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

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s23860FF7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sC202EACC { clear:both; mso-break-type:section-break } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .s84D0D60A { width:8.36pt; display:inline-block } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s63E120F7 { margin-top:12pt; margin-left:19.85pt; margin-bottom:12pt; text-indent:-19.85pt } .s275CCCF2 { width:5.86pt; text-indent:0pt; display:inline-block } .s71B2F186 { width:214.81pt; text-indent:0pt; display:inline-block } .s98FBE5B1 { width:3.85pt; text-indent:0pt; display:inline-block } .s5D5DC104 { width:5.51pt; text-indent:0pt; display:inline-block } .sE12C1318 { width:230.15pt; text-indent:0pt; display:inline-block } .sDEF06A7B { width:130.07pt; text-indent:0pt; display:inline-block } .s590A3EF4 { margin-top:12pt; margin-left:19.85pt; margin-bottom:0pt; text-indent:-19.85pt } .sA31A7EB7 { width:232.13pt; text-indent:0pt; display:inline-block } .sC443675D { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8345BEF8 { margin-top:30pt; margin-left:21.6pt; margin-bottom:30pt; text-indent:-21.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7D7606FE { margin-top:30pt; margin-left:31.75pt; margin-bottom:12pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s1368240C { margin-top:18pt; margin-left:31.75pt; margin-bottom:12pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sAE2C6750 { margin-top:6pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; text-align:justify; font-size:10pt } .s8AB0B9E4 { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; text-align:justify; font-size:10pt } .s22EC78FC { margin-top:12pt; margin-left:20.15pt; margin-bottom:24pt; text-indent:8.8pt; text-align:justify; font-size:10pt } .s9E2B68DC { margin-top:24pt; margin-left:31.75pt; margin-bottom:24pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sB80C9E16 { margin-top:24pt; margin-left:41.7pt; margin-bottom:6pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sA90E1017 { margin-top:12pt; margin-left:41.7pt; margin-bottom:6pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sB1DAF95C { margin-top:18pt; margin-left:20.15pt; margin-bottom:30pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8E660A8D { margin-top:30pt; margin-left:31.75pt; margin-bottom:24pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s40E9DAE9 { margin-top:12pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sC70017F7 { margin-top:12pt; margin-left:20.15pt; margin-bottom:18pt; text-indent:8.8pt; text-align:justify; font-size:10pt } .s40A26CD { margin-top:18pt; margin-left:41.7pt; margin-bottom:6pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE9E4B253 { font-family:Arial; font-size:8pt; font-style:italic; vertical-align:super; color:#0069d6 } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s85E23CCF { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:center; font-size:10pt } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4C93F7B0 { margin-top:18pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA1152ADB { margin-top:6pt; margin-left:20.15pt; margin-bottom:18pt; text-indent:8.8pt; text-align:justify; font-size:10pt } .s3E2DB4A0 { margin-top:18pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s52010724 { margin-top:18pt; margin-left:36pt; margin-bottom:6pt; text-indent:-14.45pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE94DAE73 { margin-top:24pt; margin-left:31.75pt; margin-bottom:12pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sB7C64B2C { margin-top:30pt; margin-left:21.55pt; margin-bottom:12pt; text-indent:-21.55pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s175D39A8 { margin-top:18pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sC96BA92A { margin-top:18pt; margin-left:21.6pt; margin-bottom:12pt; text-indent:-21.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s5CB67CBD { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; text-align:justify; font-size:10pt } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sE7C30868 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s6302F903 { margin-top:12pt; margin-left:41.7pt; margin-bottom:18pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sB18CA3B { margin-top:18pt; margin-left:51.9pt; margin-bottom:18pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sE4DC6256 { margin-top:18pt; margin-left:61.8pt; margin-bottom:6pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s25ED19E4 { margin-top:12pt; margin-left:61.8pt; margin-bottom:6pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s8744BDE8 { margin-top:12pt; margin-left:51.9pt; margin-bottom:6pt; text-indent:-20.15pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s2F785AAD { width:7.48pt; text-indent:0pt; display:inline-block } .s8C0F06CF { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; text-align:justify; font-size:10pt } .sFBE87F32 { margin-top:6pt; margin-left:20.15pt; margin-bottom:24pt; text-indent:8.8pt; text-align:justify; font-size:10pt } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s68520B7C { width:6.99pt; text-indent:0pt; display:inline-block } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s7C610E5B { width:2.58pt; display:inline-block } .s4841299A { margin-top:0pt; margin-left:34.6pt; margin-bottom:0pt; text-align:justify } .sE10815D1 { width:4.34pt; display:inline-block } .sF6C3BEA1 { width:7.1pt; display:inline-block } .s7F0CA1BB { width:1.68pt; display:inline-block } .s1B03A95B { width:6.11pt; display:inline-block } .s7C281E20 { margin-top:0pt; margin-bottom:12pt; text-align:justify } .s9C23B4C7 { width:6.99pt; display:inline-block } .sC4CF4A9C { margin-top:12pt; margin-bottom:0pt; text-indent:14.4pt; text-align:justify } .s65B66A85 { margin-top:12pt; margin-bottom:12pt } .s9E97F54A { width:85.05pt; display:inline-block } .sE159D65A { width:141.75pt; display:inline-block } .sF333AF68 { width:73.14pt; display:inline-block } .s3FA6945E { width:66.8pt; display:inline-block } .sD6E2332A { margin-top:12pt; margin-bottom:0pt } .sE0B171C9 { width:73.04pt; display:inline-block } .s25E6A371 { width:40.03pt; display:inline-block } .s39AB14 { margin-top:12pt; margin-left:14.4pt; margin-bottom:0pt } .sF3E0066B { width:70.65pt; display:inline-block } .s1849C8FF { width:0pt; display:inline-block } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }           CASE OF ERDOĞDU AND İNCE v. TURKEY   ( Applications nos. 25067/94 and 25068/94 )                       JUDGMENT   STRASBOURG     8 July 1999       In the case of Erdoğdu and İnce 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. Traja,   Mr   F. Gölcüklü, ad hoc judge , and also of Mr P.J. Mahoney and Mrs M. de Boer-Buquicchio , Deputy Registrars , Having deliberated in private on 4 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.   25067/94 and 25068/94) against the Republic of Turkey lodged with the Commission under former Article   25 by two Turkish nationals, Mr Ümit Erdoğdu and Mr Selami İnce, on 20 August 1994. 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 cases disclosed a breach by the respondent State of its obligations under Articles 7 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 [2] , 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 the Agent of the Turkish Government (“the Government”), the applicants’ lawyers and the Delegate of the Commission on the organisation of the written procedure. Pursuant to the order made in consequence, the Registrar received the Government’s and the applicants’ memorials on 24   and 25 August 1998 respectively. On 29 September 1998 the Government filed with the Registry additional information in support of their memorial and on 30 November 1998 the applicants filed details of their claims for just satisfaction. On 1 December 1998 the second applicant, Mr İnce, filed further details of his claims for just satisfaction. On 26   February 1999 the Government filed their observations in reply to both applicants’ claims 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); Başkaya and Okçuoğlu v. Turkey (nos. 23536/94 and 24408/94); 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 judge, replaced Mrs 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.     In accordance with the decision of the President, who had also given the applicants’ lawyers leave to address the Court in Turkish (Rule 34 § 3), a hearing took place in public in the Human Rights Building, Strasbourg, on 1 March 1999, the case being heard simultaneously with that of Gerger v. Turkey. The Court had held a preparatory meeting beforehand and decided to admit the applicants’ late appointment of Mr E. Şansal to represent them at the hearing.   There appeared before the Court: (a)     for the Government Mr   D. Tezcan , Mr   M. Özmen ,   Co-agents , Mr   B. Çalışkan , Ms   G. Akyüz , Ms   A. Günyaktı , Mr   F. Polat , Ms   A. Emüler , Mrs   I. Batmaz Keremoğlu , Mr   B. Yıldız , Mr   Y. Özbek ,   Advisers ; (b)     for the applicants Mr   E. Şansal , of the Ankara Bar,   Counsel ; (c)     for the Commission Mr   D. Šváby   Delegate .   The Court heard addresses by Mr Šváby, Mr Ş ansal and Mr Tezcan. THE FACTS I.     the CIRCUMSTANCES OF THE CASE A.     The applicants 8.     At the material time, the first applicant, Mr Ümit Erdoğdu, was the responsible editor of the monthly review Demokrat Muhalefet! (“Democratic Opposition!”), published in Istanbul. In the January 1992 issue of the review, an interview which the second applicant, Mr Selami İnce, had conducted with a Turkish sociologist, Dr İ.B., was published. B.     The impugned publication 9.     