CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 25 novembre 1997

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color:#0069d6 } .sB90861A5 { font-family:Arial; font-style:italic; letter-spacing:-0.1pt } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .s13F94BDE { font-family:Arial; letter-spacing:-0.1pt } .sB7201D33 { font-family:Arial; font-size:10pt; letter-spacing:-0.1pt } .sC0C8FB37 { font-family:Arial; font-size:10pt; font-style:italic; letter-spacing:-0.1pt }         CASE OF ZANA v. TURKEY   (69/1996/688/880)                       JUDGMENT   STRASBOURG     25 November 1997     The present judgment is subject to editorial revision before its reproduction in final form in Reports of Judgments and Decisions 1997. These reports are obtainable from the publisher Carl Heymanns Verlag KG (Luxemburger Straße 449, D-50939 Köln), who will also arrange for their distribution in association with the agents for certain countries as listed overleaf.   List of Agents     Belgium : Etablissements Emile Bruylant (rue de la Régence 67,   B-1000 Bruxelles)   Luxembourg : Librairie Promoculture (14, rue Duchscher   (place de Paris), B.P. 1142, L-1011 Luxembourg-Gare)   The Netherlands : B.V. Juridische Boekhandel & Antiquariaat   A. Jongbloed & Zoon (Noordeinde 39, NL-2514 GC ‘s-Gravenhage) SUMMARY [1] Judgment delivered by a Grand Chamber Turkey – prison sentence imposed by Diyarbakır National Security Court on account of a statement to journalists (Articles 168 and 312 of the Criminal Code) – accused unable to appear at hearing in that court (Article 226 § 4 of the Code of Criminal Procedure in force at material time) – length of criminal proceedings against him I.   ARTICLE 10 OF THE CONVENTION A.   Government’s preliminary objections 1.    Lack of jurisdiction ratione temporis Court could only take cognisance of facts subsequent to 22 January 1990, when Turkey’s declaration (under Article 46 of the Convention) was deposited – in the instant case principal fact lay in applicant’s conviction by Diyarbakır National Security Court on 26   March 1991 – question whether the Government, who had referred case to Court, were estopped from relying on Turkey’s declaration had not been raised before Court and did not need to be determined. Conclusion : objection dismissed (eighteen votes to two). 2.    Failure to exhaust domestic remedies Objection had not been raised at admissibility stage and there was therefore an estoppel. Conclusion : objection dismissed (unanimously). B.   Merits of complaint Applicant’s conviction and sentence had amounted to an interference with his exercise of his freedom of expression. The interference had been based on Articles 168 and 312 of the Criminal Code and had therefore been prescribed by law within the meaning of Article 10 § 2. It had pursued legitimate aims under Article 10 § 2, since the statement in question could, at a time when serious disturbances were raging in south-east Turkey, have had an impact such as to justify the national authorities’ taking a measure designed to maintain national security and public safety. As to necessity of interference, Court first recapitulated its case-law. Applicant’s statement contained both a contradiction and an ambiguity – it could not, however, be looked at in isolation and had had a special significance in the circumstances of the case – interview had coincided with murderous attacks carried out by the PKK on civilians in south-east Turkey – the support given to the PKK, described as a “national liberation movement”, by former mayor of Diyarbakır in interview published in major national daily newspaper had had to be regarded as likely to exacerbate an already explosive situation in that region – penalty imposed could therefore reasonably have been regarded as answering a pressing social need, and reasons adduced by the national authorities were relevant and sufficient – at all events, applicant had served only one-fifth of his sentence in prison – interference in issue proportionate to legitimate aims pursued. Conclusion : no violation (twelve votes to eight). II.   ARTICLE 6 OF THE CONVENTION A.   Government’s preliminary objections (failure to exhaust domestic remedies) Objection had not been raised at admissibility stage and there was therefore an estoppel. Conclusion : objection dismissed (unanimously). B.   Merits of complaint 1.    Article 6 §§ 1 and 3 (c) (fair trial) Recapitulation of case-law. Fact that applicant had raised procedural objections or wished to address court in Kurdish in no way signified that he had implicitly waived his right to appear before Diyarbakır National Security Court – in view of what had been at stake for the applicant, that court could not, if the trial was to be fair, give judgment without a direct assessment of the applicant’s evidence – neither the “indirect” hearing by the Aydın Assize Court nor presence of applicant’s lawyers at hearing before Diyarbakır National Security Court could compensate for absence of accused. Conclusion : violation (seventeen votes to three). 2.   