CEDH · CASELAW;REPORTS;ENG — 11 décembre 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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 23462/94                            Günay Arslan                               against                               Turkey                      REPORT OF THE COMMISSION                    (adopted on 11 December 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-19). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-5). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 6-14) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 15-19). . . . . . . . . . . . . . . . . . .3   II.   ESTABLISHMENT OF THE FACTS      (paras. 20-31) . . . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 20-30). . . . . . . . . . . . . . . . . . .4        B.    Relevant domestic law           (para. 31). . . . . . . . . . . . . . . . . . . . .5   III. OPINION OF THE COMMISSION      (paras. 32-59) . . . . . . . . . . . . . . . . . . . . .7        A.    Complaints declared admissible           (para. 32). . . . . . . . . . . . . . . . . . . . .7        B.    Points at issue           (para. 33). . . . . . . . . . . . . . . . . . . . .7        C.    As regards Articles 9 and 10 of the Convention           (paras. 34-53). . . . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 54). . . . . . . . . . . . . . . . . . . . 10        D.    As regards Article 14 of the Convention           (paras. 55-56). . . . . . . . . . . . . . . . . . 10             CONCLUSION           (para. 57). . . . . . . . . . . . . . . . . . . . 11        E.    Recapitulation           (paras. 58-59). . . . . . . . . . . . . . . . . . 11   DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK JOINED BY MR C. BÎRSAN. . . . . . . . . . . . . . . . . . . 12   APPENDIX :      DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 13   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights by the parties, and of the procedure before the Commission.   A.    The application   2.    The applicant is a Turkish national. He was born in 1960 and lives in istanbul.   He was represented before the Commission by Mr. Hasip Kaplan, a lawyer practising in istanbul.   3.    The application is directed against Turkey.   The respondent Government were represented by Mr. Bakir Çaglar, Professor at istanbul University.   4.    The case concerns the applicant's conviction by the State Security Court for having had published his book entitled "Yas Tutan Tarih / 33 Kursun" (History in Mourning / 33 Bullets).   5.    The applicant complains under Articles 6, 9 and 10 of the Convention that his conviction on account of the publication of his book constituted an unjustified interference with his freedom of thought and freedom of expression. He also complains that he was convicted on the basis of the Court's assessment of a single chapter of his book and of a preface thereto which was not written by him. Moreover, he complains under Article 14 of the Convention that his conviction for expressing his opinion on the "Kurdish problem", allegedly contrary to State policy, constituted discrimination on the ground of political opinion.        The applicant also makes a "ne bis in idem" claim in so far as he was allegedly twice tried and convicted for the same offence.   B.    The proceedings   6.    The application was introduced on 7 January 1994 and registered on 15 February 1994.   7.    On 20 February 1995, the Commission decided, pursuant to Rule 48 para. 2(b) of its Rules of Procedure, to give notice of the application to the Turkish Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints based (under Article 10 of the Convention) on the alleged violation of his freedom of expression, (under Article 14 in conjunction with Article 10 of the Convention) on the alleged discrimination against the applicant on the ground of political opinion, and (under Article 6 para. 1 of the Convention) on the alleged violation of the principle of a fair trial.   8.    The Government's written observations were submitted on 11 August 1995, after an extension of the time-limit fixed for that purpose.   The applicant replied on 28 September 1995.   9.    On 4 December 1995 the Government submitted information concerning the amendments made to the Anti-Terror Law (Law No. 3713) and developments in the cases of persons convicted and sentenced under Article 8 of the said Law. The applicant submitted comments in reply on 13 May 1996.   10.   On 14 October 1996 the Commission declared inadmissible the complaint related to "ne bis in idem" and declared the remainder of the application admissible.   11.   The text of the Commission's decision on admissibility was sent to the parties on 24 October 1996 and they were invited to submit such further information or observations on the merits as they wished.   12.   On 29 October 1996 the Government   submitted observations on the documents annexed to the Commission's decision on admissibility. The Government considered unjustified the publication by the Commission of "confidential documents which are part of the investigation file" and which "constitute an offence according to the judgment of the State Security Court". The Government requested the Commission to desist from publishing the appendix to decisions in this application. On 30 November 1996 the Commission decided to admit this request.   