CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 8 juillet 1999

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margin-bottom:12pt; text-align:left } .s4598CDF { width:70.9pt; display:inline-block } .sDDC6AE64 { width:155.9pt; display:inline-block } .sF1689CC { width:51.89pt; display:inline-block } .s5B63140C { width:45.55pt; display:inline-block } .s4B9804AC { margin-top:12pt; margin-bottom:0pt; text-align:left } .sF684879F { width:57.22pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .sD8D16DC9 { width:226.8pt; display:inline-block } .s71794E85 { width:20pt; display:inline-block } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCA1147F8 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }           CASE OF BAŞKAYA AND OKÇUOĞLU v. TURKEY   (Applications nos.   23536/94 and 24408/94)                 JUDGMENT   STRASBOURG     8 July 1999         In the case of Başkaya and Okçuoğlu v. Turkey, The European Court of Human Rights, sitting, in accordance with Article   27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by Protocol   No.   11 [1] , and the relevant provisions of the Rules of Court 2 , as a Grand Chamber composed of the following judges:   Mr   L. Wildhaber , President ,   Mrs   E. Palm ,   Mr   A. Pastor Ridruejo ,   Mr   G. Bonello ,   Mr   J. Makarczyk ,   Mr   P. Kūris ,   Mr   J.-P. Costa ,   Mrs   F. Tulkens ,   Mrs   V. Strážnická ,   Mr   M. Fischbach ,   Mr   V. Butkevych ,   Mr   J. Casadevall ,   Mrs   H.S. Greve ,   Mr   A.B. Baka ,   Mr   R. Maruste,   Mr   K. T raja ,   Mr   F. G ölcüklü, ad hoc judge , and also of Mr P.J. Mahoney and Mrs M. de Boer-Buquicchio, Deputy Registrars , Having deliberated in private on 11 March and 16 June 1999, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case was referred to the Court, as established under former Article   19 of the Convention [3] , by the European Commission of Human Rights (“the Commission”) on 17 March 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in two applications (nos.   23536/94 and 24408/94) against the Republic of Turkey lodged with the Commission under former Article   25 by two Turkish nationals, Mr   Fikret Başkaya and Mr   Mehemet Selim Okçuoğlu, on 22 February and 9 June 1994 respectively. The Commission’s request referred to former Articles 44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6 § 1 and 10 of the Convention. 2.     In response to the enquiry made in accordance with Rule 33 § 3 (d) of former Rules of Court A [1] , the applicants stated that they wished to take part in the proceedings and designated the lawyers who would represent them (former Rule 30). The lawyers were given leave by the President of the Court at the time, Mr R. Bernhardt, to use the Turkish language in the written procedure (former Rule 27 § 3). 3.     As President of the Chamber which had originally been constituted (former Article 43 of the Convention and former Rule 21) in order to deal, in particular, with procedural matters that might arise before the entry into force of Protocol No. 11, Mr Bernhardt, acting through the Registrar, consulted Mrs D. Akçay, Co-Agent of the Turkish Government (“the Government”), the applicants’ lawyers, Mr A. Erdoğan and Ms E.E. Keskin, and the Delegate of the Commission on the organisation of the written procedure. Pursuant to the order made in consequence, the Registrar received the applicants’ and the Government’s memorials on 14 October 1998. On various dates between 6 December 1998 and 5 March 1999, the applicants and the Government submitted additional observations on the former’s claim for just satisfaction. 4.     After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. The President of the Court, Mr   L.   Wildhaber, decided that, in the interests of the proper administration of justice, a single Grand Chamber should be constituted to hear the instant case and twelve other cases against Turkey, namely: Karataş v. Turkey (application no.   23168/94); Arslan v. Turkey (no. 23462/94); Polat v. Turkey (no. 23500/94); Ceylan v. Turkey (no. 23556/94); Okçuoğlu v. Turkey (no. 24246/94); Gerger v. Turkey (no. 24919/94); Erdoğdu and İnce v. Turkey (nos. 25067/94 and 25068/94); Sürek and Özdemir v. Turkey (nos. 23927/94 and 24277/94); Sürek v. Turkey (no. 1) (no. 26682/95); Sürek v. Turkey (no. 2) (no. 24122/94); Sürek v. Turkey (no. 3) (no.   24735/94); and Sürek v. Turkey (no. 4) (no. 24762/94). 5.     The Grand Chamber constituted for that purpose included ex officio Mr   R.   Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), Mr Wildhaber, the President of the Court, Mrs E. Palm, Vice-President of the Court, and Mr   J. ‑ P. Costa and Mr M. Fischbach, Vice-Presidents of Sections (Article   27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr A. Pastor Ridruejo, Mr G. Bonello, Mr   J.   