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. 23556/94   Münir Ceylan                               against                               Turkey                      REPORT OF THE COMMISSION                    (adopted on 11 December 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-17). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-5). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 6-12) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 13-17). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 18-27) . . . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 18-25). . . . . . . . . . . . . . . . . . .4        B.    Relevant domestic law           (paras. 26-27). . . . . . . . . . . . . . . . . . .6   III. OPINION OF THE COMMISSION      (paras. 28-54) . . . . . . . . . . . . . . . . . . . . .7        A.    Complaints declared admissible           (para. 28). . . . . . . . . . . . . . . . . . . . .7        B.    Points at issue           (para. 29). . . . . . . . . . . . . . . . . . . . .7        C.    As regards Articles 9 and 10 of the Convention           (paras. 30-47). . . . . . . . . . . . . . . . . . .7             CONCLUSION           (para. 48). . . . . . . . . . . . . . . . . . . . 10        D.    As regards Article 14 of the Convention           (paras. 49-51). . . . . . . . . . . . . . . . . . 10             CONCLUSION           (para. 52). . . . . . . . . . . . . . . . . . . . 10        E.    Recapitulation           (paras. 53-54). . . . . . . . . . . . . . . . . . 11   DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK . . . . . . . . . . 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 1951 and lives in istanbul.   He was represented before the Commission by Mr. Hasip Kaplan, Mr. Süleyman Bayram and Ms. Müesser Bas, all lawyers 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 a newspaper article entitled "Söz isçinin, yarin çok geç olacaktir" ("Now is the time for workers to speak, tomorrow will be too late").   5.    The applicant complains under Articles 9 and 10 of the Convention that his conviction for publishing his article in a newspaper constituted an unjustified interference with his freedom of thought and freedom of expression, in particular, with his right to receive and impart information and ideas. He also complains under Article 14 of the Convention that his conviction for expressing his views in an article constituted discrimination on the ground of political opinion.   B.    The proceedings   6.    The application was introduced on 10 February 1994 and registered on 2 March 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 and (under Article 14 in conjunction with Article 10 of the Convention) on the alleged discrimination against the applicant on the ground of political opinion.   8.    The Government did not submit any observations.   9.    On 15 April 1996 the Commission declared the application admissible.   10.   The text of the Commission's decision on admissibility was sent to the parties on 24 April 1996 and they were invited to submit such further information or observations on the merits as they wished.   11.   On 6 June 1996 the Government submitted observations, to which the applicant did not reply.   12.   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 the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   13.   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   14.   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.   15. 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.   16.   The Commission's decision on the admissibility of the application is appended to this Report.   17.   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   18.   In issue No. 29/1991 of "Yeni Ülke" ("New Land"), a weekly newspaper published in istanbul, an article written by the applicant, the president of Petrol-is Sendikasi (the Petroleum Workers' Union), was published under the title "Söz isçinin, yarin çok geç olacaktir" ("Now is the time to speak, tomorrow will be too late").   19.   A translation of this article is as follows:        "The State Terrorism which is steadily intensifying in Eastern      and South-Eastern Anatolia is nothing other than the reflection      of the policies controlled by imperialism which are being applied      to the Kurdish people in the international plan.        In order to destroy the Kurdish movement in Iraq, U.S.      imperialism first stirred up the Kurds against Saddam's regime      and then sent the Saddam administration, which it had left strong      enough to crush that movement, after the Kurds.        As a result, the world has seen the heart-breaking sight of tens      of thousands of Kurds dying of hunger, exposure and epidemics,      as many again wiped out by the Iraqi army, and hundreds of      thousands forced to leave their homes and their country.        And imperialism shed crocodile tears at the sight of its own      creation, for all the world to see.        And it is just sitting back with its arms folded as it watches      the genocide that is intensifying in Turkey.        The steadily increasing summary executions, collective detentions      and disappearances of detainees, particularly since the recent      Anti-Terror Act, virtually herald how difficult the days that lie      ahead will be.        The recent killing of the President of the Diyarbakir Section of      the H.E.P. (People's Labour Party), most probably by counter-      guerillas, while he was being detained in police custody, and the      further killings that took place (3 according to the police, 10      according to the local people) at the subsequent funeral, when      the police opened fire on the crowd, hundreds of people were      also-injured and more than a thousand people were taken into      custody, are the latest examples of state terrorism.        