CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 mai 2003

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Costa , President ,   Mr   A.B. Baka ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   W. Thomassen ,   Mr   M. Ugrekhelidze , judges ,   Mr   F. Gölcüklü, ad hoc judge , and   Mrs   S. Dollé , Section Registrar , Having regard to the above application lodged on 21 December 1994, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant is a Turkish national, who was born in 1957 and resides in Ankara. He is represented before the Court by Mr Philip Leach, a lawyer practising in London. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicant is the owner of “ Yurt Books and Publishing ”, a small independent firm that has published numerous books in Turkey. Several criminal proceedings were commenced against the applicant for having published certain books, the list of which is given below. (a) The case concerning "The Kurds: A Nation Discovering Itself" (“ Kendini Keşfeden Ulus: Kürtler ”), written by İsmail Beşikçi This book, published in May 1993, contains interviews conducted by İsmail Beşikçi. In his indictment dated 27 August 1993, the public prosecutor at the İstanbul State Security Court charged the applicant and the author, Mr Beşikçi, under Article 8 of the Prevention of Terrorism Act with disseminating propaganda against the indivisible unity of the State. According to the indictment the impugned book contained the following statements: “ Türkiye’de kürt ulusunun varlığının ve ülkesinin inkar edildiği halbuki günümüzde Kurdistan ulusal hareketinin var olduğu (...) Kürt gerillalara destek veren halka gözdağı verildiği, PKK üyelerine dua etmenin bile suç sayıldığı, bu nedenle bu süreçte kürt halkının tepeden tırnağa silahlı güvenlik güçlerine karşı ayağa kalktığı (...) 1990 yılı Mart ayı ortalarında Kurdistan’ın Nusaybin ve Cizre gibi şehirlerinde ayaklanma olaylarının başladığı (...) <translation> “(...) The existence of a Kurdish nation and Kurdish State are denied in Turkey, although a Kurdish national movement exists (...) People who support Kurdish guerillas are under threat, and even praying for the PKK is considered a crime, which is why the Kurdish nation has risen up against the heavily armed security forces (...)   In mid-March 1990, insurrections took place in towns of Kurdistan such as Nusaybin and Cizre (...)” On 20 December 1993 the İstanbul State Security Court convicted both the applicant and the author. The applicant was sentenced to 6 months’ imprisonment and fined 50,000,000 TRL under Article 8 § 2 of the Prevention of Terrorism Act. The court further ordered the confiscation of the book under Article 36 of the Criminal Code. On 5 July 1994 the Court of Cassation upheld the decision of the State Security Court. (b) The case concerning the "Truncheon Republic" (“ Cop Cumhuriyeti ”), written by Günay Aslan This book, which is a collection of graffiti about Kurds, was published in October 1992. Three separate proceedings were initiated in relation to it, namely before the Ankara Assize Court, the Ankara Criminal Court and the İstanbul State Security Court. The case before the Ankara Assize Court was dismissed on the ground that two separate cases could not be brought against one book grounded on the same allegation. According to the indictment of the public prosecutor at the İstanbul State Security Court, the book contained certain drawings and the following statements which amounted to separatist propaganda: “ Ve Tanrı PKK’yı yarattı. (...) Sana bir tokat atana sen de bir roket at! (...) Faili meçhul ölmemiz ırsidir, isyanlarımızdan bize geçmiştir. İmza: Kürt Halkı. (...) Konuşan Türkiye, susan Kurdistan demektir. (...) Tuvalet duvarına ‘Yaşasın PKK’ diye yazsak, Türkiye Cumhuriyeti devletinin ülkesi ve milleti ile bölünmez bütünlüğüne yönelik bölücü mahiyette propaganda yapmak suçuna girer mi? PKK girse de yaşar, girmese de yaşar. (...) Bir gün gelecek bütün Kürtleri imha edeceğiz. Imza: Özel Tim (...) O bir gün hiç gelmeyecek! İmza: PKK (...) <translation> “ And God created the PKK! (...) If somebody slaps you in the face, send him a rocket! (...) It is a genetic trait that we die by the hand of unknown perpetrators, inherited through insurrections. Signed : the Kurdish people. (...) Freely talking Turkey means silenced Kurdistan   (...) If we write ‘Long live PKK’ on a toilet wall, would this constitute separatist propaganda aiming at the indivisibility of the Turkish nation? - PKK will live long no matter what! (...) -A day will come when we will destroy all the Kurds.   Signed : the Special Forces (...) - That day will never come! Signed : the PKK (...)” On 2 June 1994 the İstanbul State Security Court convicted and sentenced both the applicant and the author. The applicant was convicted under Article   8   §   2 of the Prevention of Terrorism Act for disseminating propaganda against the indivisible unity of the State and fined 82,333,333   TRL. The applicant appealed against this decision arguing that Article 8 § 2 of the Prevention of Terrorism Act which envisages imposition of a prison sentence on publishers for dissemination of separatist propaganda by means of periodicals, was not applicable to him since he published books. On 14 December 1994 the Court of Cassation dismissed the applicant’s appeal. (c) The case concerning "The Case of İsmail Beşikçi From the Point of View of Scientific Method, Academic Autonomy and the Principles of a Democratic Society, II - The Defence" (“ Bilimsel Yöntem, Üniversite Özerkliği ve