CEDH · CASELAW;REPORTS;ENG — 1 mars 1999

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The application   2.   The applicant is a Turkish citizen, born in 1966 and resident in Diyarbakır.   He was represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex, and by Mr. Bill Bowring, a barrister in London. 3.   The application is directed against Turkey.   The respondent Government were represented by Mr. Bakır Çağlar, Professor at Istanbul University.   4.   The case concerns the applicant's conviction by the State Security Court on account of a speech he had made at the Turkish Human Rights Association General Conference in 1992.   The applicant invokes Articles 10, 13, 14 and 18 of the Convention.   B.   The proceedings   5.   The application was introduced on 14 October 1994 and registered on 14 November 1994.   6.   On 19 January 1995, 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 16 May 1995.   The applicant replied on 4 August 1995.   8.   On 15 September 1997, the Commission declared admissible the applicant's complaints under Articles 10, 13, 14 and 18 of the Convention in so far as they concern the applicant's conviction for the speech made by him in 1992.   It declared inadmissible the remainder of the application, which concerned the applicant's complaints about the charges brought against him in relation to a press statement he had made in 1993, to the publishing of a human rights report in 1993 and to his alleged membership in an illegal organisation.   9.   The text of the Commission's decision on admissibility was sent to the parties on 19 September 1997 and they were invited to submit such further information or observations on the merits as they wished.   The Government submitted supplementary observations on 5 December 1997.   10.   After declaring the case admissible, the Commission, acting in accordance with former Article 28 para. 1 (b) of the Convention¹, 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   11.   The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:       MM.   S. TRECHSEL, President       E. BUSUTTIL       G. JÖRUNDSSON       A. WEITZEL       J.-C. SOYER       H. DANELIUS       F. MARTINEZ       C.L. ROZAKIS     Mrs   J. LIDDY     MM.   L. LOUCAIDES       M.P. PELLONPÄÄ       M.A. NOWICKI       I. CABRAL BARRETO     Sir   Nicolas BRATZA     MM.   I. BÉKÉS       G. RESS       A. PERENIČ       C. BÎRSAN       K. HERNDL       E. BIELIŪNAS       E.A. ALKEMA       M. VILA AMIGÓ     Mrs   M. HION     MM.   R. NICOLINI       A. ARABADJIEV   12.   The text of this Report was adopted on 1 March 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to former 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.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   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   16.   The applicant is a lawyer who has, in the course of his legal practice, undertaken civil liberties cases.   In recent years he has been active as the leading member of the Diyarbakır branch of the Human Rights Association.   17.   In 1994, the applicant was charged under Article 8 para. 1 of the Anti-Terror Law with separatist propaganda, in relation to a speech made by him at the Turkish Human Rights Association General Conference on 24 October 1992.     18.   The Ankara State Security Court held a first hearing on 14 June 1994.   The applicant did not attend it, but his lawyer did.   The Court postponed the hearing and summoned the applicant to a hearing on 12 July 1994.   19.   On 12 July 1994 the applicant denied that he had ever made statements which could be regarded as crimes and requested that the recording of his speech be re-transcribed and that he be allowed to submit his own copy of the speech, claiming that the tape used by the prosecution was inaccurate.   The court postponed the hearing to 13 September 1994 in order to allow the applicant to submit his text of the speech.   20.   On 13 September 1994 the applicant did not submit the text of the speech.   Therefore, the Court adjourned the hearing to 25 October 1994 in order to allow the applicant more time to submit his text of the speech.   21.   On 25 October 1994 the applicant declared that he had not been able to find the text of his speech, as the disks containing the text were in Diyarbakır.   He then stated that he did not accept the expert investigation report related to the transcript of his speech used by the prosecution and requested that his speech be transcribed by three experts to be chosen.   The Court ordered that the expert witnesses who had prepared the record of the transcript of the tape used by the prosecution be summoned to the court on 1 December 1994, thus allowing the applicant enough time to prepare his objections to the text of the speech.   22.   The applicant did not attend the hearing on 1 December 1994.   The Court heard evidence from the expert witnesses who had prepared the transcript used by the prosecution, all of them police officers.   They stated under oath that the transcript of the tape was correct.   23.   The transcript of the speech used by the prosecution reads as follows :     "In Kurdistan, a region of the world, the right to life, which is the most fundamental of human rights, is ground underfoot in the most unbelievable, barbarous and brutal way.   