CASE OF ÖZTÜRK v. TURKEY
Violation of Art. 10;Not necessary to examine P1-1;Pecuniary damage - financial award;Costs and expenses partial award
Luzius Wildhaber
11. Mr Öztürk, the applicant, was born in 1957. He is one of the owners of the Yurt Kitap-Yayın publishing house and lives in Ankara. In October 1988 he published a book by N. Behram entitled A testimony to life – Diary of a death under torture (Hayatın Tanıklığında – İşkencede Ölümün Güncesi). The book gave an account of the life of İbrahim Kaypakkaya, who in 1973 had been one of the founder members of the Communist Party of Turkey – Marxist-Leninist (Türkiye Komünist Partisi – Marksist-Leninist – “the TKP-ML”), an illegal Maoist organisation. The 111-page book, illustrated by photographs, has 24 chapters, each of which is prefaced by a poem. These poems were written by four Turkish poets, namely the author himself, A. Arif, M. Derviş and A. Kadir, by the Chilean writer P. Neruda and by İbrahim Kaypakkaya. As the first edition had sold out as soon as it was placed on sale, the book was republished in November 1988. 12. On 21 December 1988 the public prosecutor at the Ankara National Security Court (“the National Security Court”) instituted criminal proceedings against Mr Behram, the author of the book, and the applicant, its publisher. However, he dealt with the case against Mr Behram separately, having noted that he had not been in Turkey at the material time. 13. On 23 December 1988, at the request of the public prosecutor, a single judge of the National Security Court made an interim order for the seizure of the copies of the second edition. According to the file, 3,195 copies were seized as a result, including 3,133 at the applicant’s publishing house. On 5 January 1989 the applicant asked the judge to reconsider the above order; this appeal was dismissed. 14. On 14 February 1989 the public prosecutor charged the applicant with disseminating communist propaganda in breach of former Article 142 §§ 4 and 6 of the Criminal Code (see paragraph 29 below) and of inciting the people to hatred and hostility on the basis of a distinction between social classes, an offence under Article 312 §§ 2 and 3 of the same Code (see paragraph 30 below). Referring to İ. Kaypakkaya’s antecedents, the public prosecutor emphasised that at the head of the TKP-ML, a terrorist organisation, he had carried out armed raids with a view to overthrowing the constitutional order of the State in order to set up a communist regime. In support of his submissions the public prosecutor first drew attention to the description of İ. Kaypakkaya’s father given on the second page of the book: “He was a worker who could not accept that life should flow by in that way, and that sweat, energy and labour should be exploited like that. He was dissatisfied with this state of affairs and wanted that forlorn world to change”. The public prosecutor argued that by equating the status quo with a spoliatory regime this sentence undoubtedly praised communism. The public prosecutor went on to cite the following poems. “... Ambushes guide me towards my people, vital force of the guerilla war; resistance is a terrible and noble passion, but that is not all; like a mistress, it is in addition hesitant, docile, delicate, deft; we who are masters of patriotism, hope is hidden within us, the immortal standard is red and streams out in the wind ...” ((p. 15) A. Arif, published in January 1974 in the weekly publication Yeni A) According to the public prosecutor, this poem was to be interpreted in the light of the actions of İ. Kaypakkaya. Seen from that point of view, it insinuated that terrorist acts enabled their perpetrators to draw closer to the people and recruit active terrorists from among them and that it was necessary to struggle patiently to establish a communist regime. In his submission, that amounted to illegal communist propaganda. “To our dead comrades You, who gave your lives for our people; You, who gave everything in this fight; You, who gave the colour red To the battle standard Which flies proudly in our hearts; You, who died for our immortal people; You, the sublime sons of our people, Rest now with pride and patience, Your comrades are carrying on the fight ...” ((p. 27) İ. Kaypakkaya) The public prosecutor observed that this text honoured the memory of the dead terrorists who had sought to undermine the State’s constitutional regime by force of arms and was intended, particularly in its last phrase, to stir up hatred and hostility. “... The only light That awoke us Was the light of the world! I went into their houses Where they sat round the table After returning from their work; They laughed or wept And each resembled the others; They turned their faces towards the light, Seeking their way ...” ((p. 30) P. Neruda) The public prosecutor argued that this poem constituted communist propaganda because it held up communism as the only source of light for proletarians. “... They carried out the death sentence; They spattered with blood The blue mist of the mountains and The newly woken morning breeze; Then they came [and put down their] weapons. Carefully feeling our chests, They examined us, Searching everywhere ...” ((p. 35) A. Arif, “Your absence made me wear out chains”, 1968) The