AS TO THE ADMISSIBILITY OF

                      Application No. 25068/94
                      by Selami INCE
                      against Turkey

     The European Commission of Human Rights sitting in private on
14 October 1996, the following members being present:

           Mr.   S. TRECHSEL, President
           Mrs.  G.H. THUNE
           Mrs.  J. LIDDY
           MM.   E. BUSUTTIL
                 G. JÖRUNDSSON
                 A.S. GÖZÜBÜYÜK
                 A. WEITZEL
                 H. DANELIUS
                 F. MARTINEZ
                 L. LOUCAIDES
                 J.-C. GEUS
                 M.P. PELLONPÄÄ
                 G.B. REFFI
                 M.A. NOWICKI
                 I. CABRAL BARRETO
                 B. CONFORTI
                 N. BRATZA
                 I. BÉKÉS
                 J. MUCHA
                 D. SVÁBY
                 G. RESS
                 A. PERENIC
                 C. BÎRSAN
                 P. LORENZEN
                 K. HERNDL
                 E. BIELIUNAS
                 E.A. ALKEMA
                 M. VILA AMIGÓ

           Mr.   H.C. KRÜGER, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 20 August 1994 by
Selami ince against Turkey and registered on 2 September 1994 under
file No. 25068/94;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of
     the Commission;

-    the Commission's decision of 20 February 1995 to communicate the
     application ;

-    the observations submitted by the respondent Government on
     11 August 1995 and the observations in reply submitted by the
     applicant on 21 March 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, a Turkish citizen born in 1966 and resident in
Ankara, is a journalist. He is represented before the Commission by Mr.
Senal Sarihan, a lawyer practising in Ankara.


A.   Particular circumstances of the case

     The facts of the present case as submitted by the parties, may
be summarised as follows:

     In its January 1992 edition "Demokratik Muhalefet" (Democratic
Opposition), a review published in istanbul, published an interview
which the applicant had made with the Turkish sociologist, ismail
Besikçi.

     In an indictment dated 23 March 1992, the Public Prosecutor at
the istanbul State Security Court charged the applicant, on the basis
of this interview, with disseminating propaganda against the
indivisibility of the State. The charges were brought under Article 8
of the Anti-Terror Law.

     In the proceedings before the State Security Court, the applicant
denied the charges. He pleaded that the published interview was a
transcript of ismail Besikçi's remarks. He argued that the publication
of an interview could not constitute an offence. He maintained that
similar remarks were also being made by the highest authorities in
Turkey.

     In its judgment dated 12 August 1993, the court found the
applicant guilty under Article 8 of the Anti-Terror Law. The applicant
was first sentenced to two years'imprisonment and a fine of 50,000,000
Turkish lira. The court, taking into consideration the applicant's good
conduct during the trial, reduced his sentence to one year and eight
months' imprisonment and a fine of 41,666,666 Turkish lira.

     The Court relied on certain extracts from the published
declarations of ismail Besikçi. It held, inter alia, that such
sentences as the following amounted to propaganda against the
indivisibility of the State: "... Now that there is an armed resistance
in Kurdistan, the State authorities recognise Kurdish reality...no
armed resistance by the Turkish forces could stop the spread and
progress of the PKK... the ideology and activities of the PKK could
change the persistent official policy of the State... the progress
explained above has been due to the armed struggle of the PKK for
nearly 8 years... what is illegal in Kurdistan, the guerilla force or
the special squad of the Turkish armed forces?... Kurds are dying for
their nation, what are the Turks dying for? What are they doing in
Kurdistan... the Turkish State has evacuated certain areas called Botan
(the south-eastern part of Turkey), here the Kurds are completely in
control... this means the beginning of the formation of an independent
state...  the Kurds, especially the PKK, will become more active on
both Turkish and Kurdish societies ...consciousness of nationalism and
independence will develop among the Kurdish people...".

     The applicant appealed against this judgment.

