CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 septembre 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. 25067/94                       by Ümit ERDOGDU                       against Turkey          The European Commission of Human Rights sitting in private on 2 September 1996, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  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                  E.A. ALKEMA                  M. VILA AMIGÓ              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 20 August 1994 by Mr. Ümit Erdogdu against Turkey and registered on 2 September 1994 under file No. 25067/94;        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 17      July 1995 and the observations in reply submitted by the      applicant on 7 September 1995;        Having deliberated;        Decides as follows:   THE FACTS          The applicant, a Turkish citizen born in 1970 and resident in Istanbul, is an author and journalist. He is represented before the Commission by Mrs. Oya Ataman, 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 "responsible editor" of "Demokratik Muhalefet (Democratic Opposition)", a review published in istanbul. In its January 1992 edition, the review published an interview with the Turkish sociologist, ismail Besikçi.        In an indictment dated 23 March 1992, the Public Prosecutor at the istanbul State Security Court, on account of the interview with ismail Besikçi, charged the applicant, as the responsible editor of the review, with disseminating propaganda in the review against the indivisibility of the State. The charges were brought under Article 8 of the Anti-Terror Law.        In the proceedings before the State Security Court, the applicant denied the charges. He pleaded that he had only published the transcript of ismail Besikçi's declarations. He stated that the publication of an interview could not constitute an offence. He maintained that such declarations were being made by the highest authorities in Turkey.        In its judgment dated 12 August 1993, the Court found the applicant guilty under Article 8 of the Anti-Terror Law. The applicant was first sentenced to six months' imprisonment and a fine of 50,000,000 Turkish lira. The Court, considering the good conduct of the applicant during the trial, reduced his sentence to five months' imprisonment and a fine of 41,666,666 Turkish lira.        The Court relied on certain extracts from the published declarations of ismail Besikçi. It held, inter alia, that such sentences as "... Kurdish reality have nowadays been expressed by the state bodies due to the fact that there is an armed resistance at Kurdistan... no armed resistance by the Turkish forces could stop the escalation and progress of PKK... the ideology and activities of the PKK could change the persistent official policy of the State... the above explained progress have been due to the armed struggle of the PKK for nearly 8 years... which is illegal in Kurdistan the guerrilla or the special team of the Turkish armed forces... Kurds are dying for their nation, what are the Turks dying for? What are they doing in Kurdistan... the Turkish State have evacuated certain areas called Botan (the southeastern part of Turkey) here the Kurds are completely in control... this means the begining of the formation of an independent state...   the Kurds, especially the PKK, will become more effective over both Turkish and Kurdish societies ...   conscience of nationalism and independence will develop among the Kurdish people..." amounted to propaganda against the indivisibility of the State.        The applicant appealed against this judgment.        In a decision of 1 February 1994, pronounced   on 9 February 1994 in the absence of the applicant, the Court of Cassation dismissed the appeal. It upheld the cogency of the State Security Court's assessment of evidence and its reasoning in rejecting the applicant's defence. The applicant received this judgment on 21 February 1994.        After the amendments made to the Anti-Terror Law by Law No. 4126 of 27 October 1995, the istanbul State Security Court re-examined the applicant's case. On 15 December 1995 the Court sentenced the applicant to five months' imprisonment and a fine of 41,666,666 Turkish lira under Article 8 paragraph 1 of the Anti-Terror Law as amended. The only difference in the new judgment was that the Court ordered a "stay of execution" of the applicant's sentence.   B.    Relevant domestic law        Article 8 of the Anti-Terror Law No. 3713 of 12 April 1991      (before the amendments of 27 October 1995)        <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 such an activity shall be sentenced to imprisonment between      two and five years and a fine between 50 and 100 million Turkish      lira.        If the offence of propaganda referred to in the preceding      paragraph is committed by means of periodicals, as defined in      Article 3 of the Press Law No. 5680, the owners of such      periodicals shall also be punished by a fine, to be determined      in accordance with the following provisions:        -      For periodicals published at less than monthly            intervals, the fine shall be ninety per cent of the            average real sales of the previous month;        -      [for printed works that are not periodicals or for            periodicals which have recently started business, the fine            shall be ninety per cent of the average monthly sales of            the highest circulating daily periodical.]              In any case, the fine may not be less than 100 million            Turkish lira.              Responsible editors of these periodicals shall be sentenced            to   between six months and two years' imprisonment and to            half of the fine determined in accordance with the            foregoing provisions."        In a judgment dated 31 March 1992, the Constitutional Court found the clause in brackets in the text of Article 8 of the Anti-Terror Law above to be contrary to the Constitution and annulled it. The Constitutional Court held that the annulled text would cease to have effect six months after the date of publication of the annulment decision in the Official Gazette. The decision was published on 27 January 1993 and therefore this clause ceased to have effect as of 27 July 1993.        