CEDH · CASELAW;REPORTS;ENG — 29 octobre 1998

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The second applicant, Fahri Ferda Çetin, born in 1960, and the third applicant, Yaşar Kaya, born in 1938, are Turkish citizens and live in İstanbul.   The fourth applicant, a company Ülkem Basın ve Yayıncılık Sanayi Ticaret Limited, has its seat in İstanbul. The third and fourth applicants owned the newspaper Özgür Gündem. The first applicant was the editor and the second applicant the assistant editor in chief of that newspaper. The applicants are represented before the Commission by Mr. K. Boyle and Ms. F. Hampson, both teachers at the University of Essex, England.   3   The application is directed against Turkey. The respondent Government were represented by their Agent, Mr. B. Çağlar.   4   The applicants allege that there has been a concerted and deliberate assault on their freedom of expression, through a campaign targeting journalists and others involved in Özgür Gündem and its successor, and involving murder, disappearances, abduction, threats and use of violence and also threatened and actual prosecutions, seizure and confiscation of editions of the newspaper and the imposition of heavy fines. Issues are raised under Articles 10 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.   B.   The proceedings   5   The application was introduced on 9 December 1993 and registered on 21 December 1993.   6   On 6 July 1994, the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   7   The Government's observations were submitted on 5 December 1994, after the expiry set for this purpose on 12 November 1994.   8   The applicants provided further information on 20 and 21 April 1994, 2 and 22 August 1994, 11 October 1994, 23 and 25 November 1994 and 7 December 1994. They submitted observations in reply on 9 March 1995, after one extension in the time-limit.   9   On 11 April 1995, the Commission decided to invite the parties to make oral submissions on the application at a hearing fixed for 20 October 1995.     10   At the hearing held on 20 October 1995, the Government were represented by Mr. B. Çağlar, Agent, Mr. Ş. Alpaslan, Mr. M. Özmen, Ms. D. Akçay, Mr. T. Özkarol, Mr. A. Kurudal, Mr. A. Kaya and Ms. S. Eminağaoğlu as advisers. The applicants were represented by Mr. W. Bowring, counsel, Mr. O. Ergin, advocate, and Mr. M Yıldız, legal adviser.   11   On 20 October 1995, the Commission declared the application   admissible. The Commission requested that the parties provide further information by 19 November 1993, relating to the texts of articles in Özgür Gündem, copies of orders and legislation. The Government were requested to identify the measures taken to protect persons working for Özgür Gündem or involved in its distribution.   12   By letter dated 15 November 1995, the Government provided   information and submissions relating to an edition of Özgür Politika. By letters dated 21 November, 6 December and 12 December 1995, the Government provided information, inter alia, relating to certain legislative amendments and court decisions.   13   The text of the Commission's decision on admissibility was sent to the parties on 13 December 1995 and they were invited to submit such further information or observations on the merits as they wished.   14   On 15 December 1995, the applicants provided selected editions of newspapers and prosecutions.   15   Following three extensions in the time-limit for the submission of observations on the merits, the Government provided observations on 10 April 1996.   16   On 30 November 1996, the Commission examined the state of proceedings in the case.   17   On 16 March 1998, the Secretariat requested the applicants to provide copies of articles which had been subject to prosecution.   18   By letter dated 17 April 1998, the applicants requested further time for supplying the material.   19   By letter dated 23 April 1998, following the decision of the Commission, the Secretariat requested the Government to produce in the context of another case (Kılıç v. Turkey, No. 22492/93 which concerned the killing of a journalist of Özgür Gündem) the pages and annexes of the so-called Susurluk report which had not been made public.   20   On 28 May 1998, the applicants submitted the requested materials, and further information and submissions.   21   By letter dated 5 June 1998, the Government declined to provide copies of the missing pages and annexes of the Susurluk report.   22   On 29 October 1998, the Commission decided that there was no basis on which to apply Article 29 of the Convention.   23   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also 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   24   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:   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 L. LOUCAIDES B. MARXER I. CABRAL BARRETO B. CONFORTI D. ŠVÁBY C. BÎRSAN P. LORENZEN   25   The text of this Report was adopted on 29 October 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   26   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 State concerned of its obligations under the Convention.   27   The Commission's decision on the admissibility of the application is attached hereto as an Appendix.     