ITEMID: 001-60424
LANGUAGEISOCODE: ENG
RESPONDENT: GRC
BRANCH: CHAMBER
DATE: 2002
DOCNAME: CASE OF SMOKOVITIS AND OTHERS v. GREECE
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Violation of P1-1
JUDGES: Françoise Tulkens
TEXT: 8. The applicants teach as temporary staff at the polytechnic school in Piraeus (Τεχνολογικό Εκπαιδευτικό Ίδρυμα Πειραιά) on the basis of private-law contracts. On 22 October 1992 they sued their employer for a supplement to their salary, as research allowance (ερευνητική χορηγία - hereinafter “the benefit”), that had been granted by ministerial decision no. 2023080/2538/0022/SHET.2057/1989 to “those teaching at polytechnics”. They served their action (επίδοση αγωγής) to the school on 27 October 1992.
9. The applicants relied on a number of decisions by the Court of Appeal in Piraeus granting the benefit in question to academic staff of the polytechnic school with the applicants’ status. Their action was one of several actions pending before the Piraeus courts at the time.
10. On 30 September 1993 the single-member first instance civil court (Μονομελές Πρωτοδικείο) of Piraeus considered that the applicants were entitled to the benefit. It awarded GRD 600,000 to applicant no. 1, GRD 570,000 to each of applicants nos. 2-5, GRD 380,000 to each of applicants nos. 6 and 7, GRD 300,000 to each of applicants nos. 8-12, GRD 450,000 to each of applicants nos. 13-20, GRD 330,000 to each of applicants nos. 21-23 and GRD 210,000 to applicant no. 24. The court also held that the applicants should be awarded legal interest on the abovementioned sums from the date when they served their action to the school, namely from 27 October 1992.
11. On 11 February 1994 the school appealed.
12. On 31 August 1994 Parliament enacted Law no. 2233/1994. Article 2 § 2 of that law provided the following: the ministerial decision of 1989, according to its true meaning, concerned only permanent staff; any claims that had not been recognised by final decisions were statute-barred; all pending court cases were discontinued.
13. On 19 July 1995 the Court of Appeal of Piraeus upheld the school’s appeal (decision no. 1001/1995). The court considered that Article 2 § 2 of Law no. 2233/1994 “is truly interpretative and has retroactive effect (Article 77 § 1 of the Constitution)”, and that “it clearly results from these provisions that the temporary staff of the polytechnic schools are not entitled to the benefit provided for by the ministerial decision [of 1989]”. The court continued:
“Moreover... Articles 4 and 22 of the Constitution ... provide for equal pay for work of equal value rendered ... However, the principle of non-discrimination ... is relented when the differentiation in the pay for work of equal value is imposed by reasons of general public and social interest. Such a reason, which justifies the fixing by the legislator of a different pay among employees who render ... the same work, exists when the ones work on the basis of public law contracts and the others on the basis of private law contracts, i.e. when each group belongs to a different category, ruled by a different legal status entailing different ... rights and obligations. Therefore the judgment under appeal which ... considered that [the applicants] as temporary staff of the school ... working on the basis of private law contracts, are entitled to receive the benefit ... was wrong and did not interpret correctly the law, which was in fact interpreted by the ensuing (truly) interpretative Law no. 2233/1994, and thus the doubt which was created due to its ambiguity has been removed. In view of the fact that by virtue of that law the benefit is given only to permanent staff and not to temporary staff ... like [the applicants], the constitutional principle of equal pay for work of equal value is not violated, given that this deviation is imposed by the general public and social interest, because a full equation of the pay of these different categories of working people would overrule the basic principle of free negotiation of the employment conditions in the public sector ...”
14. On 20 June 1996 the applicants appealed in cassation relying, inter alia, on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
15. On 25 July 1997 the Court of Cassation considered that the 1994 law simply interpreted the 1989 ministerial decision, did not have the purpose of resolving the litigation and did not interfere with the applicants’ rights under the Convention. It rejected their appeal (decision no. 1328/1997).
16. The relevant provisions of the 1975 Constitution read as follows:
“The authentic interpretation of the laws shall rest with the legislative power.”
“The courts shall be bound not to apply laws, the contents of which are contrary to the Constitution”.
17. The District Court (Ειρηνοδικείο) of Piraeus in its decisions nos. 75/1993, 81/1993 and 153/1995 considered that the benefit provided for by the ministerial decision of 1989 concerned both permanent and temporary staff. The same line was followed by the single-member firstinstance civil court of Athens in decisions nos. 229/1992, 882/1992, 551/1993 and 739/1993, the single-member first-instance civil court of Thessaloniki in decision no. 478/1990, the single-member first-instance civil court of Larissa in decision no. 618/1991, the multi-member first instance civil court (Πολυμελές Πρωτοδικείο) of Kavala in decision no. 123/1991, the Court of Appeal of Thessaloniki in decision no. 2117/1991, and the Court of Appeal of Piraeus in decisions nos. 164/1993 and 165/1993.
18. Law no. 2233/1994 provides the following:
“a) The true meaning of the provisions of paragraphs 1 and 2 of Article 2 of decision no. 2023080/2538/0022/SHET.2057/1989 is that the benefit ... is paid only ... to the permanent staff of the schools ...
b) Any claims relating to the payment of such benefit also to the temporary staff ... shall be extinguished unless for cases in which, at the time of the publication of this law, a final judgment (αμετάκλητη δικαστική απόφαση) has been issued. Any claims pending in any court for the payment of such benefit shall be struck out ...”
19. The single-member first-instance civil court of Piraeus, in its decisions nos. 885/1994 and 889/1994, considered that Article 2 § 2 of Law no. 2233/1994 was clearly unconstitutional as it violated the principle of equality. Therefore it refused to apply it and allowed the plaintiffs’ claims. The same line was followed by the District Court of Piraeus in decisions nos. 41/1997 and 42/1997.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-57757
LANGUAGEISOCODE: ENG
RESPONDENT: AUT
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF SCHWABE v. AUSTRIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings
JUDGES: N. Valticos;R. Pekkanen
TEXT: 6. Mr Schwabe is an Austrian citizen residing at St Andrä. At the relevant time, he was Chairman of the Young Austrian People’s Party (Junge Österreichische Volkspartei, ÖVP) for the District of Wolfsberg in Carinthia and councillor (Gemeinderat) of St Andrä.
7. In December 1984 Mr Tomaschitz, Mayor of Maria Rain in Carinthia and a member of the ÖVP, was convicted of negligently causing bodily harm (fahrlässige Körperverletzung) and of abandoning the victim (Imstichlassen eines Verletzten) of a traffic accident whilst under the influence of alcohol (at least 1.75 per mille). He was sentenced to four months’ imprisonment.
8. The question whether the Mayor should resign because of his conviction later became the subject of discussion in political circles and the press in Carinthia.
On 13 August 1985 the Carinthian newspaper Kleine Zeitung published an article headed "If Tomaschitz doesn’t think it over, we will". That article quoted from an interview with the Head of the Provincial Government, Mr Wagner, who was the Chairman of the Carinthia branch of the Austrian Socialist Party (Sozialistische Partei Österreichs - SPÖ), about the question whether the Mayor should resign or not. Mr Wagner stated that, although an accident of the kind in question could happen to anybody, it was not acceptable that a person who had acted in such a way should remain in public office. He continued: "I do not intend to take part in a witch hunt, but after a period of reflection Tomaschitz ought to realise that he must resign". According to Mr Wagner, however, that was primarily a matter for the ÖVP. He nevertheless concluded by saying that if Mr Tomaschitz would not think it over, the Regional Supervisory Authority (Gemeindeaufsicht des Landes) would.
9. On 19 August 1985 Mr Schwabe issued a press release by way of reply to that article and sent it to several Carinthian newspapers. On 20 August the Kleine Zeitung published a summary, headed "Looking after morality in the SPÖ". A complete version of the release appeared on the same day in the Neue Volkszeitung (an ÖVP newspaper), under a headline "Different standards?" (Zweierlei Maß?). It read:
"Councillor Karl Schwabe, Chairman of the Young ÖVP for the Wolfsberg District, stated in a broadcast that, after being convicted for leaving the scene of an accident without reporting it, Josef Tomaschitz, the Mayor of Maria Rain and a member of the ÖVP, would unquestionably have to resign.
However, he added that Mr Wagner, the Head of the Carinthian Government, did not have the slightest moral right to attack Mayor Tomaschitz for his refusal to resign. Mr Wagner had known for years that his Deputy, Erwin Frühbauer, had caused an accident on 10 July 1966 at Scheifling (Styria) while under the influence of alcohol (im alkoholisierten Zustand). The accident had left two children fatherless. One could not help feeling that the Head of the Carinthian Government applied stricter standards to a ‘small mayor of a village’, who was a member of another political party, than to his ‘party friend’ and Deputy, Frühbauer. Schwabe concluded that Wagner’s credibility would be enhanced if he were to provide, within the SPÖ, for the political morals which he requires of others."
10. The applicant had based his press release on an article that had appeared in the Viennese magazine Profil on 9 March 1984. It referred to the circumstances of Mr Frühbauer’s car accident in 1966, in which a man had died and other persons had been injured, and contained the following passage:
"...
Erwin Frühbauer was found to have a blood alcohol content of 0.8 per mille. That was the limit.
