CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 23 janvier 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 25723/94                       by Ümit ERDOGDU                       against Turkey           The European Commission of Human Rights sitting in private on 23 January 1998, the following members being present:                MM     S. TRECHSEL, President                  J.-C. GEUS                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  C.L. ROZAKIS            Mrs    J. LIDDY            MM     L. LOUCAIDES                  B. MARXER                  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              Mr     M. de SALVIA, Secretary to the Commission; Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 4 November 1994 by Ümit ERDOGDU against Turkey and registered on 18 November 1994 under file No. 25723/94;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to :   -      the reports provided for in Rule 47 of the Rules of Procedure of       the Commission;   -      the observations submitted by the respondent Government on       28 August 1995 and the observations in reply submitted by the       applicant on 30 October 1995;         Having deliberated;         Decides as follows:   THE FACTS         The applicant, a Turkish citizen, born in 1970 and resident in Istanbul, is a journalist and writer.         The facts of the present case, as submitted by the parties, may be summarised as follows:   A.     Particular circumstances of the case         The applicant is the editor (sorumlu yazi isleri muduru) of "Iscilerin Sesi (Worker's Voice)", a fortnightly newspaper published in Istanbul.         On the first page of the fortieth issue of the Worker's Voice of 2 October 1992, an article by Y.A. entitled "Kürt Sorunu Türk Sorunudur (The Kurdish Problem is a Turkish Problem)" was published.         In an indictment dated 29 December 1992, based on the published article, the Public Prosecutor at the Istanbul State Security Court charged the applicant, as the editor of the newspaper, with disseminating propaganda against the indivisibility of the State.   The charges were brought under Article 8 of the Anti-Terror Law (Terorle Mucadele Yasasi) and concerned the following parts of the article :         "It has become crystal clear that what we see in Kurdistan is not       a question limited to the geography of Kurdistan, but a general       question of Turkish society.   The Kurdish question is even more       than before, a Middle East question [...]         The Republic of Turkey, which is faced with a Kurdish national       movement, is fast being driven into complex developments in the       Middle East due to the fact that Turkey confines itself to the       Kurdish problem [...]         On the other hand, the perception of the war by the movement in       Kurdistan as an "international war" reflects the prevailing point       of view. Whatever the official line, in practice the solution       sought by the military is taking the form of a war against the       Kurdish people.   Indeed, today in Kurdistan an open war is being       conducted against the Kurdish people by the State.   With a       deliberate distortion of the facts, the sovereign (dominant)       classes are deploying every effort to show that this war is a war       by the Turks against the Kurds (sic!).   And, unfortunately, the       passive attitude of the Turkish people towards the Kurdish       question renders this distortion persuasive [...]         The leadership of the Kurdish National Resistance Movement is not       acting sufficiently sensibly either and prefers to remain silent.       It is clear that such a conflict would benefit neither the       Turkish nor the Kurdish people.   Such a conflict would be a       retrogressive conflict, the revolutionary dynamics of which are       glossed over.   It would weaken the Turkish and Kurdish peoples       against the attacks of imperialism and the local sovereign       (dominant) classes.   Of course, nothing could be more absurd       than suggesting to the Kurdish people that they give up the       national    resistance.   On the contrary, the defeat of the       Kurdish national       resistance   would not remove ethnic       tensions budding in the West;     it would serve the formation of       hostile feelings between peoples.      Essentially, what has to       be done rests with the Turkish people        in the West.   The       only solution seems to lie in the Turkish    people perceiving the       Kurdish resistance movement as part of       their struggle for       freedom and democracy [...]         It is high time that the revolutionary movement in the West got       involved [...] in the Kurdish question."         In the proceedings before the Istanbul State Security Court, the applicant denied the charges. He stated that the said article had been sent to the newspaper by a reader residing in Germany, A.Y.   In support of his statement he produced a letter from a notary in Hannover (Germany) saying that the article had been sent to the newspaper by A.Y.   The applicant then pleaded that the article did not constitute any element of an offence, but was discussing the problem from internal and external points of view and was proposing a democratic solution.         