Demokratik Toplum İlkeleri Açısından İsmail Beşikçi Davası II - Savunma ”), written by İsmail Beşikçi This book, which was published in January 1993, concerns the legal proceedings brought against İsmail Beşikçi in the Diyarbakır - Siirt Provinces Martial Law Court during the military regime in the 1980s. In an indictment dated 27 December 1993, the public prosecutor at the Ankara State Security Court charged the applicant and the writer under Article 8 § 2 of the Prevention of Terrorism Act with disseminating propaganda against the integrity of the State. On 14 June 1994 the court convicted both the applicant and the author as charged and ordered the confiscation of the books. The applicant was sentenced under Article 8 § 2 of the Prevention of Terrorism Act, to 6 months’ imprisonment and fined 100,000,000   TRL. On 29 December 1994 the Court of Cassation reduced the fine to 50,000,000 TRL considering that the State Security Court convicted the applicant as a publisher of non-periodicals although he was actually a publisher of books. The Court of Cassation confirmed the remainder of the decision. (d) The case concerning "An Academic, an Organisation and the Kurdish Question" (“ Bir Aydın, Bir Örgüt ve Kürt Sorunu ”), written by İsmail Beşikçi This book was originally published by “ M. Publications ” in 1990. At that time, an action was brought against the author and the publisher in the İstanbul State Security Court under Article 142 of the Criminal Code. Following the repeal of Article 142, on 4 June 1991, they were acquitted. In October 1993 the applicant re-published the book. In an indictment dated 1   March 1994, the public prosecutor at the Ankara State Security Court had charged the applicant and the author with offences under Article 8 of the Prevention of Terrorism Act. According to the indictment, the impugned book contained, inter alia , the following statements: “İngiliz emperyalizmi kemalistlerle, Arap emperyalizmi ile, İran Şahı ile işbirliği yaparak Kurdistan’ı bölmüş, parçalamış ve paylaşmıştır. Atatürk herşeyden önce bir Kürt cellatıdır. <translation> “British imperialism collaborated with the Kemalists, the Arab imperialists and the Shah of Iran to divide, destroy and share Kurdistan among them. Atatürk is, above all, an executioner of the Kurds.” On 16 June 1994 the Ankara State Security Court convicted and sentenced the applicant and the author and ordered the confiscation of the book. The applicant was sentenced to 6 months’ imprisonment and fined   100,000,000 TRL. On 29   December   1994 the Court of Cassation reduced the applicant’s sentence to 50,000,000 TRL considering that the State Security Court had convicted the applicant as a publisher of non-periodicals although he was actually a publisher of books and upheld the remainder of the judgment. In the meantime another case was brought against the applicant for abusing the memory of Atatürk under Law No. 5816. On 10   November   1994 the Ankara Criminal Court sentenced the applicant to 18   months’ imprisonment. (e) The case concerning "On the Kurdish Society" (“ Kürt Toplumu Üzerine ”), written by İsmail Beşikçi This book, published in April 1993, consisted of articles written by İsmail Beşikçi before 1970. On 1 March 1994 the public prosecutor at the Ankara State Security Court charged the applicant and the author with disseminating propaganda against the indivisible unity of the State under Article 8 of the Prevention of Terrorism Act. According to the indictment, the impugned book contained the following statements:   “Bugün Kürt ulusal varlığını, Kürt dilini, Kurdistan’ı inkar eden hiçbir hukuksal düzenlemenin meşru olmadığını vurgulamaya çalışıyorum. O halde bugün Türkiye halkları emperyalizm ve onun işbirlikçisi olan işbirlikçi burjuvazi ve feodal ağalardan meydan gelen bir üçlü tarafından baskı altında tutulmakta ve sömürülmektedir.” <translation> “I am trying to emphasise that no legal order which denies the existence of the Kurdish nation, the Kurdish language and Kurdistan can be legitimate. Today, therefore, the troika of imperialism and its collaborators, the bourgeoisie and the feudal lords, oppresses and exploits the people of Turkey.” On 16 June 1994 the Ankara State Security Court found both the applicant and the author guilty as charged. The court sentenced the applicant under Article 8 § 2 of the Prevention of Terrorism Act to 6 months’ imprisonment and to a fine of 100,000,000 TRL. Furthermore, the court ordered the confiscation of the book. On 29 December 1994 the Court of Cassation reduced the fine to 50,000,000 TRL considering that the State Security Court had convicted the applicant as a publisher of non-periodicals although he was actually a publisher of books and upheld the rest of the decision. (f) The case concerning “Rising Consciousness” (“ Bilincin Yükselişi ”), written by İsmail Beşikçi This book was published in June 1993. It consists of official documentation related to trials held in various courts, in particular before the state security courts. The documents contain indictments, interrogations, defence submissions, expert reports and decisions. On 18 October 1993 the public prosecutor at the İstanbul State Security Court charged the applicant under Article 8 § 2 of the Prevention of Terrorism Act with disseminating propaganda against the indivisible unity of the State. The case was later transferred to the Ankara State Security Court. On 16 June 1994 the Ankara State Security Court convicted the applicant as charged and sentenced him to 6 months’ imprisonment and