Less than a year later, on 31 May 1967, Frühbauer, whose immunity as a Member of Parliament had been lifted, was sentenced by the Leoben Regional Court to a prison term of six months, suspended for three years, for negligent homicide.
There was no conviction for intoxication (Alkoholisierung). Jurists are still guessing at the reasons because, according to Article 5 para. 1 of the 1960 Road Traffic Code, impairment by intoxication is presumed ‘at 0.8 per mille or more’.
Be that as it may. I do not want (and the criminal law does not allow me) to reproach Frühbauer with his conviction at that time. After all, no one is immune from being similarly involved in a traffic accident.
My accusation is a political one. When Frühbauer was appointed Transport Minister by Kreisky in 1970, he kept quiet about his conviction, or at least about the fact that at that time he still had a criminal record (noch vorbestraft war).
In fact on 31 May 1967, the date of the judgment, the three-year period of suspension of his sentence began to run. Six weeks before the end of that period, on 21 April 1970, Mr Frühbauer was appointed Transport Minister but he continued to have a criminal record for a long time afterwards, because of the period which was then applicable with regard to the cancellation of such records. He was thus, to my knowledge, the only Minister of the Second Republic to have a criminal record ..."
The applicant had verified the contents of the Profil article in a telephone conversation with its author. Furthermore, he had taken into account the judgment of 31 May 1967 of the Leoben Regional Court (Kreisgericht). In determining sentence, that court had regarded as an aggravating circumstance the fact that the accused had been driving after consuming alcohol in an amount that brought him close to the level at which a driver was presumed to be intoxicated (Alkoholisierung, 0.8 per mille).
11. On 4 September 1985 Mr Frühbauer requested the Klagenfurt Regional Court (Landesgericht, "the Regional Court") to initiate a preliminary investigation against Mr Schwabe. After completion of the investigation, Mr Frühbauer brought a private prosecution under Article 111 paras. 1 and 2 and Article 113 of the Criminal Code (see paragraphs 18 and 19 below).
12. On 26 September 1986 the applicant was convicted of defamation (Article 111 paras. 1 and 2 of the Criminal Code) and of having reproached a person with an offence for which he had already served his sentence (Article 113). The penalty imposed was a fine of 3,000 schillings or, in default of payment, thirty days’ imprisonment. The Regional Court also ordered the seizure of the relevant issue of the Neue Volkszeitung and the publication of its judgment and awarded to Mr Frühbauer compensation of 10,000 schillings, to be paid by the owners of the newspaper. In addition, the latter were declared to be jointly and severally liable for the payment of the fine and the complainant’s costs.
After reciting the relevant facts, the Regional Court concluded that, contrary to Article 113, Mr Schwabe had reproached Mr Frühbauer with a conviction, relating to a traffic accident, that dated back about twenty years. Furthermore, his statement that the complainant was under the influence of alcohol and his comparison of the accident in question with Mr Tomaschitz’s, in addition to his criticism of the complainant for lacking political morals, amounted to defamation.
13. According to the Regional Court, Article 113 was primarily aimed at securing the reintegration of criminal offenders, but it was applicable irrespective of whether or not reproaching them with a previous conviction jeopardised that reintegration.
Mr Schwabe had not been obliged under Article 114 para. 2 of the Criminal Code (see paragraph 18 below) to make the impugned statement. The fact that a political party felt embarrassed about a car accident of one of its officials was not an excuse for "digging out" a very old accident of an official of the opposite party. Moreover, the applicant had not been under a duty to reply to a political opponent, since Mr Wagner’s criticisms were addressed to Mayor Tomaschitz and not to him. In particular, Mr Schwabe, the Chairman of a small district organisation, did not need to react by defaming a third person.
14. In the Regional Court’s view, moreover, it was not open to the applicant to plead that his allegation that Mr Frühbauer had been driving under the influence of alcohol was correct. The man in the street would conclude from such a statement that the latter - like Mr Tomaschitz - had had a blood alcohol content of more than 0.80 per mille at the time of the accident. In fact, a lower level was tolerated by the legislature and the public, and the applicant had not mentioned that the complainant had not been convicted of drunken driving (in alkoholbeeinträchtigtem Zustand).
Neither could Mr Schwabe maintain that he had intended to refer to a blood alcohol content lower than 0.8 per mille. The aim of his press release had been to put both accidents in moral terms on an equal footing, which would entail the same consequence, namely the resignation of the two officials concerned. That, together with the title of the article, "Different standards?", could have led the reader to believe that the complainant’s blood alcohol content had also attained the forbidden level at the time of his accident.
The defendant also could not claim that his press release had been directed not against Mr Frühbauer, but against Mr Wagner. It was true that the criticism relating to a lack of political morals had been primarily aimed not at the latter, who was responsible in principle for the political morals of the SPÖ, but at the former, who had not resigned after his accident. However, that particular allegation could not in itself constitute defamation, since a politician had to be tolerant in this respect; what was decisive in the present case was the comparison of the two accidents from a moral point of view.
In respect of this defamation too, the applicant could not rely on Article 114 para. 2 of the Criminal Code, because, as he had or should have been aware, the impugned statement had been incorrect. Furthermore, in the present case proof of good faith (Article 111 para. 3; see paragraph 18 below) was not relevant, since the offence had taken place through a publication; neither was proof of proper journalistic care (section 29 of the Media Act, Mediengesetz; see paragraph 21 below), since the defendant was not a journalist. As to proof of truth, the Regional Court considered evidence given by a witness of Mr Frühbauer’s accident in 1966, as well as the expert opinions submitted in the relevant criminal proceedings in 1967, and concluded that Mr Schwabe had failed to prove the truth of his allegations.
15. On 5 February 1987 the applicant lodged an appeal (Berufung) against his conviction with the Graz Court of Appeal (Oberlandesgericht). He submitted in particular that he had written his press release in the context of a political discussion and in reply to criticisms by the Head of the Carinthian Government expressed in respect of a member of the ÖVP and of that party, and that the release had not been directed against Mr Frühbauer. He had, accordingly, felt himself obliged to defend his own party and to inform the public about the Head of the Provincial Government’s political morals and apparent motives. He had then remembered the 1984 Profil article (see paragraph 10 above) and found that the two accidents raised the same problem, namely whether it was proper for a person with a criminal conviction to exercise official functions. He had thought that this question was worth discussing and wanted to draw the attention of the public to a possible information lacuna. Finally, he had considered his statement about the complainant having driven under the influence of alcohol to be correct, since it was based on the formulation used by the Leoben Regional Court in its judgment of 31 May 1967 (see paragraph 10 above); and it was also justified in the context of a political discussion.
16. On 29 April 1987 the Court of Appeal dismissed Mr Schwabe’s appeal.
The court observed that the applicant’s statement had clearly amounted to a reproach concerning a criminal conviction for which the sentence had already been served, within the meaning of Article 113 of the Criminal Code. In its view, he had not been compelled to reply to Mr Wagner. Neither had he been given any mandate to reply in the name of the ÖVP, nor had he himself been addressed directly as Chairman of the Young ÖVP or as a member of the party’s executive committee. Someone who by his conduct has given good reason for criticising him must accept attacks on his honour to a greater extent than someone who has not. Furthermore, Mr Frühbauer himself had made no statement which called for reaction on the part of Mr Schwabe.
The court also upheld the Regional Court’s judgment in all other respects.
17. The judgment was served on the applicant on 4 September 1987. He thereupon requested the Attorney-General (Generalprokurator) to file a plea of nullity for the preservation of the law (Nichtigkeitsbeschwerde zur Wahrung des Gesetzes), with reference, inter alia, to the right to freedom of expression under Article 10 (art. 10) of the Convention and to the Lingens v. Austria judgment of 8 July 1986 (Series A no. 103-B).
Mr Schwabe was informed on 27 October 1987 that the Attorney- General did not intend to take any action.
18. Article 111 of the Criminal Code provides:
"1. Anyone who in such a way that it may be perceived by a third person accuses another of possessing a contemptible character or attitude or of behaviour contrary to honour or morality and of such a nature as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ...
2. Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public shall be liable to imprisonment not exceeding one year or a fine ...
3. The person making the statement shall not be punished if it is proved to be true. As regards the offence defined in paragraph 1, he shall also not be liable if circumstances are established which gave him sufficient reason to assume that the statement was true."
Under Article 112, "evidence of the truth and of good faith shall not be admissible unless the person making the statement pleads the correctness of the statement or his good faith ...".
Under Article 114 para. 1 "conduct of the kind mentioned in Article 111 ... is justified if it constitutes the fulfilment of a legal duty or the exercise of a right". Under paragraph 2 of the same provision "a person who is forced for special reasons to make an allegation within the meaning of Article 111 ... in the particular form and manner in which it was made, is not to be punished, unless that allegation is untrue and the offender could have been aware thereof if he had acted with the necessary care".
19. Article 113 of the Criminal Code reads as follows:
"Anyone who in such a way that it may be perceived by a third person reproaches another with having committed a criminal offence in respect of which the sentence has already been served, or has been waived or reduced (even if only conditionally) or in respect of which the sentence has been provisionally deferred shall be liable to imprisonment not exceeding three months or a fine ..."
20. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim compensation from him. Furthermore, the publisher may be declared to be liable jointly and severally with the person convicted of a media offence for the fines imposed and for the costs of the proceedings (section 35).