Makarczyk, Mr P. Kūris, Mrs F. Tulkens, Mrs V. Strážnická, Mr V. Butkevych, Mr   J. Casadevall, Mrs H.S. Greve, Mr   A.B. Baka, Mr R. Maruste and Mrs S. Botoucharova (Rule 24 § 3 and Rule 100 § 4). On 19 November 1998 Mr Wildhaber exempted Mr Türmen from sitting after his withdrawal from the case in the light of the decision of the Grand Chamber taken in accordance with Rule 28 § 4 in the case of Oğur v. Turkey. On 16 December 1998 the Government notified the Registry that Mr F. Gölcüklü had been appointed ad hoc judge (Rule 29 § 1). Subsequently Mr K. Traja, substitute, replaced Mrs S. Botoucharova, who was unable to take part in the further consideration of the case (Rule   24   §   5   (b)). 6.     At the invitation of the Court (Rule   99), the Commission delegated one of its members, Mr D. Šváby, to take part in the proceedings before the Grand Chamber. 7.     On 7 January 1999, having consulted the Co-Agent of the Government, the Delegate of the Commission and the representatives of the applicants, the Grand Chamber decided to dispense with a hearing in the case, being of the opinion that the discharging of its functions under Article   38 § 1 (a) of the Convention did not require one to be held (Rule 59 § 2). 8.     On 22 January 1999 the first applicant submitted certain documents following a request by the Judge Rapporteur (Rule 49 § 2 (a)). THE FACTS I.     the CIRCUMSTANCES OF THE CASE A.     The applicants 9.     The applicants, Mr   Fikret Başkaya and Mr Mehemet Selim Okçuoğlu, are Turkish citizens. The first applicant was born in 1940 and lives in Ankara. He is a professor of economics and a journalist. The second applicant was born in 1964 and lives in Istanbul. He is the owner of a publishing house, Doz Basin Yayin Ltd Sti. B.     The impugned publication 10.     In April 1991 Doz Basin Yayin Ltd Sti published a book written by   the first applicant and entitled Batılılaşma, Çağdaşlaşma, Kalkınma – Paradigmanın İflası/Resmi İdeolojinin Eleştirisine Giriş (“Westernisation, Modernisation, Development – Collapse of a Paradigm/An Introduction to the Critique of the Official Ideology”). The book was an academic essay of 219 pages, containing 370 references, which involved a description of the socio-economic evolution of Turkey since the 1920s and the analysis and criticism of the “official ideology” of the State. According to the titles listed in the table of contents, the author dealt with the following topics: Intelligentsia and Official Ideology; The Characteristics of the National Struggle; The Question of the National Character of the National Struggle; The Comintern and whether the National Struggle was Anti-Imperialist; Mustafa Kemal and the Individual’s Role in History; The Characteristics of the Kemalist Regime: an Original Form of Bonapartism; Productive Forces and Economic Policies; Bonapartist Regime and Accumulation of Capital; A Classless, Privilegeless, Populist Dictatorship; The Evolution of Socio-Economic Formation in the Neo-Colonialist Era; The Eighties: Strengthening of the Satellitisation Process; The Collapse of the Paradigm and the Science of Economics: Means to Legitimise Existing Tendencies. 11.     The impugned chapter of the book included the following passages: “The Kurdish problem plays a significant role in the analysis of the evolution of Milli Mücadele [Turkish National Independence War (1919-1922)] and Turkish social formation. The Kurdish problem and the process of the colonisation of Kurdistan are indeed very important and, as such, should be the subject-matter of another book. Moreover, the problem is not only related to Turkey. The formation of the domestic politics of four States in the region (Turkey, Iran, Iraq, Syria) (type of political regimes) as well as the ‘unique’ nature of relationships between these four neighbouring States make it a complicated issue. We have two reasons why we wish to discuss the problem, even if in limited form, within the plan and scope of this book. These are to indicate the ‘irrationality’ of official ideology and the real nature of Milli Mücadele . In other words, [we wish] to discuss whether what is presented as ‘ Kurtuluş Savaşı ’ [Independence War] is in reality an ‘Independence Movement’ or not. Without any doubt, the imprisonment of Kurdistan (if the small area within the borders of the Soviet Union is omitted) within the borders of four different States gives the imperialists too easily ‘control’ over these four States. Although the Kurdish problem is of great importance with regard to the protection of the imperialist status quo in the region, we shall not here go into an analysis of this aspect of the problem. [page 51] ... On the other hand, the racist policy of denial which has been followed with regard to the Kurds since the foundation of the Republic [1923] has also been an important factor in the development of the fascist movement in Turkey. As a contradiction, even though ‘the assumption of non-existence’ of the Kurdish Nation constitutes an important element of the official ideology, this