For anyone who examines the Anti-Terror Act closely it is easy      to see that that act is aimed at defeating not only the Kurdish      people's struggle, but the struggle of the entire working class      and proletariat for a livelihood and for freedom and democracy.        It is consequently not only the Kurdish people but our entire      proletariat as a whole which must counter those laws and the      current «state terrorism».        And, also from the trade union point of view, the problem is too      important and too vital to be eliminated simply by a few      statements and declarations.        Political power and monopolistic capital which finds an      opportunity to present every action as a terrorist act and every      organisation as a terrorist organisation in a few complex      concepts will not hesitate, when the moment is opportune, to turn      that weapon against our working class.        As we have always said, our working class and its economic and      democratic organisations must bring not only their economic      demands, but also their political and democratic demands, to the      fore and must play an effective role in this struggle.        Despite all of the hindrances contained in the laws, united      action must therefore be achieved with the democratic masses and      their organisations, with the political parties and with all      persons and bodies with whom an alliance can be formed;   we must      oppose these massacres and bloodshed and this state terrorism      with maximum organisation and coordination.        Otherwise, for the monopolistic capitalist circles, which,      directed by imperialism, are aiming to silence the Kurdish      people, the turn of the working class and proletariat will      inevitably come.        Tomorrow will be too late. We call on all our people and all our      democratic forces to take an active part in this struggle."   20.   In an indictment dated 16 September 1991, the Public Prosecutor at the istanbul State Security Court (istanbul Devlet Güvenlik Mahkemesi) charged the applicant with provoking feelings of hatred and enmity among the people in his article. The charges were brought under Article 312 paras. 1 and 2 of the Turkish Criminal Code.   21.   In the proceedings before the Istanbul State Security Court, the applicant denied the charges. He submitted that the subject of the article was human rights violations in the south-east region of Turkey. He maintained that he did not intend to create discord and strife among the people. He asserted that, in a democratic society, every subject should be discussed without any restriction. He further submitted that it was his responsibility as a trade union leader, to express his opinions concerning the problem of democracy in south-east Turkey.   22.   In a judgment dated 3 May 1993, the Court found the applicant guilty of an offence under Article 312 para. 2 of the Turkish Criminal Code. The applicant was sentenced to one year and eight months' imprisonment, plus a fine of 100,000 Turkish Lira.   23.   In the reasoning of its judgment, the Court held that the applicant, in his article, alleged that Kurdish people were oppressed, massacred and silenced in Turkey. In particular, the Court interpreted parts of - apparently - the fifth and fourteenth sentence of the article, respectively, as meaning that "... a genocide is carried out against the Kurds in Turkey ..." and that "... the outcry of the Kurdish people is being violently oppressed...".   The Court reached the conclusion that the applicant had provoked enmity and hatred among the people by discriminating on the grounds of region and social class.   24.   The applicant appealed. His legal representatives contested, inter alia, the State Security Court's assessment of the applicant's article. They asserted that the trial court should have received an expert opinion on the published article. They also argued that the applicant should have received a probationary sentence.   25.   On 14 December 1993 the Court of Cassation dismissed the appeal. It upheld the State Security Court's assessment of evidence and its reasoning in rejecting the applicant's defence.   B.    Relevant domestic law   26.   Article 312 paras. 2 and 3 of the Turkish Criminal Code:        <Original>        "Halki; sinif, irk, din, mezhep veya bölge farkliligi gözeterek      kin ve düsmanliga açikça tahrik eden kimse bir yildan üç yila      kadar hapis ve ucbin liradan onikibin liraya kadar agir para      cezasi ile cezalandirilir. Bu tahrik umumun emniyeti için      tehlikeli olabilecek bir sekilde yapildigi takdirde faile      verilecek ceza üçte birden yariya kadar arttirilir.        Yukaridaki fikralarda yazili suçlari 311 inci maddenin ikinci      fikrasinda sayilan vasitalarla isleyenlere verilecek cezalar bir      misli arttirilir."        <Translation>        "It shall be an offence punishable by not less than one and not      more than three years' imprisonment, and by a fine of not less      than three thousand and not more than twelve thousand lira, to      provoke feelings of hatred and enmity among the people by      discriminating on the grounds of social class, race, religion,      sect or region. If such provocation imperils public safety, the      punishment shall be increased by one third to one half of the      sentence.        The punishment for the acts defined in the preceding paragraph      shall be doubled where they have been committed by the means      enumerated in paragraph 2 of Article 311."   27.   The means enumerated in Article 311 para. 2 of the Criminal Code are: mass media, audio tapes, records, films, newspapers, magazines, handwritten texts distributed in the form of leaflets, placards and posters.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   28.   The Commission has declared admissible:   -     the applicant's complaint that his conviction for publishing his article constituted an unjustified interference with his freedom of thought and freedom of expression, in particular, with his right to receive and impart information and ideas;   -     the applicant's complaint that his conviction for expressing his political opinion constituted discrimination on the ground of political opinion.   