The person defamed may request the forfeiture of the publication by which a media offence has been committed (section 33), as well as the publication of the judgment in so far as this appears necessary for the information of the public (section 34).
21. Section 29 of the Media Act provides as follows:
"1. A media owner (publisher) or media employee shall not be punishable for an offence relating to material appearing in the media, in respect of which proof of truth is admissible, not only if proof of truth has been brought but also if there was a predominant public interest in publication and even with proper journalistic care being applied he had sufficient grounds for considering the statement to be true. However, in respect of such an offence relating to a person’s private life, a media owner (publisher) or media employee shall not be punishable only if the statement is true and directly connected with public affairs.
2. Such proof is to be received only if the accused relies thereon. In cases within the first sentence of paragraph 1, the court must receive proof of truth, if tendered by the accused and admissible, even if it assumes that the exercise of proper journalistic care has been proved.
3. If an accused is acquitted only because the conditions specified in the first sentence of paragraph 1 are met, the court must, in analogous application of section 34, order publication of the finding that proof of truth has not been tendered or has not succeeded, and order that the accused is to bear the costs of the criminal proceedings including the costs of such publication.
4. Article 111 para. 3 and Article 112 of the Criminal Code shall not apply."
VIOLATED_ARTICLES: 10


ITEMID: 001-72730
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2006
DOCNAME: CASE OF POJE v. CROATIA
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed
JUDGES: Christos Rozakis
TEXT: 4. The applicants were born in 1961 and 1983 respectively and live in Zagreb.
5. On 4 January 1992 I.P., the first applicant’s husband and the second applicant’s father, died in a traffic accident.
6. On 10 February 1992 the applicants brought a civil action against the insurance company C.O. with the Zagreb Municipal Court (Općinski sud u Zagrebu) seeking damages.
7. The Municipal Court held hearings on 6 April and 2 December 1992, 3 May, 20 June and 19 September 1994 and 10 November 1997.
8. On 17 September 1998 and 10 February 1999 the applicants filed two rush notes requesting the court to schedule a hearing and deliver a decision.
9. The hearings scheduled for 9 February 1999 and 19 January 2000 were adjourned due to the illness of the judge. The hearings scheduled for 10 May 2000 and 19 September 2000 were adjourned for absence of the summoned witnesses. At the hearing held on 9 February 2001 the court heard those witnesses.
10. On 23 March 2001 the Municipal Court closed the main hearing and gave judgment dismissing the applicants’ claim. The judgment was served on the applicants on 12 April 2001.
11. On 25 April 2001 the applicants appealed to the Zagreb County Court (Županijski sud u Zagrebu).
12. On 18 February 2003 the County Court quashed the first-instance judgment and remitted the case. The decision was served on the applicants on 30 April 2003.
13. In the resumed proceedings, the Zagreb Municipal Court held hearings on 10 October 2003, 7 April 2004 and 20 May 2005.
The Government submitted that the court also had held a hearing on 10 December 2003. According to the applicants that hearing never took place.
14. It appears that the proceedings are still pending before the Municipal Court.
15. Meanwhile, in 2002 the applicants lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) complaining about the length of the proceedings.
16. On 11 April 2003 the Constitutional Court declared the applicants’ complaint inadmissible, since the Municipal Court had given its judgment in the case while the complaint had been pending before the Constitutional Court.
17. The relevant part of section 63 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 – “the Constitutional Court Act”) reads as follows:
“(1) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant’s rights and obligations or a criminal charge against him or her within a reasonable time ...
(2) If a constitutional complaint ... under paragraph 1 of this section is upheld, the Constitutional Court shall set a time-limit within which the competent court must decide the case on the merits...
(3) In a decision issued under paragraph 2 of this section, the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the State budget within three months from the date a request for payment is lodged.”
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-59460
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: CHAMBER
DATE: 2001
DOCNAME: CASE OF SARLI v. TURKEY
IMPORTANCE: 3
CONCLUSION: Preliminary objection dismissed (non-exhaustion);No violation of Art. 5;Violation of Art. 13;Failure to comply with obligations under former Art. 25;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Elisabeth Palm
TEXT: 7. The facts of the case, particularly concerning events during December 1993 when Ramazan and Cemile Şarlı went missing, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties.
8. The Commission Delegates (Mrs J. Liddy, Mr M. P. Pellonpää and Mr P. Lorenzen) heard witnesses in Ankara on 4 October 1997 and on 4 to 6 May 1998. These included the applicant; her son Menan Şarlı; Keyvan Şarlı, wife of Ramazan Şarlı; Necla Şarlı, the wife of Menan Şarlı; Ali İlban, the muhtar of Ulusoy; İsmet Orakçi, a villager; Abdullah Milyas, a villager; Ali Veriş, a former PKK team commander; Kamil Kaya, a former high ranking member of the PKK; Dursun Ertuğrul, Bitlis-Tatvan district gendarme commander; Yavuz Gürbüz, commander of the local gendarme station at Yelkenli; Servet Urhan, deputy commander at Yelkenli; Mustafa Yanaboğlu, Tatvan public prosecutor; and Halis Küçüsubaşı, Diyarbakır State Security Court prosecutor.
9. The Commission’s findings of fact are set out in its report of 21 October 1999 and summarised below (Section A). The applicant accepted the Commission’s findings of fact. The Government’s submissions concerning the facts are summarised below (Section B).
10. Ulusoy was a small village of about 50 houses, situated in the region of Tatvan in the south-east of Turkey. The nearest gendarme station was 78 km away at Yelkenli. Ulusoy was about 35 km from Tatvan, where the district gendarme headquarters were based.
11. Ulusoy was about 1 kilometre from the highway leading from Van to Tatvan. While the ground between the village and the highway was generally described as being open and flat, there was higher ground behind the village and a forested area. About an hour to an hour and a half behind the village to the south was the mountainous area known as Anadere. As elsewhere in the region in 1993, PKK activity was intense. Anadere was used by them as a base for their activities. Ulusoy lay in the so-called 1st district of Garzan (the name given by the PKK to this region) and was known by the security forces to be under the command of a man code named “Berham”. There was another member of the PKK, a woman known as “Takoşin”, who was active in visiting the villages in this district.
12. The village school was close to the main highway. In December 1993, it was closed, apparently due to fear that it would be subject to attack. The evidence from villagers indicated that the district gendarme commander Captain Dursun Ertuğrul had instructed them to protect their village. Captain Ertuğrul denied giving any such instructions to persons who were not part of the security forces or official village guards. The Commission noted that he might have nonetheless “encouraged” them to do what they could to protect their school. In any event for a short period before 23 December 1993, villagers, armed with their own shotguns, stood guard during the night at the school.
13. On the night of 23 December 1993, four villagers, Kazım Aydın, Reşit Tarçin, Yakup Çaca and Naif Ariç were on guard at the school at Ulusoy. According to their statements taken by the gendarmes the next day, four to five armed men arrived in a vehicle below the school from the direction of the tarmac road at times given variously as 22.30 or 23.30 hours. After Yakup Çaca challenged the approaching men, the villagers started firing first and the men responded with automatic weapon fire. The shooting continued for not more than fifteen minutes before the men drove off in the direction of the tarmac road once more. The villagers gathered to see what had happened. They dispersed to their homes, the four guards also.
14. The applicant relied on the statement of her husband Ahmet Şarlı to the Human Rights Association in Diyarbakır (“HRA”) that the men who came to the school were soldiers in a green military vehicle and pointed to the unlikelihood that the PKK would have arrived from the patrolled Van-Tatvan highway or that they would have fled in that direction. She considered that a security force operation took place at that time in the vicinity of the village, perhaps an ambush of the PKK who were expected to arrive in the village. When the villagers challenged the soldiers arriving to position themselves near the school on the outskirts of the villagers, a clash mistakenly broke out.
15. The Commission noted that a standard form incident report dated 24 December 1993 indeed referred to an armed clash having taken place at 22.30 hours at Ulusoy when security forces were in ambush positions round the village expecting the PKK to arrive for a meeting at the school. A conflict broke out when terrorists were seen at the school. Fire was also opened on the security forces from terrorists on the hill to the south. A description was given of intense firing, involving mortars and tanks, which continued until about 03.30 hours and which necessitated a request for reinforcements. This document was not provided to the Commission before the hearing of witnesses and was not put to Captain Ertuğrul, the district gendarme commander who gave oral testimony that there was no operation at Ulusoy that night. He described an altogether different scenario, according to which the PKK opened fire on a mechanised team patrolling the road near the village at about 03.00-03.30 hours, after which there was only a brief 15-30 minute conflict. The team, on his account, did not enter the village and would not have been able to do so without permission, which they did not request. On this version, the security forces did not enter the village until the morning at 05.00 to 06.00 hours, after the applicants’ children had been taken away. This account mirrored the report dated 24 December 1993 issued by the gendarmes investigating the incident.
16. The Commission considered that the standard form incident report cast grave doubts on the reliability of Captain Ertuğrul’s evidence. As district gendarme commander, it would have expected that he would be informed of operations conducted in his jurisdiction. Though the document is incomplete at the bottom and no signatory appears, it was sent from the Tatvan district gendarme command which was under his responsibility. It appeared likely from the description of the units involved in the operation that some of his own men were involved. The Commission noted that there was other evidence to support the incident report:
– the written statements of the villagers almost all referred to firing occurring after the incident at the school;
– the applicant in her oral testimony described heavy firing, which lit up the sky;
– Keyvan and Necla Şarlı described firing as occurring over a long period during the night;
– the other villagers Ali İlban and İsmet Orakçi also referred to more firing occurring. Only Abdullah Milyas recalled hearing no more firing after the first clash at the school.