is at the same time the weakest point of the ideology in question. It is not possible ‘to eliminate with the mind’ a nation which exists and the objective reality continues to exist regardless of the nonsense and unfounded suspicions of the people. Of course, this does not mean that the nonsense, unfounded suspicions have no effect! There is never a lack of those who profit from it, acquire bureaucratic, academic careers, receive high salaries, go up the step ladder of the political arena ... [page 52] ... It was believed that colonialism would come to an end with the abolishment of direct political-military-police control in the colonies. Today, however, the [natural] resources of the Third World are carried to imperialist countries in volumes which are much higher than those of the colonial period. Therefore, the relationship between the Turkish State and Kurdistan is not of an imperialist devouring category. One can speak of a situation which also directly embodies a political, military, cultural, ideological oppression. Thus, a direct colony status is in force. [page 59]” 12.     It appears that the publication of the book came to the notice of the prosecution authorities on 3 May 1991. C.     The first round of proceedings against the applicants 13.     On 2 August 1991 the public prosecutor at the Istanbul National Security Court ( İstanbul Devlet Güvenlik Mahkemesi ), having regard to the contents of the book in question, issued an indictment against the applicants. The first applicant, as the author of the book, was charged under section   8(1) of the Prevention of Terrorism Act 1991 (“the 1991 Act”) with disseminating propaganda against the indivisibility of the State. The second applicant, as the owner of the publishing company, was charged under section 8(2) of the 1991 Act. In the bill of indictment, the public prosecutor quoted extracts from the chapter of the book reproduced at paragraph 11 above. 14.     In the proceedings before the National Security Court, the applicants denied the charges and sought their acquittal. The first applicant submitted that his book had been an academic work that could not be viewed as propaganda. Being a professor he had had the duty to conduct research and publish his conclusions and could not be forced to accept the “official version of reality”. His book might be judged by academics, but not by the courts. It could not be permissible to try and convict someone for the expression of his or her opinion. The second applicant submitted, inter alia , that it was not possible to make an assessment of the book as a whole solely on the basis of extracts from a single chapter. He alleged that section 8 of the 1991 Act was inconsistent with the Turkish Constitution and Turkey’s international obligations. There was a “Kurdish problem” in Turkey and commenting or expressing ideas on this problem could not constitute an offence. 15.     In a final statement dated 18 March 1992, the public prosecutor requested the conviction of the first applicant under section 8(1) of the 1991 Act and that of the second applicant under section 8(2), as well as the confiscation of all copies of the book. The public prosecutor considered that the offence had been committed on 3 May 1991. 16.     On 14 October 1992 the court acquitted the applicants. It held that the book as a whole was an academic work containing no elements of propaganda. 17.     The public prosecutor appealed. He submitted that the book alleged that a certain part of Turkish territory had belonged to “Kurdistan” which the Turks had annexed and colonised. Concluding that the book did indeed disseminate propaganda against the indivisibility of the State, he requested that the verdict be set aside. 18.     On 4 February 1993 the Court of Cassation quashed the decision of the trial court and referred the case back for retrial. It gave the following reasons: “In the writings on pages 51 to 59 of the book … it is stated that a part of the territory within the borders of the Turkish Republic is a part of Kurdistan which belongs to the Kurdish nation, and that this territory has been annexed by the Turks and is subject to colony status. The Istanbul National Security Court, without considering that [the above] statement, as such, exceeds the limits of criticism and constitutes dissemination of propaganda against the indivisible integrity of the State of the Turkish Republic with its territory and nation, found [both] accused ‘not guilty’. The judgment … is contrary to the law and thus, the public prosecutor’s grounds of appeal are upheld. Accordingly, it is unanimously decided that the judgment be reversed …” D.     The second round of proceedings against the applicants 19.     