A translation of the relevant parts of the interview is as follows: “Q:     How and to what extent will Demirel accept the ‘Kurdish reality’? Can his understanding of the ‘reality’ be deemed to represent State policy? A:     … The government is forced to accept certain facts now that there is armed resistance in Kurdistan. ... Violence by the Turkish forces could not stop the escalation and progress of the PKK [Workers’ Party of Kurdistan] ... Q:     How will the State shape its new official policy on Kurdistan? Which aspects of the official ideology will be changed and how will they be changed? What effects can this have on the daily lives of the Kurdish people? A:     … In Turkey, the government and the State are two very different things. The State functions through institutions and bodies, members of which are designated by appointment. These institutions and bodies represent the power of the State. The government, i.e. the political power, carries very little weight against the power of the State. That is why governments can be overthrown by the State authority so often. Official ideology can only be changed in the long term and the forces which are capable of changing it are non-governmental political and social forces and their struggle. The essence of the ideas and action of the PKK, for example, is such as can change the official ideology, reduce the influence of the appointed bodies of Turkey’s political scene, and increase the weight of parliaments elected by the people. In my opinion, de facto , the influence of the Kurds and, in particular, that of the PKK, will grow further. The influence of the PKK in both the Kurdish and the Turkish societies will spread and deepen. And, as that influence grows, more serious steps will be taken by governments in their policies towards recognising the ‘Kurdish reality’. It is evident that the State will try to obstruct the government in that process and will try to distort certain ideas and policies. And it is also manifest that the government will be able to survive so long as it can resist the power of the State and control the appointed institutions and bodies, i.e. so long as it has real power. These changes will be reflected in the daily lives of the Kurds. Investigations and research will develop in fields such as the Kurdish language, history and folklore. Kurdish culture will be revived. The specificity of a Kurdish society will be emphasised more amongst the Kurdish masses. National awareness and desire for liberation will become stronger and will spread further. The idea and feelings for independence will develop. Q:     It is now observed that Kurds who, until now, would never have said ‘I am Kurdish and I am engaging in politics for my present life and for my future’ are now clearly beginning ‘to get into politics for their own interests’ throughout Kurdistan and Turkey. What sort of developments have brought about this situation? Do Kurds need a political subject in the legal sphere?   If so, what form should it take? A:     Without any doubt, the most important cause of these developments has been the armed combat which the PKK has been waging for almost eight years. The guerrilla warfare has brought about major social and political changes in traditional Kurdish society. Traditional values are in turmoil. There has been very widespread support amongst the people for Kurdish guerrilla fighters ever since 15 August 1984. National awareness is now growing in Kurdish society and this process is spreading rapidly. And we see that, within this process, the political establishment has been used for Kurdish interests, for the move towards autonomy and independence. Kurds, who have always been engaged in politics for others and in order to serve other nations, are now engaged in politics in order to serve the Kurdish people. Healthy national awareness is now developing in response to Turkish racism and colonialism. It would no doubt be over-simplifying to say that all this began after the onset of Kurdish guerrilla warfare on 15 August. This process has roots that go further back into the past but what has been decisive is the new process launched by the PKK. ... Who is illegal in Kurdistan? The guerrillas or the special team of the Turkish armed forces? ... Q:     What should be done to counteract the wave of chauvinist Turkish nationalism encouraged by the right-wing press and the MCP   [Nationalist Workers’ Party]? Is there a possibility of a confrontation between the Turkish and Kurdish peoples? How could that be prevented? A:     … Kurds are dying for their nation. What are the Turks dying for? What are they doing in Kurdistan? Q:     It has been under discussion for some time that the PKK hegemony in Kurdistan has reached a stage where one can now talk of a ‘double power’. Öcalan has mentioned in his writings an orientation towards the ‘formation of a Government-State’ in the Botan-Behdinan region. Are there any signs of what the future interventions of the PKK will be in Kurdistan and in Turkish politics? A:     … The Turkish State has already withdrawn its soldiers and evacuated police stations in some regions such as Botan. ... This could be perceived as the beginning of the formation of a State ...” C.     