– notwithstanding Captain Ertuğrul’s denial that the mechanised team would have entered the village, they were already present on the outskirts of the village when he and Servet Urhan arrived at first light. He also had with him a special team, specifically trained in counter-terrorism, whose role in events was unspecified.
17. The Commission concluded that an operation took place in close proximity to Ulusoy during the night of 23/24 December 1993, involving heavy firing. While there was some evidence that there were security forces at the school at some point during the night, it would appear at least likely that there were PKK men also in the vicinity. There was no allegation that the security forces were firing punitively at the village as a target throughout the night. On the evidence, it was unable to establish whether the men fired at by the villagers at the school were PKK members or soldiers.
18. At about 03.00-03.30 hours on 24 December 1993, six armed men arrived at İsmet Orakçi’s house. These six men required İsmet Orakçi to take them to the house of Ahmet Şarlı. There, they found that his daughter Cemile Şarlı was absent and leaving İsmet at the Şarlı house, took the son Ramazan Şarlı to show them the house of Abdullah Milyas where Cemile was spending the night. They left that house with Abdullah, Ramazan and Cemile. After a while, they released Abdullah and disappeared with Ramazan and Cemile, who were never seen by any of their family or the villagers again.
19. The Commission identified the crucial point of disagreement as being whether the six men were soldiers or members of the PKK.
20. The evidence which supports the allegations that they were members of the security forces included principally:
– Ahmet Şarlı’s statement to the HRA of 2 March 1994;
– the oral evidence given to the Commission delegates by the applicant and her two daughters-in-law, Necla and Keyvan, all of whom were present during the incident;
– an inference which could be drawn from the letter of 27 December 1993 from the gendarmes in answer to a letter from the Tatvan public prosecutor that an allegation had been made to the prosecutor that Ramazan and Cemile had been taken into custody, indicating that a complaint was made shortly after the event that the security forces were responsible for the disappearance of the applicant’s children.
21. The Commission noted that there was considerably more evidence which identified the six men as members of the PKK. This included principally:
– the written statements taken on 24 December 1993 from the applicant, the muhtar, Ismet Orakçi and the four village guards;
– the written statement taken on 11 January 1995 from Ahmet Şarlı by a public prosecutor;
– the oral evidence given by two eye witnesses Abdullah Milyas and İsmet Orakçi which described the men as wearing civilian clothes and items of dress consistent with PKK usage;
– the oral evidence of the two “confessors” Ali Veriş and Kamil Kaya, who as members of the PKK, alleged that Ramazan and Cemile Şarlı were taken to join the PKK and were executed when they tried to return to their home;
– the oral evidence of gendarme witnesses that Şarlı family were known sympathisers and Ramazan and Cemile Şarlı had left voluntarily.
22. The Commission found that there were difficulties with the evidence on both sides. The patchy nature of the investigative work of the gendarmes was in the circumstances of this case however as equally consistent with negligence and bad practice as with deliberate manipulation of the evidence. The written statements taken by the gendarmes gave largely similar but not identical versions of events and were also supported by the oral evidence of İsmet Orakçi and Abdullah Milyas.
23. The Commission noted the delegates’ assessment of the villager witnesses, Abdullah Milyas and İsmet Orakçi, who were found to be frank and convincing witnesses in the way they told their stories. There was no element in the evidence of either man which cast doubt on their credibility. The Commission’s delegates found no indication, for example, that these two witnesses were motivated by fear in giving their testimony.
24. The Commission gave little weight to the oral evidence of the two “confessors” or ex-members of the PKK. The account of Ali Veriş was riddled with contradictions while Kamil Kaya made an unfavourable impression in the cold-blooded manner in which he gave his testimony. Neither was found to be credible by the Commission’s Delegates and no satisfactory explanation was given as to how they were identified as being able to give relevant testimony, since neither had apparently made any statement to the authorities that they had knowledge of events. While neither witness was a member of the so-called PKK 1st district and both were at pains to point out that members from one district were unable to involve themselves in the affairs of other districts, both claimed to have obtained information about the alleged execution of Ramazan and Cemile Şarlı by the PKK over the radio. Yet neither were apparently aware of the existence of a female terrorist code named “Takoşin” well-known as active in that area. The Commission found their evidence unsatisfactory and unreliable and was not prepared to base any findings of fact on their testimony.
25. As regarded the evidence that Ramazan and Cemile Şarlı were PKK sympathisers, Captain Ertuğrul’s opinion was based on information which he had received from State informers in the villages. The two other gendarme officers from the local station had however no knowledge that the Şarlı family were suspected sympathisers. Servet Urhan expressed the opinion nonetheless that the two Şarlıs had left voluntarily with the PKK, but was unable to give any firm ground for that belief beyond that this was being said in the village. As pointed out by the applicant, all the written statements referred to their abduction. The oral evidence of the applicant and Keyvan and Necla Şarlı also indicated that the men used force. İsmet Orakçi referred to seeing the men drag some-one out of the Şarlı house while Abdullah Milyas described Cemile Şarlı as acting under duress. The Commission found therefore that there was insufficient evidence to conclude that Ramazan and Cemile Şarlı left with the men voluntarily.
26. The Commission stated that it could give little weight either way to the written statements of Ahmet Şarlı, his statement to the HRA accusing the soldiers and his later statement to the public prosecutor apparently contradicting this version. He had died and was unable to provide any explanation for these differences.
27. The Commission took the view therefore that the key issue in this respect was whether the applicant’s oral evidence, supported by her daughters-in-law, was of such a nature as to outweigh and cast substantial doubt on the oral evidence of the other villagers.
28. As regarded the credibility and reliability of the oral evidence given by the applicant, Keyvan Şarlı and Necla Şarlı, the Commission found that their description of the incident at the house when the men arrived varied in significant details. According to the applicant, three men entered the house, wearing camouflage uniform, one of whom wore a red mask. Keyvan Şarlı said that the three men all wore red masks, specifying that they had beards and moustaches attached to the masks. According to Necla, all six men, three of whom had masks, came inside. She and Keyvan described them, in contradiction of the applicant, as speaking only Turkish. The Commission which had not heard in any previous case of a practice of any security forces wearing masks, found this to be a puzzling feature and that this aspect of their testimony was unconvincing. It further noted that the applicant, who was relatively old, had demonstrated a selective memory, in particular in categorically denying recent events. She was not altogether clear in her evidence on some points. Whether this was due to the lapse of time or her own advanced years, it detracted in the Delegates’ view from the reliability that could be placed on it. They also found that Necla, who was only sixteen at the time of events, gave an impression of being rehearsed in her account.
29. The Commission concluded that it had not been established, to a standard of proof beyond reasonable doubt that the six men who came to the applicant’s house were from the security forces. Nor however was it established that they were from the PKK.
30. Captain Dursun Ertuğrul and the deputy station commander Servet Urhan entered the village at dawn on 24 December 1993. The station commander Yavuz Gürbüz arrived at about noon. A search was carried out of the houses. The task of drawing up the incident report, damage evaluation report, sketch map and the taking of statements were assigned to Yavuz Gürbüz as the local station commander. Explosive devices were found during the search and a villager Fadıl was taken into custody.
31. A number of villagers went to the local station that day to make statements – the applicant, the muhtar, the four villager guards and İsmet Orakçi. Abdullah Milyas who had talked to the muhtar about his part in events was not summoned to give a statement by the gendarmes. The evidence as to whether any statement was taken from Ahmet Şarlı conflicted. No written statement has been produced by the authorities.
32. A complaint that the security forces were involved in detaining Ramazan and Cemile Şarlı was made to the Tatvan public prosecutor on or shortly before 27 December 1993. The Commission was satisfied that this derived from the applicant’s family. The only step taken by the Tatvan public prosecutor was to enquire from the district gendarme command whether they held the missing people. Captain Ertuğrul on his own account made no investigation and discussed the matter with no-one as he stated that he knew that they were not in custody.
33. The Yelkenli gendarmes submitted the evidence which they had gathered to the Tatvan public prosecutor – this consisted of the sketch map, scene of incident report, damage evaluation report and the statements of the applicant, Ali Ilban, İsmet Orakçi and the four villager guards at the school. It is not established whether or not a statement was ever taken from Ahmet Şarlı. There is no evidence however that one was ever received by a public prosecutor dealing with the case. The Tatvan public prosecutor Mustafa Yabanoğlu considered this material was sufficient to establish the offences clearly and proceeded to issue a decision of lack of jurisdiction on 11 January 1994 in respect of the kidnapping of Ramazan and Cemile Şarlı by six PKK terrorists, sending the case to the Diyarbakır SSC prosecution.
34. A further petition was lodged with the Bitlis public prosecutor on 31 January 1994, in which the uncle of the missing persons claimed that Ramazan and Cemile Şarlı had been taken away by the security forces, asked whether they had been brought before a judge and if not that they should be immediately, and that he requested the necessary steps be taken.