The practices of a special war aimed at oppressing and destroying the national awakening in Kurdistan are increasing in proportion to the spread among the people of that awakening and a special war in all its dimensions is being mercilessly promoted.   All their facilities have been mobilised for war in the most brutal fashion, and the State which cannot control developments in the region has rushed to implement new special war practices against the people of the region.   The violence has increased to the point of resulting in regional massacres. ... However, it is evident that the Kurdish people will not be subdued by these terrorist methods and that their legitimate demands will be made with ever louder voices and an answer will be sought to State terrorism.   The Chief of the General Staff speaks of silencing certain associations which are active in the region and certain tools of mass communication ... At the end of last March a bomb was thrown into the home of Abdullah Kara.   Two of his children died.   He and two other members from his family were wounded.   They tried to blame the PKK for this incident.   However, at that time a son and two nephews of Abdullah Kara were guerillas for the PKK.   After the incident the PKK sent him its condolences.... The fearless action of a 75-year old man of the Kurdish people is noteworthy in showing the dimensions of the danger facing the Kurdish people in the days ahead.   However, it is necessary to be well aware that the legitimate case and demands of the Kurdish people will not be suppressed by the use of force."        24.   The prosecution requested the conviction of the applicant for having made propaganda aimed at destroying the indivisible integrity of the nation and people of the State of the Republic of Turkey.   25.   Noting that the expert witnesses had given their statement under oath, the Court rejected the applicant's objections as to the accuracy of the transcript and, on the basis of this transcript, ruled that the applicant had made separatist propaganda.   In particular, the Court considered that using an expression such as "oppressed people" with regard to "Kurds", claiming a right to self-determination for people of Kurdish origin, accusing the army of committing massacres and using the word "Kurdistan" constituted separatist propaganda contrary to Article 8 para. 1 of the Anti-Terror Law.   26.   Therefore, in accordance with Article 8/1 of Anti-Terror Law 3713, the Court sentenced the applicant to 3 years' imprisonment and a fine of 150 million Turkish liras.   27.   The applicant was arrested on 5 December 1994, whilst he was representing a client at the Ankara State Security Court, and detained on remand.     28.   On 1 May 1995, the Court of Cassation rejected the applicant's appeal, upholding the sentence of 1 December 1994.   29.   However, on 20 November 1995, as a result of an amendment to the Anti-Terror Law No. 3713, the Ankara State Security Court converted the applicant's conviction into a fine of 101,825,000 Turkish liras.   30.   On 15 March 1996 the Court of Cassation reexamined the applicant's case in the light of Law No. 4126.   The Court upheld the sentence of 1 December 1994 as modified by the State Security Court in its additional judgment of 20 November 1995.   B.   Relevant domestic law   31.   Article 8 paragraph 1 of the Anti-Terror Law (before the amendments of 27 October 1995)         <Original>     "Hangi yöntem, maksat ve düşünceyle olursa olsun Türkiye Cumhuriyeti Devletinin ülkesi ve milletiyle bölünmez bütünlüğünü bozmayı hedef alan yazılı ve sözlü propaganda ile toplantı, gösteri ve yürüyüş yapılamaz. Yapanlar hakkında 2 yıldan 5 yıla kadar ağır hapis ve ellimilyon liradan yüzmilyon liraya kadar ağır para cezası hükmolunur."     <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."   32.   Article 8 paragraph 1 of the Anti-Terror Law as amended by Law No. 4126 of 27 October 1995     <Original>     "Türkiye Cumhuriyeti Devleti'nin ülkesi ve milletiyle bölünmez bütünlüğünü bozmayı hedef alan yazılı ve sözlü propaganda ile toplantı, gösteri ve yürüyüş yapılamaz. Yapanlar hakkında bir yıldan üç yıla kadar hapis ve yüz milyon liradan üçyüzmilyon liraya kadar ağır para cezası hükmolunur. Bu suçun mükerreren işlenmesi halinde, verilecek cezalar paraya cevrilemez."     <Translation>     "No one shall 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 one and three years and to a fine between 100 and 300 million Turkish lira. In case of re-occurrence of this offence, sentences of imprisonment shall not be commuted to fines."   III.   OPINION OF THE COMMISSION   A.   Complaints declared admissible   33.   The Commission has declared admissible the applicant's complaints :   -   that his conviction for the speech made in 1992 constituted an unjustified interference with his right to freedom of expression and/or freedom of association ;   -   that there is no remedy available in respect of his conviction ;   -   that his conviction constituted discrimination on the ground of ethnic origin and that the restrictions on his rights and freedoms set forth in the Convention were applied for purposes not permitted under the Convention.   B.   Points at issue   34.   