In a judgment dated 5 August 1993, the Istanbul National Security Court found the applicants guilty of the offences with which they had been charged. It sentenced the first applicant to two years’ imprisonment and a fine of 50,000,000 Turkish liras (TRL) and the second applicant to six months’ imprisonment and a fine of TRL 50,000,000. Considering the applicants’ good conduct during the trial, the court reduced the first applicant’s sentence to one year and eight months’ imprisonment and a fine of TRL 41,666,666 and the second applicant’s sentence to five months’ imprisonment and a fine of TRL 41,666,666. On the other hand, the court dismissed the public prosecutor’s request for an order of confiscation of the book. In its reasoning supporting the convictions, the court stated: “After the examination of the book which is the subject of the offence, it is understood that the [following] statements on page 51 that ‘ The Kurdish problem plays a significant role in the analysis of the evolution of Milli Mücadele [Turkish National Independence War (1919-1922)] and Turkish social formation. The Kurdish problem and the process of the colonisation of Kurdistan are indeed very important and, as such, should be the subject-matter of another book. Moreover, the problem is not only related to Turkey. The formation of the domestic politics of four States in the region (Turkey, Iran, Iraq, Syria) ... ’, ‘ to discuss whether what is presented as “Kurtuluş Savaşı” [Independence War] is in reality an “Independence Movement” or not. Without any doubt, the imprisonment of Kurdistan (if the small area within the borders of the Soviet Union is omitted) within the borders of four different States gives the imperialists too easily “control” over these four States ... ’, on page 52 that ‘ the racist policy of denial which has been followed with regard to the Kurds since the foundation of the Republic [1923] has also been an important factor in the development of the fascist movement in Turkey... It is not possible “to eliminate with the mind” a nation which exists ... ’ and on page 59 that ‘ the relationship between the Turkish State and Kurdistan is not of an imperialist devouring category. One can speak of a situation which also directly embodies a political, military, cultural, ideological oppression. Thus, a direct colony status is in force. ’ identify a certain part of the Turkish Republic as Kurdistan, declare that the Turkish Republic rules this region with colony status and thus aim to disseminate propaganda against the indivisible integrity of the State of the Turkish Republic with its territory and nation. Therefore, the following sentence shall be drafted under the provisions of Law no. 3713 which is applicable to the proven acts of the accused.” 20.     The applicants appealed to the Court of Cassation, which held a hearing in the case. The applicants, while reiterating the defence made before the National Security Court, emphasised that the latter had failed to consider the book as a whole and had erroneously based its decision on an assessment of one chapter. The first applicant maintained that section 8 of the 1991 Act was inconsistent with the Turkish Constitution and the Convention, and he could not therefore be tried and convicted under that provision. He also referred to his previous arguments concerning the lack of clarity of the relevant provisions of the 1991 Act. The second applicant asserted that his sentence to imprisonment had been unlawful in that section   8(2) only authorised the imposition of a fine. 21.     In its decision of 16 December 1993, delivered on 22   December   1993, the Court of Cassation upheld the National Security Court’s findings and dismissed the appeals. E.     Subsequent developments 22.     As of 18 March 1994 the first applicant was dismissed, under section   98(2) of the Civil Servants Act (Law no. 367), from his post as lecturer at the University of Ankara. The relevant decision referred to his conviction under the 1991 Act and to his being sentenced to twenty months’ imprisonment. 23.     On 3 October 1997 the National Security Court granted a request by the prosecution for an order of seizure in respect of the sixth edition of the impugned book. 24.     The applicants served their sentences in prison and paid the fines. After the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act, the Istanbul National Security Court re-examined the second applicant’s case. On 19 April 1996 the court held that these amendments could not be applied to his case as he had already served his sentence. II.     relevant domestic law and practice A.     Criminal law 1.     The Criminal Code 25.     The relevant provisions of the Criminal Code read as follows: Article 2 § 2 “Where the legislative provisions in force at the time when a crime is committed are different from those of a later law, the provisions most favourable to the offender shall be applied.” Article 36 § 1 “In the event of conviction, the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence …” 2.     The Press Act (Law no. 5680 of 15 July 1950)   26.     