35. The Diyarbakır SSC prosecution sent a standard letter to district authorities on 24 January 1994 requesting them to continue the search for the kidnappers and to report every three months, providing copies of any relevant confessions, statements etc. No information was forthcoming. The request made on 11 January 1995 for statements to be taken from the applicant, Ahmet Şarlı, Abdullah Milyas, Ali İlban, İsmet Orakçi and the four villagers guards was in light of the communication to the Government of the application to the Commission. Only one statement, that of Ahmet Şarlı, was taken. The public prosecutor, Halis Küçüsubaşı, attributed this to the fact that all the villagers had moved and could not be found. However, a letter dated 11 April 1995 from the Tatvan district gendarmes gave the towns to which the persons were thought to have moved. There was nothing to indicate that any further steps were taken to trace any of them. That Ali İlban, İsmet Orakçi and Abdullah Milyas could be found is indicated by their appearance after being summoned to the hearing in Ankara.
36. On 26 April 1996, the Diyarbakır SSC prosecutor sent a reminder, more than two years later, that the earlier instruction of January 1994 for reports to be made regularly as to the investigation, had not been complied with. He told the Delegates that this was to obtain more effective action from the district authorities. It is not apparent from the material provided that any information was forthcoming. While by this time the two confessors, Ali Veriş and Kamil Kaya, had surrendered (in April and August 1995 respectively) any information provided by them or the fact that they might be in a position to provide information was not passed on to the Diyarbakır SSC public prosecutor, who told the Delegates he would have regarded it as relevant to the investigation. Nor is it evident that any information relating to the alleged execution of the two missing persons was passed on to the local gendarme station which made occasional reports to the Tatvan public prosecutor or to the Tatvan district gendarme command.
37. On 3 July 1997, the file was transferred following a decision of lack of jurisdiction to the Van SSC prosecutors who on 8 September 1993 made the standard request for reports to be made on the investigation every three months. It is not apparent that they have been provided with any further information. The latest report from Tatvan district gendarme command stated that no information was available concerning the abductors of Ramazan and Cemile Şarlı but that the search was continuing.
38. On 7 November 1995, a statement was taken from the applicant’s lawyer Mahmut Şakar by the Diyarbakır SSC chief public prosecutor. This stated that Mahmut Şakar was registered at the Diyarbakır bar and vice president of the HRA, as well as President of the Diyarbakır branch. He recalled Ahmet Şarlı coming to see him two years before, telling him that his son and daughter had disappeared. He told Ahmet Şarlı that domestic remedies had to be exhausted. He recalled writing to the Governor and SSC chief prosecutor for him and telling him to go to the Tatvan chief prosecutor. After a long while, Ahmet Şarlı came back to the HRA, saying that he had obtained no results from the authorities save a document which said that his son and daughter had been kidnapped by the PKK. As he disagreed with this, Mahmut Şakar told him that he could apply on the basis of the State’s ratification of the Convention. He confirmed that it was his signature on the document shown to him. His signature was not based on any power of attorney but on the basis of the purpose of the HRA.
By an indictment dated 21 March 1996 by Diyarbakır SSC chief public prosecutor, Mahmut Sakar was accused of violating Law no. 3713 between 24 December 1993 and 2 March 1994. It was stated that the defendant had prepared an application titled European Human Rights Project without a client-solicitor relationship having been established. The purpose of this was to degrade the State and make propaganda in favour of the PKK. His prosecution under Law no. 2485 as well as appropriate action under Law no. 3717, Articles 1 and 8/1 was requested.
39. The Government submitted that at about 22.30 hours on 23 December PKK terrorists arrived as the Ulusoy village and opened fire on the school. At about 01.00 hours, six armed PKK terrorists wearing local peşmerge dress came to the applicant’s house and took away her son Ramazan. They went to a neighbour’s house and took Cemile Şarlı away also.
40. At about 3.30 hours, a mechanised team patrolling the Tatvan-Van highway arrived at the village and fire was exchanged between them and the terrorist group. After 15 minutes, the terrorists ran away towards the Anadere region. At 6.00 hours, the security forces entered the village for investigation. It was established that the village school had been damaged and Ramazan and Cemile Şarlı taken away by PKK terrorists. The evidence of Kamil Kaya and Ali Veris indicated that Ramazan and Cemile Şarlı had been aiding and abetting the terrorists and when their identity had become known it was necessary for the PKK to kidnap them. They joined the PKK in the mountains under the code names ‘Roken’ and ‘Dilgeç’. When they tried to leave, they were executed by the PKK.
41. The applicant in her statement to the gendarmes, which accorded with the statements of the other villagers, identified the PKK as the perpetrators.
42. The Government have provided the Court with a copy of the decision of Diyarbakır State Security Court No. 4, dated 24 December 1996, acquitting the lawyer Mahmut Sakar of the charge under section 8 paragraph 1 of the Law no. 3713. The court found that the statement taken from Ahmet Şarlı by Mahmut Sakar did not contain expressions of written propaganda.
43. The principles and procedures relating to liability for acts contrary to the law may be summarised as follows.
44. Under the Criminal Code all forms of homicide (Articles 448 to 455) and attempted homicide (Articles 61 and 62) constitute criminal offences. It is also an offence for a government employee to subject some-one to torture or ill-treatment (Article 243 in respect of torture and Article 245 in respect of ill-treatment) or to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants).
45. The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by Articles 151 to 153 of the Code of Criminal Procedure. Offences may be reported to the authorities or the security forces as well as to public prosecutor’s offices. The complaint may be made in writing or orally. If it is made orally, the authority must make a record of it (Article 151).
If there is evidence to suggest that a death is not due to natural causes, members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge (Article 152). By Article 235 of the Criminal Code, any public official who fails to report to the police or a public prosecutor’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment.
A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution (Article 153 of the Code of Criminal Procedure).
46. In the case of alleged terrorist offences, the public prosecutor is deprived of jurisdiction in favour of a separate system of State Security prosecutors and courts established throughout Turkey.
47. If the suspected offender is a civil servant and if the offence was committed during the performance of his duties, the preliminary investigation of the case is governed by the Law of 1914 on the prosecution of civil servants (sometimes referred to as the Official Conduct Act), which restricts the public prosecutor’s jurisdiction ratione personae at that stage of the proceedings. In such cases it is for the relevant local administrative council (for the district or province, depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether to prosecute. Once a decision to prosecute has been taken, it is for the public prosecutor to investigate the case.
An appeal to the Supreme Administrative Court lies against a decision of the Council. If a decision not to prosecute is taken, the case is automatically referred to that court.
48. By virtue of Article 4, paragraph (i), of Legislative Decree no. 285 of 10 July 1987 on the authority of the governor of a state of emergency region, the 1914 Law (see paragraph 47 above) also applies to members of the security forces who come under the governor’s authority.
49. If the suspect is a member of the armed forces, the applicable law is determined by the nature of the offence. Thus, if it is a “military offence” under the Military Criminal Code (Law no. 1632), the criminal proceedings are in principle conducted in accordance with Law no. 353 on the establishment of courts martial and their rules of procedure. Where a member of the armed forces has been accused of an ordinary offence, it is normally the provisions of the Code of Criminal Procedure which apply (see Article 145 § 1 of the Constitution and sections 9 to 14 of Law no. 353).
The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person’s life by disobeying an order (Article 89). In such cases civilian complainants may lodge their complaints with the authorities referred to in the Code of Criminal Procedure (see paragraph 45 above) or with the offender’s superior.
50. Under section 13 of Law no. 2577 on administrative procedure, anyone who sustains damage as a result of an act by the authorities may, within one year after the alleged act was committed, claim compensation from them. If the claim is rejected in whole or in part or if no reply is received within sixty days, the victim may bring administrative proceedings.
51. Article 125 §§ 1 and 7 of the Constitution provides:
“All acts or decisions of the authorities are subject to judicial review...
The authorities shall be liable to make reparation for all damage caused by their acts or measures.”
That provision establishes the State’s strict liability, which comes into play if it is shown that in the circumstances of a particular case the State has failed in its obligation to maintain public order, ensure public safety or protect people’s lives or property, without it being necessary to show a tortious act attributable to the authorities. Under these rules, the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons.
52. Article 8 of Legislative Decree no. 430 of 16 December 1990, the last sentence of which was inspired by the provision mentioned above (see paragraph 51 above), provides:
“No criminal, financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken, or acts performed, by them in the exercise of the powers conferred on them by this legislative decree, and no application shall be made to any judicial authority to that end. This is without prejudice to the rights of individuals to claim reparation from the State for damage which they have been caused without justification.”
53. Under the Code of Obligations, anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages (Articles 41 to 46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant’s guilt (Article 53).
However, under section 13 of Law no. 657 on State employees, anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may, in principle, only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant (see Article 129 § 5 of the Constitution and Articles 55 and 100 of the Code of Obligations). That is not, however, an absolute rule. When an act is found to be illegal or tortious and, consequently, is no longer an “administrative act” or deed, the civil courts may allow a claim for damages to be made against the official concerned, without prejudice to the victim’s right to bring an action against the authority on the basis of its joint liability as the official’s employer (Article 50 of the Code of Obligations).