The measures taken by the authorities 1.     The charges against the applicants 10.     In an indictment dated 23 March 1992 the public prosecutor at the Istanbul National Security Court ( İstanbul Devlet Güvenlik Mahkemesi ) charged the applicants with having disseminated propaganda against the indivisibility of the State by publishing the above interview. The charges were brought under section   8 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act” – see paragraph 19 below). 2.     The proceedings before the National Security Court 11.     In the proceedings before the National Security Court, the applicants denied the charges. They pleaded that the incriminated interview was a mere transcript of Dr. İ.B.’s statements. They maintained that the publication of an interview could not constitute an offence and that similar views had been expressed by the highest authorities in Turkey. 3.     The applicants’ conviction 12.     In a judgment dated 12 August 1993 the Istanbul National Security Court found the applicants guilty of offences under section 8 of the 1991 Act. The first applicant was sentenced under the second paragraph of section 8 to five months’ imprisonment and a fine of 41,666,666 Turkish liras (TRL). The second applicant was sentenced under the first paragraph of section 8 to one year and eight months’ imprisonment and a fine of TRL   41,666,666. 13.     In its reasoning, the court relied on certain extracts from the interviewee’s statements as published. It held that the following phrases amounted to propaganda against the indivisibility of the State: “... the government is forced to accept certain facts now that there is armed resistance in Kurdistan ...”; “... Violence by the Turkish forces could not stop the escalation and progress of the PKK ...”; “... The essence of the ideas and action of the PKK ... can change the official ideology ...”; “... the influence of the Kurds and, in particular, that of the PKK, will grow further. The influence of the PKK in both the Kurdish and the Turkish societies will spread and deepen ...”; “... National awareness and desire for liberation will become stronger and will spread further. The idea and feelings for independence will develop ...”; “... the most important cause of these developments has been the armed combat which the PKK has been waging for almost eight years ...”; “... Who is illegal in Kurdistan? The guerrillas or the special team of the Turkish armed forces? ...”; “... Kurds are dying for their nation. What are the Turks dying for? What are they doing in Kurdistan? ...”; “... The Turkish State has already withdrawn its soldiers and evacuated police stations in some regions such as Botan ...”; “... This could be perceived as the beginning of the formation of a State ...”. 4.     The applicants’ appeal 14.     The applicants appealed against their conviction. On 1   February   1994 the Court of Cassation dismissed the appeals. It upheld the National Security Court’s assessment of the evidence and its reasons for rejecting the applicants’ defence. The judgment was served on the applicants on 21 February 1994. 5.     Further developments 15.     Following the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act (see paragraphs 19 and 20 below), the Istanbul National Security Court ex officio re-examined the applicants’ cases. On 15 December 1995 the court sentenced the first applicant to five months’ imprisonment and a fine of TRL 41,666,666 and the second applicant to one year, one month and ten days’ imprisonment and a fine of TRL   111,111,110. The court ordered that the execution of the sentences be suspended on probation. 16.     The applicants appealed against these sentences. On 7 April 1997 the Court of Cassation quashed the National Security Court’s judgment. Concerning Mr Erdoğdu, the Court of Cassation pointed out that he had been prosecuted in his capacity as responsible editor and, therefore, the prison sentence imposed on him should have been converted into a fine in default of which the sentence was unlawful. Concerning Mr İnce, the Court of Cassation found that his lawyer had not been properly notified about the date of the hearing before the National Security Court. 17.     On 9 September 1997 the National Security Court held a hearing. Having regard to the provisions of Law no.   4304 which had entered into force on 14 August 1997, the court decided to defer the imposition of a final sentence on Mr Erdoğdu, pursuant to section 1 of that Law. This decision remained subject to the conditions laid down under section 2 (see paragraph   21 below). The court maintained Mr İnce’s conviction and the sentence imposed on him, the execution of which was, however, suspended in the light of his good conduct during the trial. II.     relevant domestic law and practice A.     Criminal law 1.     