public prosecutor contended that these phrases were contemptuous of the security forces who had to stand against the terrorists and thus incited the people to show hatred and hostility towards them. Lastly, he noted that the expression “May their virtue be our guide and their memory a light on our way”, which appeared on the very last page of the book, referred to İ. Kaypakkaya and the other terrorists. Consequently, the public prosecutor argued that the enthusiastic eulogy of the personality and acts of the rebel İ. Kaypakkaya in the book in issue justified both Mr Öztürk’s conviction as the publisher responsible within the meaning of section 16(4) of the Press Act (Law no. 5680 – see paragraph 32 below) and confiscation of the copies of the book pursuant to Article 36 § 1 of the Criminal Code (see paragraph 28 below). 15. Before the National Security Court the applicant contested the charges, submitting that he had published the book because he considered that there was nothing in it which could justify repressive measures. In addition, his lawyers argued in particular that the passages in issue, reproduced in the indictment, could not by any means be taken for separatist propaganda and that even supposing that they could be regarded as a criticism of the State as constituted at that time, it was the right of every citizen to make such a criticism. 16. On 30 March 1989 the National Security Court found the applicant guilty as charged. In its judgment, after stating that it was satisfied “that there [was] no need to ask experts to examine the book, given that its content [could] be understood by anyone on the first reading ...”, the National Security Court accepted that the passages cited in the indictment did indeed praise the aim and the armed raids of the TKP-ML and its leader and accordingly that the public prosecutor was fully justified in interpreting them as open incitement of the people to hatred and hostility. However, observing that it had considered the content of the book as a whole – in accordance with the case-law of the Court of Cassation – the National Security Court dismissed the defence arguments relating precisely to the alleged lack of relevance of an assessment based on this or that isolated extract from the book. Considering that it was not necessary to reproduce in the operative provisions of the judgment the passages judged to be in breach of the law, the National Security Court held: “All things considered, the book is intended to glorify and venerate both communism and the terrorist İ. Kaypakkaya ... who was a supporter of communism, and to defend his actions ... Moreover, [the book] expressly incites the people to hatred and hostility on the basis of a distinction between regions, social classes and races.” The National Security Court sentenced Mr Öztürk to fines of 328,500 and 285,000 Turkish liras (TRL) under Article 142 § 4 and Article 312 § 2 of the Criminal Code respectively (see paragraphs 29 and 30 below) and ordered the book’s confiscation (see paragraph 28 below). 17. By a judgment of 26 September 1989 the Court of Cassation declared an appeal by the applicant on points of law inadmissible as regards his conviction under Article 312 of the Criminal Code, on the ground that no appeal lay against it in view of the amount of the fine ordered for the offence concerned. However, it set aside the verdict under Article 142 § 4 on the ground that it was unlawful to establish the accused’s guilt merely by referring to the indictment without stating, with reasons, how and in what parts the book was an apologia of communism. It remitted the case on this point to the National Security Court. 18. On 9 January 1990 the applicant paid the fine of TRL 285,000. 19. In the judgment it delivered on 28 December 1990 the National Security Court, basing its decision on an expert report on the content of the book, confirmed the sentence it had imposed under Article 142 of the Criminal Code; it also upheld its order for the confiscation of the book. However, on 1 March 1991 this judgment was likewise quashed by the Court of Cassation, on the ground that the report on which it was based had not been written by experts who had taken the oath. The case was then once again remitted to the National Security Court. 20. Before the National Security Court the public prosecutor called for Mr Öztürk’s acquittal on the charge of disseminating communist propaganda. He submitted that Article 142 of the Criminal Code, on which the conviction in question had been based, had been repealed by the Prevention of Terrorism Act (Law no. 3713), which had come into force on 12 April 1991. By a judgment of 11 June 1991 the National Security Court accepted the public prosecutor’s submissions. However, observing that the judgment delivered on 30 March 1989 had become final with regard to the conviction under Article 312 of the Criminal Code (see paragraph 17 above), it noted that the confiscation order remained operative. It appears from the file that 2,845 confiscated copies of the book were destroyed on 21 April 1992. 21. On 1 March 1989, that is before the date of Mr Öztürk’s initial conviction (see paragraph 16 above), the public prosecutor charged the book’s author, Mr N. Behram, then living in Germany. The indictment filed for that purpose was essentially a copy of the one which had set in motion the proceedings against the applicant (see paragraph 14 above). 