13.   The applicant did not submit any observations.   14.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   15.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, 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                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           Mrs. M. HION           MM.   R. NICOLINI                A. ARABADJIEV   16.   The text of this Report was adopted by the Commission on 11 December 1997 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   17. The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the respondent Government of their obligations           under the Convention.   18.   The Commission's decision on the admissibility of the application is appended to this Report.   19.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   20.   The applicant is the author of a book entitled "Yas Tutan Tarih / 33 Kursun" (History in Mourning / 33 Bullets). The first edition of the book was published in December 1989 and the preface was signed by Musa Anter, who was a prominent figure and writer on matters concerning the people of Kurdish origin in Turkey. In his book the applicant alleged that the State oppressed the people of Kurdish origin, attempted to destroy their identity by means of genocide, exile and torture and carried out massacres against them.   21.   In an indictment dated 22 January 1990 the Public Prosecutor at the istanbul State Security Court (istanbul Devlet Güvenlik Mahkemesi) charged the applicant with disseminating separatist propaganda through his book. He requested the applicant's conviction under Article 142 (3) of the Turkish Criminal Code.   22.   On 29 March 1991 the istanbul State Security Court sentenced the applicant to six years and three months' imprisonment. On 12 April 1991 Article 142 of the Turkish Criminal Code, under which the applicant had been convicted, was repealed. In a supplementary decision dated 3 May 1991, the Court quashed the applicant's conviction. On 21 July 1991 the book was reprinted with a preface signed by Musa Anter.   23.   On 12 December 1991 the Public Prosecutor at the istanbul State Security Court charged the applicant with disseminating propaganda against the indivisibility of the State in view of the fact that the book had been reprinted. The charges were made in accordance with Article 8 paragraph 1 of the Anti-Terror Law.   24.   The indictment against the applicant incriminated certain passages of the book, including the following:        "The special war between the security forces and the P.K.K. came      to an end and a new era of generalised warfare began, this time      engendered by attacks on the population and their resistance. The      State, which had forcibly evacuated people towards the Botan      region in general and to the Cudi mountain in particular, could      still not prevent armed action in the region. Using the press,      the State tried to exaggerate the importance of its own attacks,      but this policy also proved abortive. The State then decided on      a final solution - genocide -, taking the repression of the Agri      rebellion as a historical example.   From then on, all efforts      were concentrated on this solution. They started from Silopi. The      death squads were on a man-hunt. The contra-guerillas, gangs,      village guards and, finally, clan chiefs on the Government's pay-      roll were all striving to drink Kurdish blood. But the Kurdish      peasants in Silopi stood up against them and this was a sign that      resistance was getting stronger. The Kurdish intifada was      organising itself against the genocide of the Kurds. The Kurdish      people, who had led Middle Eastern peoples in their fight against      the Assyrian oppressors in the past, now resisted massively,      heralding the days when the bastions of Turkish chauvinism would      be taken by storm."   25.   In the proceedings before the istanbul State Security Court, the applicant denied the charges. He stated that the book was based on true facts and on his observations as a journalist. He asserted that he had reported certain events within the scope of journalism.   26.   In a judgment dated 28 January 1993, the Court found the applicant guilty of disseminating propaganda against the indivisibility of the State. It first sentenced the applicant to two years' imprisonment, plus a fine of 50,000,000 Turkish lira. Then, considering the good conduct of the applicant during the trial, it reduced his sentence to one year and eight months' imprisonment plus a fine of 41,666,666 Turkish lira.   27.   The Court held, inter alia, that the applicant, in his book, had alleged that the State oppressed the people of Kurdish origin, seized their belongings and killed them. It held that the applicant's comments and allegations were more than mere criticism. The Court noted that the applicant incited the people of Kurdish origin to rebel against the State. The Court considered that the applicant was also liable for the preface to the book which had been written by another author. The Court noted that the publication of the further edition of the book was an act which constituted an offence under Article 8 paragraph 1 of the Anti-Terror Law which had come into force after the abrogation of Article 142 of the Turkish Criminal Code.   28.   