The Press Act (Law no. 5680 of 15 July 1950) 18.     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.” 2.     The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) [3] 19.     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) “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. 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 [ [4] ] . 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) “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. 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. 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 … …” 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 [ [5] ] .” Section 17 “Persons convicted of the offences contemplated in the present Law who ... have been punished with a custodial sentence shall be granted automatic parole when they have served three-quarters of their sentence, provided they have been of good conduct. … The first and second paragraphs of section 19 [ [6] ] … of the Execution of Sentences Act (Law no. 647) shall not apply to the convicted persons mentioned above.” 3.     Law no. 4126 of 27 October 1995 amending sections 8 and 13 of Law no.   3713 20.     The following amendments were made to the Prevention of Terrorism Act 1991 after the enactment of Law no. 4126 of 27   October   1995: Transitional provision relating to section 2 “In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment ... to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4 [ [7] ] and 6 [ [8] ] of Law no. 647 of 13 July 1965.” 4.     Law no. 4304 of 14 August 1997 on the deferment of judgment and of executions of sentences in respect of offences committed by editors before 12 July 1997 21.     The following provisions are relevant to sentences in respect of offences under the Press Act: Section 1 “The execution of sentences passed on those who were convicted under the Press Act (Law no. 5680) or other laws as editors for offences committed before 12 July 1997 shall be deferred. The provision in the first paragraph shall also apply to editors who are already serving their sentences. The institution of criminal proceedings or delivery of final judgments shall be deferred where proceedings against the editor have not yet been brought, or where a preliminary investigation has been commenced but criminal proceedings have not been instituted, or where the final judicial investigation has been commenced but judgment has not yet been delivered, or where the judgment has still not become final.” Section 2 “If an editor who has benefited under the provisions of the first paragraph of section   1 is convicted as an editor for committing an intentional offence within three years of the date of deferment, he must serve the entirety of the suspended sentence. … Where there has been a deferment, criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within three years of the date of deferment. Any conviction as an editor for an offence committed before 12 July 1997 shall be deemed a nullity if the aforesaid period of three years expires without any further conviction for an intentional offence. Similarly, if no criminal proceedings have been instituted, it shall no longer be possible to bring any, and, if any have been instituted, they shall be discontinued.” 5.     The Execution of Sentences Act (Law no. 647 of 13 July 1965) 22.     The Execution of Sentences Act provides, inter alia : Section 5 “The term ‘fine’ shall mean payment to the Treasury of a sum fixed within the statutory limits. … If, after service of the order to pay, the convicted person does not pay the fine within the time-limit, he shall be committed to prison for a term of one day for every ten thousand Turkish liras owed, by a decision of the public prosecutor. … The sentence of imprisonment thus substituted for the fine may not exceed three years …” Section 19(1) “… persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served half of their sentence, provided they have been of good conduct ...” 6.     The Code of Criminal Procedure (Law no. 1412) 23.     The Code of Criminal Procedure contains the following provisions: Article 307 “An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment. Non-application or erroneous application of a legal rule shall constitute unlawfulness [ [9] ] .” Article 308 “Unlawfulness is deemed to be manifest in the following cases: 1- where the court is not established in accordance with the law; 2- where one of the judges who have taken the decision was barred by statute from participating; …” B.     Criminal case-law submitted by the Government 24.     The Government supplied copies of several decisions given by the prosecutor attached to the Istanbul National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 19 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decision included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence. Other grounds included the fact that the publications in issue had not been distributed, that there had been no unlawful intent, that no offence had been committed or that those responsible could not be identified. Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty. These were the following judgments: 19 November (no.   1996/428) and 27 December 1996 (no. 1996/519); 6 March (no.   1997/33), 3 June (no. 1997/102), 17 October (no. 1997/527), 24   October (no. 1997/541) and 23 December 1997 (no.   1997/606); 21   January (no.   1998/8), 3 February (no. 1998/14), 19   March (no.   1998/56), 21 April (no. 1998/87) and 17 June 1998 (no.   1998/133). 25.     As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases reached their decisions on the ground that there had been no dissemination of “propaganda”, one of the constituent elements of the offence, or on account of the objective nature of the words used. PROCEEDINGS BEFORE THE COMMISSION 26.     Mr   Ümit Erdoğdu, the first applicant, and Mr   Selami İnce, the second applicant, applied to the Commission on 20 August 1994. They relied on Articles 9, 10 and 7 of the Convention, arguing that their convictions resulting from the publication of the incriminated interview unjustifiably interfered with their freedom of thought and freedom of expression and, moreover, that they had been convicted for an act which had not constituted a criminal offence under national or international law at the time it had been committed given that the relevant provision of the Prevention of Terrorism Act 1991 was so vague that it had not enabled them to distinguish between permissible and prohibited behaviour. 27.     The Commission declared the applications (nos. 25067/94 and 25068/94) admissible on 2 September and 14 October 1996, respectively. On 2 December 1997 the Commission decided to join the applications. In its report of 11   December 1997 (former Article   31 of the Convention), it expressed the opinion that there had been a violation of Article 10 (thirty-one votes to one) and that there had been no violation of Article 7 (unanimously). Extracts from the Commission’s opinion and the partly dissenting opinion contained in the report are reproduced as an annex to this judgment [10] . FINAL SUBMISSIONS TO THE COURT 28.     In their memorial the applicants requested the Court to find that the respondent State was in breach of its obligations under Articles 7 and 10 of the Convention and to award them just satisfaction under Article 41. The Government for their part submitted that the applicants’ complaints should have been declared inadmissible for non-compliance with the six ‑ month rule. In the alternative, they requested the Court to find that there had been no violation of the Articles invoked by the applicants. THE LAW i.     THE GOVERNMENT’S PRELIMINARY OBJECTION 29.     The Government maintained that the applications should have been declared inadmissible by the Commission under former Article 26 (now Article 35 § 1) of the Convention for failure to respect the six-month rule. They submitted that the Court of Cassation had examined the applicants’ cases on 1   February   1994. The judgment had been made public on 9   February and served on them on 21 February 1994. However, the applications were received by the Commission only on 24 August 1994, that is to say, more than six months after any of these dates. 30.     The Court observes that the Court of Cassation’s decision was served on the applicants on 21 February 1994 and that the first communication including all relevant details of the applications was made by the applicants in their letter dated 20 August 1994. Like the Commission, the Court considers that the fact that the applicants’ first letter was received by the Commission only four days after the date indicated in the letter does not suggest that the applicants had back-dated that letter. The Court therefore dismisses the Government’s preliminary objection. II.     scope of the case 31.     The Court notes that the applicants’ lawyer at the hearing asserted that the Istanbul National Security Court which tried and convicted them could not be considered an independent and impartial tribunal and contended that this gave rise to a breach of Article 6 § 1 of the Convention. However, that particular complaint was never raised in the proceedings before the Commission and for that reason it cannot be considered to be within the scope of the case before the Court (see, mutatis mutandis , among other authorities, Janowski v. Poland [GC], no. 25716/94, § 19, ECHR 1999-I). The Court will therefore confine its examination to the applicants’ complaints under Articles 7 and 10 of the Convention. III.     ALLEGED VIOLATION OF ARTICLEs 9 and 10 OF THE CONVENTION 32.     The applicants alleged that the authorities had unjustifiably interfered with their right to freedom of thought and their right to freedom of expression guaranteed respectively under Articles 9 and 10 of the Convention. The Court, like the Commission, considers that the facts of the applicants’ complaint fall to be examined 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.” 