CASE OF ÜNSAL ÖZTÜRK v. TURKEY (No. 2)
Violation of Art. 10
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
5. The applicant was born in 1957 and lives in Ankara. He is the owner of “Yurt Books and Publishing”, a small independent firm that has published numerous books in Turkey. 6. In the 1990s a number of books published by the applicant's company were found to contain propaganda in breach of various provisions of the Prevention of Terrorism Act (Law no. 3712), as well as “insults to the memory of Atatürk” in breach of Law no. 5816. He was convicted and served a total period of one year, five months and twenty days in prison and paid the equivalent of 5,121 euros (EUR) in fines. Most of the books in question were confiscated. On 21 December 1994 he introduced an application with the Court in relation to that conviction and the confiscation of the books. On 4 October 2005 the Court found a violation of Articles 7 and 10 of the Convention (see Ünsal Öztürk v. Turkey, no. 29365/95, 4 October 2005). 7. Following the repeal of section 8 of the Prevention of Terrorism Act in July 2003, the applicant made applications to the First Chamber of the Ankara State Security Court on various dates in 2003 and asked for the confiscation orders to be lifted. 8. The First Chamber of the Ankara State Security Court rejected the claims and the applicant lodged objections against those rejections with the Second Chamber of the same court. 9. The Second Chamber of the Ankara State Security Court lifted the confiscation orders in respect of a number of the books but held that, as the confiscation orders had already been executed, there were no books to return. 10. On 9 January 2004 the Second Chamber of the Ankara State Security Court held in respect of sixteen books that, although section 8 of the Prevention of Terrorism Act had been repealed, the contents of those books amounted not only to “separatist propaganda” but were also unlawful “under various laws”, and rejected the objection. 11. On 22 November 2005 a further decision was adopted by the Ankara Assize Court in respect of the same sixteen books. Having regard “to the legislation in force” and “considering that the contents of the books might be in contravention of section 7(2) of the Prevention of Terrorism Act” it refused the applicant's request for the lifting of the confiscation order in respect of the sixteen books. 12. The applicant appealed against the decision of 22 November 2005. The prosecutor at the Court of Cassation also requested that the decision be quashed because he considered that rejecting the applicant's request on account of the assumption that the contents of the books “might be unlawful”, rather than examining the substance of the applicant's request in the light of the legal developments, was not in accordance with the law and procedure. 13. On 8 April 2006 the Court of Cassation dismissed the appeal lodged by the applicant.