II.   ESTABLISHMENT OF THE FACTS   A.   The particular circumstances of the case   a.   Facts as presented by the applicant   28   The applicants claim that the following events relating to this case have occurred:   29   Özgür Gündem was a daily newspaper which had been published in İstanbul since 30 May 1992, with a national circulation of some thousand copies and a further international circulation. It was a Turkish language publication, seeking to reflect Turkish Kurdish opinion. Özgür Gündem incorporated its predecessor, the weekly Yeni Ülke, which was published from 1990 to 1992. In view of the various actions set out below, Özgür Gündem was obliged to cease publication in April 1994, some time after the present application had been lodged with the Commission. Özgür Gündem was succeeded by another newspaper, Özgür Ülke, which was however also the subject of serious attacks and other harassment.   30   The applicants claim that the Government of Turkey have, directly or indirectly, sought to hinder, prevent and render impossible the production and distribution of Özgür Gündem. This has been done by the following measures:   - by encouragement of or acquiescence to unlawful killings and   forced disappearances;   - by harassment and intimidation of journalists and distributors;   - by failure and refusal to provide any or any adequate protection for journalists and distributors when their lives were clearly in danger, and despite requests to do so;   - by means of unjustified legal proceedings;   - by enacting and implementing the Anti-Terrorism Act whose   provisions are so vague and potentially all-inclusive as to violate the letter and spirit of Article 10 of the Convention.   31   From 15 January 1993 until 26 April 1993, Özgür Gündem was forced to cease publication. Since 26 April 1993, during a period of 68 days, 41 issues of Özgür Gündem were ordered to be seized. In early 1993, a delegation from Özgür Gündem visited the Interior Minister, İsmet Şengün, and the Government spokesman, Akın Gönen, and the situation facing the newspaper was fully explained. Nevertheless, since that meeting, three more persons, including two distributors, connected with Özgür Gündem have been killed.     32   Seven persons connected with Özgür Gündem have been killed by persons unknown. They are the following: (a) Yahya Orhan, a reporter for Özgür Gündem, who was shot dead on 31 July 1992; (b) Hüseyin Deniz, a member of the staff of Özgür Gündem, who was shot dead on 8 August 1992 at about 7.45 a.m.; (c) Musa Anter, a regular columnist for Özgür Gündem, who was shot dead on 20 September 1992; (d) Hafız Akdemir, a member of the Özgür Gündem staff, who was shot dead on 8 June 1992; (e) Cengiz Altun, a reporter of Yeni Ülke, who was shot dead on 24 February 1992; (f) Kemal Kılıç, the Şanlıurfa representative of Özgür Gündem, who was killed on 18 February 1993 ; (g) Ferhat Tepe, the Bitlis correspondent of Özgür Gündem, who was found dead on 4 August 1993 in Sivrice, in the Elazığ province, after being abducted on 28 July 1993 in Bitlis.   33   Moreover, the distribution of Özgür Gündem has been prevented by arson attacks, murder and threats, on some occasions in circumstances which indicate the complicity or acquiescence of the Turkish authorities.   34   In this respect, reference is made to the following events :   (a) In Diyarbakır: (i) on 15 November 1992, an arson attack by unknown persons on a news stand (subject of Application No. 22495/93, Yaşa v. Turkey ); (ii) on 16 November 1992, an arson attack by unknown persons on a newsstand; (iii) on 19 November 1992, stationer's premises burnt down by unknown persons after threats concerning the sale of Özgür Gündem; (iv) on 20 November 1992, 22 newsagents refused to sell Özgür Gündem because of the risks involved; (v) on 23 November 1992, an attack by three armed men on Özgür Gündem's office chief and a reporter; (vi) on 29 November 1992, a newsagent attacked with clubs   by two unknown persons; (vii) on 16 December 1992, Kemal Ekinci, a newsagent shot dead by unknown persons; (viii) in November 1992, warning by a policeman not to sell Özgür Gündem and Yeni Ülke; (ix) in early 1993, a newsboy, Enver Yakut, prevented by police officers from selling Özgür Gündem ; (x) on 15 June 1993, the owner of a newsstand shot dead after being threatened by persons unknown and told not to sell Özgür Gündem; (xi) about 26 September 1993, a newsboy attacked with a knife by persons unknown as he was distributing Özgür Gündem; (xii) on 27 September 1993, Zülküf Akkaya killed; (xiii) in September 1993, Abdülkadir Altan who distributed Özgür Gündem seriously injured when he was attacked with meat cleavers by two unknown persons close to a police station, but without any intervention by the police.   (b) In Bismil: in December 1992, İbrahim Savaş, the main newsagent, threatened by persons unknown if he did not stop selling Özgür Gündem, the result being that he stopped selling the newspaper.   (c) In Silvan: on 18 November 1992, the chief newsagent, Gani Amaç, threatened by persons unknown, the result being that he stopped selling Özgür Gündem.     (d) In Batman: (i) on 13 November 1992, the chief newsagent Muharrem İdman received death threats by persons unknown and stopped selling Özgür Gündem; (ii) on 21 November 1992, a taxi driver, Halil Adanır, burnt alive in his vehicle while distributing Özgür Gündem; (iii) on 2 January 1993, six persons selling Özgür Gündem stopped and beaten up, with their papers confiscated, by persons unknown, but in full sight of the police who did not act.   (e) In Ergani: (i) in early 1993, the main distributor threatened by persons unknown and stopped selling Özgür Gündem; (ii) in early 1993, confiscation by the police of all copies of Özgür Gündem which were being taken to Ergani by minibus; (iii) thereafter, despite assurances by the District Governor and the Police Chief, boys selling Özgür Gündem attacked with a meat cleaver.   (f) In Adıyaman: main newsagent threatened, and harassed by the police.   (g) In Mardin: main newsagents in Mardin, Kızıltepe and Mazıdağı threatened; arson attack in Mazıdağı.   (h) In Elazığ: (i) main newsagent, Ali Doğan, threatened; arson attack on stationers; (ii) newsagent who applied to Public Prosecutor for protection against attack was asked to sign a paper confirming that he sold Özgür Gündem because that was supposed to reflect his views.   (i) In Bingöl: (i) on 17 November 1992, a vehicle belonging to newsagent destroyed by fire; (ii) a journalist employed by Özgür Gündem arrested and threatened; (iii) on 24 November 1992, arson attack against a tea shop where Özgür Gündem was sold.   (j) In Yüksekova: in early October 1993, newsagency selling Özgür Gündem bombed by Special Teams at about 3 a.m.   35   The applicants refer to numerous petitions which drew the attention of the authorities to the attacks being made on the newspaper and the persons involved with it:   (a) 6 August 1992: letter from Arzu Şahin, lawyer, to the Provincial Governorship, İstanbul, requesting permission for the acquisition of firearms for the Özgür Gündem paymaster and watchman;   (b) 21 October 1992: letter from the applicant Yaşar Kaya to İsmet Sezgin, Minister of the Interior, referring to the death of Musa Anter and to the lack of reply to the petition in that respect;   (c) 5 November 1992: letter from the applicant Yaşar Kaya to Governor Ünal Erkan of the State of Emergency region, informing him that the newsagent in Kulp had given up his job; that since 4 November 1992 Özgür Gündem was not being distributed or sold in Batman, where the newsagents stated that they risked death or being closed down; that the newsagent in Nusaybin was threatened similarly; and requesting that the Government investigate, and take measures to protect the lives and property of newsagents; no reply was received;   (d) 5 November 1992: letter from the applicant Yaşar Kaya to İsmet Sezgin, Minister of the Interior, informing him of attacks on Özgür Gündem and requesting that the attacks be investigated and that the newspaper be informed of the results of the inquiry; no reply was received;     (e) 6 November 1992: letter from the applicant Yaşar Kaya to Prime Minister Süleyman Demirel, informing him of attacks on Özgür Gündem with the result that newsagents in the State of Emergency region were not selling the newspaper, stating that this disclosed a violation of the right of publication and   freedom of expression and requesting his interest in the matter; no reply was received;   (f) 12 November 1992: letter from the applicant Yaşar Kaya to Deputy Prime Minister Erdal İnönü, as in (e) above; no reply was received;   (g) 12 November 1992: letter from the applicant Yaşar Kaya to Gökberk Ergenekon, State Minister Responsible for the Press, as in (e) above; no reply was received;   (h) 12 November 1992: letter from the applicant Yaşar Kaya to Hüsamettin Cindoruk, President of the Turkish Grand National Assembly, as in (e) above; no reply was received;   (i) 12 November 1992: letter from the applicant Yaşar Kaya to Fikri Sağlar, Minister of Culture, as in (e) above; no reply was received;   (j) 19 November 1992: letter from Arzu Şahin to the Provincial Governor of İstanbul, reporting that Özgür Gündem had received many telephone threats that day that there would be attack following the funeral which was to take place and requesting urgent measures to be taken; no reply was received;   (k) 4 December 1992: letter from Osman Ergin, lawyer for Özgür Gündem, to the Governorate of Batman, informing them that an employee in the Batman office had been followed morning and evening by suspicious plain-clothed persons and feared for his safety, requesting measures to be taken to guarantee his safety and that a security officer be assigned to accompany him; no reply was received;   (l) 24 December 1992: letter from Osman Ergin, as lawyer for the Özgür Gündem, to the Şanlıurfa governor, informing him that after threats received by Fatih Billurcu of Birleşik Basın Dağıtım Şirketi distributors, Özgür Gündem was now being distributed by office personnel and requesting measures to be taken to protect the safety of Bayram Balcı, Kemal Kılıç, Nazım Babaoğlu and driver Hasan Yektaş. The petition was numbered 686.   