33.     The Government maintained that the interference with the applicants’ right to freedom of expression was justified under the provisions of the second paragraph of Article 10. The Commission on the other hand accepted the applicants’ allegations. A.     Existence of an interference 34.     The Court notes that it is 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 Prevention of Terrorism Act 1991 (the “1991 Act”). B.     Justification of the interference 35.     The above-mentioned interference contravened Article 10 unless it was “prescribed by law”, had 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” 36.     The applicants did not comment on whether there had been compliance with this requirement (see, however, paragraph 57 below). 37.     The Government pointed out that the measures taken against the applicants were based on section 8 of the 1991 Act. 38.     The Commission considered that the wording of section 8 of the 1991 Act, as in force when the offence had been committed, had been sufficiently specific to enable the applicants, if necessary after taking legal advice, to regulate their conduct in the matter and that the requirement of foreseeability had thus been met. The Commission found, therefore, that the interference with the applicants’ rights laid down in Article 10 had been prescribed by law. 39.     The Court, like the Commission, accepts that since the applicants’ convictions were based on section 8 of the 1991 Act, the resultant interference with their right to freedom of expression could be regarded as “prescribed by law”. 2.     Legitimate aim 40.     The applicants maintained that the purpose of section 8 of the 1991 Act was to silence all ideas which were incompatible with the official views of the State. For this reason, their conviction could not be said to pursue any legitimate aim. The incriminated interview contained the views of a sociologist and a researcher on the situation of Kurds, and did not incite to violence, include any separatist propaganda or express support for any illegal organisation. 41.     The Government reiterated that the prohibition of separatist propaganda under section 8 of the 1991 Act was directed at the protection of the territorial integrity and the national unity of the respondent State and, accordingly, in view of the threat posed by terrorism, at the protection of public order and national security. 42.     The Commission for its part concluded that the applicants’ convictions were part of the authorities’ efforts to combat illegal terrorist activities and to maintain national security and public safety, which are legitimate aims under Article 10 § 2. 43.     The Court considers that, having regard to the sensitivity of the security situation in south-east Turkey (see the Zana v. Turkey judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2539, § 10) and to the need for the authorities to be alert to acts capable of fuelling additional violence, the measures taken against the applicants can be said to have been in furtherance of certain of the aims mentioned by the Government, namely the protection of national security and territorial integrity and the prevention of disorder and crime. This is certainly true where, as with the situation in south-east Turkey at the time of the circumstances of this case, the separatist movement had recourse to methods which rely on the use of violence. 3.     “Necessary in a democratic society” (a)     Arguments of those appearing before the Court (i)     The applicants 44.     The applicants stressed that their prosecution and conviction constituted unjustified and disproportionate interferences with their right to freedom of expression. In their submission, press organs which communicated ideas contradicting the official position of the authorities in Turkey were accused of disseminating propaganda in favour of terrorist organisations and were punished on the pretext of protecting national security and territorial integrity. The incriminated interview itself was meant to be part of a file covering a broad spectrum of opinions on the Kurdish question, ranging from those of executives of the parties constituting the governing coalition to those of the military. It contained the opinion of a researcher and sociologist, taking the form of an analysis of the situation of Kurds. Even the 1995 amendment to the 1991 Act fell short of ending the concept of “criminal thought” in Turkey. This was clearly shown by the fact that the applicants’ convictions and sentences, although re-examined, were not annulled. (ii)     The Government 45.     The Government replied that the language used in the impugned interview had appealed to the feelings, intellect and will of citizens