The points at issue in the present case are as follows :   -   whether there has been a violation of Article 10 and/or Article 11 of the Convention ;   -   whether there has been a violation of Article 13 of the Convention ;   -   whether there has been a violation of Article 14 and/or Article 18 of the Convention ;   C.   As regards Articles 10 and 11 of the Convention   35.   The applicant complains that his freedom of expression and association have been infringed, contrary to Articles 10 and 11 of the Convention, in that he was convicted on account of his statements made at the Turkish Human Rights Association General Conference in 1992.   36.   The Commission considers that the applicant's complaint essentially concerns an alleged violation of his right to freedom of expression.   The Commission will therefore examine this complaint under Article 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."   37.   The applicant claims that the real reason behind his conviction was the fact that he is a human rights activist.   He points out in this respect that, in sentencing him, the Ankara State Security Court took into account his "character and personality", which can only relate to his activities as a lawyer defending human rights.   The applicant points out further that he was considered by the judges to be a separatist because he had stated that there are Kurds living in Turkey and used the expressions "Kurdish people" and "Kurdish problem".     38.   The respondent Government maintain that the applicant's conviction was in accordance with Article 8 of the Anti-Terror Law No 3713, pursued the aim of fighting the threat of terrorism and was necessary in a democratic society in the interests of national security, territorial integrity, public safety and for the prevention of disorder and crime.   The Government consider that the applicant's speech was not aimed at protecting human rights, but at making separatist propaganda.   According to the Government, the applicant accused the State of being barbarian, terrorist and responsible for the massacres of citizens of Kurdish origin for the sole purpose of creating an irreparable rupture between the State and the Turkish citizens of Kurdish origin.   The Government further point out that the applicant made reference in his speech to the existence of two peoples, Turkish and Kurdish, that he referred to Turkey as being a foreign country distinct from Kurdish territory, that instead of criticising the activities of the PKK he defended this organisation, and that his speech as a whole was an incitement to violence against the State.   39.   Therefore, the Government claim that the applicant's conviction was fully justified under the second paragraph of Article 10 of the Convention.   40.   The Commission is of the opinion that the penalty imposed on the applicant constituted an interference with the exercise of his right to freedom of expression as protected by Article 10 para. 1 of the Convention.   This point has not been in dispute between the parties.   41.   The question remains whether this interference was prescribed by law, pursued any legitimate aim under Article 10 para. 2 and was "necessary in a democratic society" in order to realise such aim.   42.   As to the first point, the Commission notes that the applicant's conviction was based on Article 8 para. 1 of the Anti-Terror Law and therefore considers that the interference was prescribed by law.   43.   As regards the aim of the interference, the Commission considers 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 of the Convention.   44.   The remaining issue is whether the interference was necessary in a democratic society in order to serve the interest of national security and public safety.   In this respect, the Commission recalls the following principles laid down by the Court (see, inter alia, Eur. Court HR, Zana v. Turkey judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, N° 57, p. 2547, para. 51) :     (i) Freedom of expression, as enshrined in paragraph 1 of Article 10, 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, 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.   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".   45.   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 (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 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).   46.   An 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 threats to national security.   47.   The Commission observes in this connection that Article 10 para. 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.   48.   The Commission notes that in the incriminated speech, the Turkish State was accused of carrying out a war aimed at repressing the demands of the Kurdish population, and that this war led in certain cases to regional massacres.   49.   The Commission also notes that the State Security Court convicted the applicant mainly because he had disseminated propaganda against the indivisibility of the State by referring to a part of Turkish territory as "Kurdistan" and to a part of the Turkish population as "Kurds".   50.   