22. By a judgment of 22 May 1991, given in the defendant’s absence, the National Security Court, composed of three judges of whom one had also tried the case of Mr Öztürk, observed firstly that the court was not required to rule on application of Article 142, which had been repealed in the meantime (see paragraph 29 below), then acquitted Mr Behram on the basis of an expert report, in which three professors of criminal law maintained that there was nothing in the book which might be held to constitute the offence defined in Article 312 of the Criminal Code. In its judgment the National Security Court, emphasising the book’s documentary nature, confined itself to an endorsement of the conclusions of the above-mentioned expert report. 23. This judgment became final, no appeal on points of law having been lodged. 24. On 19 September 1991 the applicant, having been informed of Mr Behram’s acquittal, applied to the Minister of Justice asking him to refer the case to the Court of Cassation (Yazılı emir ile bozma – see paragraph 33 below) by means of an appeal against his conviction under Article 312 of the Criminal Code and against the confiscation order (see paragraph 16 above). In support of his application the applicant pleaded the contradiction between the judgment given against him and the judgment given in respect of the author, whereas both of them had been tried on account of the same book. 25. Consequently, on 16 January 1992, by order of the Minister of Justice, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) appealed against the judgment delivered on 28 December 1990 in the applicant’s case (see paragraph 19 above), pleading the lack of an explicit decision on what was to be done about the confiscation order. After the Court of Cassation’s dismissal of the appeal on 27 January 1992 the applicant applied for a second time to the Minister of Justice, submitting that Principal State Counsel had appealed on the wrong grounds. The Minister of Justice allowed this application and instructed Principal State Counsel to argue that the judgment of 30 March 1989 (see paragraph 16 above) was bad in so far as the author himself had subsequently been acquitted of charges identical to those which had led to Mr Öztürk’s conviction for incitement of the people to hatred and hostility (see paragraph 22 above). 26. In its judgment of 8 January 1993 the Court of Cassation dismissed the ground of appeal submitted by Principal State Counsel, ruling as follows: “The defendant was charged with the offences contemplated in Article 142 §§ 4 and 6 and Article 312 §§ 2 and 3 of the Criminal Code. The constituent elements of those offences were different. The acquittal of another accused tried for the same offence cannot be taken as justified and unshakeable evidence that the defendant should also have been acquitted. [In addition] the two accused were tried separately and the judgment acquitting Mustafa Nihat [Behram] became final without any appeal on points of law being lodged. Lastly, there is no evidence that the assessment of the content of the book A testimony to life – Diary of a death under torture made in the judgment at first instance is bad and must be invalidated ...” 27. At the present time Mr Behram’s book is on open sale. It is published by another publishing house, Altınçağ Yayıncılık, under the different title Biography of a communist (Bir komünistin biyografisi). 28. Article 36 § 1 of the Criminal Code provides: “In the event of conviction the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence ...” 29. The relevant paragraphs of former Article 142 of the Criminal Code, repealed by the Prevention of Terrorism Act (Law no. 3713), provided: “Harmful propaganda 1. A person who by any means whatsoever spreads propaganda with a view to establishing the domination of one social class over the others, annihilating a social class, overturning the fundamental social or economic order established in Turkey or the political or legal order of the State shall, on conviction, be liable to a term of imprisonment of from five to ten years. 2. A person who by any means whatsoever spreads propaganda in favour of the State’s being governed by a single person or social group to the detriment of the underlying principles of the Republic and democracy shall, on conviction, be liable to a term of imprisonment of from five to ten years. 3. A person who, prompted by racial considerations, by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public-law rights guaranteed by the Constitution or undermining or destroying patriotic sentiment shall, on conviction, be liable to a term of imprisonment of from five to ten years. 4. A person who publicly condones the offences contemplated in the above paragraphs shall, on conviction, be liable to a term of imprisonment of from two to five years. ... 6. Where the offences contemplated in the above paragraphs are committed through publication, the penalty to be imposed shall be increased by half.” 30. Article 311 § 2 and Article 312 of the Criminal Code provide: “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 …” “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.” 