to a fine of 50,000,000 TRL. Furthermore the court ordered the confiscation of the book. The Court of Cassation dismissed the applicant’s appeal. (g) The case concerning “The Fascism of 12 September and the PKK Resistance” (“ 12 Eylül Faşizmi ve PKK Direnişi ”), written by Abdullah Öcalan This book was published in April 1992. In an indictment dated 15   July   1993, the public prosecutor at the Ankara State Security Court charged the applicant under Article 8 § 2 of the Prevention of Terrorism Act with disseminating propaganda against the indivisible integrity of the State. In his final submissions to the court, the public prosecutor requested that the applicant be convicted and sentenced under Article 7 § 2 of the Prevention of Terrorism Act for disseminating propaganda in connection with a terrorist organisation, since he had written the foreword to the book. On 16 November 1993 the Ankara State Security Court found the applicant guilty under Article 7 § 2 of the Prevention of Terrorism Act and ordered the confiscation of the book. On 5   April   1994 the Court of Cassation quashed the decision of the lower court holding that the applicant should have been charged under Article 8 § 1 of the said Act. On 23 June 1994 the Ankara State Security Court applied the decision of the Court of Cassation and sentenced the applicant to 2 years’ imprisonment and to a fine of 100,000,000 TRL under Article 8 § 1 of the Prevention of Terrorism Act. The applicant appealed. The Court of Cassation dismissed his appeal. The applicant was further prosecuted for abusing the memory of Atatürk under Law no. 5816. On 10 November 1994 the Ankara Criminal Court sentenced him to 18 months’ imprisonment. (h) The case concerning the following fourteen books written by İsmail Beşikçi: -    “State Terror in the Middle East”   (”Ortadoğuda devlet terörü”)   -    “Compulsory Settlement of the Kurds”   (“Kürtlerin mecburi iskani”)   -    “Interstate Colony; Kurdistan ”   (“Devletlerarası sömürge; Kurdistan”)   -    “Thesis of Turkish History, the Sun - Language theory and the   Kurdish Problem”   (“Türk tarihi tezi, Güneş-Dil teorisi ve kürt sorunu”)   -    “Letter to UNESCO”   (“Unesco’ya mektup”)   -    “The Demolition of the Police Stations in our Minds, Trial Periods and Becoming Free”   (“Zihinlerimizdeki Karakolların yıkılması, yargılama süreçleri ve özgürleşme”)   -   “Scientific Method”   (“Bilimsel Metod”)   - “The Socio-Economic Basis of the System of South Eastern Anatolia   ‑ 1” (“Doğu Anadolu’nun düzeni, sosyo-ekonomik ve etnik temeli - 1”)   -   “The Socio-Economic Basis of the System of South Eastern Anatolia   ‑   2”   (“Doğu Anadolu’nun düzeni, sosyo-ekonomik ve etnik temeli - 2”)   -    “Science - Official Ideology, State Democracy and the Kurdish Problem”   (“Bilim - resmi ideoloji, devlet, demokrasi ve kürt sorunu”)   -    “The Republican People’s Party, Constitution (1927) and the   Kurdish Problem”   (“Cumhuriyet Halk Fırkası’nın tüzüğü (1927) ve Kürt Problemi”)   -    “Conditions for Uprising”   (“Başkaldırının Koşulları”)   -    “The Tunceli Law 1935 and the Dersim Genocide”   (“Tunceli Kanunu 1935 ve Dersim Jenosidi”)   -    “The Imperialist Division Struggle over Kurdistan ”   (“ Kurdistan üzerinde emperyalist bölüsüm mücadelesi”)   On various dates between September 1991 and April 1993, the applicant and the author were charged in connection with the above-mentioned fourteen books with disseminating propaganda against the indivisible unity of the State. The charges were brought under Article 8 of the Prevention of Terrorism Act. On 30 June 1994 the Ankara State Security Court delivered a collective decision regarding all these books and sentenced the applicant and the author. The court ordered the confiscation of all the books. The applicant was sentenced to thirty-one months’ imprisonment and to a fine of 516,666,666 TRL. On 6   December 1994 the Court of Cassation quashed the decision of the Ankara State Security Court for procedural errors. On 27   December   1995, after a re-trial, the Ankara State Security Court sentenced the applicant under Article 8 § 2 of the Prevention of Terrorism Act to twenty-six months’ imprisonment and to a fine of 216,666,666 TRL. Furthermore, the court ordered the confiscation of all of the incriminated books. The applicant appealed. On 21   May 1998 the Court of Cassation upheld the decision of the lower court. After the changes made to the Prevention of Terrorism Act, the proceedings against the applicant were re-opened. On 21 July 1998 the Ankara State Security Court decided to suspend the criminal proceedings against the applicant for three years in accordance with the Article 1 of Law no. 4304. (i) The case concerning “The Screaming Breath of the Murdered Miner - The Bosphorus Occupation” (“ Boğaziçi İşgali - Katledilen Madencinin Haykıran Soluğu ”), written by Naile Tuncer (pen name E. Yazar) This book was published in October 1992. The charge against the applicant and the author related to the book’s cover photograph taken from a daily newspaper as well as the book’s content. In this photograph there appeared a partially obscured banner with the name of an illegal armed organisation, namely the Union of Revolutionary Communists of Turkey ( Türkiye İhtilalci Komünistler Birliği- “the TIKB” ). The impugned book took the form of a diary of some TIKB militants who occupied the University of Bosphorous for a few days in protest against an explosion in a coal mine that occurred in Turkey in 1990. In an indictment dated 14 January 1993, the applicant