CASE OF COX v. TURKEY
Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
5. The applicant was born in 1944 and lives in Philadelphia, the United States. 6. The applicant lived and studied in Turkey at various times from 1972 onwards. In 1983 she received a postgraduate degree from Boğaziçi University in Istanbul. Between 1983 and 1984 she worked as a lecturer at Istanbul University. In 1984 she started working as a lecturer at the Middle East Technical University (Ortadoğu Teknik Üniversitesi) in the city of Gaziantep in southern Turkey. 7. On 23 September 1985 the deputy governor of Gaziantep sent a letter to the Ministry of the Interior, recommending that the applicant be expelled from Turkey on account of her “harmful activities”. According to the deputy governor, the applicant had said to her students and colleagues at the university that the Turks had expelled the Armenians and had massacred them. Moreover, the Turks had assimilated the Kurds and exploited their culture. In January 1986 the applicant's contract of employment was terminated by the university. On 4 April 1986 the National Intelligence Service also recommended that the applicant be expelled from Turkey. On 12 August 1986 the Ministry of the Interior ordered that the applicant be expelled and a ban imposed on her return. The applicant left Turkey in 1986. 8. At some stage the applicant returned to Turkey, where she was arrested in 1989 while distributing leaflets protesting against the film The Last Temptation of Christ. The applicant was subsequently expelled from Turkey. 9. At the time, and following the applicant's expulsion from Turkey, the Ministry of the Interior allegedly compiled classified reports about the applicant containing phrases such as “[the applicant, who] works as a missionary in our country” and “[the applicant, who] was put under surveillance following her attendance at a service in a Protestant church in Turkey”. The applicant did not submit a copy of these reports to the Court. 10. At some stage in 1996 the applicant entered Turkey again. On 31 August 1996, while she was leaving Turkey, an entry was made in her passport by the authorities, stating that she was banned from entering Turkey. She was urged by the authorities not to return. 11. On 14 October 1996 the applicant, with the assistance of her lawyer in Turkey, brought proceedings against the Ministry of the Interior before the Ankara Administrative Court and asked for the ban to be lifted. She argued that the decision to ban her from entering Turkey had been taken on the basis of a decision adopted by the Ministry of the Interior on 12 August 1986. She maintained that the reason for the decision had been her religion. This, she argued, had been in breach of domestic legislation, the Constitution and international conventions, including Article 9 of the European Convention on Human Rights. 12. The Ministry of the Interior submitted written observations to the Ankara Administrative Court on 25 December 1996, stating that, while she was teaching at the university in Gaziantep, the applicant had had discussions with her students and colleagues about Turks assimilating Kurds and Armenians, and Turks forcing Armenians out of the country and committing genocide. On account of her separatist activities against the national security of Turkey, her name had been included in the Ministry's list of persons whose entry into Turkey was prohibited. Her contract of employment had subsequently been annulled and she had been expelled on the advice of the National Intelligence Service and in accordance with section 19 of the Foreigners in Turkey (Visits and Travels) Act (no. 5683). She had also been banned from re-entering Turkey, pursuant to section 8(4) and (5) of the Passport Act (no. 5682). 13. The Ministry maintained that the applicant had been expelled and banned from entering Turkey on account of her separatist activities, which were incompatible with national security, and not because of her religious opinions or for disseminating Christian propaganda. 14. The applicant submitted her written observations in response to those of the Ministry of the Interior, arguing that the Ministry's allegations against her had not been proven. Even assuming that she had said those things at the university, she had remained within the permissible limits of criticism. Furthermore, she had never been prosecuted for having expressed those opinions. The action taken against her by the Ministry had therefore been devoid of any legal basis. 15. On 17 October 1997 the Ankara Administrative Court rejected the applicant's claim. It considered that the opinions expressed by the applicant at the university in Gaziantep had been on issues followed closely by society because those issues concerned terrorism, from which the country had been suffering. Such opinions were, without any doubt, incompatible with national security and also with political imperatives. The Ministry's decision had been in accordance with the applicable legislation and the situation complained of by the applicant did not fall within the ambit of any of her fundamental rights and freedoms. 16. The applicant appealed. She referred to the above-mentioned reports allegedly detailing her religious activities, and maintained that she had been subjected to unjust treatment because of her religion. 17. The appeal was dismissed by the Supreme Administrative Court on 20 January 2000. 18. The applicant requested a rectification of the decision of 17 October 1997. She argued, inter alia, that the entire case had revolved around her having expressed opinions on certain subjects. The Ministry's action and the courts' decisions had restricted her freedom of expression. She added that she still believed that it was possible to rectify this at the national level before she applied to international courts. 19. Her request for rectification was rejected by the Supreme Administrative Court in a decision of 26 December 2001, which was communicated to the applicant on 5 March 2002. 20. By section 19 of the Foreigners in Turkey (Visits and Travels) Act (no. 5683), aliens whose presence in Turkey is deemed by the Ministry of the Interior to be contrary to national security and to political and administrative imperatives are required to leave the country within a given period. If they fail to leave the country at the end of that period, they may be deported. 21. By section 8(4) and (5) of the Passport Act (Law no. 5682), persons who have been deported from Turkey and who are refused permission to return, as well as persons who are deemed to have entered the country with the aim of harming, or of assisting those whose aim is to harm the public order and the security of the Turkish Republic, will not be allowed to enter the country.