In a judgment dated 20 December 1993, the court found the applicant guilty of an offence under Article 8 of the Anti-Terror Law. It sentenced the applicant to six months' imprisonment and a fine of 50 million Turkish Lira. The court held that, in the published article, a certain part of the Turkish territory had been referred to as "Kurdistan" and the acts of the illegal terrorist organisation, PKK, had been defined as national resistance of the Kurds. It further held that the article sought support for that "national resistance".         The applicant appealed.         On 4 May 1994 the Court of Cassation, after a hearing, dismissed the appeal. It upheld the cogency of the State Security Court's reasoning and its assessment of the evidence.         On 27 October 1995 the Anti-Terror Law No. 4126 was amended. However, it appears that these modifications did not affect the applicant's situation.     B.     Relevant domestic law         Article 90 of the Turkish Constitution   <Translation>         "[...]International treaties which come into effect under lawful       procedure shall have the force of law [...]"         Article 8 of Anti-Terror Law( No. 3713)   <Translation>         "No one shall, by any means or with any intention or idea, make       written or oral propaganda or hold assemblies, demonstrations or       manifestations against the indivisible integrity of the State of       the Turkish Republic, its territories and the nation. Those       carrying out any such activity shall be sentenced to imprisonment       between two and five years and a fine between 50 and 100 million       Turkish lira.       If the offence of propaganda, referred to in paragraph 1 above,       is committed by means of periodicals, as defined in Article 3 of       Press Law No. 5680, the owners of such periodicals shall be       punished by a fine to be determined in accordance with the       following provisions: for periodicals published at less than       monthly intervals, the fine shall be ninety per cent of the       average real sales revenue of the previous month; [for printed       works that are not periodicals or for periodicals which have       recently started business, the fine shall be the average monthly       sales revenue of the highest circulating daily periodical]. In       any case, the fine may not be less than 100 million Turkish lira.       Responsible editors of these periodicals shall be sentenced to       imprisonment of between six months and two years and to half of       the fine determined in accordance with the provisions concerning       the owners."         In a judgment dated 31 March 1992, the Constitutional Court found the clauses in square brackets in the text of Articles 6 and 8 of the Anti-Terror Law to be contrary to the Constitution and annulled them. The decision was published in the Official Gazette on 27 January 1993. The annulled clauses ceased to have effect on 27 July 1993.     COMPLAINTS         The applicant alleges a violation of Articles 9, 10 and 7 of the Convention.         As to Articles 9 and 10 of the Convention, the applicant complains that his conviction and sentence for publishing a newspaper article constituted an unjustified interference with his freedom of thought and freedom of expression.         As to Article 7 of the Convention, he complains that he was convicted on account of an act which did not constitute a criminal offence under national or international law at the time it was committed. In particular, he asserts that an act may not be deemed propaganda against the indivisibility of the State under Article 8 of the Anti-Terror Law unless it incites people to terrorism.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 4 November 1994 and registered on 18 November 1994.         On 15 May 1995 the Commission decided to communicate the application to the respondent Government.         The Government's written observations were submitted on 28 August 1995.   The applicant replied on 3 October 1995.   THE LAW         The applicant complains, under Articles 9 and 10 (Art. 9, 10) of the Convention, that his conviction for publishing a newspaper article constituted an unjustified interference with his freedom of thought and freedom of expression.   The applicant also invokes Article 7 (Art. 7) of the Convention, complaining that he was convicted for an act which did not constitute a criminal offence under national or international law at the time it was committed.         Exhaustion of domestic remedies         Invoking the case of Ahmet Sadik v. Greece (Eur. Court HR, judgment of 15 November 1996, Reports of Judgments and Decisions 1996- V, N° 20), the Government submit that the applicant did not raise before the national courts the points of which he now complains in his application with the Commission.   They point out that before the national courts he neither mentioned the relevant provisions of the Convention, nor put forward any claims related to the Articles of the Convention he now invokes.         In answer, the applicant contends that Article 8 of the Anti- Terror Law is in breach of the Convention, as it criminalises the exercise of freedom of thought and that, where the source of breach of the Convention is the law, domestic remedies are ineffective.         