B.    Points at issue   29.   The points at issue in the present case are as follows:   -     whether the applicant's conviction for publishing the article in question infringed his freedom of thought and of expression as guaranteed by Articles 9 and 10 (Art. 9, 10) of the Convention;   -     whether the applicant's conviction for publishing the article in question 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   30.   The applicant complains that his freedom of thought and freedom of expression have been infringed, contrary to Articles 9 and 10 (Art. 9, 10) of the Convention, in that he was convicted for publishing an article.   31.   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."   32.   The applicant submits that he was convicted for expressing his political views concerning, inter alia, the Kurdish problem in Turkey.   33.   The respondent Government submit that, according to the assessment of the case by the State Security Court, the applicant abused his freedom of expression and freedom of thought. In particular, they refer to the findings of the State Security Court, according to which the applicant, in his article, asserted that "... a genocide is carried out against the Kurds in Turkey ..." and that "... the outcry of the Kurdish people is being violently oppressed ...". The State Security Court evaluated such expressions as incitement to hatred and enmity based on race, class and region.   34.   The Government maintain that the restriction, imposed by Article 312 of the Turkish Criminal Code, should be acceptable as within the margin of appreciation of the respondent State, since its only aim is to protect the public from enmity and vengeance based on race, class or region.   35.   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.   36.   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.   37.   The Commission notes that the applicant's conviction was based on Article 312 of the Turkish Criminal Code and therefore considers that the interference was prescribed by law.   38.   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.   39.   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".   40.   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).   41.   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).   42.   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.   43.   The Commission notes that the applicant's article attempts to give a political explanation for the resumption of violence over recent years in Eastern and South-Eastern Anatolia. In this respect, the applicant's main concept appears to be that the Kurdish movement is or, at least, should be a part of the general struggle of the Turkish "working class and its economic and democratic organisations" for freedom and democracy. He suggests that, "despite all the hindrances contained in the laws, united action must ... be achieved ... to oppose ... massacres and bloodshed".   44.   The State Security Court held that the applicant, in his article, had asserted that "... a genocide is carried out against the Kurds in Turkey ..." and that "... the outcry of the Kurdish people is being violently oppressed ...". The State Security Court evaluated such expressions as incitement to hatred and enmity based on race, class and region.   45.   The Commission, having regard to the verbatim meaning of the applicant's sentences, is not convinced that the State Security Court's interpretation of the article is necessarily correct. It is true that the applicant portrayed the actions of the State in Eastern and South-Eastern Anatolia as a symptom of the co-ordinated efforts carried out by international imperialism to oppress the working class, including Kurdish people, and that he urged united action to stop bloodshed. However, the Commission considers that the applicant expressed his ideas in relatively moderate terms, did not associate himself with the use of violence in any context and did not call upon people to resort to illegal action.   46.    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).   47.   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   48.   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   49.   Article 14 (Art. 14) of the Convention 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."   50.   The applicant maintains that his conviction for expressing his views in an article constituted discrimination on the ground of political opinion.   51.   Having found that Article 10 (Art. 10) of the Convention has been violated, the Commission considers that no separate issue arises in regard to Article 14 in conjunction with Article 10 (Art. 14+10) of the Convention.        CONCLUSION   52.   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.   E.    Recapitulation   53.   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. 48).   54.   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. 52).          M. de SALVIA                        S. TRECHSEL         Secretary                           President      to the Commission                   of the Commission                                                    (Or. English)   DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK        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 Ceylan'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 article exceeded the limits of mere criticism and amounted to incitement of the people of Kurdish origin to hatred and enmity based on race, class and region. In particular, the applicant had asserted in his article that "... a genocide is carried out against the Kurds in Turkey ..." and that "... the outcry of the Kurdish people is being violently oppressed ...". I find that certain indissociable sections of the applicant's article 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 article 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.