrary to the official line unless there exists a pressing social need for restraining them. He contends that, in the circumstances of the present case, there was no pressing social need for his conviction and the confiscation of his book.        The Commission has conducted a preliminary examination of the parties' arguments. It considers that the application raises complex factual and legal issues which cannot be resolved at this stage of the proceedings of the application, but require an examination of the merits. Consequently, the application cannot be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. The Commission further notes that it is not inadmissible on any other grounds.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.   Secretary to the Commission               President to the Commission        (H.C. KRUGER)                              (S. TRECHSEL)