The relevant provisions of the Press Act 1950 read as follows: Section 3 “For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals. ‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it. An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.” 3.     The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) [1] 27.     The relevant provisions of the Prevention of Terrorism Act 1991 read as follows: Section 8 (before amendment by Law no. 4126 of 27 October 1995)   “[(1)]     Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras. [(2)]     Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly , or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched [ [2] ] . However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.” Section 8 (as amended by Law no. 4126 of 27 October 1995) “[(1)]     Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine. [(2)]     Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment. [(3)]     Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras … …” The Government have submitted case-law concerning the application of section 8, details of which may be found in Karataş v. Turkey [GC], no.   23168/94, § 22, ECHR 1999-IV. Section 13 (before amendment by Law no. 4126 of 27 October 1995) “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.” Section 13 (as amended by Law no. 4126 of 27 October 1995) “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve. However, the provisions of this section shall not apply to convictions pursuant to section 8.” B.     The National Security Courts 28.     A summary of the relevant domestic law governing the organisation and procedure of the National Security Courts is contained in Karataş cited above, §§ 24-29. PROCEEDINGS BEFORE THE COMMISSION 29.     Mr Başkaya and Mr Okçuoğlu applied to the Commission on 22   February and 9 June 1994 respectively. Both applicants alleged violations of Articles 9 (right to freedom of thought and conscience) and 10 (right to freedom of expression) of the Convention on account of their conviction for the publication of the impugned book. The applicants further complained of violations of Article 7 (prohibition of retrospective punishment) and of Article 6 § 1 (right to a hearing before an independent and impartial tribunal). The first applicant maintained that there had been a breach of this provision also on account of a lack of fairness of the proceedings and that there had been a violation of Article 6 § 2 (right to be presumed innocent until proved guilty). The second applicant in addition alleged that his conviction entailed a breach of Article 14 (prohibition of discrimination) taken in conjunction with Article 10. 30.     The Commission declared the applications (nos.   23536/94 and 24408/94) admissible on 2 September and 14 October 1996 respectively. In its report of 13 January 1998 (former Article 31 of the Convention), it expressed the opinion that there had been violations of Article 10 on account of the applicants’ convictions (unanimously) and of Article 6 § 1 in that their case had not been heard by an independent and impartial tribunal (thirty-one votes to one). It further concluded that there had been no violation of Article 7 with respect to the first applicant (thirty-one votes to one) but that there had been a violation of that provision with respect to the second applicant (unanimously). It found that it was not necessary to examine the other complaints made by the first applicant under Article 6 (unanimously) and that no separate issue arose with regard to the second applicant’s complaint under Article 14 taken in conjunction with Article 10 (unanimously). Extracts from the Commission’s opinion are reproduced as an annex to this judgment [1] . FINAL SUBMISSIONS TO THE COURT 31.     In their memorials, the applicants requested the Court to find the respondent State in breach of its obligations under Articles 6 § 1, 7, 9 and 10 of the Convention. The first applicant also invited the Court to find violations of Articles 3 and 14. Both applicants requested the Court to award them just satisfaction under Article 41. The Government for their part invited the Court to reject the applicants’ complaints. THE LAW I.     scope of the case 32.     In his memorial to the Court, the first applicant, Mr Başkaya, alleged violations of Articles 3 (prohibition of degrading punishment) and 14 (prohibition of discrimination) of the Convention on account of the fact that, in his view, he was released from prison seven months later than should normally have been the case. 33.     However, these new complaints are not covered by the Commission’s decision on admissibility. The Court has therefore no jurisdiction to entertain them (see, for instance, the Olsson v. Sweden (no.   2) judgment of 27 November 1992, Series A no. 250, pp. 30-31, § 75). II.     alleged violation of ARTICLE 7 OF THE CONVENTION 34.     