The applicant appealed. He contended that certain sections of the book consisted of articles taken from previously published periodicals. He pleaded that the preface had not been written by him. He asserted that his conviction for criticising the oppression of the Kurdish people constituted a serious threat to his freedom of expression.   29.   On 17 March 1993 the istanbul State Security Court rejected the applicant's appeal on the ground that it had been filed out of time. The applicant also appealed against this decision.   30.   On 16 September 1993 the Court of Cassation considered that the applicant had appealed in time against his conviction. However, after examining the grounds for the applicant's conviction, it dismissed the appeal, upholding the cogency of the State Security Court's assessment of the evidence and its reasoning in rejecting the applicant's defence.   B.    Relevant domestic law   31.   Article 8 of Anti-Terror Law No. 3713 of 12 April 1991 (before the amendments of 27 October 1995)        <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."        <Translation>        "Written and spoken propaganda, meetings, assemblies and      demonstrations aimed at undermining the indivisible territorial      and national unity of the State of the Turkish Republic are      prohibited, irrespective of the methods used or the intention or      ideas behind them. Anyone who carries on such an activity shall      be sentenced to imprisonment between two and five years and a      fine of between fifty and one hundred million Turkish liras."   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   32.   The Commission has declared admissible:   -     the applicant's complaint that his conviction on account of the publication of his book constituted an unjustified interference with his freedom of thought and freedom of expression and that he was convicted on the basis of the Court's assessment of a single chapter and a preface to his book which was not written by him;   -     the applicant's complaint that his conviction for expressing his opinion on the "Kurdish problem", allegedly contrary to State policy, constituted discrimination on the ground of political opinion.   B.    Points at issue   33.   The points at issue in the present case are as follows:   -     whether the applicant's conviction on account of the publication of his book infringed his freedom of thought and expression as guaranteed by Articles 9 and 10 (Art. 9, 10) of the Convention;   -     whether the applicant's conviction for expressing his opinion on the "Kurdish problem" constituted discrimination on the ground of political opinion, contrary to Article 14 in conjunction with Article 10 (Art. 14+10) of the Convention.   C.    As regards Articles 9 and 10 (Art. 9, 10) of the Convention   34.   The applicant complains that his freedom of thought and expression have been infringed, contrary to Articles 9 and 10 (Art. 9, 10) of the Convention, in that he was convicted on account of the publication of his book.   35.   The Commission considers that the applicant's complaint essentially concerns an alleged violation of his freedom of expression. The Commission will therefore examine this complaint under Article 10 (Art. 10) of the Convention, which states:        "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."   36.   The applicant submits 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 journalist on the facts concerning the Kurdish people living in Turkey. He also observes that he was convicted on the basis of the Court's assessment of a preface to his book, although the preface was not written by himself.   37.   The applicant also maintains that his conviction cannot be justified for any of the reasons permitted under the Convention. He considers that the content of the incriminated book was within the limits of permitted criticism.   38.   The respondent 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 8 of the Anti-Terror Law. They state that the comments made by the applicant in his book constitute a provocation of enmity and hatred between the Kurdish and Turkish societies which serves to mobilise people to revolt. They assert that according to Article 8 of the Anti-Terror Law these forms of expression constitute propaganda against the indivisible integrity of the State. The Government consider that the domestic courts therefore interpreted the law reasonably.   39.   The Government also maintain that the applicant's conviction was part of the campaign to prevent 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, 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.   40.   As to the necessity of the measure in a democratic society, the respondent Government state that terrorism strikes at the heart of democracy, the fundamental rights which that concept enshrines and the judicial and political systems. They state that the freedom of expression constitutes one of the essential foundations of a democratic society. However, in a situation where politically motivated violence poses a constant threat to the lives and security of the population and where advocates of this violence seek access to the mass media for publicity purposes, it is particularly difficult to strike a fair balance between the requirements of freedom of information and the imperatives of protecting the State and the public against armed conspirators seeking to overthrow the democratic order which guarantees this freedom and other human rights.   