Article 8 paragraph 1 of the Anti-Terror Law as amended by Law      No. 4126 of 27 October 1995        <Translation>        "No one shall make written and oral propaganda or hold      assemblies, demonstratitons and manifestations against the      indivisible integrity of the State of the Turkish Republic with      its land and nation. Those carrying out such an activity shall      be sentenced to imprisonment between one and three years and a      fine between 100 and 300 million Turkish lira. In case of re-      occurrence of this offence, sentences shall not be commuted to      fines."   C.    Extracts from the relevant interview        The following is an English translation of extracts from the relevant interview constituting the grounds for the domestic court rulings:   " To what extend Demirel shall accept the "Kurdish Reality"?   Kurdish reality have nowadays been expressed by the state bodies due to the fact that there is an armed resistance at Kurdistan... ...no armed resistance by the Turkish forces could stop the escalation and progress of PKK... the ideology and activities of the PKK could change the persistent official policy of the State...        How will the State shape its new official policy on Kurdistan? Which aspects of the official ideology will be changed, and how will they be changed?   What effects can this have on the daily lives of the Kurdish people?        In Turkey, the government and the State are two very different things. The State works with appointed institutions and bodies which are established by designation. It is those institutions and bodies which represent the power of the State. The government, that is to say, political power carries very little weight against the power of the State. From that point of view, the power of the State can very often cause governments to deviate from their function. Official ideology can only be changed in the long term. And the forces which can change it are non-governmental political and societal forces. Changing it is the challenge of those forces. The essence of the ideas and action of the PKK, for example, is such as can change the official ideology, diminish the weight of the bodies which have been established on the political scene in Turkey, and increase the weight carried by the parliaments elected by the people. In my opinion, as regards effectiveness, the influence of the Kurds, and in particular of the PKK, will grow further. The influence of the PKK in both Kurdish and Turkish society will spread and will deepen. And, as that influence grows, more serious steps will be taken in government policy towards recognising the "Kurdish reality". The power of the State will obviously obstruct the government in that process and will try to distort certain ideas and policies. And it is manifest that the government will be able to survive as long as it can resist the power of the State and control the appointed institutions and bodies, i.e. as long as it has real power.        These changes will be reflected in the daily lives of the Kurds. Investigations and research will develop in fields such as the Kurdish language, Kurdish history and Kurdish folklore.   Kurdish culture will be revived. The specificity of being a Kurdish society will be emphasised more amongst the Kurdish masses. National awareness and desire for autonomy will become stronger and will spread further. The idea and feeling of acquiring independence will develop.        It is now observed that Kurds who until now would never have said "I am Kurdish, and I am engaging in politics for my present life and for my future" are now clearly beginning to "get into politics for their own interests" throughout Kurdistan and Turkey.   What sort of developments have brought about this situation?   Do Kurds need a political subject in the legal sphere?   If so, what form should it take?        Without a doubt the most important cause of these developments has been the armed combat which the PKK has been waging for almost eight years.   The guerilla warfare has brought about major societal and political changes in traditional Kurdish society.   Traditional values are in turmoil.   There has been very widespread support amongst the people for Kurdish guerilla fighters ever since 15 August 1984. National awareness is now growing in Kurdish society, and this process is spreading rapidly.   And we see that within this process the political establishment has been used for Kurdish interests, for the move towards autonomy and independence.   Kurds who until now have always engaged in politics for others and in order to serve other nations have now begun to engage in politics in order to serve the Kurdish people.   Healthy national awareness is now developing in response to Turkish racism and colonialism.   It would no doubt be oversimplifying to say that all of this began after the onset of Kurdish guerilla warfare on 15 August.   This process has roots that go further back into the past.   But what has been decisive is the new process launched by the PKK. Which is illegal in Kurdistan the guerrilla or the special team of the Turkish armed forces? Kurds are dying for their nation what are the Turks dying for? What are they doing in Kurdistan? The Turkish State have evacuated certain areas called Botan (the southeastern part of Turkey) here the Kurds are completeley in control. This means it is begining of the formation of an independent state."     COMPLAINTS        The applicant complains of violations of Articles 9, 10 and 7 of the Convention.        As to Articles 9 and 10 of the Convention the applicant complains that his conviction as the responsible editor of a review, which published an interview with the Turkish sociologist ismail Besikçi, constituted an unjustified interference with his freedom of thought and freedom of expression, in particular his right to receive and impart information and ideas.        As to Article 7 of the Convention the applicant complains that he was convicted on account of an act which did not constitute a criminal offence under national or international law at the time it was committed. He states that offences under the Anti-Terror Law should have a direct link with the fight against terrorism. He asserts that propaganda cannot therefore constitute an offence under Article 8 of the Anti-Terror Law unless it incites people to terrorism. He points out that the publication of the interview for which he was convicted did not incite people to terrorism and, therefore, could not foreseeably have been offensive. The applicant also complains that the provisions of the Article in question were unclear and could not have enabled him to distinguish between permissible and prohibited behaviour. Thus, he asserts that his conviction had no legal basis.