On 30 December 1992, Ziya Coşkun, Deputy Governor, replied to Kemal Kılıç that no protection was assigned to vehicles since no threat or attack had occurred and the application was deemed inappropriate. On 1 January 1993, the distributors and salespeople in Şanlıurfa signed a declaration that they would not sell Özgür Gündem as they had been threatened. A statement of 11 January 1993 by Kemal Kılıç concerning attacks on distributors of the newspaper was forwarded by the Deputy Governor to the State prosecution. Kemal Kılıç was killed by unknown persons on 18   February 1992 ;     (m) 1 March 1993: petition by Bayram Balcı, Özgür Gündem Şanlıurfa representative, to the Şanlıurfa Governor, reporting that following Kemal Kılıç's death   he had been followed by a white Renault registration 63 EC 443; that the security directorate had stated that the number was false; that on 28 February 1993 he had been threatened on the telephone that he would die soon and requesting all measures to secure his safety; his petition was registered as No. 112 but he received no reply;   (n) 27 April 1993: letter from Osman Ergin, lawyer, to the Nusaybin District Governor, reporting that on 26 April when Özgür Gündem recommenced publication three news sellers at the bus terminal were threatened by persons unknown with the aim of preventing sale of the newspaper; that requests to the security directorate for protection had gone unanswered and requesting proper guarantees of safety; the letter received no reply;   (o) 27 April 1993: letter from Osman Ergin, lawyer, to Madame Yolky, Ministry of the Interior (as in (n) above);   (p) 28 May 1993: letter from Arzu Şahin, lawyer, to Elazığ provincial offices, reporting that in the early morning hours that day plain-clothed persons threatened the lives and property of sellers of Özgür Gündem if they continued to distribute Özgür Gündem and requesting necessary measures to be carried out to ensure the newspaper's distribution and sale; no reply was received;   (q) 8 July 1993: petition on behalf of Bayram Balcı to the Şanlıurfa Governor by Arzu Şahin, referring to two earlier petitions, informing that Balcı had received death threats, including a call at about midnight on 7 July 1993 telling him that he would be killed and was being followed and watched from time to time; that four named newsagents working with the Birleşik Basın Company had received phone calls warning them not to sell Özgür Gündem and that if they complied they and their families would not be harmed and their shops not burned down, and requesting the necessary security precautions; no reply was received;   (r) undated letter from Arzu Şahin to the Batman Governor, informing him that the distributors Birleşik Basın Dağıtım had received threats; that on 1 September 1993 the vehicle distributing newspapers was stopped by armed persons and Özgür Gündem bundles taken from the vehicle and the driver threatened with a gun, and requesting, inter alia, measures to be taken to ensure the safety of newsvendors; no reply was received;   (s) letters dated 10 October 1993 from the applicant Gurbetelli Ersöz to the Ministry of the Interior and the Diyarbakır security directorate referring, inter alia, to attacks on child distributors in Diyarbakır and woundings by meat axes of three distributors, to the deaths of newsagents Zülküf Akkaya in Diyarbakır and Adil Aslan in Nusaybin and the death and wounding of two young boys, Yılmaz Yaşa and Yalçın Yaşa respectively;     (t) letter dated 10 October 1993: petition on behalf of Bayram Balcı to the Şanlıurfa Governor by Arzu Şahin, referring to two earlier petitions, informing that Balcı had received death threats by telephone on 8 October 1993 and requesting, for the fifth time, that measures be taken to protect his life.   36.   Özgür Gündem has also been the subject of legal proceedings which allegedly can only have had the ulterior purpose of closing or hindering the newspaper and from which there is no effective appeal. Reference is made to the following events:   (a) From 31 May 1992 to April 1993, confiscation orders were issued against 39 out of 228 issues of the newspaper, either under unspecified provisions, or under Articles 6, 7 and 8 of the Anti-Terrorism Act and Article 36 of the Turkish Criminal Code.   (b) Between April and July 1993, a further 41 issues of the newspaper were confiscated. The İstanbul State Security Court ruled, inter alia, that Özgür Gündem had attempted to portray Turkish citizens as Kurds and that this was an "act of separatism". The Court also found that the use of the words "Kurd" and "Kurdistan" was a breach of the Constitution in which Turkey is defined as a unitary State.   (c) Cases were filed in the İstanbul State Security Court as follows:   (i) on 7 June 1992, against the applicant Yaşar Kaya, under Article 7 of the Anti-Terrorism Act; (ii) on 14 August 1992, against Yaşar Kaya and two others under Article 7 of the Anti-Terrorism Act and Article 36 of the Criminal Code; (iii) on 24 August 1992 and 25 August 1992, against Yaşar Kaya and another person under Article 8 of the Anti-Terrorism Act and Article 36 of the Criminal Code; (iv) on 15 September 1992, against Yaşar Kaya and two others under Articles 2 and 8 of the Anti-Terrorism Act; (v) on 18 September 1992, against Yaşar Kaya and two others under Articles 3 and 8 of the Anti-Terrorism Act; (vi) on 24 September 1992, against Yaşar Kaya and one other person under Article 7 of the Anti-Terrorism Act; (vii) on 27 September 1992, against Yaşar Kaya and one other person under Article 8 of the Anti-Terrorism Act and Article 36 of the Criminal Code.   (d) A press release by the Editorial Board of Özgür Gündem on 3 July 1993 announced that the newspaper was charged with offences punishable by fines totalling TL 8,617,441,000 ($736,500), and prison terms ranging in total from 155 years and 9 months to 493 years and 4 months.   (e) On 12 July 1993, the İstanbul Court of First Instance decided to ban Özgür Gündem on the ground that "the Chief Editor of the newspaper Davut Karadağ did not communicate his new address to the İstanbul Governor". On 15 July 1993, Mr. Karadağ was arrested when attending the State Security Court to give evidence in respect of   thirty articles published in Özgür Gündem on 12, 13, 14 and 15 July 1993, which were said to have "disseminated separatist propaganda". On 15 September 1993, Yaşar Kaya was arrested and subsequently charged for making an allegedly illegal speech in Iraq. When the application was lodged with the Commission, Yaşar Kaya was still in custody.     (f) The applicants further refer to 170 ongoing prosecutions of Özgür Gündem and its employees.   (g) A case, which has been observed by certain human rights non-governmental organisations, concerns an article by Mr. Ahmet Alkan, published on 24 September 1992 and entitled "From the dialogue of arms to political propaganda". In respect of this article, Özgür Gündem was charged with "making separatist propaganda" and "praising the PKK", contrary to Articles 7 and 8 of the Anti-Terrorism Act. On 15 July 1993, the State Prosecutor brought further charges under Supplementary Article 2 of the Press Law.   (h) Furthermore, in respect of 48 out of 114 issues of Yeni Ülke there were confiscations or prosecutions. In 1990, 13 issues were confiscated under Article 148 of the Criminal Code and 6 issues under Article 8 of the Anti-Terrorism Act. In 1991, 20 issues were confiscated under the Anti-Terrorism Act and in 1992 9 issues under that Act. In respect of 21 prosecutions (out of 70, the remaining being pending) Yeni Ülke was acquitted; in no case was it convicted. The effect of so many prosecutions was eventually to drive Yeni Ülke out of business.   (i) Finally, the police confiscated all the administrative documents, archives and library facilities of the Özgür Gündem İstanbul office on 10 December 1993, in an operation during which they also took into custody all the members of staff and employees in the building (over 100). While the police claimed to find incriminating objects, including gas masks, materials for blood transfusions, documents including ERNK   receipts and lists of soldiers killed, the applicants submit that the presence of gas masks is not suspicious in a building containing highly inflammable materials, that the medical materials belonged to the doctor who worked there and that the documents were stored as items of news collection. As a result of these measures, publication was disrupted for two days.   37.   The applicants further point to the numerous cases of detention and abduction of persons employed by Özgür Gündem, which have affected the activities of the newspaper. They refer to the following cases:     (a) Remanded in custody: (i) Yaşar Kaya, remanded in custody on 15 September 1993 and still there when the application was introduced; (ii) Nezahat Özem, remanded from 17 July to 14 September 1993; (iii) Mehmet Yazıcı, remanded from 20 July to 16 September 1993; (iv) Salih Tekin , remanded on 19 August 1993; (v) Haydar Geçilmez and Mehmet Senol, Diyarbakır correspondents of the newspaper, arrested on 11 and 13 March 1993 respectively; (vi) Serdar Uzun and Beşir Ant, Cizre correspondents of the newspaper, arrested on 12 and 14 March 1993 respectively; (vii) Ahmet H. Akkaya, a news editor for Özgür Gündem, arrested on 25 May 1993; (viii) Tacettin Demir, a reporter in Diyadin, detained on 13 July 1993; (ix) Davut Karadağ, an editor, taken into custody on 15 July 1993 when attending the State Security Court to give evidence; (x) Nezahat Özmen, a reporter, seven months pregnant, taken into custody on 16 July 1993; (xi) Mehmet Şah Yıldız, detained on 12 September 1993; (xii) Cevdet Birkay, detained on 12 September 1993; (xiii) all the employees of the İstanbul office of the newspaper, including its lawyers, taken into custody on 10 December 1993.   (b) Abduction: Aysel Malkaç, a reporter in İstanbul, abducted by plain-clothes police on 7 August 1993 just after she had left the Özgür Gündem building, her whereabouts being unknown when the application was introduced.   38.   After Özgür Gündem had ceased publication in or about April 1994 and been succeeded by Özgür Ülke, the latter newspaper was subject to the following actions:   (a) On 3 December 1994, its four-storey printing press and headquarters in İstanbul and its Ankara office were bombed; one person was killed and 18 injured.   (b) In the first week of January 1995, the National Security Council decided that the paper should be prevented from printing, but by legal means.   (c) From 6 January 1995, police started to wait outside the printing press to seize the paper as soon as it was printed.   (d) On 2 February 1995, the İstanbul First Justice Court ordered confiscation of all copies pursuant to the Press Law.   39.   The applicants further refer to a number of statements by non-governmental organisations which have criticised the actions of the Turkish State in relation to the press, and Özgür Gündem in particular, e.g. "A desolation called peace", report by the Parliamentary Human Rights Group , "Censorship and the rule of law in Turkey: violations of press freedom and attacks on Özgür Gündem", report by Article 19 , "What happened to the press in 1993", report by Özgür Gündem, extracts from 1993 Info-Türk (E.208-7, E.209-6, E.212-8/9) and "Free Expression in Turkey 1993: Killings, convictions, confiscations", Helsinki Watch Vol. 5 Issue 17, and "L'intimidation - rapport sur les meurtres de journalistes et les pressions à l'encontre de la presse turque" by Reporters Sans Frontières (January 1993).     40.   The applicants finally rely on the official investigation made into undercover and unlawful activities in which Government and State officials were implicated following the so-called "Susurluk report" (see paras. 84-103). On page 8 of that report, the bombing of the newspaper Özgür Gündem in İstanbul is referred to as part of a pattern of uncontrolled, unlawful activities in which State agents connived or participated. On page 74 of the report, it is stated that the killing of Musa Anter was recognised as having been a mistake by those who approved it and that other journalists were murdered. (The following page 75 and the appendix were not made public.)   b.   Facts as presented by the Government   41.   The Government state the following as regards the events alleged by the applicants.   Concerning the alleged attacks and incidents   42.   The criminal incidents against the workers of the Özgür Gündem newspaper are the consequence of multi-terrorist acts which the Government combat with the purpose of safeguarding the right to life. No Government agent or officer was involved in these incidents, which did not involve any security operation or armed clash. These incidents were the result of attacks by unknown perpetrators.   a. allegations concerning the deaths   43.   As regards the killing of Yahya Orhan, the Government state that he was a kiosk shopkeeper not a journalist. An investigation   (1992/2609) is being carried out by the public prosecutor at the State Security Court in Diyarbakır. There is insufficient evidence as yet to take any further steps.   44.   As regards the killing of Hüseyin Deniz on 8 August 1992, the suspected perpetrator, from the Hizbullah organisation, was arrested and his trial began on 1 April 1996.   45.   As regards the killing of Musa Anter on 20 September 1992, he was shot by an unknown person, whose description is in the investigation file pending with the public prosecutor at the Diyarbakır State Security Court (file no. 1992/2598). Despite all efforts, the unidentified perpetrator has not yet been found. The Government dispute that Musa Anter was a regular columnist for Özgür Gündem.   46.   As regards the death of Hafız Akdemir on 9 June 1992, the investigation file is pending with the Diyarbakır State Security Court public prosecutors (No. 1993/1003). The file gives cause to suspect that the perpetrator was from the Hizbullah organisation.   47.   As regards the death of Cengiz Altun on 24 February 1992, this is being investigated under file no. 1993/576. A suspect has been detained, on whom was found the pistol which was used to shoot Cengiz Altun.   48.   As regards the death of Kemal Kılıç on 18 February 1993, the suspected perpetrator, a member of the Hizbullah organisation, is being tried with 16 other defendants in proceedings before the State Security Court in Diyarbakır (file no. 1994/116).   49.   As regards the death of Ferhat Tepe after being abducted on 28 July 1993, the investigation is pending before the Bitlis public prosecutor.   b.   concerning the arson attacks, threats etc.     50.   As regards the alleged arson attack on Eşref Yaşa's kiosk on 15 November 1992, the report of the Ministry of the Interior of 16 February 1996 states that it is established that this did not occur.   51.   As regards the alleged arson attack on Kadir Saka's news stand on 16 November 1992, the report of the Ministry of the Interior (para. 50 above) discloses that Kadir Saka was attacked by Hizbullah terrorists on 20 September 1992 and subsequently the perpetrators were arrested and brought before the State Security Court for trial.   52.   As regards the alleged arson attack on the news stand of Süleyman Sunal on 19 November 1992, the report (para. 50 above) states that this did not occur.   53.   As regards the alleged attack on the newsagent Coşkun Baloğlu on 29 November 1992, the report (para. 50 above) states that this did not occur.   54.   As regards the alleged attack on the newsagent Haşim Yaşa on 15 June 1993, the report (para. 50 above) states that this did not occur.   