KAPTAN v. SWITZERLAND
Inadmissible
Christos Rozakis
The applicant, a Turkish citizen born in 1962, is an employee residing in Richterswil in Switzerland. Before the Court he is represented by Mr Nideröst, a lawyer practising in Zürich. On 11 September 1997 the Swiss customs authorities came across 88 kilos of propaganda materials addressed to the applicant, consisting of books and magazines of the Kurdish Workers’ Party PKK. The materials were transmitted to the Federal Attorney’s Office (Bundesanwaltschaft) which examined them and concluded that they propagated violence as the only alternative against the “Turkish terror State” and insulted members of the Turkish Government. The Office considered that the sale or dissemination of these publications endangered the interior and exterior security of Switzerland for which reason on 15 January 1998 it decided to seise the materials based on S. 1 of the Decree of the Federal Council concerning propaganda materials endangering the State (Bundesratsbeschluss betreffend staatsgefährliches Propagandamaterial) of 29 December 1948. The applicant’s appeal about the seisure was dismissed by the Federal Office of Justice and Police on 22 June 1998. On 26 June 1998 the Federal Council (Bundesrat) decided on the basis of its Decree of 1948 to confiscate and destroy the materials. The applicant filed administrative law appeals (Verwaltungsgerichts-beschwerden) with the Federal Court (Bundesgericht) against the decisions of 22 and 26 June 1998. On 26 July 1999 the Federal Court decided to join the appeals and to dismiss them. In its judgment (published in BGE [Entscheidungen des Bundesgerichts] 125 II 417) the court considered at the outset that the Federal Council’s decision of 26 June 1998 to confiscate and destroy the materials replaced the decision of the authorities to seise the materials for which reason the applicant had lost interest in his complaint against the customs authorities. The Federal Court then considered that in principle decisions of the Federal Council could not be contested before the Federal Court. On the other hand, the confiscation of the materials at issue related to the applicant’s “civil rights and obligations” within the meaning of Article 6 § 1 of the Convention for which reason the applicant was entitled to have access to court. There was no other judicial body on the Federal level which could decide the applicant’s case, yet Switzerland could not invoke domestic law in order to avoid complying with obligations arising under international law. As a result, the court regarded itself competent to deal with the applicant’s complaints. The Federal Court, which noted that the applicant had not requested a public hearing, considered that the applicant had been duly informed of the reasons of the authorities for seising the materials for which reason he was in a position duly to contest the confiscation and to present his case. The Federal Court then examined the grounds for confiscating the materials at issue in light of the applicant’s freedom of information. It considered that the Decree of the Federal Council of 1948 served as a legal basis for the measure. The judgment continued: “The confiscated materials concern editions of the magazine ‘Topolumsal Alternatif’ (Alternative Society) No. 5 of September 1997 and, on the other hand, paperbacks with the title ‘Kadin ve Iktidar Olgusu’ (Woman and the ability to govern). With these two publications the Kurdish Workers’ Party intends to win as many Kurds and other like-minded people for the armed resistance against Turkish authorities. Therein violence is advocated and glorified. The militarisation and the martyrs’ death of women particularly are advocated. News about successful bomb attacks, suicidal attacks, and attacks upon institutions of the Turkish State add further weight to the exhortation to employ violence. In the Federal Council’s view, these writings served to radicalise groups tending to extremism among foreigners and the Swiss. A danger for the peaceful co-existence and therefore for the interior security of Switzerland resulted therefrom ... Translated extracts in the case-file from the confiscated material demonstrate that the materials do not at all solely promote the concerns of the Kurdish population in Turkey. Rather, it is intended to transmit the existing tensions in Turkey into Switzerland and to create pressure among the emigrants living here. Even if the exhortation to armed struggle refers mainly to the Turkish territory, there is also the intention to radicalise the Kurds living here. Pressure should be exerted on emigrants who refuse to grant the expected support. Exhorting violence in general in order to implement Kurdish concerns will enhance the tendency also to employ violence towards compatriots living here who think differently. Such exhortation generally furthers extremist acts of violence. The writings therefore serve to endanger interior security. Since they are not at all limited to a criticism of the Turkish authorities - this would be admissible - but also insult them, they also serve to jeopardise foreign relations and therefore the neutrality of Switzerland. ... In the present case, furthermore, it does not transpire that a less far reaching measure would have been possible in order to avoid endangering the interior and exterior security, all the more so as the exhortation to armed struggle can be found in all the publications and is not limited to certain parts which could, possibly, have been blacked out.” S. 1 of the Decree of the Federal Council concerning propaganda materials endangering the State (Bundesratsbeschluss betreffend staatsgefährliches Propagandamaterial) of 29 December 1948, in force until 1 July 1998, states: “The Federal Attorney’s Office is instructed, together with the Federal customs and postal authorities, to seise propaganda materials which serve to endanger the interior or exterior security of the Confederation, in particular its independence, its neutrality, its relations with foreign States, the political and namely the democratic institutions of Switzerland or the interests of the defence of the country, as well as antireligious texts objects. The Federal Council shall decide on the confiscation.”