and the author were charged under Article 7 § 2 of the Prevention of Terrorism Act with disseminating propaganda in connection with a terrorist organisation. According to the indictment, the book was aimed at gaining sympathy for an illegal armed organisation by abusing the miners’ grief. On 5 April 1994 the Ankara State Security Court convicted both the applicant and the author of the charges against them. The applicant was sentenced to one year imprisonment and fined 250,000,000 TRL. The court also ordered the confiscation of the book. On 28   April   1994 the applicant appealed. On 30 September 1994 the Court of Cassation quashed the decision, holding that the applicant had to be sentenced under Article 7 § 5 of the Prevention of Terrorism Act. On 20   December 1994 the Ankara State Security Court re-examined the case and convicted both the applicant and the author once again. The applicant was sentenced under Article 7 § 5 of the Prevention of Terrorism Act to six months’ imprisonment and fined 50,000, 000 TRL. The court ordered the confiscation of the incriminated book. In a letter dated 24   March 1999 the applicant informed the court that although it had been his intention to appeal against this decision, he could not do so as his lawyer had missed the deadline. (j) The case concerning “The Case of İsmail Beşikçi from the Point of View of Scientific Method, Academic Autonomy and the Principles of   a Democratic Society, V - The Approval Decision of the Supreme Court and Judicial Review Petition (“ Bilimsel Yöntem, Üniversite Özerkliği ve Demokratik Toplum İlkeleri Açısından İsmail Beşikçi Davası V - Yargıtay’ın Onama Kararı ve Tashihi Karar ”), written by İsmail Beşikçi This book was published in July 1993. It is the last in the series of books published concerning the proceedings against İsmail Beşikçi at the Diyarbakır - Siirt Provinces Martial Law Command Military Court during the military regime. On 13 October 1993 the Ankara Public Prosecutor charged the applicant and the writer under Article 268 of the Criminal Code with defamation of judges through publication. The public prosecutor drew the attention of the court to the following statements in the impugned book: “Askeri Yargıtay bu iddiaların varit olmadığını söylerken yalan söylemek zorunda kalmıştır. (...) Askeri Yargıtay hüküm mahkemesinin uzlaşmaz çelişmelerini hasıraltı etme ve gizleme gayreti içindedir. (...) Askeri Yargıtay hüküm mahkemesinin bu çok çirkin ve ayıp olan kurnazlıkları tarafımdan deşifre edilmemiş olasaydı bu kurnazlığı sürdürmekte başarılı kalabilirdi.” <translation> “The Military Court of Cassation had to lie when it said that these allegations were untrue. (...) The Military Court of Cassation is trying to cover up the contradictions of the lower court. (...) If I had not exposed the ugly and shameful tricks of the Military Court of Cassation, they could have successfully maintained their course.” On 2 February 1994 the Ankara Criminal Court found both the applicant and the author guilty as charged. The applicant was sentenced to 9 months’ imprisonment. The court ordered the confiscation of the book. On 27 May 1994 the applicant appealed against this decision. On 18   January 1996 the Court of Cassation dismissed the applicant’s request. (k) The case concerning "The Case of İsmail Beşikçi from the Point of View of Scientific Method, Academic Autonomy and the Principles of a Democratic Society, I - The Council of State Cases, Indictment and the Observations on the Merits" (“ Bilimsel Yöntem, Üniversite Özerkliği ve Demokratik Toplum İlkeleri Açısından İsmail Beşikçi Davası I - Danıştay Davaları, Iddianame, Esas Hakkındaki Mütalaa ”), written by Ismail Beşikçi This book was published in January 1993. On 27 December 1993 the public prosecutor at the Ankara State Security Court charged the applicant and the author under Article 8 of the Prevention of Terrorism Act with disseminating propaganda against the indivisible unity of the State. On 14   June 1994, the court dismissed the case, considering that the book in question was the continuation of the "The Case of İsmail Beşikçi from the Point of View of Scientific Method, Academic Autonomy and Principles of a Democratic Society, II - The Defence" in relation to which the applicant had been convicted and sentenced under Article 8 § 2. The book was confiscated and never returned. (l) The case concerning “The Incident of General Muğlalı, the Thirty-three Bullets” (“ Orgeneral Muğlalı Olayı, Otuzüç Kurşun ”), written by İsmail Beşikçi Another publishing company originally published this book in March   1991. A trial against the publisher resulted in an acquittal on 5   June   1991 following the repeal of Article 142 of the Criminal Code. In March 1993 the applicant re-published the book. On 5 January 1994, after a preliminary investigation, the public prosecutor at the Ankara State Security Court issued a decision of non-prosecution. It held that the time limit for bringing proceedings in relation to the book had expired. The book was confiscated under Article 36 of the Criminal Code and never returned. (m) The case concerning “The Case of İsmail Beşikçi from the Point of View of Scientific Method, Academic Autonomy and the Principles of a Democratic Society, IV - Application to the Supreme Court” (“ Bilimsel Yöntem, Üniversite Özerkliği ve Demokratik Toplum İlkeleri Açısından İsmail Beşikçi Davası IV - Yargıtay’a Başvuru ”), written by İsmail Beşikçi This book, concerning an appeal to the Court of Cassation, was published in April 1993. Two