55.   As regards the alleged attack on Mehmet Balamir on 26 September 1993, the investigation into the incident is continuing.   56.   The Government state that no information or complaint was received by the authorities concerning:   - the allegation that on 20 November 1992 22 newsagents decided not to sell the newspaper;   - the alleged incident on 23 November 1992;   - the allegation that a newsagent Kemal Ekinci was shot on 16 December 1992;   - the allegation that Enver Yakut was prevented from selling the newspaper;   - the allegation that Zülküf Akkaya was killed on 27 September 1993;   - the allegation that Abdülkadir Altan was attacked in September 1993;   - the allegation that in Bismil, İbrahim Savaş was threatened;   - the allegations that in Batman, the chief newsagent Muharrem İdman was threatened on 13 November 1992, that six persons were beaten up on 2 January 1993; nor was any complaint made about the death of the taxi driver Halil Adanır;   - the allegations that in Elazığ the main newsagent Ali Doğan received threats and that an arson attack took place on stationers.     57.   As regards the allegation that the chief newsagent in Silvan, Gani Amaç, stopped selling the newspaper due to threats, enquiries   disclosed that the chief newsagent was in fact Mehmet Özkan and he has never been threatened.   58.   As regards the allegation that in Ergani the main distributor was threatened in early 1993, the statement of the main newsagent Yaşar Öztürk and the decision of non-jurisdiction relate that he was threatened and faced arson attempts on 9 December and 24 December because he did not sell the newspaper. In relation to the assertion that boys selling the newspaper were attacked, the Government points to the fact that the perpetrator of a knife attack was arrested and is being tried in the Ergani criminal court (file no. 1993/38).   59.   As regards the allegation that in Adıyaman, Mardin, Kızıltepe, and Mazıdağı, the main newsagents were threatened and harassed, enquiries established that the newsagents have not been so threatened or harassed.   60.   There is a pending investigation (file no. 1995/3835) into the arson attack in Mazıdağı.   61.   As regards the allegation that in Bingöl the vehicle owned by the main newsagent Abdülrezak Aydemir was destroyed by fire, the report of the Ministry of the Interior (para. 50 above) stated that the vehicle was owned by the main newsagent called Mehmet Akdemir and that the suspected perpetrators, members of the Hizbullah, were arrested and have been indicted in the Diyarbakır State Security Court. In relation to the allegation that a teashop belonging to Zeki Bulut was burned, an investigation into the incident is being carried out but the evidence indicates that it had nothing to do with the sale of Özgür Gündem, since the newspaper was not sold there.   62.   As regards the alleged bombing in Yüksekova in October 1993 of Ferhat Altan's newsagency, there is a pending investigation (file no. 1993/413) which shows that an explosive device was thrown into the passage where there were a number of shops and that a number of premises were damaged, including the newsagency.   Concerning the allegations that requests for protection of Özgür Gündem staff were refused   63.   The Government submit that the İstanbul and Ankara police headquarters received no requests for protection.   64.   In Diyarbakır, the police headquarters on 2 December 1992 received a faxed message from Merdan Yanardağ, editor of Özgür Gündem and a representative of Yaşar Kaya, requesting security measures to be taken while Özgür Gündem was being distributed. Following consultations between the police and the person in charge of the distribution of the newspaper in Diyarbakır, the employees of two companies (Birleşik Basın Dağıtım A.Ş. and Gameda A.Ş.) dealing with distribution were escorted by the security officers from the border of Şanlıurfa province to the distribution stores. Security measures were also taken by the police while delivering newspapers to the newsagents. No other requests asking for personal protection were received from persons working for the newspaper.     65.   Following the explosion at the Özgür Ülke office on 2 December 1994 and on written request of Osman Ergin, lawyer for the owner of the newspaper, necessary security measures, including patrolling, were carried out and no further incidents occurred before the newspaper decided to close down.        Concerning the legal proceedings against the newspaper and its staff   66.   At the time of the application on 9 December 1993, 69 cases relied on by the applicants regarding the legal proceedings against the Özgür Gündem newspaper and its journalists were pending.   As of 20 October 1995, the date of the hearing before the Commission, 39 measures had been approved by the Court of Cassation, one decision had been reversed by that court and 29 cases were still pending before it. The public prosecutor's closure requests, according to Supplementary Article 2 of the Press Code No. 5680, were not considered or decided in 38 cases;   they were rejected by the courts in 9 cases; and a temporary closure decision was given in 20 cases. Of these   20 closure decisions, 3 decisions were for a month, 15 decisions were for 15 days and 2 decisions were for 10 days.   67.   