The Commission recalls that in order to comply with the requirements of Article 26 (Art. 26) of the Convention an applicant is obliged to make "normal use" of remedies "likely to be effective and adequate" to remedy the matters of which he complains (cf. No. 10741/84, Dec. 13.12.84, D.R. 41, p. 226).   An applicant does not need to exercise remedies which, although theoretically of a nature to constitute remedies, do not in reality offer any chance of redressing the alleged breach (cf. No. 20357/92, Dec. 7.3.94, D.R. 76-A, p. 80).         In the present case, the applicant appealed to the Court of Cassation against the judgment of the State Security Court but did not specifically argue that his conviction for a violation of Article 8 of the Anti-Terror Act constituted a breach of Article 10 (Art. 10) of the Convention or adduce arguments to the same effect.   The question arises, however, whether reliance on arguments relating to the freedom of expression would have and any prospects of success for the applicant and could therefore be regarded as an effective remedy in the circumstances of this case.         The Commission notes in this respect that Article 8 of the Anti- Terror Law, which prohibits propaganda and manifestations against the indivisible integrity of the Turkish Republic, is a provision which in many cases has given rise to issues as regards its conformity with the principles of freedom of expression.   The Commission is further aware that numerous convictions in Turkey have been based on this provision and that appeals have often been brought against   such convictions before the Court of Cassation.   However, the Government have not indicated any case-law which would show that arguments based, directly or indirectly, on Article 10 (Art. 10) of the Convention would have any prospect of leading to the quashing of a conviction for violation of Article 8 of the Anti-Terror Law.           The Commission notes, on the other hand, that in a considerable number of cases regarding convictions for violations of Article 8 of the Anti-Terror Law which the Commission has been called upon to examine, the applicants had relied unsuccessfully on Article 10 (Art. 10) of the Convention or on arguments to the same effect in their appeals to the Court of Cassation (see e.g. Nos. 23927/94 and 24277/94, Sürek and Özdemir v. Turkey, Dec. 2.9.96; No. 24762/94, Surek v. Turkey, Dec. 2.9.96; No. 23462/94, Arslan v. Turkey, Dec. 14.10.96; No. 23500/94, E.P. v. Turkey, Dec. 24.6.96; Nos. 23536/94 and /24408/94 Baskaya and Okçuoglu v. Turkey, Dec. 2.9.96; No.24735/94, Sürek v. Turkey, Dec. 2.9.96; No. 24919/94, Gerger v. Turkey, Dec. 14.10.96; No. 26682/94, Sürek v. Turkey, Dec. 14.10.96).   The judgments of the Court of Cassation in these cases have been of a summary nature and do not indicate that the Court of Cassation has found the freedom of expression aspects of these cases to raise any serious problem.         In these circumstances, the Commission does not find it established that the applicant's reliance on Article 10 (Art. 10) of the Convention or arguments to the same effect would have constituted an effective remedy which the applicant was required to exhaust under Article 26 (Art. 26) of the Convention.         Consequently, the application cannot be rejected for non- exhaustion of domestic remedies under Article 27 para. 3 (Art. 27-3) of the Convention.         As to the substance of the complaints          The Government firstly submit that Article 9 (Art. 9) of the Convention invoked by the applicant is irrelevant, as his conviction was not related to an opinion, belief or religion, but rather concerned Article 10 (Art. 10) of the Convention.         The Government consider that the applicant's conviction was justified under paragraph 2 of Article 10 (Art. 10-2).   They state that it was prescribed by Article 8 of the Anti-Terror Law, pursued the aim of protection of the integrity of the nation and territory and was also necessary in a democratic society, as it was proportionate to the aim pursued.         Concerning the complaint under Article 7 (Art. 7) of the Convention, the Government maintain that the applicant was punished for disseminating separatist propaganda, an offence punishable under Article 8 of the Anti-Terror Law at the time when he was convicted.         The applicant claims that the restrictions introduced by Article 8 of Anti-Terror Law are not proportionate to the purpose of national security and that his conviction was therefore contrary to Article 10 (Art. 10) of the Convention.         The Commission considers, in the light of the parties' submissions, that the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole.   The Commission concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring it inadmissible have been established.         For these reasons, the Commission, by a majority,           DECLARES THE APPLICATION ADMISSIBLE.                   M. de SALVIA                         S. TRECHSEL              Secretary                            President          to the Commission                    of the Commission