     In a decision of 1 February 1994, pronounced  on 9 February 1994
in the applicant's absence, the Court of Cassation dismissed the
appeal. It upheld the cogency of the State Security Court's assessment
of the evidence and its reasoning in rejecting the applicant's defence.
The applicant received this judgment on 21 February 1994.

     After the amendments made to the Anti-Terror Law by Law No. 4126
of 27 October 1995, the istanbul State Security Court re-examined the
applicant's case. On 15 December 1995 the Court sentenced the applicant
to the same sentence as before.

B.   Relevant domestic law

     Article 8 of the Anti-Terror Law No. 3713 of 12 April 1991
     (before the amendments of 27 October 1995)

     <Translation>

     "No one shall, by any means or with any intention or idea, make
     written and oral propaganda or hold assemblies, demonstrations
     or manifestations against the indivisible integrity of the State
     of the Turkish Republic with its land and nation. Those carrying
     out such an activity shall be sentenced to imprisonment between
     two and five years and a fine between 50 and 100 million Turkish
     lira."

     Article 8 paragraph 1 of the Anti-Terror Law as amended by Law
     No. 4126 of 27 October 1995

     <Translation>

     "No one shall make written and oral propaganda or hold
     assemblies, demonstratitons and manifestations against the
     indivisible integrity of the State of the Turkish Republic with
     its land and nation. Those carrying out such an activity shall
     be sentenced to imprisonment between one and three years and a
     fine between 100 and 300 million Turkish lira. In case of re-
     occurrence of this offence, sentences shall not be commuted to
     fines."

C.   Extracts from the relevant interview

     The following is an English translation of extracts from the
relevant interview constituting the grounds for the domestic court
rulings:

     "To what extent shall Demirel accept the "Kurdish Reality"?

     ... Now that there is an armed resistance in Kurdistan, the State
     authorities recognise Kurdish reality...no armed resistance by
     the Turkish forces could stop the spread and progress of the
     PKK... the ideology and activities of the PKK could change the
     persistent official policy of the State...

     How will the State shape its new official policy on Kurdistan?
     Which aspects of the official ideology will be changed, and how
     will they be changed?  What effects may this have on the daily
     lives of the Kurdish people?

     In Turkey, the Government and the State are two very different
     things. The State works with appointed institutions and bodies
     which are not elected bodies. It is those institutions and bodies
     which represent the power of the State. The Government, that is
     to say, political power, carries very little weight against the
     power of the State. From that point of view, the power of the
     State can very often cause Governments to deviate from their
     function. Official ideology can be changed only in the long term.
     And the forces which can change it are non-governmental political
     and societal forces. Changing it is the challenge of those
     forces. The essence of the ideas and action of the PKK, for
     example, is capable of changing the official ideology, diminish
     the weight carried by the bodies which have been established on
     the political scene in Turkey, and increase the weight carried
     by the parliaments elected by the people. In my opinion, the
     influence of the Kurds and in particular of the PKK, will become
     more effective. The influence of the PKK in both Kurdish and
     Turkish society will spread and will deepen. And, as that
     influence grows, more serious steps will be taken in Government
     policy towards recognising the "Kurdish reality". The power of
     the State will obviously obstruct the Government in that process
     and will try to distort certain ideas and policies. And it is
     manifest that the Government will be able to survive as long as
     it can resist the power of the State and control the appointed
     institutions and bodies, i.e. as long as it has real power.

     These changes will be reflected in the daily lives of the Kurds.
     Investigations and research will develop in fields such as the
     Kurdish language, Kurdish history and Kurdish folklore. Kurdish
     culture will be revived.  The specificity of being a Kurdish
     society will be emphasised more amongst the Kurdish masses.
     National awareness and desire for autonomy will become stronger
     and will spread further. The idea and feeling of acquiring
     independence will develop.