cases were brought against the applicant and the author before the Ankara and İstanbul State Security Courts. The cases were then joined before the Ankara State Security Court. According to the indictment, the book constituted propaganda against the indivisibility of the nation on account of statements such as: “Objektif bir gerçek olan Kürtler, Kürt dili ve Kurdistan olgusu mahkeme kararlarıyla reddedilmiştir. Mahkemeler Kürtlerin Türk olduğunu, Kürtçenin   Türkçenin bir subesi olduğunu ispat etmeye gayret etmişlerdir. Kurdistan diye bir ülkenin olmadığını ispat etmeye çalışmışlardır. Türk egemenlik sistemi, Türk siyasal düzeni Kürtlerin ulusal varlığını inkar etmektedir. Kürtlerin ve Kürtçenin varlığının inkarı yasal olabilir. Misak-milli sınırları içinde yaşayan herkesin Türk olduğunu, Kürt diye bilinen bir ulus, Kürtçe diye bilinen bir dil olmadığını vurgulayan yazarlar olabilir, fakat bunların hiçbir meşruiyeti yoktur.” <translation> “The courts denied through their judgments the objective reality of Kurds, the Kurdish language and Kurdistan. The courts tried to prove that Kurds are in fact Turks and that Kurdish is a dialect of Turkish. They tried to prove that there is no such country as Kurdistan. Turkish sovereignty and the Turkish political system deny the existence of a nation of Kurds.   This denial of the Kurdish language and the Kurds may be legal. Some writers can claim that everyone living within the borders of Turkey is Turkish and that there is no such thing as Kurds and Kurdish, but none of these arguments can be legitimate.” On 24 November 1995 the Ankara State Security Court convicted the applicant and the author. The applicant was sentenced under Article 8 § 2 of the Prevention of Terrorism Act to six months’ imprisonment and fined 50,000,000 TRL. The court noted in its decision that the applicant was sentenced under Article 8 § 2 of the said Act because this was favourable to the accused. The court further ordered the confiscation of the impugned book. The applicant appealed. On 19 June 1996 the Court of Cassation upheld the decision of the Ankara State Security Court. (n) The case concerning “The Way Opened by the Courts” (“ Mahkemelerin Açtığı Yol ”) by İsmail Beşikçi This book consists of documentation generated during the trials which took place prior to the enactment of the Prevention of Terrorism Act. The trials in question resulted in acquittals. The relevant documentation consists of various indictments, petitions and court decisions. The court in its judgment drew attention to the following statements: “Bugün Türkiye’nin bir Kurdistan’ı var, Irak’ın bir Kurdistan’ı var, İran’ın bir Kurdistan’ı var, Suriye’nin bir Kurdistan’ı var. Fakat Kürtler’in bir Kurdistan’ı yok. Neden? (...) Türk Devleti kürtlere karşı dünyada bir eşi benzeri bulunmayan ırkçı ve sömürgeci bir politika uygulamaktadır. (...) Kurdistan’da Türk Güvenlik kuvvetlerinin keyfi bir şekilde adam öldürmek dahil, her türlü yetkileri vardır. Ve bu tür cinayetleri gerçekleştirenler hakkında en ufak bir soruşturma açılmamaktadır. İşte kanun kuvvetindeki kararnamelerin esas amaçlarından biri Devlet Güvenlik Kuvvetleri’nin Kurdistan’da yürüttüğü cinayetleri gizlemektir. <translation> “Today, Turkey, Iraq, Iran and Syria all have their Kurdistan, but Kurds don’t have theirs. Why? (...) The Turkish State is using a racist and colonialist strategy against the Kurds, the likes of which have never been seen. (...) Turkish Security Forces have the right to do everything in Kurdistan, including arbitrary killings. And no investigations are carried out to find those who are responsible for these murders. The main purpose of the legislative decrees is to cover up for the murders in Kurdistan, committed by the security forces.” A case was brought against the author of the book in the İstanbul State Security Court under Article 8 § 1 of the Prevention of Terrorism Act, which resulted in the conviction and sentence of the author and the confiscation of the book. Furthermore, the court decided that the publisher of the book should also be tried. However, the applicant was not prosecuted due to the fact that the time limit for prosecution, which is one year from the publication date, had expired. (o) The case concerning “The Great Plane Tree - The Kurdish Sage Musa Anter” (“ Koca Çınar - Kürt Bilgesi Musa Anter ”), written by Yaşar Kaya This book was published in 1993 in memoriam of Musa Anter, killed in Diyarbakır. The anthology consists of messages of condolence and articles previously published in some national newspapers, selected by Yaşar Kaya. According to the indictment of the public prosecutor at the Istanbul Assize Court the following paragraphs were incriminated: “O gelişen Kürt ulusal özgürlük mücadelesine inandı. Özgürlük mücadelesinin gerçekleri düşmana inat dobra dobra ‘Genç olsaydım dağa çıkar gerillaya katılırdım’ diyebilen bir yiğitti. (...) Ölümünden sonra özgür Gündem’e yüzlerce mesaj geldi. Kimisi ona Kürt bilgesi diyordu. Kimisi Apo Musa diyordu. Kimisi 70 yıllık çınar ağacımız kimisi 70 yıllık canlı tarihimiz, kimisi ulusumuzun yiğit evladı diyordu. Kurtolog ve Kürt aydını, Kürt bilgesi olmanın yanında bütün bu sıfatları haketmiş ve gönüllere taht kurmuş bir insandı. (...) Musa Anter’in katili tek kelimeyle TC.’dir. (...) Musa Anter’in deyimi ile Bizans’ın, Kürtler’in ve arabın kültürü üzerine konan bu karanlık Türkçülük kimin Türkçülüğüdür? Türkler’den %10, Araplar’dan %50, Kürt ve Farslar’dan %35 oluşan bu dil hangi Türk’ün dilidir? (...) Korkusundan kendisine Türküm diyen ama gerçekte Türk olmayan Anadolu’nun azınlıklarını uyandıran herkesten korkuyorlar. (...) ve yalan ülkenin sahtekar sahipleri, yalan üzerine kurulu sistemleri ile yerle bir olacaklardır.