The Commission considers, however, that the criterion for establishing whether or not the conviction was proportionate should not be whether the language used was exaggerated or insulting to the State nor whether the speech referred to part of Turkish territory as "Kurdistan", but whether it could be considered to encourage or incite violence (cf. Başkaya and Okçuoğlu v. Turkey, Comm. Report 13.1.98, para. 73; Sürek and Özdemir v. Turkey, Comm. Report 13.1.98, para. 66).   51.   The Commission notes that the applicant's statement contained undoubtedly a sharp criticism of the policy and action of Turkey with regard to its population of Kurdish origin, accusing in particular the Turkish State of oppressing the Kurds and the Turkish army of having committed massacres of population of Kurdish origin.   52.   However, the Commission considers that there is nothing in the applicant's speech to indicate that he was encouraging the use of violence or was justifying terrorist acts.   53.   In these circumstances, the Commission considers that the applicant's conviction amounted to a kind of censure, which was likely to discourage him or other from expressing their views on the situation in south-east Turkey again in the future.   In the context of political debate such sentences are likely to deter citizens from contributing to public discussion of important political issues (cf. Lingens v. Austria judgment, op. cit., p. 27, para. 44).   54.   Consequently, the Commission, even taking into account the margin of appreciation of the national authorities, finds that the interference with the applicant's freedom of expression 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   55. The Commission concludes, unanimously, that in the present case there has been a violation of Article 10 of the Convention.   D.   As regards Article 13 of the Convention   56.   The applicant complains of the lack of an independent national authority before which his complaints could be brought with any prospects of success.   He invokes Article 13 of the Convention, which states :     "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."   57.   The respondent Government consider that the applicant had at his disposal remedies under Turkish law.   58.   The Commission recalls that the interpretation of the Convention as a whole imposes certain limitations on the right to a remedy recognised by Article 13 (cf., inter alia, Nos. 8603/79, 8722/79, 8723/79 and 8729/79, joined, Dec. 18.12.80, D.R. 22, pp. 147, 224).     59.   The Commission considers that where, as in the present case, the applicant complains of a decision by the highest court of the domestic legal system, Article 13 does not require yet a further remedy.   Article 13 does not, therefore, apply in this case (cf. No. 14644/89, Times Newspapers Ltd. and Andrew   Neil v. United Kingdom, Comm. Report 8.10.91, D.R. 73, p. 41, para. 60).     CONCLUSION   60.   The Commission concludes, unanimously, that in the present case there has been no violation of Article 13 of the Convention.     E.   As regards Articles 14 and 18 of the Convention   61.   Articles 14 and 18 of the Convention provide as follows :     Article 14     "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."     Article 18     "The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed."   62. The applicant maintains that his conviction constitutes an administrative practice of discrimination on the grounds of ethnic origin and that the restrictions to his rights and freedoms set forth in the Convention are applied for purposes not permitted under the Convention.   63.   The Government point out that the Turkish Constitution provides for the equality of all Turkish citizens.   The applicant, who is a successful lawyer, has not been discriminated against at any time, either when he began his studies or later, when he started practising.   The applicant was convicted not because of his ethnic origin or of his professional activities, but in accordance with legal provisions applicable to everyone, whatever their religious beliefs or nationality.   64.   As to the complaint under Article 18 of the Convention, the Government consider that it should rather be examined under Article 17 of the Convention.   They point out that all the measures taken in the emergency region are provided for by the Turkish constitution and the relevant laws and that the restrictions on the applicant's rights to freedom of expression and association are necessary in a democratic society to fight terrorism.   65.   The Commission has examined the applicant's allegations in the light of the evidence submitted to it, but considers them unsubstantiated.     CONCLUSION   66.   The Commission concludes, unanimously, that in the present case there has been no violation of Article 14 or Article 18 of the Convention.     F.   Recapitulation   67.   The Commission concludes, unanimously, that in the present case there has been a violation of Article 10 of the Convention (para. 55).   68.   The Commission concludes, unanimously, that in the present case there has been no violation of Article 13 of the Convention (para. 60).   69.   The Commission concludes, unanimously, that in the present case there has been no violation of Article 14 or Article 18 of the Convention (para. 66).                M.-T. SCHOEPFER                             S. TRECHSEL          Secretary                                      President       to the Commission                            of the Commission