Article 6 § 1 (length of proceedings) (a)   Period to be taken into consideration   Starting-point: deposit of Turkey’s declaration. End: date of service of Court of Cassation’s judgment. Total: one year and six months, but account had to be taken of fact that by date of deposit of Turkey’s declaration the proceedings had already lasted two years and five months. (b)   Reasonableness of length of proceedings   To be assessed in light of circumstances of case, regard being had to criteria laid down in Court’s case-law. Proceedings complained of not particularly complex – applicant’s conduct could not, on its own, explain such a length of time – during period in question Diyarbakır National Security Court had not delivered its judgment until nine months after hearing at Aydın Assize Court – earlier period of inactivity on part of judicial authorities, which Court could take into account in assessing whether “reasonable time” requirement had been satisfied – importance to applicant of what had been at stake in the case. Conclusion : violation (nineteen votes to one). III.   ARTICLE 50 OF THE CONVENTION A.   Damage Pecuniary damage: no causal link between violations found and alleged damage. Non-pecuniary damage: compensation awarded. Conclusion : respondent State to pay applicant specified sum for non-pecuniary damage (eighteen votes to two). B.   Costs and fees Reimbursed on equitable basis. Conclusion : respondent State to pay applicant specified sum for costs and fees (nineteen votes to one).     COURT’S CASE-LAW REFERRED TO   7.12.1976, Handyside v. the United Kingdom; 12.2.1985, Colozza v. Italy; 8.7.1986, Lingens v.   Austria; 2.3.1987, Monnell and Morris v. the United Kingdom; 22.2.1989, Barfod v.   Denmark; 23.9.1994, Jersild v. Denmark; 8.6.1995, Yagcı and Sargın v. Turkey; 8.6.1995, Mansur v. Turkey; 19.2.1996, Botten v. Norway; 25.3.1996, Mitap and Müftüoğlü v. Turkey; 27.6.1997, Philis v. Greece (no. 2)     In the case of Zana v. Turkey [2] , The European Court of Human Rights, sitting, in accordance with Rule   51 of Rules   of Court A [3] , as a Grand Chamber composed of the following judges:   Mr   R.   Ryssdal, President ,   Mr   R.   Bernhardt,   Mr   Thór   Vilhjálmsson ,   Mr   F.   Gölcüklü ,   Mr   F.   Matscher ,   Mr   A.   Spielmann,   Mrs   E.   Palm ,   Mr   A.N.   Loizou,   Sir   J ohn   Freeland,   Mr   A.B.   Baka,   Mr   M.A.   Lopes Rocha ,   Mr   L.   Wildhaber,   Mr   G.   Mifsud Bonnici ,   Mr   D.   Gotchev,   Mr   P.   Jambrek ,   Mr   K.   Jungwiert ,   Mr   P.   Kūris,   Mr   E.   Levits,   Mr   J.   Casadevall,   Mr   P .   van Dijk, and also of Mr   H. Petzold , Registrar , and Mr   P.J. Mahoney , Deputy Registrar , Having deliberated in private on 24 April, 23 June and 24 October 1997, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 28 May 1996 and by the Turkish Government (“the Government”) on 29   July 1996, within the three-month period laid down by Article   32 §   1 and Article   47 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). It originated in an application (no.   18954/91) against the Republic of Turkey lodged with the Commission under Article   25 by a Turkish national, Mr   Mehdi Zana, on 30   September 1991. The Commission’s request referred to Articles   44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (Article   46); the Government’s application referred to Article   48. The object of the request and of the application was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article   6 §§   1 and 3 (c) and Articles   9 and 10 of the Convention. 2.     In response to the enquiry made in accordance with Rule   33 §   3 (d) of Rules   of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule   30). The lawyer was given leave by the President to use the Turkish language in both the written and the oral proceedings (Rule   27 §   3). 3.     The Chamber to be constituted included ex officio Mr   F. Gölcüklü, the elected judge of Turkish nationality (Article   43 of the Convention), and Mr   R. Bernhardt, the Vice-President of the Court (Rule   21 §   4 (b)). On 10   June 1996, in the presence of the Registrar, the President of the Court, Mr   R. Ryssdal, drew by lot the names of the other seven members, namely Mr   Thór Vilhjálmsson, Mr   F. Matscher, Mr   S.K. Martens, Mme E. Palm, Mr   M.A. Lopes Rocha, Mr   G. Mifsud Bonnici and Mr   P.   Jambrek (Article   43 in fine of the Convention and Rule   21 §   5). Subsequently Mr   K.   Jungwiert, substitute judge, replaced Mr   Martens, who had resigned (Rule   22 §   1). 4.     As President of the Chamber (Rule   21 §   6), Mr   Bernhardt, acting through the Registrar, consulted the Agent of the Government, the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules   37 §   1 and 38). Pursuant to the order made in consequence, the Registrar received the applicant’s and the Government’s memorials on 11 and 17   December 1996 respectively. On 23 December 1996 the Registrar also received the applicant’s claims under Article 50, and on 10 February 1997 the Government’s observations in reply. On 20   December 1996 the Commission had produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions. 5.     In accordance with the President’s decision, the hearing took place in public in the Human Rights Building, Strasbourg, on 19 February 1997. The Court had held a preparatory meeting beforehand. There appeared before the Court: (a)   for the Government Mr   A.   Gündüz,   c o-Agent, Mrs   D.   Akçay,   Adviser, Miss A.   Emüler,   Expert ; (b)   for the Commission Mr     A. Weitzel ,   Delegate ;   (c)   for the applicant Mr     M.S. Tanrikulu , Mr   R.   Tanrikulu, Mr   S.   Yilmaz, of the Diyarbakır Bar,   Counsel , Mr   M.   Zana,   Applicant .   The Court heard addresses by Mr   Weitzel, Mr   Zana, Mr   M.S.   Tanrikulu, Mr Gündüz and Mrs Akçay.   6.     On 21 February 1997 the Chamber decided unanimously to relinquish jurisdiction forthwith in favour of a Grand Chamber (Rule 51). 7.     The Grand Chamber to be constituted included ex officio Mr Ryssdal, the President of the Court, and Mr Bernhardt, the Vice-President, together with the members and the three substitutes of the original Chamber, the latter being Mr   A.N.   Loizou, Mr   E.   Levits and Mr   R.   Macdonald (Rule   51   §   2 (a) and (b)). On 25   February 1997, the President, in the presence of the Registrar, drew by lot the names of the eight additional judges needed to complete the Grand Chamber, namely Mr   A   Spielmann, Sir   John Freeland, Mr   A.B.   Baka, Mr   L.   Wildhaber, Mr   D.   Gotchev, Mr   P.   Kūris, Mr   J.   Casadevall and Mr   P.   van   Dijk (Rule   51 §   2 (c)). Subsequently Mr   Macdonald, who was unable to take part in the further consideration of the case, was not replaced after the hearing (Rule 24   §   1 taken in conjunction with Rule 51   §   3). 8.     On 25   February 1997 the President asked those who had appeared before the Court if they wanted a new hearing to be held. On 24 and 25 March and 9 April 1997 respectively the Government, the Delegate of the Commission and the applicant replied in the negative. AS TO THE FACTS I.   circumstances of the case 9.     Mr   Mehdi Zana, a Turkish citizen born in 1940, is a former mayor of Diyarbakır, where he currently lives. The situation in the south-east of Turkey 10.     Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces. 11.     At the time of the Court’s consideration of the case, ten of the eleven provinces of south-east Turkey had since 1987 been subjected to emergency rule. B.     The applicant’s statement to journalists 12.     In August 1987, while serving several sentences in Diyarbakır military prison, the applicant made the following remarks in an interview with journalists: “I support the PKK national liberation movement; on the other hand, I am not in favour of massacres. Anyone can make mistakes, and the PKK kill women and children by mistake …” “... PKK'nın ulusal kurtuluş hareketini destekliyorum. Katliamlardan yana değiliz, yanlış şeyler her yerde olur. Kadın ve çocukları yanlışlıkla öldürüyorlar …” That statement was published in the national daily newspaper Cumhuriyet on 30   August 1987. C.   The criminal proceedings 13.     On 30 August 1987 the “press offences” department of the Istanbul public prosecutor’s office began a preliminary investigation in respect of the applicant among others, on the ground that he had “defended an act punishable by law as a serious crime”, an offence under Article   312 of the Criminal Code (see paragraph   31 below). 14.     On   28 September 1987 the Istanbul public prosecutor’s office ruled that there was no case to answer in respect of the journalists and that it had no jurisdiction ratione loci to deal with Mr   Zana’s case. It sent the file to the Diyarbakır public prosecutor. 15.     In an order of 22   October 1987 the Diyarbakır public prosecutor ruled that he had no jurisdiction, on the ground that the offence committed by the applicant was governed by Article   142 §§   3–6 of the Criminal Code (a provision which makes it an offence to disseminate propaganda that is racist or calculated to weaken national sentiment). He forwarded the file to the public prosecutor at the Diyarbakır National Security Court. 16.     On 4 November 1987 the latter likewise ruled that he had no jurisdiction, on the ground that when the applicant had made his statement to the journalists he was in custody in a military prison and therefore had military status in law. He forwarded the file to the Diyarbakır military prosecutor’s office. 17.     By means of an indictment dated 19   November 1987, the Diyarbakır military prosecutor’s office instituted proceedings in the Diyarbakır Military Court against Mr   Zana (among others) under Article   312 of the Criminal Code. The applicant was charged with supporting the activities of an armed organisation, the PKK, whose aim was to break up Turkey’s national territory. 18.     At a hearing before the Diyarbakır Military Court on 15   December 1987 the applicant argued that the court had no jurisdiction to hear his case and refused to put forward a defence on the merits. 19.     At a hearing on 1 March 1988 counsel for Mr Zana asked the Military Court to rule   that it had no jurisdiction as the offence with which his client was charged was not a military one and a military prison could not be regarded as military premises. The court dismissed that application on the same day. 20.     On 28   July 1988 the applicant was transferred from Diyarbakır military prison to Eskişehir civilian prison. 21.     The Eskişehir Air Force Court, acting under powers delegated to it by the Diyarbakır Military Court, summoned the applicant to submit his defence. The applicant, who was on hunger strike, did not appear at the hearing on 2   November 1988. He did appear at one held on 7   December 1988 but refused to address the court, as he considered that it had no jurisdiction to try him. 22.     In a decision of 18   April 1989 the Diyarbakır Military Court held that it had no jurisdiction in the case and sent the file to the Diyarbakır National Security Court. 23.     On 2   August 1989 Mr Zana was transferred to the high-security civilian prison at Aydın. 24.     At a hearing held on 20   June 1990 by the Aydın Assize Court, acting under powers delegated by the Diyarbakır National Security Court, the applicant refused to speak Turkish and said in Kurdish that he wished to defend himself in his mother tongue. The Assize Court pointed out to him that, if he persisted in his refusal to defend himself, he would be deemed to have waived his right to do so. Since Mr Zana continued to speak in Kurdish, the court noted in the record of the hearing that he had not put forward a defence. D.   The judgment of the Diyarbakır National Security Court 25.     The proceedings then continued before the Diyarbakır National Security Court, where the applicant was represented by his lawyers. 26.     In a judgment of 26   March 1991 the Diyarbakır National Security Court sentenced the applicant to twelve months’ imprisonment for having “defended an act punishable by law as a serious crime” and “endangering public safety”. In accordance with the Act of 12   April 1991, he would have to serve one-fifth of the sentence (two months and twelve days) in custody and four-fifths on parole. 27.     The National Security Court held that the PKK qualified as an “armed organisation” under Article   168 of the Criminal Code, that its aim was to bring about the secession of part of Turkey’s territory and that it committed acts of violence such as murder, kidnapping and armed robbery. The court also held that Mr   Zana’s statement to the journalists, the exact terms of which had been established during the judicial investigation, amounted to an offence under Article   312 of the Criminal Code. 28.     The applicant appealed on points of law on 3 April 1991. In a judgment of 19 June 1991, served on the applicant’s representative on 18   July 1991, the Court of Cassation upheld the National Security Court’s judgment. 29.     In the meantime, on 16 April 1991, Mr   Zana, who had just served the sentences imposed on him earlier, had been released. 30.     On 26   February 1992 the Diyarbakır public prosecutor requested the applicant to report to Diyarbakır Prison in order to serve his latest sentence   – one-fifth of the prison term, for the remainder of which he would be on parole.   ii.   Relevant domestic law A.   Substantive law 31.     The relevant provisions of the Criminal Code at the material time provided: Article   168 “It shall be an offence punishable by at least fifteen years’ imprisonment to form an armed gang or organisation or to assume control or special responsibility within such a gang or organisation with the intention of committing any of the offences referred to in Articles   125 ... It shall be an offence punishable by five to fifteen years’ imprisonment to belong to such an organisation.” Article   312 “It shall be an offence, punishable by six months’ to two years’ imprisonment and a ‘heavy’ [ağ ır ] fine of 6,000 to 30,000 liras publicly to praise or defend an act punishable by law as a serious crime or to urge the people to disobey the law. It shall be an offence, punishable by one year’s to three years’ imprisonment and by a heavy fine of 9,000 to 36,000 liras, publicly to incite hatred or hostility between the different classes in society, thereby creating discrimination based on membership of a social class, race, religion, sect or region. Where such incitement endangers public safety, the sentence shall be increased by one-third to one-half. ...” B.     Procedure 32.     Article   226   §   4 of the Code of Criminal Procedure at the material time provided: “A person in custody in a prison situated outside the jurisdiction of the court which is to try him may be examined by other courts.” III.   Turkey’s declaration of 22 January 1990 under Article   46 of the Convention 33.     On 22 January 1990 the Turkish Minister for Foreign Affairs deposited with the Secretary General of the Council of Europe the following declaration under Article   46 of the Convention: “On behalf of the Government of the Republic of Turkey and acting in accordance with Article   46 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, I hereby declare as follows: The Government of the Republic of Turkey acting in accordance with Article   46 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, hereby recognises as compulsory ipso facto and without special agreement the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention which relate to the exercise of jurisdiction within the meaning of Article   1 of the Convention, performed within the boundaries of the national territory of the Republic of Turkey, and provided further that such matters have previously been examined by the Commission within the power conferred upon it by Turkey. This Declaration is made on condition of reciprocity, including reciprocity of obligations assumed under the Convention. It is valid for a period of 3 years as from the date of its deposit and extends to matters raised in respect of facts, including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present Declaration.” That declaration was renewed on 22   January 1993 for a period of three years and again on 22   January 1996, in slightly different terms, for two years. PROCEEDINGS BEFORE THE COMMISSION 34.     Mr   Zana applied to the Commission on 30   September 1991. Relying on Article   6 §§   1 and 3 and Articles   9 and 10 of the Convention, he complained of the length of the criminal proceedings, of an infringement of his right to a fair trial in that he had not been able to appear before the court which convicted him and had not been able to defend himself in his mother tongue (Kurdish), and of an interference with his freedom of thought and expression. 35.     On 21   October 1993 the Commission declared the application (no.   18954/91) admissible as to the complaints concerning the length of the criminal proceedings, the applicant’s absence from the hearing and the interference with his freedom of thought and expression and declared it inadmissible as to the remainder. In its report of 10 April 1996 (Article   31), it expressed the opinion that (a)   there had not been a violation of Article   10 of the Convention (fourteen votes to fourteen, with the President’s casting vote); (b) there had been a violation of Article   6 §§   1 and 3 (c) of the Convention because the applicant had not been present at his trial (unanimously); (c) there had been a violation of Article   6 §   1 of the Convention in that his case had not been heard within a reasonable time (twenty-three votes to five). The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment [4] . final submissions to the court 36.     In their memorial the Government requested the Court “(a) to declare that it has no jurisdiction ratione temporis as regards the complaint under Article   10 of the Convention; (b) to declare that domestic remedies have not been duly exhausted as regards the complaints under Article 6 of the Convention; in the alternative, (a) to declare that domestic remedies have not been duly exhausted as regards the complaints under Article 10 of the Convention; (b) to declare that there has not been a breach as regards the complaints under Article 6 of the Convention; and in the further alternative, to declare that there has been no breach of Article 10 of the Convention.” 37.     At the hearing, counsel for the applicant asked the Court to dismiss all the Government’s preliminary objections and to rule that there had been breaches of Article 10 and Article 6   §§   1 and 3 (c). as to the law I.   alleged violation of article 10 of the convention 38.     Mr Zana maintained that his conviction by the Diyarbakır National Security Court on account of his statement to journalists had infringed his right to freedom of expression. He relied on Article 10 of the Convention, which provides: “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.” 39.     He also complained of an interference with his right to freedom of thought, guaranteed by Article 9 of the Convention. Like the Commission, the Court considers that this complaint is bound up with the one made under Article   10. The Government’s preliminary objections 40.     The Government raised two preliminary objections, one based on lack of jurisdiction ratione temporis and the other on failure to exhaust domestic remedies. Lack of jurisdiction ratione temporis 41.     The Government maintained, as their primary submission, that the Court had no jurisdiction ratione temporis to entertain the applicant’s complaint under Article   10 of the Convention, given that the principal fact lay in the applicant’s declaration to journalists in August 1987 (see paragraph   12 above), that is to say before Turkey recognised the compulsory jurisdiction of the Court. When, on 22 January 1990, Turkey had recognised the Court’s compulsory jurisdiction in “matters raised in respect of facts, including judgments which are based on such facts which have occurred subsequent to” that date, its intention had been, they said, to remove from the ambit of the Court’s review events that had taken place before the date on which the declaration made under Article   46 of the Convention was deposited and also judgments relating to such facts even if they had been delivered after that date. 42.     