Mr Başkaya and Mr Okçuoğlu complained that their convictions and sentences under respectively subsections 1 and 2 of section 8 of the Prevention of Terrorism Act 1991 (“the 1991 Act”) violated Article 7 of the Convention, which reads: “1.     No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2.     This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.” The applicants maintained that, since the book in question was solely an academic study, the measures imposed upon them had been unlawful. In view of the lack of clarity of the wording of section 8 of the 1991 Act and the vagueness of the notion of “dissemination of propaganda against the indivisibility of the State”, it had not been foreseeable at the material time that the publication in issue constituted an offence. The applicants also referred to the fact that, in the first round of proceedings, the National Security Court had acquitted them on the ground that the book was an academic work containing no elements of propaganda. 35.     The Government disputed these allegations. The Commission was of the view that there had been no violation of Article 7 with respect to the first applicant but that there had been one with regard to the second applicant. 36.     The Court recalls that, according to its case-law, Article 7 embodies, inter alia , the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. From these principles it follows that an offence and the sanctions provided for it must be clearly defined in the law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable. When speaking of “law” Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statutory law as well as case-law and implies qualitative requirements, notably those of accessibility and foreseeability (see the Cantoni v. France judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1627, § 29, and the S.W. and C.R. v. the United Kingdom judgments of 22 November 1995, Series A nos. 335-B and 335-C, pp. 41-42, § 35, and pp. 68-69, § 33, respectively). 37.     As regards the first applicant, the Commission considered that the wording of section 8(1) was sufficiently specific to enable him, if necessary after appropriate legal advice, to regulate his conduct in the matter and that the requirement of foreseeability had thus been met. 38.     As to the second applicant, the Commission had doubts as to whether his conviction was in compliance with the principle “ nullum crimen sine lege ”. Although section 8(2), in its version in force at the material time, contained a reference to publications other than periodicals, it appeared to be the general hypothesis of this provision that the “offence of propaganda” would be committed by publishing periodicals within the meaning of section 3 of the Press Act. Moreover, the Commission found that section 8(2) provided no basis for the imposition of a prison sentence on the second applicant and that, accordingly, the principle “ nulla poena sine lege ” had been contravened in his case. 39.     The Court recognises that in the area under consideration it may be difficult to frame laws with absolute precision and that a certain degree of flexibility may be called for to enable the national courts to assess whether a publication should be considered separatist propaganda against the indivisibility of the State. However clearly drafted a legal provision may be, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Contrary to what is suggested by the applicants, section 8 did not confer an over-broad discretion on National Security Courts in interpreting the scope of the offence. While a definition of the offence was contained in the first subsection of section 8, the second subsection setting out the penalties gave pointers as to what kind of publications were covered by the offence and who might incur liability. Unlike the Commission, the Court considers that there can hardly be any doubt that books fell within the category of publications contemplated in this provision, which at the material time specifically mentioned “printed matter other than periodicals”. It is further to be noted that the National Security Court’s interpretations and applications of section 8 could form the subject of an appeal to the Court of Cassation. In actual fact, it was the interpretation made by the latter in the first set of proceedings, after the applicants had been acquitted by the National Security Court, which was relied on and led to their conviction in the second set. 40.     In the Court’s view, the interpretation of the relevant law made by the National Security Court in convicting the applicants in the second round of proceedings and upheld by the Court of Cassation did not go beyond what could be reasonably foreseen in the circumstances. The Court does not find a breach of the principle “ nullum crimen sine lege ” embodied in Article   7 of the Convention on account of the applicants’ conviction under section 8 of the 1991 Act. 41.     