31. With regard more particularly to application of the above-mentioned Article 312 of the Criminal Code to the publishers of printed matter giving rise to criminal charges, the Government have submitted examples of judgments given by the Court of Cassation and supplied further information which may be summarised as follows. In connection with offences committed through the medium of printed matter, the “principal” responsibility for the offence defined in Article 312 is incurred by the author of the writing concerned. The publisher’s responsibility is “secondary” and is incurred under section 16(4) of Law no. 5680 (see paragraph 32 below). A publisher facing criminal proceedings is charged with “publishing the writing which constitutes the offence” contemplated in Article 312. However, there are provisions, such as section 8 of the Prevention of Terrorism Act (Law no. 3713), which form a lex specialis making publishers criminally responsible. The main effect of the distinction drawn between the responsibility borne by authors and that borne by publishers is that, unlike the position regarding the former, prison sentences imposed on the latter are commuted to a fine, save in those cases where the above-mentioned Law no. 3713 applies. 32. Section 3 and section 16(4) of Law no. 5680 provide: “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.” “... 4. With regard to offences committed through the medium of publications other than periodicals, criminal responsibility shall be incurred by the author, translator or illustrator of the publication which constitutes the offence, and by the publisher. However, custodial sentences imposed on publishers shall be commuted to a fine, irrespective of the term [of imprisonment] ...” 33. Article 343 § 1 of the Code of Criminal Procedure, concerning references to the Court of Cassation by written order of the Minister of Justice (Yazılı emir ile bozma – “reference by written order”) provides: “Where the Minister of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, he may issue a formal order to Principal State Counsel requiring him to ask the Court of Cassation to set aside the judgment concerned ...” 34. With regard to the practice followed under Turkish law for a reference by written order, the Government have submitted the following information. This form of appeal lies only against judgments given at last instance which are not appealable to the Court of Cassation (see paragraph 17 above) or against which no party has lodged an appeal on points of law. Only Principal State Counsel at the Court of Cassation is empowered to refer a case, and then only on receipt of a formal order to that effect from the Minister of Justice, who may act either of his own motion or at the request of the convicted person. The powers conferred on the Court of Cassation when it deals with such an appeal are “extraordinary”; they may not be exercised save under the conditions laid down by law nor may the decision prejudice the convicted person. If the appeal succeeds, the Court of Cassation will normally, in the judgment delivered as a result, set aside the conviction or reduce the sentence; in the latter case, it will also determine what length of sentence must be served. 35. The Government have supplied, by way of example, a number of judgments given by the Court of Cassation concerning the way courts of trial have assessed writings and/or speech that have given rise to prosecutions, particularly for offences defined in former Article 142 and Article 312 of the Criminal Code (see paragraphs 29 and 30 above) and the offence contemplated in section 8 of the Prevention of Terrorism Act (Law no. 3713). These were judgments nos. 1991/18, 1994/240 and 1995/98, given by the plenary Court of Cassation, and judgments nos. 1974/2, 1978/4806, 1985/1682, 1989/2439, 1993/664, 1993/1066, 1993/1388, 1994/6080, 1996/4387 and 1996/8450, given by its Criminal Divisions. One principle which emerges from this case-law is that the first-instance judgment must be based on an assessment of the whole of the writing and/or speech in issue. As regards assessment of the material constituting the offence defined in Article 312 of the Criminal Code, the Court of Cassation has made it clear, particularly in the above-mentioned judgment no. 1974/2, that the offence of “incitement” consists in an act “capable of endangering public safety and public order” irrespective of whether the incitement has actually produced that result. In addition, in judgment no. 1994/6080, in setting aside a conviction under Article 312, the Court of Cassation would appear to have confined itself to noting the “remote” nature of the danger posed by the “incitement” in issue. Moreover, as regards the imposition of heavier sentences on account of aggravating circumstances, the Court of Cassation has held that such circumstances must be considered in relation to the existence of a grave and imminent danger threatening the general security of the country or the public. Lastly, in one of these cases, the Court of Cassation stressed the extreme importance – for the protection of the right to a fair trial – of the rule that the accused must always have the opportunity to speak last, before the judges rule.