VIOLATED_ARTICLES: 13
NON_VIOLATED_ARTICLES: 5


ITEMID: 001-57887
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 1992
DOCNAME: CASE OF NIEMIETZ v. GERMANY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;No separate issue under P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed
JUDGES: C. Russo;John Freeland;N. Valticos
TEXT: 6. Mr Niemietz lives in Freiburg im Breisgau, Germany, where he practises as a lawyer (Rechtsanwalt).
7. On 9 December 1985 a letter was sent by telefax from the Freiburg post office to Judge Miosga of the Freising District Court (Amtsgericht). It related to criminal proceedings for insulting behaviour (Beleidigung) pending before that court against Mr J., an employer who refused to deduct from his employees’ salaries and pay over to the tax office the Church tax to which they were liable. The letter bore the signature of one Klaus Wegner - possibly a fictitious person -, followed by the words "on behalf of the Anti-clerical Working Group (Antiklerikaler Arbeitskreis) of the Freiburg Bunte Liste (multi-coloured group)" and a post-office box number. It read as follows:
"On 10.12.1985 the trial against Mr [J.] will take place before you. We, the Anti-clerical Working Group of the Freiburg Bunte Liste, protest most strongly about these proceedings.
In the FRG, the Church, on the basis of the Hitler concordat and in violation of the State’s duty to maintain neutrality, enjoys most extensive privileges. As a result, every non-Christian citizen of this State has to suffer disadvantages and daily annoyance. Among other things, the FRG is the only State which acts as Church-tax collector. It requires employers, whether they be Christians or not, to pay over Church tax for their Christian employees and thus relieve the Church of financial administrative work. [J.] has, for years, courageously and consistently refused to support the financing of the Church in this way and has made an appropriate arrangement whereby the Church tax of his Christian employees is paid without his own involvement.
This attempt - in a State which counts the separation of State and Church among its basic principles - to insist upon just such a separation has not only exposed [J.] to persistent vexation and interferences on the part of State authorities, culminating in the tax office employing coercive measures, such as attachment, to collect from him Church tax which his employees had already paid a long time previously. It has in addition involved him - when he called these underhand methods by their name - in the present proceedings for alleged insulting behaviour.
Were it your task as the competent judge to conduct an unbiased examination of this ‘case of insulting behaviour’, then it must be said that you have not only failed to carry out this task, but also abused your office in order to try - by means which give a warning and a reminder of the darkest chapters of German legal history - to break the backbone of an unloved opponent of the Church. It was with extreme indignation that we learned of the compulsory psychiatric examination which was conducted on your instructions, and to which [J.] has had to submit in the meantime. We shall use every avenue open to us, in particular our international contacts, to bring to public notice this action of yours, which is incompatible with the principles of a democratic State subscribing to the rule of law.
We shall follow the further course of the proceedings against [J.] and expect you to abandon the path of terrorisation which you have embarked upon, and to reach the only decision appropriate in this case - an acquittal."
8. The applicant had, as a city councillor, been chairman for some years of the Freiburg Bunte Liste, which is a local political party. He had also played a particularly committed role in, although he had never been a member of, its Anti-clerical Working Group, which sought to curtail the influence of the Church.
Until the end of 1985 certain of the mail for the Bunte Liste, which had as its address for correspondence only the post-office box number that had been given in the letter to Judge Miosga, had been delivered to the office (Bürogemeinschaft) of the applicant and a colleague of his; the latter had also been active on behalf of the party and had acted for it professionally.
9. On 13 January 1986 the Director of the Munich I Regional Court (Landgericht) requested the Munich public prosecutor’s office (Staatsanwaltschaft) to institute criminal proceedings against Klaus Wegner for the offence of insulting behaviour, contrary to Article 185 of the Criminal Code. Attempts to serve a summons on him were unsuccessful. The applicant’s colleague refused to give any information about Klaus Wegner or his whereabouts and other attempts to identify him failed.
10. In the context of the above-mentioned proceedings the Munich District Court issued, on 8 August 1986, a warrant to search the law office of the applicant and his colleague and the homes of Ms D. and Ms G. The warrant read as follows:
"Preliminary investigations against Klaus Wegner concerning Article 185 of the Criminal Code
Decision
The search of the following residential and business premises for documents which reveal the identity of ‘Klaus Wegener’ [sic] and the seizure of such documents is ordered.
1. Office premises shared by the lawyers Gottfried Niemietz and ...,
2. Home (including adjoining rooms and cars) of Ms [D.] ...,
3. Home (including adjoining rooms and cars) of Ms [G.]
Reasons
On 9 December 1985 a letter insulting Judge Miosga of the Freising District Court was sent by telefax from the Freiburg post office. It was sent by the Anti-clerical Working Group of the Freiburg Bunte Liste. The letter was signed by one Klaus Wegener.
Until now it has not been possible to identify the signatory. The Freiburg Bunte Liste could not be contacted by mail otherwise than through a box number. Until the end of 1985 such mail was forwarded to the office of Niemietz and ..., and since the start of 1986 to Ms [D.]. It has therefore to be assumed that documents throwing light on the identity of Klaus Wegener can be found at the premises of the above-mentioned persons.
Furthermore, it is to be assumed that there are such documents in the home of Ms [G.], the Chairwoman of the Freiburg Bunte Liste.
For these reasons, it is to be expected that evidence will be found in the course of a search of the premises indicated in this decision."
11. The search of the law office, the need for which the investigating authorities had first tried to obviate by questioning a witness, was effected by representatives of the Freiburg public prosecutor’s office and the police on 13 November 1986. According to a police officer’s report drawn up on the following day, the premises were entered at about 9.00 a.m. and inspected in the presence of two office assistants. The actual search began at about 9.15 a.m., when the applicant’s colleague arrived, and lasted until about 10.30 a.m. The applicant himself arrived at 9.30 a.m. He declined to give any information as to the identity of Klaus Wegner, on the ground that he might thereby expose himself to the risk of criminal prosecution.
Those conducting the search examined four filing cabinets with data concerning clients, three files marked respectively "BL", "C.W. -Freiburg District Court ..." and "G. - Hamburg Regional Court" and three defence files marked respectively "K.W. - Karlsruhe District Court ...", "Niemietz et al. - Freiburg District Court ..." and "D. - Freiburg District Court". According to the applicant, the office’s client index was also looked at and one of the files in question was its "Wegner defence file". Those searching neither found the documents they were seeking nor seized any materials. In the proceedings before the Commission, the applicant stated that he had been able to put aside in time documents pointing to the identity of Klaus Wegner and had subsequently destroyed them.
12. The homes of Ms D. and Ms G. were also searched; documents were found that gave rise to a suspicion that the letter to Judge Miosga had been sent by Ms D. under an assumed name.
13. On 10 December 1986 the Chairman of the Freiburg Bar Association, who had been informed about the search by the applicant’s colleague, addressed a formal protest to the President of the Munich District Court. The Chairman sent copies to the Bavarian Minister of Justice and the Munich Bar Association and invited the latter to associate itself with the protest.
In a reply of 27 January 1987, the President of the Munich District Court stated that the search was proportionate because the letter in question constituted a serious interference with a pending case; hence no legal action on the protest was necessary.
14. The criminal proceedings against "Klaus Wegner" were later discontinued for lack of evidence.
15. On 27 March 1987 the Munich I Regional Court declared an appeal (Beschwerde) lodged by the applicant, pursuant to Article 304 of the Code of Criminal Procedure, against the search warrant to be inadmissible, on the ground that it had already been executed ("wegen prozessualer Überholung"). It considered that in the circumstances there was no legal interest in having the warrant declared unlawful. It had not been arbitrary, since there had been concrete indications that specified material would be found. There was no ground for holding that Article 97 of the Code of Criminal Procedure (see paragraph 21 below) had been circumvented: the warrant had been based on the fact that mail for the Freiburg Bunte Liste had for some time been delivered to the applicant’s office and it could not be assumed that that mail could concern a lawyer-client relationship. In addition, personal honour was not so minor a legal interest as to render the search disproportionate. There could be no question in the present case of preventing a lawyer from freely exercising his profession.
16. On 28 April 1987 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) against the search warrant of 8 August 1986 and the Munich I Regional Court’s decision of 27 March 1987. On 18 August a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the complaint for adjudication, on the ground that it did not offer sufficient prospects of success.
The Federal Constitutional Court also found that the Munich I Regional Court’s decision of 27 March 1987 that the applicant’s appeal was inadmissible was not objectionable in terms of constitutional law. Furthermore, as regards the actual execution of the warrant, Mr Niemietz had not exhausted the remedy available to him under section 23(1) of the Introductory Act to the Courts Organisation Act (Einführungsgesetz zum Gerichtsverfassungsgesetz).
17. The search complained of was ordered in the context of criminal proceedings for insulting behaviour, an offence punishable by imprisonment for a maximum, where no physical violence is involved, of one year or a fine (Article 185 of the Criminal Code).
18. Article 13 para. 1 of the Basic Law (Grundgesetz) guarantees the inviolability of the home (Wohnung); this provision has been consistently interpreted by the German courts in a wide sense, to include business premises (see, in particular, the Federal Constitutional Court’s judgment of 13 October 1971 - Entscheidungssammlung des Bundesverfassungsgerichts, vol. 32, p. 54).