     It is now observed that Kurds who until now would never have said
     "I am Kurdish, and I am engaging in politics for my present life
     and for my future" are now clearly beginning to "get into
     politics for their own interests" throughout Kurdistan and
     Turkey.  What sort of developments have brought about this
     situation?  Do Kurds need a political subject in the legal
     sphere?  If so, what form should it take?

     Without any doubt the most important cause of these developments
     has been the armed combat which the PKK has been waging for
     almost eight years. The guerilla warfare has brought about major
     societal and political changes in traditional Kurdish society.
     Traditional values are in turmoil. There has been very widespread
     support amongst the people for Kurdish guerilla fighters ever
     since 15 August 1984. National awareness is now growing in
     Kurdish society, and this process is spreading rapidly. And we
     see that within this process the political establishment has been
     used for Kurdish interests, for the move towards autonomy and
     independence. Kurds who until now have always engaged in politics
     for others and in order to serve other nations have now begun to
     engage in politics in order to serve the Kurdish people. Healthy
     national awareness is now developing in response to Turkish
     racism and colonialism. It would no doubt be oversimplifying to
     say that all of this began after the outbreak of Kurdish guerilla
     warfare on 15 August. This process has roots that go further back
     into the past. But what has been decisive is the new process
     launched by the PKK. What is illegal in Kurdistan, the guerilla
     force or the special squad of the Turkish armed forces? Kurds are
     dying for their nation, what are the Turks dying for? What are
     they doing in Kurdistan? The Turkish State have evacuated certain
     areas called Botan (the south-eastern part of Turkey), here the
     Kurds are completely in control. This means the beginning of the
     formation of an independent State."

COMPLAINTS

     The applicant complains of violations of Articles 9, 10 and 7 of
the Convention.

     As to Articles 9 and 10 of the Convention the applicant complains
that his conviction for publishing his interview with the Turkish
sociologist ismail Besikçi in a review constituted an unjustified
interference with his freedom of thought and freedom of expression, in
particular his right to receive and impart information and ideas.

     As to Article 7 of the Convention the applicant complains that
he was convicted on the basis of an act which did not constitute a
criminal offence under national or international law at the time it was
committed. He states that offences under the Anti-Terror Law should
have a direct link with the fight against terrorism. He asserts that
propaganda cannot therefore constitute an offence under Article 8 of
the Anti-Terror Law unless it incites people to terrorism. He points
out that the publication of the interview for which he was convicted
did not incite people to terrorism and, therefore, could not
foreseeably have been against the law. The applicant also complains
that the provisions of the Article in question were unclear and could
not have enabled him to distinguish between permissible and prohibited
behaviour. Thus, he asserts that his conviction had no legal basis.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 20 August 1994 and registered
on 2 September 1994.

     On 20 February 1995 the Commission decided to communicate the
application, under Articles 10 and 7 of the Convention, to the
respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of
Procedure.

     The Government's observations were submitted on 11 August 1995,
after an extension of the time-limit fixed for that purpose.

     On 4 December 1995 the Government submitted information
concerning the amendments made to the Anti-Terror Law (Law No. 3713)
and the developments in the cases of persons convicted and sentenced
under Article 8 of the said Law. The applicant replied on 21 March
1996.

THE LAW

     The applicant alleges that his conviction for publishing an
interview with the Turkish sociologist in a review constitutes an
unjustified interference with his freedom of thought and freedom of
expression, in particular his right to receive and impart ideas and
information. He also complains that his conviction was based on legal
principles which had not existed, or at least had not been defined with
sufficient clarity at the time of the commission of the offence. In
this context he invokes Articles 7, 9 and 10 (Art. 7, 9, 10) of the
Convention.

     Exhaustion of domestic remedies

     The Government first argue that at no stage in the domestic
proceedings did the applicant invoke the relevant provisions of the
Convention and that therefore he has failed to duly exhaust domestic
remedies.

     The applicant contests this argument and claims that he has
raised in the domestic proceedings the substance of all complaints made
before the Commission.