(...) Devlet bu politikaları ile Kürt halkını teslim almaya (...) tek tek insanları öldürmekten, şekillerin imhasına kadar her türlü katliamı deniyor (...) işlediği cinayetlere Türk halkını da ortak ediyor.” <translation> “He believed in the Kurds’ growing struggle for freedom. He was a hero who was able to say ‘If I were young I would go to the mountains and join the guerrillas,’ in the face of the enemy without fear   (...) After his demise, hundreds of messages reached the Özgür Gündem newspaper office. Some people called him the Kurdish sage. Some called him Apo Musa. Some said he was ‘our 70 year old plane tree, our 70 year old living history, or the hero of our nation’. Besides being a Kurdologist, a Kurdish intellectual, a Kurdish sage, he was a person who deserved all these titles, loved by everyone. (...) The murderer of Musa Anter is simply the Turkish Republic. (...) As Musa Anter put it; what sort of nationalism is this sinister Turkish nationalism which rises from the inherited cultures of Byzantium, the Kurds and the Arabs’? What Turkish language are we talking about when that language is constituted by 10% Turkish, 50% Arabic and 35% Kurdish and Persian? (...) They are afraid of anyone who might awaken the minorities of Anatolia, who only admit to being Turkish out of fear. (...) One day the fraudulent proprietors of this dishonest country, together with their dishonest politics, will be shattered. (...) In order to defeat the Kurds, the State is trying every possible method of destruction, from killing people one by one, to destroying forms [sic] (...) and it is associating the Turkish nation with its murders.” A case was brought against the applicant and the author before the İstanbul Assize Court under Article 8 of the Prevention of Terrorism Act. On 18   October 1994 they were acquitted. After the changes to the Prevention of Terrorism Act, the Ankara State Security Court tried the applicant and the author in relation to the same book and, on 24 November 1995, convicted the applicant under Article 8 § 2 of the Prevention of Terrorism Act, sentencing him to a fine of 50,000,000 TRL. The court also ordered the confiscation of the book. On 5   December 1995 the Court of Cassation quashed the decision of the İstanbul Assize Court. After another trial before the İstanbul Assize Court, on 5   February   1997, both the applicant and the author were convicted and fined. The court stated that it was not necessary to order the confiscation of the book, as this had already been ordered by the Ankara State Security Court. (p) The case concerning "Tainted Concepts: Knowledge, Equality, Justice" (“ Kirletilen Kavramlar, Bilim, Eşitlik, Adalet ”), written by İsmail Beşikçi This book was published in September 1994. In an indictment dated 23   November 1994, the public prosecutor at the Ankara State Security Court charged the applicant and the author under Article 8 of the Prevention of Terrorism Act and requested that the book be confiscated. According to the indictment the impugned book contained separatist comments such as: “PKK geniş Kürt halk yığınlarının gönlündedir, yüreklerindedir. PKK geniş Kürt halk kitlelerinin beyinlerine girmiştir. Kürt halkı PKK olmuştur. Zira özgürlük sadece Kıbrıs Türkleri’nin, Bosna Hersek’teki müslümanların, Karabağ’daki Azeriler’in özlemi değildir. Özgürlük Kürtlerin de hakkıdır.” <translation> “The PKK is in the hearts and souls of the broad mass of Kurdish people; it has penetrated their minds. They have become one with the PKK. For freedom is not the sole prerogative of Turks in Cyprus, Muslims in Bosnia Herzegovina or the people of   Karabagh in Azerbaijan. Freedom is the right of the Kurds as well.” On 20   December 1995 the İstanbul State Security Court convicted and sentenced both the applicant and the author as charged. The applicant was fined 100,900,000 TRL under Article 8 § 2 of the Prevention of Terrorism Act as amended by Law no. 4126. Furthermore, the court ordered the confiscation of the book. On 26 May 1997 the Court of Cassation quashed this decision. (q) The case concerning “Lawless Justice” (“ Hukuksuz Adalet ”), written by İsmail Beşikçi This book consists of indictments filed against the applicant and İsmail Beşikçi by the public prosecutors at the State Security Courts, decisions delivered against them and defence statements submitted by İsmail Beşikçi to the Court of Cassation. It was published in September 1994. On 23 November 1994, following the indictment filed by the public prosecutor with the Ankara State Security Court, the book was confiscated and the applicant and the author were charged under Article 8 of the Prevention of Terrorism Act. The public prosecutor drew attention to the following statement in the impugned book: “Türkiye’de Kürtler’e karşı son derece yoğun ve yaygın ve sürekli bir Devlet terörü uygulanmaktadır. Kurdistan Kürt köyleri yakılmakta ve yıkılmaktadır. PKK son yıllarda özellikle son 1 yıl içinde çok derin ve yaygın bir gelişme süreci içine girmiştir (...) Kürt sorunu ulusal bir sorundur. Kürt sorunun temelinde Kurdistan’ın ve Kürt ulusunun emperyalistlerce ve onların ortadoğudaki işbirlikçi hükümetleri tarafından işbirliği ve güçbirliği yapılarak bölünmesi, parçalanması ve paylaşılması ve Kürtlerin bağımsız devlet kurma haklarının gasp edilmesi yatar. (...) Kürtler, henüz 20 yaşına ulaşmamış genç