19. Article 103 of the Code of Criminal Procedure provides that the home and other premises (Wohnung und andere Räume) of a person who is not suspected of a criminal offence may be searched only in order to arrest a person charged with an offence, to investigate indications of an offence or to seize specific objects and provided always that there are facts to suggest that such a person, indications or objects is or are to be found on the premises to be searched.
20. Search warrants may be challenged, as regards their lawfulness, in proceedings instituted under Article 304 of the Code of Criminal Procedure and, as regards their manner of execution, in proceedings instituted under section 23(1) of the Introductory Act to the Courts Organisation Act.
21. In Germany a lawyer is an independent organ in the administration of justice and an independent counsel and representative in all legal matters.
An unauthorised breach of secrecy by a lawyer is punishable by imprisonment for a maximum of one year or a fine (Article 203 para. 1(3) of the Criminal Code). A lawyer is entitled to refuse to give testimony concerning any matter confided to him in a professional capacity (Article 53 para. 1(2) and (3) of the Code of Criminal Procedure). The last-mentioned provisions, in conjunction with Article 97, prohibit, with certain exceptions, the seizure of correspondence between lawyer and client.
22. In its judgment of 21 September 1989 in Joined Cases 46/87 and 227/88 Hoechst v. Commission [1989] European Court Reports ("ECR") 2859 at 2924, the Court of Justice of the European Communities stated as follows:
"Since the applicant has also relied on the requirements stemming from the fundamental right to the inviolability of the home, it should be observed that, although the existence of such a right must be recognized in the Community legal order as a principle common to the laws of the Member States in regard to the private dwellings of natural persons, the same is not true in regard to undertakings, because there are not inconsiderable divergences between the legal systems of the Member States in regard to the nature and degree of protection afforded to business premises against intervention by the public authorities.
No other inference is to be drawn from Article 8(1) (art. 8-1) of the European Convention on Human Rights which provides that: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’. The protective scope of that article is concerned with the development of man’s personal freedom and may not therefore be extended to business premises. Furthermore, it should be noted that there is no case-law of the European Court of Human Rights on that subject.
None the less, in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention. The need for such protection must be recognized as a general principle of Community law. In that regard, it should be pointed out that the Court has held that it has the power to determine whether measures of investigation taken by the Commission under the ECSC Treaty are excessive (judgment of 14 December 1962 in Joined Cases 5 to 11 and 13 to 15/62 San Michele and Others v. Commission [1962] ECR 449)."
This statement was affirmed in the same court’s judgments of 17 October 1989 in Case 85/87 Dow Benelux v. Commission [1989] ECR 3137 at 3157 and Joined Cases 97 to 99/87 Dow Chemical Ibérica and Others v. Commission [1989] ECR 3165 at 3185-6.
VIOLATED_ARTICLES: 8


ITEMID: 001-113603
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: COMMITTEE
DATE: 2012
DOCNAME: CASE OF BESTIYANETS v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)
JUDGES: André Potocki;Karel Jungwiert;Mark Villiger
TEXT: 4. The applicant was born in 1951 and lives in Kyiv.
5. On 28 January 2000 the applicant instituted civil proceedings in the Shevchenkivskyy District Court of Kyiv (hereafter – “the Shevchenkivskyy Court”) against its former employer, the Kyiv Motorcycle Factory (“the factory”), seeking his reinstatement and compensation for the related pecuniary and non-pecuniary damages, salary and other payments’ recovery, as well as disability allowance (in respect of a traffic accident which had happened with the applicant shortly before his dismissal and which the factory denied to be work-related).
6. On 20 November 2000 the court severed the applicant’s claims for certain payments’ recovery and for disability allowance into separate sets of proceedings.
7. On 27 December 2000 the Shevchenkivskyy Court rejected the applicant’s reinstatement claim. On 7 May and 8 October 2001 the Kyiv City Court and the Supreme Court respectively upheld that judgment.
8. In 2005 the applicant unsuccessfully sought re-opening of the proceedings on the basis of some newly-discovered circumstances.
9. On 8 June 2001 the Shevchenkivskyy Court allowed in part the applicant’s claim for recovery of certain payments, such as salary arrears, compensation for unused leave, dismissal allowance, and sick leave payment. On 28 August 2002 the judgment was enforced.
10. In January 2002 the Shevchenkivskyy Court transferred the applicant’s claim for disability allowance to the Podilskyy District Court of Kyiv (“the Podilskyy Court”), in line with the instruction of the Kyiv City Court of Appeal (“the Court of Appeal”).
11. The applicant reiterated all his initial claims before the Podilskyy Court.
12. On 25 December 2003 the court rejected the claim for disability allowance. As regards the other claims, it decided to leave them without examination, for they had already been adjudicated on 27 December 2000 and 8 June 2001 (see paragraphs 7 and 9 above).
13. On 6 June 2005 the Court of Appeal quashed the above judgment, because it had been delivered in the applicant’s absence and without his knowledge, and remitted the case to the first-instance court for fresh examination.
14. On 23 June 2005 the Podilskyy Court sent the file to the Shevchenkivskyy Court on the latter’s request. It was required for the examination of the applicant’s request for re-opening of the reinstatement proceedings (see paragraph 8 above).
15. On 24 June 2005 the Podilskyy Court stayed the proceedings until the file would be returned.
16. On 4 October 2005 the judge rejected the applicant’s request for leave to appeal against the aforementioned decision. That ruling was, by mistake, not sent to the applicant, until November 2008.
17. On 28 March 2008 the Podilskyy Court resumed the proceedings.
18. On 10 June 2008 it adjourned the hearing till 25 June 2008 because of the unspecified misbehaviour of the applicant’s representative. The court also decided that the applicant’s presence was obligatory.
19. On 25 June 2008 the applicant did not appear at the hearing, and the Podilskyy Court again adjourned it till 8 July 2008.
20. On 24 November 2008 it dismissed the claim without examination on merits for the applicant’s repeated failure to attend hearings.
21. On 25 August 2004 the applicant brought another claim to the Shevchenkivskyy Court against the factory in respect of salary recovery, this time confined to two specific days.
22. On 16 August 2005 the court terminated the proceedings given that this claim had already been examined by the courts as a part of the applicant’s another claim. On 27 December 2005 and 17 May 2006 the Court of Appeal and the Supreme Court respectively upheld that ruling.
23. On 24 April 2008 the applicant supplemented his claim regarding the disability allowance with an additional complaint regarding the alleged conspiracy of the factory’s administration and trade union again him.
24. On 2 June 2008 the Podilskyy Court decided to refer the applicant’s claim in that part to the Shevchenkivskyy Court for examination. The applicant unsuccessfully challenged that referral before higher-level courts.
25. On 9 June 2009 the Shevchenkivskyy Court started the proceedings. According to the applicant, this set of his proceedings is pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-58271
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 1999
DOCNAME: CASE OF ARSLAN v. TURKEY
IMPORTANCE: 2
CONCLUSION: 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 - domestic proceedings;Costs and expenses partial award - Convention proceedings
JUDGES: Luzius Wildhaber;Paul Mahoney
TEXT: 8. The applicant is the author of a book entitled “History in Mourning, 33 bullets” (Yas Tutan Tarih, 33 Kurşun), which won the Yunus Nadi Prize.
The book was published in December 1989, with a second edition appearing in July 1991. It is accompanied by a preface attributed to Musa Anter, a well-known pro-Kurdish politician and leader writer whose main theme was the Kurdish question in Turkey and who was murdered in 1992.
9. On 29 December 1989, in the course of a criminal investigation he was conducting in respect of Mr Arslan, the public prosecutor at the Istanbul National Security Court (“the National Security Court”) requested a single judge of that court to order the seizure of the above-mentioned book as an interim measure.
By an order made on that date the judge allowed this application.
10. On 22 January 1990 the public prosecutor charged the applicant with disseminating separatist propaganda. Noting that in his book Mr Arslan had contended that there were various nations within the Republic of Turkey, described the Turkish nation as barbarous, maintained that the Kurds were the victims of constant oppression, if not genocide, and glorified the acts of insurgents in south-east Turkey, he called for the application of Article 146 §§ 3 and 6 of the Criminal Code (see paragraph 22 below) and confiscation of the book. The indictment included the following extracts from the book:
“... the position of the Turks in the Middle East is very interesting... Having arrived as a wave of nomads, they invaded the territories of nations which were a thousand times more civilised than them and, not having a superior culture of their own, attempted to control these peoples - the Arabs, the Persians and the Kurds, for example - by tyranny, violence and inhuman acts. Is it now to be expected that such an organisation, this barbarous mechanism founded on violence, this State order, will implement democratic decisions? That would be a vain hope... Even today, it is this mentality which prevails in Turkey. For example, if one were to say that Kurdistan belongs to the Kurds, Armenia to the Armenians, ‘Lazistan’ to the ‘Laz’ and the territory of Rūm to the ‘Rūmis’, what would be left for the Turks? ... In the Balkans and the Middle East there is not a single people whom [the Turks] have not persecuted. That is why today the Turks realise that the Bulgarians, the Greeks ... and, internally, the Kurds regard them as enemies. As a result, it has become axiomatic among [the Turks] that, as the saying has it, ‘A Turk’s only friend is another Turk’. ... Several groups, such as the Bulgarians, the Greeks and the Arabs, have won their freedom from this barbarous administration. Only the Kurds remain. Both Turks and Kurds are at a loss to know what to do about this situation. A Turk from Turkistan denies the Turk who lives in Kurdistan. A Kurd may neither give his father’s forename to his son nor choose his name... [preface, pages 7-10]
... that being said, the revolt of the Kurdish peasants at Silopi had led to reactions on a larger scale; the Kurds exploded in fury against the massacre of their fellow Kurds. The Kurdish people, who once took command of the peoples of the Middle-East in their struggle against Assyrian despotism, were announcing, through their resistance, the joyful news of the day when they would tear down the fortress of violence of Turkish chauvinism... [chapter entitled “The infinity of Silopi”, pages 58-59]”
11. Before the National Security Court the applicant denied the charges. He argued in particular that he could not be held responsible for the content of the preface written by Mr Anter. That argument was not accepted by the judges because Mr Anter, who had been heard by them as a witness, had explained that he had never intended to write a preface for the book but had merely handed over to the applicant, at his request, a periodical containing an article he had written several years before.