41.   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.   42.   The Commission is of the opinion that the penalty imposed on the applicant constituted an "interference" in the exercise of his freedom of expression as guaranteed by Article 10 para. 1 (Art. 10-1) of the Convention.   This point has not been in dispute between the parties.   43.   Therefore, the question is whether this interference was prescribed by law, pursued a legitimate aim under Article 10 para. 2 (Art. 10-2) and was "necessary in a democratic society" in order to realise that legitimate aim.   44.   The Commission notes that the applicant's conviction was based on Article 8 of the Anti-Terror Law and therefore considers that the interference was prescribed by law.   45.   As regards the aims of the interference, the Commission notes that the applicant's conviction was part of the efforts of the authorities to combat illegal terrorist activities and to maintain national security and public safety, which are legitimate aims under Article 10 para. 2 (Art. 10-2) of the Convention.   46.   The remaining issue is whether the interference was "necessary in a democratic society". In this respect the Commission recalls the following principles adopted by the Court (see, as the latest authority, Eur. Court HR, Zana v. Turkey judgment of 25 November 1997, Judgments and Decisions 1997 ...., para. 51):        (i) Freedom of expression, as enshrined in paragraph 1 of Article 10 (Art. 10-1) constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress. It is applicable not only to "information" or "ideas" that are favourably received or are 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 broad-mindedness without which there is no "democratic society".        (ii) The adjective "necessary", within the meaning of Article 10 para. 2 (Art. 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 legislation and the decisions applying it, even those given by an independent court.        (iii) In exercising its supervisory jurisdiction, the organs of the Convention must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them. In particular, they must determine whether the interference in issue was "proportionate to the legitimate aims pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient".   47.   The Commission further notes that, while freedom of political debate is at the very core of the concept of a democratic society (Eur. Court HR, Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, para. 42), that freedom is not absolute.   A Contracting State is entitled to subject it to certain "restrictions" or "penalties", but the Convention organs are empowered to give the final ruling on whether they are reconcilable with freedom of expression as protected by Article 10 (Art. 10) (Eur. Court HR, the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, p. 30, para. 59(c)). In doing so, the Convention organs must satisfy themselves that the national authorities did apply standards which were in conformity with the principles embodied in Article 10 (Art. 10) and, moreover, that they based themselves on an acceptable assessment of the relevant facts (Eur. Court HR, Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 24, para. 31).   48.   Even where, as in the present case, an interference with freedom of expression is based on considerations of national security and public safety and is part of a State's fight against terrorism, the interference can be regarded as necessary only if it is proportionate to the aims pursued. Consequently, the Commission must, with due regard to the circumstances of each case and the State's margin of appreciation, ascertain whether a fair balance has been struck between the individual's fundamental right to freedom of expression and a democratic society's legitimate right to protect itself against the activities of terrorist organisations (cf. above-mentioned Zana judgment, para. 55).   49.   The Commission observes in this connection that Article 10 para. 2 (Art. 10-2) also refers to "duties and responsibilities" which the exercise of the freedom of expression carries with it. Thus, it is important for persons addressing the public on sensitive political issues to take care that they do not support unlawful political violence. On the other hand, freedom of expression must be considered to include the right openly to discuss difficult problems such as those facing Turkey in connection with the prevailing unrest in part of its territory in order, for instance, to analyse the background causes of the situation or to express opinions on the solutions to those problems.   50.   The Commission notes that the applicant, in his book, alleged that the State oppressed the people of Kurdish origin, attempted to destroy their identity by means of genocide and evacuation and organised massacres against them. He referred to Kurdish resistance against these measures and made a comparison with Kurdish resistance against other oppressors in the past.   51.   