The State Security Court No. 2 of İstanbul in its decision of 14 March 1994 (files Nos. 93/237 and 178) stated that the mere use of the words "Kurds" or "Kurdistan" in a newspaper article does not violate a penal rule.   The court concluded that "although in the two news articles the words 'Kurds' and 'Kurdistan' are used frequently, the theme and the context of the articles as a whole clearly show that they were written with the aim of informing the public" and that, therefore, "the elements of separatist propaganda are not present". The court then decided that the journalists Kaya and Karadağ should be acquitted of charges of separatist propaganda.   68.   In its decision on 1 September 1994 regarding an article published in the newspaper Özgür Gündem of 25 July 1993, the İstanbul State Security Court No. 2 discussed the application of Article 10 of the Convention in detail and cited the fact that, although the Convention is accepted as an instrument of national law, conditions in the south-east of Turkey oblige the court to consider the clear and present danger created by the publication in the case as inciting hatred among members of society and thus violating Article 8 of the Anti-Terrorism Act. The court clearly stated that, in the application of Article 10 of the Convention, the restrictions stated in paragraph 2 of the Article should be kept in mind.   69.   In his letter dated 11 November 1994 sent to the Ministry of Justice, the Public Prosecutor of the İstanbul State Security Court stated that none of the judgments pronounced against the Özgür Gündem newspaper (in 69 cases referred to by the applicants) had been executed.   The relationship between the PKK and Özgür Gündem     70.   The Government submit that newspaper Özgur Gündem acted as the propaganda tool of the PKK, under its directives. They submit that this is proved by the statements of persons working for the newspaper who have admitted to assisting the PKK and by the statements of journalists who admitted that the newspaper was run and published material under the direction of the PKK. They also refer to the fact that various persons connected with Özgür Gündem have been convicted of offences arising out of their activities or support for the PKK.   71.   The Government refer, inter alia, to statements attributed to the applicants Gurbetelli Ersöz and Fahri Ferda Çetin, following their arrest in an operation by the police which involved a search of Özgür Gündem premises, in which was found 25 gas masks, 2 sleeping bags, a rucksack, two identity cards with bloodstains and bullet holes belonging to gendarme private Muzaffer Ulutaş killed by PKK terrorists in Şırnak on 9 March 1993; a reference letter and notepad, many coagulant injections, various medicines and a receipt used by the ERNK made out to Seyid Ali Gündüz attesting to the payment of TL 400 million.   72.   In a statement of 21 December 1993 taken by the police, Gurbetelli Ersöz was recorded as saying:   "... I had been convicted of having been involved in the activities of the PKK and sentenced to 10 years' imprisonment and was released in 1992 conditionally... For security reasons, there were in the office weapons without permits... I do not know why and by whom those gas masks, sleeping bags, rucksacks, injections to stop bleeding, 400 million lira, the tax receipts of ERNK and the identities of the soldiers killed were brought to the office... Most of the employees of our newspaper have been tried and served terms of imprisonment for having been involved in the activities of the PKK and as they cannot find jobs elsewhere, they are employed here."   73.   In a statement of 23 December 1990 taken by police officers before or about the time of her trial, she explained how after being a student she spent time in PKK camps in Syria and elsewhere, with the codename Zozan.   74.   In a statement undated, which appears to have been taken by police officers after his arrest in December 1993, Fahri Ferda Çetin was recorded as stating that the documents signed by ARGK   and ERNK and materials about the soldiers killed were received through their reporters in the south-east who had contacts with the PKK. He had no knowledge that 140 000 DM were deposited in the bank accounts of, inter alia, Gurbetelli Ersöz. He gave an explanation for the amount of TL 70 000 received in connection with publications.   75.   The Government have not provided any further information as to the outcome or progress of the criminal proceedings brought against Gurbetelli Ersöz, Fahri Ferda Çetin or others arrested during the operation at the Özgür Gündem premises.   76.   According to a statement of 5 July 1993 taken by the public prosecutor of the Ankara State Security Court, Abdülcabbar Gezici, editor in chief of the Zagros publishing company, former member of HEP and one of the founders of DEP (both political parties having been declared unconstitutional) stated, inter alia:     "... In fact, establishments like HEP and Yeni Ülke all act in p