The applicant also submitted that in writing the book his intention had never been to work towards separatist ends but to set out his thoughts about incidents that had taken place in Van, his native province, and had claimed the lives of 33 peasants, including members of his family.
12. On 29 March 1991 the National Security Court sentenced the applicant to six years and three months’ imprisonment and ordered the book’s confiscation.
In its judgment it noted in particular that in order to criticise State policy he had related without objectivity in his book certain events which had occurred in eastern and south-eastern Anatolia, and that he had maintained that the Kurds were oppressed and crushed by the violence of the gendarmerie, which sometimes even shot them down, and that the fundamental rights of the Kurdish people had been trampled on. It held in particular:
“In the book certain parts of the national territory are referred to as the Kurdish region or provinces and it is explained that these must belong to the Kurds, that they form their country, called Kurdistan; moreover, it is stated that the Turks, coming from Turkistan, have driven the Kurds out of Kurdistan and that this region has entered into a general war and is in a state of resistance.”
The National Security Court emphasised the extreme importance for society of being informed of the events in question and of the facts which had led to them, which should be related without comment, but stated that the content of the book, although presented as research findings, went well beyond such an aim.
Accepting the prosecution submissions, the National Security Court held that the theme which could be discerned throughout the book, and particularly in its preface, amounted to separatist propaganda based on racial considerations and intended to weaken patriotic sentiment, and that this justified Mr Arslan’s conviction.
13. On 12 April 1991 the Prevention of Terrorism Act (Law no. 3713) came into force. It repealed, inter alia, Article 142 of the Criminal Code, on which the applicant’s conviction had been based. As a result, by a further judgment of 3 May 1991, the National Security Court declared Mr Arslan’s conviction null and void and ordered the return of the confiscated copies of the book.
14. Mr Arslan’s book was republished on 21 July 1991.
On 30 July the public prosecutor asked the National Security Court to order its seizure on the ground that its republication contravened section 8 of Law no. 3713, which prohibited all propaganda against “the indivisible untiy of the State” (see paragraph 23 below).
15. By a decision of 31 July a single judge of the court rejected this application on the ground that the constituent elements of the offence had not been made out.
The public prosecutor repeated his application on the same day, arguing in particular that the acts which constituted the offence contemplated in former Article 142 § 3 of the Criminal Code did not differ in any way from those made punishable by section 8(1) of Law no. 3713. He submitted that it was illogical not to find that the book constituted propaganda against the indivisible unity of the State when its seizure had been ordered on 29 December 1989 on the ground that it conveyed separatist propaganda (see paragraph 9 above). On 5 August 1991 the single judge rejected the application.
16. On 23 August, at the request of the public prosecutor, the Ministry of Justice ordered the principal public prosecutor at the Court of Cassation to lodge an appeal in the interests of clarifying the law against the decision of 5 August 1991 (see paragraph 15 above).
The Court of Cassation dismissed that appeal in a judgment of 13 September 1991, on the ground that it was for the judge dealing with the case to assess the expediency of an interim measure and that the question whether the content of a publication was contrary to the law could be determined only by a judgment on the merits.
17. In an indictment of 12 December 1991 the public prosecutor accused Mr Arslan and his publisher of disseminating propaganda against “the indivisible unity of the State” within the meaning of section 8(1 and 2) of Law no. 3713 (see paragraph 23 below).
He reproduced the extracts included in his submissions of 22 January 1990 (see paragraph 10 above) and referred to other passages in the book, including the following:
“... The Kurdish people, who until recently were utterly disorganised, in disarray and torn in different directions, have called “Halt!”, refusing this destiny imposed on them, and have now begun to take giant strides towards the accomplishment of their own destiny. Those who for centuries have kept these people in chains and exploited their labour panicked when they saw the seeds of resistance [the Kurds] had cherished in their hearts in the face of such injustice and indignity beginning to sprout. As one of the main features of the special war, and in order to serve rulers who responded with massacres to the resistance of the great majority of the Kurdish people against the policies of deportation, threats, arrest, torture and oppression, the special forces have found no better way of expressing their feeling of defeat at the hands of the PKK militants than to massacre peasants. The slaughter of the peasants at Silopi announced the advent of a new epoch in the developments taking place in those regions where Kurds form a majority of the population. The special war being conducted in that region between the security forces and PKK guerillas was coming to an end. A new era of total war was beginning… The State, which for months had been mobilising troops in large numbers and sending them to the Botan region – particularly the Cudi mountains – had not been able to prevent [the PKK’s] armed raids and, once the State had realised that its latest operations [against the PKK] – whose scale was so much exaggerated by the press – had led to nothing, it decided to follow the historic example of the repression of the rebellion of Ağrı and implement the final solution – genocide. From then on, every effort would be made to reach that solution. They began with Silopi; the squadrons of death tried by every means they had to make progress with their manhunt. Like the counter-insurgency agents, the gangs and the village guards let loose in the Kurdish regions, those clan leaders who were in the pay of the government also received the order to drink Kurdish blood…”
18. Before the National Security Court the applicant once more contested the charges brought against him, arguing in particular that the book was based on real events and on his observations as a journalist. He had done nothing more than relate certain events in the context of his professional activity.
19. On 28 January 1993 the National Security Court found the applicant guilty of disseminating propaganda against “the indivisible unity of the State” and sentenced him, pursuant to section 8(1) of Law no. 3713, to one year and eight months’ imprisonment and a fine of 41,666,666 Turkish liras.
In its judgment the National Security Court made it clear at the outset that the fact that the applicant’s previous conviction had been declared null and void on 3 May 1991 (see paragraph 13 above) did not stand in the way of fresh charges being brought against him on the basis of a different provision of criminal law. As to the merits of the case, the court referred to certain passages of the book and – following in large part the same line of reasoning as in the judgment of 29 March 1991 (see paragraph 12 above) – held that the applicant had intended to incite citizens of Kurdish origin to rebel against the State.
20. On 9 March 1993 the applicant appealed against this judgment to the National Security Court. In order to prove that Mr Anter was in fact the author of the preface, he asked for a witness to be heard. He maintained that the first part of the book related in a dramatised form a historic event and that the second part was only a collection of recent articles. In addition, his conviction for criticising the oppression of the Kurdish population constituted a serious threat to his freedom of expression.
On 17 March 1993 the National Security Court declared the appeal inadmissible on the ground that it was out of time. The applicant then appealed to the Court of Cassation. Repeating the arguments set out above, he contended that to convict someone for expressing his thoughts was unacceptable in a modern society and that a country could not be said to have any “unity” or “integrity” if even the preface of a book was thought capable of endangering them.
21. The Court of Cassation gave judgment against Mr Arslan in a judgment of 16 September 1993, holding that the assessment of the evidence conducted by the Istanbul National Security Court justified the rejection of the applicant’s grounds of appeal.
22. Paragraphs 3 and 6 of former Article 142 of the Criminal Code, repealed by Law no. 3713 (see paragraph 23 below), provided:
“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.
...
6. Where the offences contemplated in the above paragraphs are committed through publication, the penalty to be imposed shall be increased by half.”
23. Law no. 3713 was promulgated on 12 April 1991. Section 8, (subsequently repealed by Law no. 4126 of 27 October 1995) was worded as follows:
“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.”
24. The Government supplied copies of several decisions given by the prosecutor attached to the Ankara National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code) or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 23 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decision included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence. Other grounds included the fact that the publications in issue had not been distributed, that there had been no unlawful intent, that no offence had been committed or that those responsible could not be identified.
Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty. These were the following judgments: 1991/23, 75, 132, 177 and 100; 1992/33, 62, 73, 89 and 143; 1993/29, 30, 38, 39, 82, 94 and 114; 1994/3, 6, 12, 14, 68, 108, 131, 141, 155, 171 and 172; 1995/1, 25, 29, 37, 48, 64, 67, 84, 88, 92, 96, 101, 120, 124, 134 and 135; 1996/2, 8, 18, 21, 34, 38, 42, 43, 49, 54, 73, 86, 91, 103, 119 and 353; 1997/11, 19, 32, 33, 82, 89, 113, 118, 130, 140, 148, 152, 153, 154, 187, 191, 200 and 606; 1998/6, 8, 50, 51, 56, 85 and 162.
As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases reached their decisions on the ground that there had been no dissemination of “propaganda”, one of the constituent elements of the offence, or on account of the scientific, historical and/or objective nature of the words used.
VIOLATED_ARTICLES: 10