     The Commission refers to its established case-law to the effect
that the person who has raised in substance before the highest
competent national authority the complaint he makes before the
Commission has exhausted domestic remedies. Even where the Convention
is directly applicable in a State's domestic law (as is the case in
Turkey), the person concerned may also rely before the domestic courts
on "other arguments to the same effect"(No. 7367/76, Dec. 10.3.77, D.R.
8 pp. 185, No. 11425/85 Dec. 5.3.85, D.R. 53 pp. 76). In this respect
the Commission notes that in the present case the applicant asserted
before the Court of Cassation that his conviction for criticising the
oppression of the Kurdish people constituted a serious threat to his
freedom of expression and that the imposition of a prison sentence was
unlawful.

     Consequently, the Commission finds that the requirement as to the
exhaustion of domestic remedies has been satisfied and that the
application cannot be rejected on the basis of Articles 26 and 27 para.
3 (Art. 26, 27-3) of the Convention.

     Six-month time-limit

     Secondly the respondent Government object that the applicant
failed to observe the six-month rule under Article 26 (Art. 26) of the
Convention. They state that the period in question expired on 9 August
1994 as the Court of Casation pronounced its decision on 9 February
1994. The Government submit that the application was received by the
Commission on 20 August 1994, which is not within the six-month period.

     The applicant contests this argument. He states that the Court
of Cassation pronounced its decision on 9 February 1994 and the
decision was served upon him on 21 February 1994. He maintains that he
has therefore observed the six-month rule.

     The Commission recalls that the six-month time-limit is respected
when an application is introduced not more than six months after the
applicant has become aware of the final decision within the meaning of
Article 26 (Art. 26) of the Convention (No. 10107/82, Dec. 12.7.84,
D.R. 38 p. 90).

     In the present case, the Commission notes that the Court of
Cassation's decision was served upon the applicant on 21 February 1994.
The first communication to the Commission indicating all the details
with regard to the facts and the complaints of the present application
was made by the applicant in his first letter of 20 August 1994, that
is, less than six  months later.

     It follows that the applicant's complaints must be considered as
having been introduced within the six-month time-limit imposed by
Article 26 (Art. 26) of the Convention.

     As to the substance of the applicant's complaints

     The applicant alleges that his conviction for publishing an
interview with the Turkish sociologist in a review constitutes an
unjustified interference with his freedom of thought and freedom of
expression, in particular his right to receive and impart ideas and
information.

     Thus formulated, the applicant's complaint is in fact directed
against an alleged infringement of his freedom of expression. The
Commission has examined this complaint under Article 10 (Art. 10) of
the Convention which provides as follows:

     "1.   Everyone has the right to freedom of expression. This right
     shall include freedom to hold opinions and to receive and impart
     information and ideas without interference by public authority
     and regardless of frontiers. ...

     2.    The exercise of these freedoms, since it carries with it
     duties and responsibilities, may be subject to such formalities,
     conditions, restrictions or penalties as are prescribed by law
     and are necessary in a democratic society, in the interests of
     national security, territorial integrity or public safety, for
     the prevention of disorder or crime, for the protection of health
     or morals, for the protection of the reputation or rights of
     others, for preventing the disclosure of information received in
     confidence, or for maintaining the authority and impartiality of
     the judiciary."

     The applicant also complains on the basis of the same facts of
a breach of Article 7 (Art. 7) of the Convention.

     The Commission recalls that in the particular case of
restrictions on the freedom of expression taking the form of criminal
sanctions, Article 7 (Art. 7) must be taken into account in addition
to the more general requirement of lawfulness laid down in Article 10
para. 2 (Art. 10-2) (No. 8710/79, Dec. 7.05.1982, D.R 28 p. 77).