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 20 August 1994 and registered on 2 September 1994.        On 27 February 1995 the Commission decided to communicate the application, under Articles 10 and 7 of the Convention, to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure. The Government's observations were submitted on 19 July 1995. The applicant replied on 11 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 his comments in reply on 19 February 1996.   THE LAW        The applicant alleges that his conviction as the responsible editor of a review constitutes an unjustified interference with his freedom of thought and freedom of expression, in particular his right to receive and impart ideas and information. He also complains that his conviction under Article 8 of the Anti-Terror Law was not foreseeable. He invokes Articles 7 (Art. 7) (no punishment without law), 9 (Art. ) (freedom of thought) and 10 (Art. 10) (freedom of expression) of the Convention.        Six month time-limit        The respondent Government object that the applicant failed to observe the six-month rule under Article 26 (Art. 26) of the Convention. In their view, according to Article 26 (Art. 26), the date of the introduction of an application will be the date of its   arrival before the Commission. They state that the applicant was aware of the Court of Cassation's decision on 21 February 1994 and his application was received by the Commission on 24 August 1994, which is not within the six-month period.        The applicant contests this argument. He states that his first letter indicated all the details with regard to the facts of his application and that it was dated 20 August 1995. He maintains that he has therefore observed the six-month rule.        The Commission recalls its constant case-law according to which the date of introduction of an application is considered to be, in principle, the date of the first letter indicating an intention to lodge an application and giving at least a summary indication of the nature of the complaints to be made (No. 8299/78, Dec. 10.10.80, D.R. 22 p. 51).        In the present case, the Commission notes that the Court of Cassation's decision was served upon the applicant on 21 February 1994. The first communication to the Commission indicating all the details with regard to the facts and the complaints of the present application was made by the applicant in his first letter of 20 August 1994 that is less than six   months later. The Commission notes that there is no indication that this letter was back-dated and the fact that it was received at a later date by the Commission cannot in these circumstances be held against the applicant.        It follows that the applicant's complaints must be considered as having been introduced within the six-month time-limit imposed by Article 26 (Art. 26) of the Convention.        As to the substance of the applicant's complaints        The Government maintain that the interference with the apllicant's rights under Article 10 (Art. 10) of the Convention was prescribed by law, in this case by Article 8 of the Anti-Terror Law. They state that the applicant, in his review, published an interview in which such sentences as "...the Kurds, especially the PKK, will become more effective over both Turkish and Kurdish societies ... conscience of nationalism and independence will develop among the Kurdish people ..." amounted to propaganda against the indivisibility of the State. They consider that therefore the domestic courts interpreted the law reasonably.        The Government also maintain that the purpose of the conviction of the applicant was linked to the control of terrorism carried out by illegal organisations and consequently served to protect territorial integrity and national security. They submit that it is generally accepted in comparative and international law on terrorism, authorising "certain adaptations of the liberal model", that restrictions on Convention rights will be deemed necessary in a democratic society threatened by terrorist violence, as being proportionate to the aim of protecting public order.        As to the necessity of the measure in a democratic society, the respondent Government state that the threat posed to Turkey by the PKK and its affiliations is internationally recognised, as is the need to react firmly to it. Terrorism strikes at the heart of democracy, the fundamental rights which it enshrines and the judicial and political systems. They assert that the interview in question was based on the glorification of the activities of the illegal terrorist organisation, the PKK, for the establishment of an independent Kurdish State against the Turkish State.        In this respect the Government claim that the decisions of the istanbul State Security Court and the Court of Cassation did not exceed the margin of appreciation conferred on States by the Convention.        Accordingly, the Government submit that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)   of the Convention.        The applicant contests all these statements. He alleges that the text   of Article 8 of the Anti-Terror Law was so unclear, and the concept of "dissemination of propaganda" against the indivisible integrity of the State with its land and nation was so vague that his conviction thereunder was not foreseeable. He emphasises that the text of the provisions did not therefore enable him to distinguish between permissible and prohibited behaviour.        The applicant also alleges that his conviction was not for any legitimate purpose under the Convention. He considers that it was completely out of proportion to rely on such reasons, particularly in view of the limited circulation of the review.        Furthermore, the applicant maintains that the penal sanctions inflicted upon him were not necessary in a democratic society. He explains in this connection that he had published only the transcript of ismail Besikçi's declarations to public opinion and observed that similar declarations had also been made by certain official institutions in Turkey.        With regard to the amendments made by Law No. 4126 to Article 8 of the Anti-Terror Law, the applicant states that his case was re- examined in the light of these amendments and the new judgment delivered on 15 December 1995 was the same as the previous one.        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 examination 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.           H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission