CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 avril 1997

.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. 22479/93                       by Ünsal ÖZTÜRK                       against Turkey        The European Commission of Human Rights sitting in private on 7 April 1997, 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                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs.   M. HION            MM.    R. NICOLINI                  A. ARABADJIEV              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 24 May 1993 by Ünsal ÖZTÜRK against Turkey and registered on 19 August 1993 under file No. 22479/93 ;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish citizen, born in 1957 and resident in Ankara, is a publisher. Before the Commission, he is represented by Hüsnü Öndül, 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 owner of the publishing house, Yurt Kitap- Yayin which published a book entitled "Hayatin Tanikliginda-iskencede Ölümün Güncesi (Witness to life - Diary of a Death under Torture)" in April 1988.        On 23 December 1988 the Ankara State Security Court ordered the seizure of all published copies of the book.        In an indictment dated 14 February 1989 the Public Prosecutor at the Ankara State Security Court charged the applicant, as the owner of the publishing house, with disseminating communist propaganda and provoking hatred and enmity among the people. The charges were brought under Articles 142 and 312 of the Turkish Criminal Code (TCC).         In the proceedings before the Ankara State Security Court, the applicant denied the charges. He submitted that the author, in his book, criticised the present government and that it was within the limits of permissible criticism.        In a judgment dated 30 March 1989, the court found the applicant guilty of the offences charged. It first sentenced the applicant to three years' imprisonment under Article 142 of the TCC, and two years' imprisonment and a fine of 6,000 Turkish liras under Article 312 of the TCC. The Court then converted the prison sentence to a fine. The applicant was finally sentenced to a fine of 328,500 Turkish liras under Article 142 and 285,000 Turkish liras under Article 312 of the TCC. The court also ordered the confiscation of the previously seized copies of the book.        The applicant appealed. On 26 September 1989 the Court of Cassation set aside the applicant's conviction and sentence under Article 142 of the TCC referring the case back to the State Security Court. As regards his conviction under Article 312 of the TCC, the Court of Cassation, considering that the sentence originally imposed under that Article was in the nature of a fine and having regard to the amount of that fine, held that the applicant was not entitled to appeal against his conviction under that Article and declared that part of the appeal inadmissible.        In a judgment dated 11 June 1991, the Ankara State Security Court acquitted the applicant on the charges under Article 142 of the TCC. The court, considering that the applicant's appeal against his conviction under Article 312 of the TCC had been declared inadmissible, found no grounds for taking a further decision on this point. It further considered that the confiscation of the books was the consequence of the applicant's conviction under that Article and, likewise, found no grounds for taking any further decision on this issue.        On 22 May 1991 the author of the book, Mustafa Nihat Behramoglu, who had also been indicted and tried under Articles 142 and 312 of the TCC, was acquitted.        On 19 September 1991 the applicant requested a written order from the Ministry of Justice in order to bring an appeal before the Court of Cassation. His legal representative asserted that the applicant's conviction for an offence under Article 312 of the TCC was contrary to law, since the author of the book had been acquitted on the charges brought on account of the same book and under the same provisions. On 16 January 1992 the Chief Public Prosecutor at the Court of Cassation, on the instructions of the Ministry of Justice, filed an appeal and requested that the applicant's conviction be set aside.        In a judgment dated 27 January 1992, the Court of Cassation dismissed the appeal. It held that the appellant's conviction by the court under Article 312 of the TCC for inciting to hatred and enmity through discrimination on the grounds of class and region, along with the confiscation decision of 30 March 1989, had become final since the Court of Cassation had already examined and   rejected the appeal.   The Court of Cassation considered that the conviction by the Ankara State Security Court on 11 June 1991 was safe. It held that the written order should therefore be rejected.        The applicant submitted a second application to the Ministry of Justice on the grounds that his previous application had been misinterpreted by the Ministry of Justice. He emphasised that the author of the impugned book had been charged under the same provisions and acquitted by another decision of the same court. On 24 December 1992 the Chief Public Prosecutor at the Court of Cassation, on the instructions of the Ministry of Justice, filed an appeal requesting that the applicant's conviction be set aside.        In a judgment dated 8 January 1993, the Court of Cassation dismissed the appeal. It first noted that, since the Public Prosecutor had not appealed against the   author's acquittal, that decision, unlike the applicant's conviction, had not been examined by the Court of Cassation. It further considered that, to the extent that the applicant and the author had been tried on different charges and that the author's case had been heard in different proceedings, the author's acquittal did not constitute sufficient grounds for quashing the applicant's conviction. Consequently, it held that, having regard to the contents of the book at issue and the State Security Court's assessment and conclusion, the judgment was not ill-founded.   B.    Relevant domestic law        Article 312 of the Turkish Criminal Code        <Translation>        "Whoever openly praises or speaks favourably of an action which,      by law, is a felony; or who incites people to disobey laws, or      who leads different classes of society to vengeance and enmity      in such a way as to constitute a danger to public security, shall      be punished by between six months' and two years' imprisonment      and shall be subject to a heavy fine of between 6,000 and 30,000      Turkish liras. No one shall, by any means or with any intention      or idea, make written and oral propaganda or hold assemblies,      demonstrations 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 between two and five years' imprisonment and to a fine of      between 50 and 100 million Turkish liras.        The punishment shall be doubled in respect of anyone   who commits      the foregoing crimes through publication."   C.    