     Therefore it has examined the complaint together with Article 7
(Art. 7) of the Convention which reads as follows:

     "1.   No one shall be held guilty of any criminal offence on
     account of any act or omission which did not constitute a
     criminal offence under national or international law at the time
     when it was committed. Nor shall a heavier penalty be imposed
     than the one that was applicable at the time the criminal offence
     was committed."

     The Government maintain that the interference with the
applicant's rights under Article 10 (Art. 10) of the Convention was
prescribed by law, namely by Article 8 of the Anti-Terror Law. They
state that the applicant published an interview in which such sentences
as "...the Kurds, especially the PKK, will become more active on both
Turkish and Kurdish societies ... consciousness of nationalism and
independence will develop among the Kurdish people ..." amounted to
propaganda against the indivisibility of the State. They consider that
therefore the domestic courts interpreted the law reasonably.

     The Government also maintain that the applicant's conviction was
part of the campaign to prevent terrorism carried out by illegal
organisations, and consequently served to protect territorial integrity
and national security. They submit that it is generally accepted, in
comparative and international law on terrorism, that restrictions on
Convention rights will be deemed necessary in a democratic society
threatened by terrorist violence, as being proportionate to the aim of
protecting public order.

     As to the necessity of the measure in a democratic society, the
respondent Government state that terrorism strikes at the heart of
democracy, the fundamental rights which that concept enshrines and the
judicial and political systems. They assert that the interview in
question was based on the glorification of the activities of the PKK,
an illegal terrorist organisation for the establishment of an
independent Kurdish State against the Turkish State. They state that
the freedom of expression constitutes one of the essential foundations
of a democratic society. However, in a situation where politically-
motivated violence poses a constant threat to the lives and security
of the population and where advocates of this violence seek access to
the mass media for publicity purposes, it is particularly difficult to
strike a fair balance between the requirements of protecting freedom
of information and the imperatives of protecting the State and the
public against armed conspirators seeking to overthrow the democratic
order which guarantees this freedom and other human rights.

     In this respect the Government claim that the decisions of the
Istanbul State Security Court and the Court of Cassation did not exceed
the margin of appreciation conferred on States by the Convention.

     Lastly, the Government maintain that the allegation that the
applicant has been convicted on the basis of an act which did not
constitute a criminal offence at the time it was committed is ill-
founded. In this context they state that the content of the impugned
review was manifestly contrary to the Anti-Terror Law.

     Accordingly, the Government submit that the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.

     The applicant contests all these arguments. He alleges that the
text of Article 8 of the Anti-Terror Law was so unclear, and the
concept of "dissemination of propaganda" against the indivisible
integrity of the State with its land and nation was so vague that his
conviction thereunder was not foreseeable. He emphasises that the text
of the provisions did not therefore enable him to distinguish between
permissible and prohibited behaviour.

     The applicant also alleges that his conviction was not for any
legitimate purpose under the Convention. He considers that it was
completely out of proportion to rely on such reasons, particularly in
view of the limited circulation of the review.

     Furthermore, the applicant maintains that the penal sanctions
inflicted upon him were not necessary in a democratic society. He
explains in this connection that he had published only the transcript
of ismail Besikçi's remarks and observed that similar remarks had also
been made by certain official institutions in Turkey.

     With regard to the amendments made by Law No. 4126 of 27 October
1995 to Article 8 of the Anti-Terror Law, the applicant states that his
case was re-examined in the light of these amendments and the new
judgment delivered on 15 December 1995 was the same as the previous
one.
     The Commission has conducted a preliminary examination of the
parties' arguments. It considers that the application raises complex
factual and legal issues which cannot be resolved at this stage of the
examination of the application, but require an examination of the
merits. Consequently, the application cannot be declared manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. The Commission further notes that it is not inadmissible
on any other grounds.

     For these reasons, the Commission, by a majority

     DECLARES THE APPLICATION ADMISSIBLE, without prejudging the
     merits of the case.


        H.C. KRÜGER                         S. TRECHSEL
         Secretary                            President
     to the Commission                    of the Commission