As regards sentencing, the Court notes that the first applicant, who was sentenced under section 8(1), received the lowest sentence provided for in that provision, which fact does not seem to give rise to any issue under Article 7 of the Convention. 42.     On the other hand, the second applicant complained that he had been sentenced to a term of imprisonment under a provision in section 8(2) which expressly applied to the sentencing of editors, while publishers could only be punished by a fine. In this connection, the Government stressed that the application of section 8(2) to publishers would normally entail a more favourable sentence than under section 8(1). Although this may be so, it rather appears that section 8(2) was a lex specialis on the sentencing of editors and publishers and that the sentence imposed on the applicant publisher in the present case was based on an extensive construction, by analogy, of the rule in the same subsection on the sentencing of editors. In these circumstances, the Court considers that the imposition of a prison sentence on the second applicant was incompatible with the principle “ nulla poena sine lege ” embodied in Article 7. 43.     In sum, as regards the first applicant the Court concludes that there has been no violation of Article 7 of the Convention with respect to his conviction and sentence. As regards the second applicant, the Court finds that there has been no violation of Article 7 on account of his conviction. The Court concludes however that there has been a violation of this Article on account of his sentence to a term of imprisonment. III.     ALLEGED VIOLATION OF ARTICLES 9 AND 10 OF THE CONVENTION 44.     The applicants alleged that in convicting and sentencing them the authorities had unjustifiably interfered with their right to freedom of thought and their right to freedom of expression under respectively Articles 9 and 10 of the Convention. The Court, like the Commission, considers that the facts of the applicants’ complaint fall to be considered under Article 10, which provides: “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.” 45.     The Government maintained that the interference with the applicants’ right to freedom of expression was justified under the second paragraph of Article 10. The Commission, on the other hand, accepted the applicants’ allegations. A.     Existence of an interference 46.     The Court finds it clear, and this has not been disputed, that there has been an interference with the applicants’ right to freedom of expression on account of their conviction and sentence under section 8 of the 1991 Act. B.     Justification of the interference 47.     The above-mentioned interference contravened Article 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 of Article 10 and was “necessary in a democratic society” for achieving such aim or aims. The Court will examine each of these criteria in turn. 1.     “Prescribed by law” 48.     None of those taking part in the proceedings before the Court submitted any argument in relation to the requirement of “prescribed by law” under Article 10 § 2 which substantially differed from those invoked in connection with Article 7 (see paragraphs 34-35, 37-38 above). 49.     The Court for its part observes that the requirements under the two provisions are largely the same and, for the reasons stated above, it reaches the conclusion that the first applicant’s conviction and sentence were “prescribed by law”. 50.     As regards the second applicant, there is one difference between Article 7 and Article 10 § 2 which is relevant to his case. Under Article 7, it is a condition for punishment that the proscribed conduct constituted an offence “at the time when it was committed”. In contrast, under Article   10   §   2, it is also the time of the imposition of the measures constituting the interference which is material to the consideration of the issue of lawfulness. 51.     In the case at hand, the alleged offence was committed by the book’s publication on 3 May 1991. Above, the Court has concluded that the second applicant’s conviction, like that of the first applicant, did not infringe Article 7 since the law as applicable at the time of commission of the offence was sufficiently clear to meet the requirement of lawfulness under this Article. However, as of 27 July 1993, the relevant provision concerning publishers in section 8(2), on which the second applicant was convicted, had been repealed by the Constitutional Court. Thus, the provision which applied at the time of the commission of the offence was no longer in force when the second applicant was convicted in the National Security Court on 5 August 1993 and when this conviction was later upheld by the Court of Cassation. It follows that the competent courts failed to comply with the rule in Article 2 § 2 of the Criminal Code, according to which “the provisions most favourable to the offender shall be applied” (see paragraph 25 above). Ag