The Commission considers that the incriminated passage in the applicant's book was meant to be mainly a description of the background of the present situation in south-east Turkey and it did not include any statements which could be read as incitement to further violence.   52.   The Commission finds that the applicant's conviction amounted to a kind of censure, which was likely to discourage him or others from publishing ideas of a similar kind again in the future. In the context of political debate such a sentence is likely to deter citizens from contributing to public discussion of important political issues (cf. Eur. Court HR, Lingens judgment, op. cit., p. 27, para. 44).   53.   Consequently, the Commission, even taking into account the margin of appreciation of the national authorities in this context, finds that the interference with the applicant's freedom was not proportionate to the legitimate aims pursued and could, therefore, not be regarded as necessary in a democratic society to achieve the aims of national security and public safety.        CONCLUSION   54.   The Commission concludes, by 30 votes to 2, that there has been a violation of Article 10 (Art. 10) of the Convention.   D.    As regards Article 14 (Art. 14) of the Convention   55.   The applicant complains, in conjunction with the interference with his freedom of expression, that his conviction for expressing his opinion on the problems of the people of Kurdish origin, and for criticising State policy in this respect, constituted discrimination on the ground of political opinion, and thus infringed his rights under Article 14 (Art. 10) of the Convention. Article 14 (Art. 14) provides as follows:        "The enjoyment of the rights and freedoms set forth in this      Convention shall be secured without discrimination on any ground      such as sex, race, colour, language, religion, political or other      opinion, national or social origin, association with a national      minority, property, birth or other status."   56.   Having found a violation of Article 10 (Art. 10) of the Convention in respect of the applicant's conviction, the Commission considers that no separate issue arises in respect of Article 14 in conjunction with Article 10 (Art. 14+10).        CONCLUSION   57.   The Commission concludes, by 30 votes to 2, that no separate issue arises in regard to Article 14 in conjunction with Article 10 of the Convention (Art. 14+10).   E.    Recapitulation   58.   The Commission concludes, by 30 votes to 2, that there has been a violation of Article 10 (Art. 10) of the Convention (see above para. 54).   59.   The Commission concludes, by 30 votes to 2, that no separate issue arises in regard to Article 14 in conjunction with Article 10 (Art. 14+10) of the Convention (see above para. 57).          M. de SALVIA                              S. TRECHSEL         Secretary                                  President      to the Commission                        of the Commission                                                    (Or. English)   DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK JOINED BY MR C. BÎRSAN        I do not find it possible to join the majority in concluding that there has been a breach of Article 10 of the Convention. In my opinion, there are no solid grounds for concluding that, in this case, the interference was not necessary in a democratic society and, in particular, not proportionate to the aim of maintaining national security and public safety.        In order to assess whether Mr Arslan's conviction and sentence answered a "pressing social need" and whether they were "proportionate to the legitimate aims pursued", it is important to analyse the content of the applicant's remarks in the light of the situation prevailing in south-east Turkey at the time. In so doing, the Commission, taking account of the margin of appreciation left to the Government, should have confined itself to the question whether the judicial authorities had good reasons to believe that there was a pressing social need for such a measure, based on an acceptable assessment of the relevant facts.        I note in this regard that, according to the national courts, the applicant's book exceeded the limits of mere criticism and amounted to incitement of the people of Kurdish origin to rebel against the State. In particular, the applicant alleged in his book that the State oppressed the people of Kurdish origin, attempted to destroy their identity by means of genocide and evacuation and organised massacres against them. I find that certain indissociable sections of the applicant's book are in fact of an inflammatory nature and could, therefore, be deemed dangerous propaganda. In these circumstances, the applicant's conviction and the penalty imposed on him on account of the publication of his book could reasonably be said to arise out of a pressing social need.        In the light of these considerations and having regard to the State's margin of appreciation in this area, I am of the opinion that the restriction placed on the applicant's freedom of expression was proportionate to the legitimate aims pursued and that, therefore, it could reasonably be regarded as necessary in a democratic society to achieve those aims.