insanlar, Kurdistan için ölüme gidiyorlar. Bu inanç, bu direnç ancak ulusa ve ulusun kimliğine duyulan güvenden ileri gelebilir.” <translation> “Extremely intense, widespread and persistent state terrorism is practised against the Kurds in Turkey. Kurdish villages in Kurdistan are being burnt and destroyed. The PKK has entered a very profound and widespread process of development in recent years and in particular during last year (...) The Kurdish question is a national one. The imperialists’ and their collaborators’ plans to divide and share Kurdistan and the Kurdish nation, and the seizure of the right of the Kurdish people to found an independent state, form the basis of the Kurdish question. (...) Kurds, young people who are barely 20 years old, chose to die for Kurdistan. This belief, this resistance can only stem from the trust one feels for the nation and the national identity.” The Ankara State Security Court took a decision of non-jurisdiction. The case was re-opened before the İstanbul State Security Court. On 1   August   1995 the İstanbul State Security Court convicted the applicant and the author as charged. The applicant was sentenced under the Article 8   §   5 of the Prevention of Terrorism Act to five months’ imprisonment and fined 41,000,000 TRL. On 27 May 1997, upon the appeal of the applicant, the Court of Cassation quashed the decision of the lower court. On 12 February 1998 the İstanbul State Security Court sentenced the author to imprisonment and to a fine and suspended the proceedings against the applicant. (r) The case concerning “Tainted concepts: Democracy, Peace, Brotherhood” (“ Kirletilen Kavramlar: Demokrasi, Barış, Kardeşlik ”), written by İsmail Beşikçi This book, which is a collection of writings by İsmail Beşikçi, was published in October 1994. In an indictment dated 7 December 1994, the public prosecutor at the İstanbul   State Security Court charged the applicant and the author under Article 8 of the Prevention of Terrorism Act with disseminating propaganda against the indivisible integrity of the State. The public prosecutor drew attention to the following paragraphs contained in the book: “ Bu kitapta iki inceleme yer almaktadır. Birincisi bireysel başvurunun sömürgedeki değeri başlığını taşımaktadır. Alt sömürge Kurdistan’da gelişen gerilla mücadelesi, toplumsal ve siyasal gelişmeler karşısında bireysel başvurunun ne anlama geldiği konusu tartışılmaktadır. (...) Türkiye’nin Kurdistan’da gerçekleştirdiği operasyonları ise değil suçluya karşı muamele, düsmana karşı muamele kavramı içinde açıklamak mümkün değildir. Türkiye alt sömürge Kurdistan’da zamana yayılmış bir soykırım gerçekleştirmektedir. Kürtler Türkiye’de son birkaç yıla kadar inkar ediliyorlardı. Kürtlerin ulusal ve toplumsal varlığı ısrarla inkar ediliyordu. Kürtlerin aslının Türk olduğu vurgulanıyordu (...) ve bu görüş, bu anlayış resmi ideolojinin en önemli boyutunu meydana getiriyordu. (...) 10 yılı aşkın bir zamandır süren gerilla mücadelesinin fiili kazanımlarından dolayı Türk devleti artık Kürtler’in varlığını, Kürtçe’nin varlığını inkar edemiyor, Kürt diye bilinen bir millet yoktur, Kürtçe diye bilinen bir dil yoktur diyemiyor. (...) Bugün devletin Kürtler’e söylediği şey şudur: Ilkel dilinizi köyünüzde, evinizde, tarlanızda vs konuşabilirsiniz. Kürt kökenli olduğunuzu söyleyebilirsiniz. Fakat Türkiye’de yaşamak için Türk olmak, Türkleşmek zorundasınız. Türk gibi yaşamak zorundasınız. (...) ” <translation> “There are two studies in this book. The first concerns the right of individual petition and its value in a colony. It discusses the meaning of individual petition in the context of the guerrilla warfare and the social and political developments in the sub-colony of Kurdistan (...) It is impossible to qualify the operations performed by Turkey in Kurdistan   as ‘action against an enemy’, let alone as ‘treatment of accused people’. Turkey is perpetrating genocide over a period of time in the sub-colony of Kurdistan   (...) The Kurds in Turkey were denied existence until a few years ago. Their national and social existence was persistently denied. It was emphasised that the origin of the Kurds was ‘Turkish’ (...) and this opinion, this concept, constituted the most important aspect of the official ideology (...) The Turkish State can no longer deny the existence of Kurds or Kurdish as a result of the effective gains of the guerrilla struggle which has been going on for over 10 years; [The State] can no longer say that there is no Kurdish nation or Kurdish language (...) The State’s message to the Kurds today is: You may speak your primitive language in your villages, your homes, your fields etc. You may say that you are of Kurdish origin. But in order to live in Turkey you must become Turks. You must live like Turks. (...)” By an interim decision, the İstanbul State Security Court ordered the confiscation of the book. On 20 December 1995 the court convicted the applicant and the author as charged. The applicant was fined 100,900,000   TRL. On 26 May 1997 the Court of Cassation quashed this decision. On 12   February 1998, following a re-trial, the İstanbul State Security Court convicted the author and sentenced him to imprisonment and a fine. It decided to suspend the criminal proceedings against the applicant. (s) The case concerning "Dysfunctional Prohibitions: Prohibitions of Thought and Fraud" (“ İşlevsizleşen Yasaklar: Düşünce Yasakları, Dolandırıcılık Yasakları ”), written by İsmail Beşikçi The book contains a collection of indictments filed against İsmail Beşikçi, judgments of the courts and defence statements made by Dr.   