Ceylan v. Turkey



AS TO THE ADMISSIBILITY OF

Application No. 23556/94

by Münir Ceylan

against Turkey

The European Commission of Human Rights sitting in private on

15 April 1996, the following members being present:

MM. S. TRECHSEL, President

H. DANELIUS

C.L. ROZAKIS

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

E. KONSTANTINOV

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 February 1994

by Mr. Münir Ceylan against Turkey and registered on 2 March 1994 under

file No. 23556/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the fact that no observations were submitted by the respondent

Government ;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen born in 1951 and resident in

Istanbul, is the president of Petrol Is Sendikasi (the Petroleum

Workers' Union). Before the Commission he is represented by Mr. Hasip

Kaplan, Mr. Süleyman Bayram and Ms. Müesser Bas, all lawyers practising

in Istanbul.

A. Particular circumstances of the case

The facts of the present case as submitted by the applicant may

be summarised as follows:

In the twenty-ninth issue of "Yeni Ülke (New Land)" 1991, a

weekly newspaper published in istanbul, an article by the applicant

entitled "Yarin Çok Gec Olacaktir (Tomorrow will be too late)" was

published. The article criticised State policy in the south-east region

of Turkey and the Anti-Terror Law, stating that not only should Kurds

oppose such policy and laws, but also the working class and its

democratic institutions should take part in this struggle.

In an indictment dated 16 September 1991, the Public Prosecutor

at the istanbul State Security Court charged the applicant with

provoking feelings of hatred and enmity among the people in his

article. The charges were brought under Article 312 paras. 1 and 2 of

the Turkish Criminal Code.

In the proceedings before the Istanbul State Security Court, the

applicant denied the charges. He submitted that the subject of the

article was human rights violations in the south-east region of Turkey.

He maintained that he did not intend to create discord and strife among

the people. He asserted that, in a democratic society, every subject

should be discussed without any restriction. He further submitted that

it was his responsibility as a trade union leader, to express his

opinions concerning the problem of democracy in south-east Turkey.

In a judgment dated 3 May 1993, the Court found the applicant

guilty of an offence under Article 312 para. 2 of the Turkish Criminal

Code. The applicant was sentenced to one year and eight months'

imprisonment, plus a fine of 100.000 Turkish Lira. The Court held that

the applicant, in his article, had alleged that the Kurds were being

massacred in Turkey, and that Kurdish people were oppressed and were

being silenced. It reached the conclusion that the applicant had

provoked enmity and hatred among the people by discriminating on the

grounds of region and social class.

The applicant appealed. His legal representatives contested,

inter alia, the State Security Court's assessment of the applicant's

article. They asserted that the trial court should have received an

expert opinion on the published article. They also argued that the

applicant should have received a probation sentence.

On 14 December 1993 the Court of Cassation dismissed the appeal.

It upheld the State Security Court's assessment of evidence and its

reasoning in rejecting the applicant's defence.

B. Relevant domestic law

The relevant domestic law in the present case is contained in

Article 312 paras. 2 and 3 and Article 311 para. 2 of the Criminal

Code, the text of which is set out below:

Criminal Code

Article 312 paras. 2 and 3

<Translation>

"It shall be an offence punishable by not less than one and not

more than three years' imprisonment, and by a fine of not less

than three thousand and not more than twelve thousand lira, to

provoke feelings of hatred and enmity among the people by

discriminating on the grounds of social class, race, religion,

sect or region. If such provocation imperils public safety, the

punishment shall be increased by one third to one half of the

sentence.

The punishment for the acts defined in the preceding paragraph

shall be doubled where they have been committed by the means

enumerated in paragraph 2 of Article 311."

<Original>

"Halki; sinif, irk, din, mezhep veya bölge farkliligi gözeterek

kin ve düsmanliga açikça tahrik eden kimse bir yildan üç yila

kadar hapis ve ucbin liradan onikibin liraya kadar agir para

cezasi ile cezalandirilir. Bu tahrik umumun emniyeti için

tehlikeli olabilecek bir sekilde yapildigi takdirde faile

verilecek ceza üçte birden yariya kadar arttirilir.

Yukaridaki fikralarda yazili suçlari 311 inci maddenin ikinci

fikrasinda sayilan vasitalarla isleyenlere verilecek cezalar bir

misli arttirilir."

The means enumerated in Article 311 para. 2 of the Criminal Code

are: mass media, tapes used in the registration of sound, records,

films, newspapers, magazines, handwritten texts distributed in the form

of leaflets, placards and posters.)

COMPLAINTS

1 The applicant complains under Articles 9 and 10 of the Convention

that his conviction for publishing his article in a newspaper

constituted an unjustified interference with his freedom of thought and

freedom of expression, in particular with his right to receive and

impart information and ideas.

2 The applicant further complains under Article 14 in conjunction

with Article 10 of the Convention that his conviction and sentence for

expressing his political opinion constituted discrimination on the

ground of political opinion.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 February 1994 and registered

on 2 March 1994.

On 20 February 1995 the Commission decided to communicate the

application to the Turkish Government who were invited to submit their

observations on its admissibility and merits before 26 May 1995.

By a letter dated 22 May 1995, the Government asked for an

extension of the time-limit for one month. On 26 May 1995 the

Government were informed that the President of the Commission had

granted the request for extension of the time-limit and decided that

the observations should be submitted not later than 26 June 1995.

By a letter dated 26 June 1995, the Government asked for an

extension of the time-limit again for one month. On 30 June 1995 the

Government were informed that the President had granted their request

and decided that the observations should be submitted not later than

26 July 1995.

No further communication having been received from the

Government, the Secretary to the Commission informed the Government by

letter of 27 July 1995 that the Commission intended to examine again

the admissibility of the application at one of its forthcoming

sessions.

THE LAW

The applicant complains that his conviction and sentence for

publishing an article in a newspaper constituted violations of Articles

9 (Art. 9) (freedom of thought), 10 (Art. 10) (freedom of expression)

and 14 in conjunction with Article 10 (Art. 14+10) (prohibition on

discrimination in the enjoyment of freedom of expression) of the

Convention.

The Commission notes that the application was communicated to the

Turkish Government on 20 February 1995, that the Government were

requested to submit their observations on the admissibility and merits

of the application not later than 26 May 1995, that the time-limit for

the submission of the observations was subsequently extended first

until 26 June 1995 and then for the second time until 26 July 1995.

The Commission further notes that no observations were submitted

before 26 July 1995, nor was any further extension of the time-limit

requested before that date. Furthermore, the Government were informed

by letter of 27 July 1995 that the Commission intended to examine the

admissibility of the case at one of its forthcoming sessions. By letter

of 9 April 1996, the Government were informed that the application was

included in the list of cases to be examined by the Commission at its

session in April 1996.

The Commission is of the opinion that the application raises

important questions of fact and law which cannot be resolved at the

stage of admissibility but require an examination on the merits. The

application cannot therefore be considered as being manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention and no other ground for declaring it inadmissible has been

established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE without prejudging the

merits of the case.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (S. TRECHSEL)