The Court points out that Turkey accepted its jurisdiction only in respect of facts and events subsequent to 22 January 1990, when it deposited its declaration (see paragraph 33 above). In the instant case, however, the Court considers, like the Delegate of the Commission, that the principal fact lay not in Mr Zana’s statement to the journalists but in the Diyarbakır National Security Court’s judgment of 26 March 1991, whereby the applicant was sentenced to twelve months’ imprisonment for having “defended an act punishable by law as a serious crime” under Turkish legislation (see paragraph 26 above), a judgment that was upheld by the Court of Cassation on 26   June 1991 (see paragraph 28 above). It was that conviction and sentence, subsequent to Turkey’s recognition of the Court’s compulsory jurisdiction, which constituted the “interference” within the meaning of Article   10 of the Convention and whose justification under that Article the Court must determine. This preliminary objection must accordingly be dismissed. The question whether the Government should, in the light of their reference of the case to the Court (see paragraph 1 above), be regarded as estopped from relying on the terms of the declaration of 22 January 1990 to exclude this complaint on grounds of incompetence ratione temporis was not raised before the Court and the Court does not consider it necessary, in the circumstances, to determine that question. Failure to exhaust domestic remedies 43.     In the alternative, the Government pleaded failure to exhaust domestic remedies. Mr   Zana, they said, had omitted to raise in substance his complaint under Article   10 of the Convention in the Turkish courts. 44.     Like the Delegate of the Commission, the Court notes that this objection was not raised when the admissibility of the application was being considered and that there is therefore an estoppel. Merits of the complaint 45.     As the Court has already pointed out (see paragraph 42 above), the applicant’s conviction and sentence by the Turkish courts for remarks made to journalists indisputably amounted to an “interference” with his exercise of his freedom of expression. This point was, indeed, not contested. 46.     The interference contravened Article   10 unless it was “prescribed by law”, had one or more of the legitimate aims referred to in paragraph 2 of Article   10 and was “necessary in a democratic society” for achieving such an aim or aims.   “Prescribed by law” 47.     The Court notes that the applicant’s conviction and sentence were based on Articles 168 and 312 of the Turkish Criminal Code (see paragraph   31 above) and accordingly considers that the impugned interference was “prescribed by law”. This point was likewise undisputed. Legitimacy of the aims pursued 48.     The Government maintained that the interference had pursued legitimate aims, namely the maintenance of national security and public safety, the preservation of territorial integrity and the prevention of crime. As the PKK was an illegal terrorist organisation, the application of Article   312 of the Turkish Criminal Code by the national courts in the case had had the aim of punishing any act calculated to afford support to that type of organisation. 49.     In the Commission’s view, such a statement from a person with some political standing – the applicant is a former mayor of Diyarbakır – could reasonably lead the national authorities to fear a stepping up of terrorist activities in the country. The authorities had therefore been entitled to consider that there was a threat to national security and public safety and that measures were necessary to preserve the country’s territorial integrity and prevent crime. 50.     The Court notes that in the interview he gave the journalists the applicant indicated that he supported “the PKK national liberation movement” (see paragraph   12 above) and, as the Commission noted, the applicant’s statement coincided with the murders of civilians by PKK militants. That being so, it considers that at a time when serious disturbances were raging in south-east Turkey (see paragraphs   10 and 11 above) such a statement – coming from a political figure well known in the region – could have an impact such as to justify the national authorities’ taking a measure designed to maintain national security and public safety. The interference complained of therefore pursued legitimate aims under Article   10   §   2. Necessity of the interference (a)       General principles 51.     The Court reiterates the fundamental principles which emerge from its judgments relating to Article   10: (i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph   2, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see the following judgments: Handyside v. the United Kingdom, 7   December 1976, Series   A no.   24, p. 23, §   49; Lingens v. Austria, 8   July 1986, Series   A no.   103, p.   26, §   41; and Jersild v. Denmark, 23   September1994, Series   A no.   298, p.   26, §   37). (ii) The adjective “necessary”, within the meaning of Article   10   §   2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legis