CASE OF CEYLAN v. TURKEY
Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Luzius Wildhaber;Paul Mahoney
8. The applicant, who was at the time the president of the petroleum workers’ union (Petrol-İş Sendikası), wrote an article entitled “The time has come for the workers to speak out – tomorrow it will be too late” (“Söz işçinin, yarın çok geç olacaktır”) in the 21-28 July 1991 issue of Yeni Ülke (“New Land”), a weekly newspaper published in Istanbul. The article read: “The steadily intensifying State terrorism in eastern and south-eastern Anatolia is nothing other than a perfect reflection of the imperialist-controlled policies being applied to the Kurdish people on the international plane. In order to destroy the Kurdish movement in Iraq, US imperialism first stirred up the Kurds against Saddam’s regime and then set that regime on them, having left it strong enough to crush their movement. As a result, the whole world has been confronted with the heartbreaking sight of tens of thousands of Kurds dying of hunger, exposure and epidemics, tens of thousands more wiped out by the Iraqi army and hundreds of thousands forced to leave their homes and their country. After shedding crocodile tears over these scenes, which they themselves had created, the imperialists are now sitting back with their arms folded, for the whole world to see, as genocide in Turkey continues to intensify. The constant increase in the south-east in the numbers of persons executed without trial, of mass arrests and of persons disappearing while in detention, particularly since the passing of the new Prevention of Terrorism Act, is a harbinger of difficult times ahead. The recent murder in police custody of the president of the Diyarbakır branch of the HEP [People’s Labour Party], probably by anti-guerrilla forces, and the further killings (three according to the police, ten according to local people) at his funeral (the police opened fire on the crowd, injuring hundreds, and took over a thousand people into custody) are the latest examples of State terrorism. Anyone who examines the Prevention of Terrorism Act closely can easily see that it is aimed at crushing not only the struggle of the Kurdish people, but the struggle of the whole working class and proletariat for subsistence, for freedom and for democracy. Consequently, not only the Kurdish people but the whole of our proletariat must stand up against these laws and the ‘State terrorism’ currently being practised. From the trade-union point of view, too, the problem is too important and too vital to be dealt with simply in a few interviews and declarations. The political authorities and the forces of monopolistic capital use a few vague concepts to enable every action to be presented as a terrorist offence and every organisation as a terrorist group. When they feel the time is right, they will not hesitate to turn that weapon against the working class. As we have always said, the Turkish working class and its economic and democratic organisations must bring not only their economic, but also their political and democratic demands to the fore and play an effective role in this struggle. Despite all the hurdles erected by the law, we must unite in action with the democratic mass organisations, political parties and every individual or body with which it is possible to work; we must oppose the bloody massacres and State terrorism, using all our powers of organisation and coordination. If we fail to do so, the circles of monopolistic capital, which, under imperialist orders, aim to gag and suffocate the Kurdish people, will inevitably turn on the working class and proletariat. In saying ‘tomorrow it will be too late’, we are calling on all our people and all the forces of democracy to take an active part in this struggle.” 9. On 16 September 1991, the public prosecutor at the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi) indicted the applicant on charges of non-public incitement to hatred and hostility contrary to Article 312 §§ 1 and 2 of the Turkish Criminal Code (see paragraphs 15-16 below). 10. In the proceedings in the Istanbul National Security Court, the applicant denied the charges. He submitted that the article was about human rights violations in the south-east of Turkey and maintained that he had not intended to promote separatism or to sow discord or strife amongst the population. According to him, in a democratic society, any subject should be able to be discussed without restriction. He also argued that it was his responsibility as a trade-union leader to express his opinion on the problem of democracy in south-east Turkey. 11. In a judgment of 3 May 1993, the National Security Court found the applicant guilty of an offence under Article 312 §§ 2 and 3 of the Turkish Criminal Code and sentenced him to one year and eight months’ imprisonment, plus a fine of 100,000 Turkish liras. The court held that in his article the applicant had alleged that the Kurdish people were being oppressed, massacred and silenced in Turkey. In particular, the court interpreted parts of the fourth and thirteenth sentences of the article as meaning, respectively, that “... genocide [was] being carried out against the Kurds in Turkey ...” and that an attempt was being made to “... gag and suffocate the Kurdish people”. It reached the conclusion that the applicant had incited the population to hatred and hostility by making distinctions based on ethnic or regional origin or social class. 12. The applicant appealed to the Court of Cassation, contesting, inter alia, the National Security Court’s interpretation of his article and arguing that it should have obtained an expert opinion as to its meaning. He also submitted that he should have been given only a suspended sentence. 13. On 14 December 1993 the Court of Cassation dismissed the appeal, upholding the National Security Court’s assessment of the evidence and its reasons for rejecting the applicant’s defence. 14. The applicant served his sentence in full. As a consequence of his conviction, he also lost his office as president of the petrol workers’ union as well as certain political and civil rights (see paragraph 17 below). 15. Article 312 of the Criminal Code provides: “Non-public incitement to commit an offence A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras. A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years’ imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half. The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.” 16. Article 311 § 2 of the Criminal Code provides: “Public incitement to commit an offence ... Where incitement to commit an offence is done by means of mass communication, of whatever type – whether by tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled …” 17. The conviction of a person pursuant to Article 312 § 2 entails further consequences, particularly with regard to the exercise of certain activities governed by special legislation. For example, persons convicted of an offence under that Article may not found associations (Law no. 2908, section 4(2)(b)) or trade unions, nor may they be members of the executive committee of a trade union (Law no. 2929, section 5). They are also forbidden to found or join political parties (Law no. 2820, section 11(5)) and may not stand for election to Parliament (Law no. 2839, section 11(f3)). 18. The Government supplied copies of six decisions given by the prosecutor attached to the Istanbul National Security Court withdrawing charges. One of the cases concerned a person suspected of non-public incitement, contrary to Article 312 of the Criminal Code, to hatred or hostility based in particular on a distinction between religions. The other five concerned persons suspected of making separatist propaganda aimed at undermining the indivisible unity of the State contrary to section 8 of the Prevention of Terrorism Act (Law no. 3713). In three of those cases, in which the offences had been committed by means of publications, one of the reasons given for the prosecutor’s decision was that some of the elements of the offence could not be made out. Furthermore, the Government submitted a number of National Security Court judgments as examples of cases in which defendants accused of the offences referred to above had been found not guilty. The judgments in question are: for 1996, no. 428 of 19 November and no. 519 of 27 December; for 1997, no. 33 of 6 March, no. 102 of 3 June, no. 527 of 17 October, no. 541 of 24 October and no. 606 of 23 December; and for 1998, no. 8 of 21 January, no. 14 of 3 February, no. 56 of 19 March, no. 87 of 21 April and no. 133 of 17 June. The judgments acquitting authors of works dealing with the Kurdish problem were based, inter alia, on the absence of “propaganda”, one element of the offence.