Extracts from the relevant book        The following is the poems from the relevant book constituting the grounds for the domestic court rulings:        "...Beni baskinlar götürür      gerillanin sahdamari halkima      korkunç ve soylu bir tutkudur dayatma      yalniz bu kadar da degil      yarin hayali gibi üstelik      nazlidir      usludur      ince      bilgedir      biz ki ustayiz vatan sevmenin      umut      saklimizda olumsuz bayrak      kirmizi-kirmizi      dalga-dalgadir..."        ÖLEN YOLDASLAR iÇiN        "Siz ki caninizi verdiniz halkimiz için      Siz ki her seyinizi verdiniz bu kavga ugruna      Gögsümüzde onurla dalgalanan      Kavganin bayragina siz ki al rengini verdiniz      Ey, ölümsüz halkimiz için topraga düsenlerimiz      Ey, yüce ogullari halkimizin      Gururla ve sabirla dinlenin simdi      Kavganizi sürdürüyor yoldaslariniz..."        "...Bizi uyandiran      tek isik      Dünyanin isigiydi bu!      Evlerine girdim,      Yemek yiyorlardi sofralarinda;      Çalismadan dönmüslerdi,      Gülümsüyor ya da aglasiyorlardi      Ve de tümü birbirine benziyordu.      Gözlerini isiga çeviriyor      Yollarini ariyorlardi..."        "...Ölüm buyrugunu uyguladilar      Mavi dag dumanini      Ve uyur uyanik seher yelini      Kanlara buladilar.      Sonra oracikta tüfek çattilar      Koynumuzu usul usul yoklayip      Aradilar.      Didik-didik ettiler..."   The following is the English translation of the poems.        "...Raids take me away      to my carotid artery of guerrilla people      insistence is a dreadful and a noble passion      but this is not all      moreover it is, like the image of the lover,      hesitant      well-behaved      delicate      wise      we who are the master of patriotism      hope      is hidden in our hearts, the immortal flag is      in red      in waves..."        FOR THE COMRADES WHO HAVE PASSED AWAY        "You who have died for our people      You who have given everything for the sake of a fight      You who have given the red colour of the      flag of the fight which is waving in our chest with pride      O! those of us who are under the earth for our immortal people      O! the sons of our sublime people      Rest in pride and patience now      Your comrades are carrying through your fight."        "...The only light      That wakes us up      That was the light of the world!      I have entered their houses,      They were eating at their tables      Back from work,      Either smiling or weeping together      And they were all alike      Turning their eyes to the light      They were in pursuit of their ways..."        "...They have applied the order to kill      They have blooded      The mist of the blue mountain      And the half sleeping dawn breeze      And right there they have stacked arms      Searching our breast silently      And pulled into pieces..."   COMPLAINTS   1.    The applicant complains under Article 9 of the Convention that his conviction for publishing a book constituted an unjustified interference with his freedom of thought and freedom of expression.   2.    The applicant further complains under Article 1 of Protocol No. 1 that the confiscation of the book which he had published constituted an unjustified interference with the peaceful enjoyment of his possessions.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 24 May 1993 and registered on 19 August 1993.        On 26 October 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b)   of the Rules of Procedure.        The Government's observations were submitted on 7 May 1996, after an extension of the time-limit fixed for that purpose. The applicant replied on 17 June 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. ...        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 the book which he published 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."        The respondent Government first argue that the applicant has failed to observe the six-month rule under Article 26 (Art. 26) of the Convention. In their view, in the applicant's case, the six-month period started to run from the Court of Cassation's decision dated 27 January 1992. This was following the first written order of the Ministry of Justice. According to the Government, the first written order clearly evaluated all the proceedings and stated that his conviction was based on Article 312 of the TCC.        The applicant contests   these arguments. He states that the first written order of the Ministry of Justice was not in line with his request. He explains that he submitted a second application to the Ministry of Justice and that, following that application, the Ministry of Justice indeed made a second written order, different from the first one. He states that therefore the final decision should be the Court of Cassation's decision   of 8 January 1993 which was issued following the second written order by the Ministry of Justice.        The Commission observes that the Chief Public Prosecutor's second appeal of 24 December 1992 led to a fresh examination of the whole case by the Court of Cassation. The Commission notes that the Court of Cassation finally dismissed the applicant's appeal on 8 January 1993 and that therefore it considers that the six-month period provided for in Article 26 (Art. 26) of the Convention did not begin to run until that date. The present application was introduced on 24 May 1993, that is, within   six months from the above-mentioned date. The Government's objection that the application is out of time must accordingly be rejected.        As to the substance of the case, the Government maintain that the interference with the applicant's rights under Article 10 (Art. 10) of the Convention was prescribed by law, i.e. by Article 312 of the TCC. They state that the impugned book was likely to provoke enmity and hatred between the Turkish and Kurdish societies and   to mobilise people to revolt. The Government contend that the book was based on the life story of a dissident who had used violence and terrorist tactics after joining an illegal political party, had diverted his activities to the south-eastern part of Turkey and declared that armed resistance and struggle were necessary for the Kurds.        In this respect the Government claim that the decisions of the Court of Cassation did not exceed the margin of appreciation conferred on the Contracting States by the Convention.        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 the book was justified under Article 1 of Protocol No. 1 (P1-1) to 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 arguments. He maintains that his conviction for an offence under Article 312 of the TCC was contrary to law, since the author of the book had been acquitted on   charges brought on account of the same book and under the same provisions. In this context he alleges that, by giving two contradictory decisions, the national authorities   exceeded the margin of appreciation conferred on the Contracting States by the Convention.        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. No other grounds for declaring it inadmissible have been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.   Secretary to the Commission                  President of the Commission        (H.C. KRUGER)                                (S. TRECHSEL)