Beşikçi. In an indictment dated 7 December 1994, the public prosecutor at the Ankara State Security Court charged the applicant and the author under Article 8 of the Prevention of Terrorism Act with disseminating propaganda against the indivisibility of the State. The public prosecutor drew attention, inter alia , to the following paragraph: “(...) Kaldı ki, PKK önderliğinde Kurdistan’da cereyan eden mücadele ulusal ve toplumsal kurtuluş mücadelesidir. Hiçbir ulusal kurtuluş mücadelesi de şiddet kullanmadan başarıya ulaşamaz. Zira Kurdistan’ı egemenlikleri altında tutan sömürgeci ve ırkçı güçlerin tek yöntemi devlet terörünü tırmandırmaktır. Bu devlet terörü karşısında alt sömürge ulusal demokratik güçlerinin de belirli bir şiddet uygulamaları kaçınılmaz olmaktadır. (...)” <translation> “(...) that the struggle going on in Kurdistan under the leadership of the PKK is a struggle for national and social liberation. And no national liberation struggle may achieve success without resorting to violence, because the only method of the colonialist and racist forces keeping Kurdistan under their sovereignty is the acceleration of state terror. In the face of this state terror, it is inevitable that the national democratic forces of the sub-colony also apply some degree of violence. (...)” On 5 July 1995 the Ankara State Security Court convicted the applicant and the author as charged. The applicant was fined 26,800,000 TRL. On 7   March 1996 the Court of Cassation quashed this decision. On 8 July 1996 the Ankara State Security Court convicted the applicant and the author following a re-trial. The applicant was sentenced under Article 8 § 3 of the Prevention of Terrorism Act. Furthermore, the court ordered the confiscation of the book. B. Relevant domestic law A description of the relevant domestic law can be found in Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94-24408/94, ECHR 1999- IV). COMPLAINTS The applicant complains that his successive convictions and sentences on account of publishing certain books constitute an infringement of his right to freedom of expression. He complains of violations of Articles 7, 10, 14 and 18 of the Convention and Article 1 of Protocol No. 1 to the Convention. The applicant complains under Article 7 of the Convention that while Article 8 § 2 of the Prevention of Terrorism Act, which was applied to his cases, envisages imposition of a prison sentence on the owners or directors of a publishing house for dissemination of separatist propaganda by means of periodicals, he was convicted and sentenced for dissemination of separatist propaganda by means of books. He maintains in this regard that the imposition of a prison sentence for his acts was not foreseeable. The applicant complains under Article 10 of the Convention that there has been an unjustified interference with his right to freedom of expression in that his right to impart information and ideas guaranteed by the Convention has been undermined by his convictions and sentences for his role in the publication of all the above-mentioned books. The applicant also complains under Article 14 of the Convention that he has been discriminated against in his enjoyment of his rights under Articles   7 and 10 of the Convention and Article 1 of Protocol No. 1 on account of opinions expressed in the incriminated publications, irrespective of whether these opinions reflect his own opinions. The applicant alleges under Article 18 of the Convention that the restrictions on his right to freedom of expression were inconsistent with the legitimate aims prescribed in Article 10 § 2 of the Convention. The applicant also alleges under Article 1 of Protocol No.1 to the Convention that the confiscation of the books he published constituted an interference with his right to the peaceful enjoyment of his possessions in that he has been unable to market or sell copies of his books and has therefore been deprived of revenue. THE LAW A. Government’s preliminary objection The Government maintain that the application should be rejected for non-exhaustion of domestic remedies. They submit that ten out of nineteen sets of proceedings brought against the applicant were still pending before the domestic courts at the time of the introduction of the application. They make no comment with regard to the applicant’s convictions in respect of the seven books referred to under headings a to g . The applicant submits that he is not only complaining of the individual prosecutions against him. He states that he is the victim of a pattern of prosecutions, which amounts to an administrative practice of a violation of his rights under Articles 7 and 10 of the Convention. He maintains that the core of his complaints is the on-going situation which has resulted in the fact that he is persistently and relentlessly prosecuted for his work as a publisher. On that account, the applicant claims that the requirement to exhaust domestic remedies is not applicable to his case. He further submits that, if he is forced to bring a separate application to the Court in respect of each of his prosecutions, his rights under Article 10 of the Convention would in effect become theoretical and illusory, contrary to what the Convention intended. Therefore, it was essential that the Court take a global view of his situation. The Government contend that the applicant’s allegations that the cases brought against him amount to a continuing violation of his rights are manifestly ill-founded. The Court note