SECOND SECTION

FINAL DECISION

Application no. 52780/99 
by Ayşenur ZARAKOLU 
against Turkey

The European Court of Human Rights (Second Section), sitting on    26 April 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr R. Türmen
 Mr K. Jungwiert
 Mr M. Ugrekhelidze
 Mrs A. Mularoni, 
 Mrs E. Fura-Sandström, judges
and Mr S. Naismith, Deputy Section Registrar
  Having regard to the above application lodged with the European Commission of Human Rights on 20 February 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the formal declarations accepting a friendly settlement of the case submitted by the applicant and the Government on 30 May 2003 and 16 March 2005 respectively,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Ayşenur Zarakolu, was a Turkish national and lived in Istanbul. She was represented before the Court by Mr Özcan Kılıç, a lawyer practising in Istanbul.

On 25 April 2002 the Court was informed of Mrs Zarakolu's death on 28 January 2002 and that Mr Ragıp Zarakolu, her widower, wanted the proceedings to continue and wished to participate in them, retaining the applicant's lawyer as his representative.

For practical reasons, Mrs Zarakolu will continue to be called “the applicant”, although Mr Zarakolu is now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI, and see also Ahmet Sadık v. Greece, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1641, § 3).

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was the owner of a publishing company, Belge Uluslararası Yayıncılık, in Istanbul.

In February 1997 the applicant published a book entitled Alevi Kimliğini Tartışmak Kitap-I (Discussing the Alevi Identity, Book I), written by H.K. The book, 144 pages in total, examined the origins and the development of the Alevi sect.

On 28 April 1997 the principal public prosecutor at the Istanbul State Security Court lodged an application with the court requesting an order for the seizure of the book.

On the same day, the Istanbul State Security Court ordered the seizure of the book in accordance with Article 28 of the Constitution, Article 86 of the Code of Criminal Procedure and Article 2 § 1 of the Press Act no. 5680. The court considered that the book, taken as a whole, provoked feelings of hatred and enmity among the people by discriminating on the grounds of race, religion, sect or region.

On 5 May 1997 a statement was taken from the applicant at the prosecutor's office. She refuted the accusation that the book had provoked feelings of hatred and enmity among the people by discriminating on the grounds of race, religion, sect or region. She stated that the book merely examined problems surrounding the Alevi identity.

On 7 May 1997 the applicant filed an objection with the Istanbul State Security Court against its seizure order of 28 April 1997. She submitted that the judge had ordered the confiscation of the book on the very day the prosecutor had requested him to take such a decision. In the applicant's opinion, the judge could not have read the whole book in such a short time and therefore the judge's conclusion that “the book taken as a whole incited to hatred”, lacked any legal basis. She maintained that in publishing the book she had exercised her right to express ideas and impart information to the public. She also contended that the court's order for the seizure of the book contravened Articles 6, 9 and 10 of the Convention.

On 9 May 1997 the Istanbul State Security Court unanimously dismissed the applicant's objection and upheld the order for the seizure of the book.

In the meantime, on 7 May 1997 the public prosecutor at the Istanbul State Security Court filed an indictment with the court charging the applicant with incitement to hatred, an offence under Article 312 § 2 of the Criminal Code. The prosecutor also requested the confiscation of the impugned book. The public prosecutor alleged, in particular, that the applicant had published a book in which an attempt was made to portray the Ottoman Empire and the Republic of Turkey as guilty of massacring and denigrating Alevis.

During the hearing on 30 July 1997 before the Istanbul State Security Court, the applicant denied the charges against her and asked the court to set aside its seizure order. This request was rejected by the court.

On 13 October 1997 the Istanbul State Security Court postponed the criminal proceedings against the applicant pursuant to Article 1 § 3 of Law no. 4304 of 14 July 1997. The court also decided, under Article 2 of the same Law, that the criminal proceedings would be set aside provided that the applicant did not intentionally commit any offence in her capacity as an editor within three years of this decision. The applicant's request to the court to set aside the seizure order was rejected. The applicant, arguing that the court should have acquitted her instead of postponing the trial, appealed against the decision.

On 24 December 1997 the Court of Cassation dismissed the appeal.

COMPLAINTS

The applicant originally complained under Articles 9 and 10 of the Convention that there had been an interference with her right to freedom of expression by a public authority in that her right to impart information and ideas had been undermined by the Istanbul State Security Court which ordered the seizure of the book and before which subsequent criminal proceedings were instituted against her.

The applicant further alleged under Article 14 of the Convention that she suffered discrimination on account of her political opinions.

THE LAW

On 30 May 2003 the Court received the following declaration signed by the applicant's representative:

“I note that the Government of Turkey are prepared to pay me ex gratia the sum of 5,000 (five thousand) Euros with a view to securing a friendly settlement of my application registered under no. 52780/99. This sum, which is to cover any pecuniary and non-pecuniary damage as well as legal costs and expenses connected with the case, shall be paid in euros, to be converted into Turkish liras at the rate applicable at the date of payment, to a bank account named by us. The sum shall be payable, free of any taxes that may be applicable, within three months from the date of the decision delivered by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three month period, the Government undertake to pay, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Turkey in respect of the facts of this application. I declare that this constitutes a final settlement of the case.

This declaration is made in the context of a friendly settlement which the Government and I have reached.”

On 16 March 2005 the Court received the following declaration from the Government:

“1. The Government note in the first place that the Turkish law and practice has been brought into line with the Convention's requirements under Article 10 of the Convention with the guidance provided by the Court's rulings against Turkey in cases involving the former version of Article 312 of the former Turkish Penal Code before the amendments.

2. I declare that the Government of the Republic of Turkey offer to pay ex gratia to the applicant an all-inclusive amount of 5,000 (five thousand) Euros with a view to securing a friendly settlement of [the] application registered under no. 52780/99. This sum, which also covers legal expenses connected with the case, shall be free of any tax that may be applicable and be paid in euros, to be converted into Turkish liras at the rate applicable at the date of payment, to a bank account named by the applicant and/or [the] duly authorised representative. This sum shall be payable within three months from the date of the notification of the decision delivered by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. This payment will constitute the final settlement of the case. In the event of failure to pay this sum within the said three month period, the Government undertake to pay, until settlement, simple interest on the amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, the case should be struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

S. Naismith J.-P. COSTA 
 Deputy Registrar President

ZARAKOLU v. TURKEY DECISION


ZARAKOLU v. TURKEY DECISION