GERGER v. TURKEY



                      AS TO THE ADMISSIBILITY OF

                      Application No. 24919/94

                      by Haluk GERGER

                      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 22 June 1996 by

Haluk Gerger against Turkey and registered on 17 August 1996 under file

No. 24919/94;

     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 4

     September 1995 and the observations in reply submitted by the

     applicant on 30 October 1995;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, a Turkish citizen born in 1948, is a journalist

and writer. Before the Commission, he is represented by Ersen Sansal,

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:

     On 23 May 1992 a memorial meeting was held in Ankara for three

prisoners who were executed in May 1972. The applicant was invited by

the organisation committee to speak at the meeting. The applicant, who

could not attend the meeting, sent a written message.

     In an indictment dated 6 August 1993, the Public Prosecutor at

the Ankara State Security Court charged the applicant, under Article

8 paragraph 1 of the Anti-Terror Law, with disseminating propaganda

against the indivisibility of the State in his message.

     In the proceedings before the State Security Court, the applicant

denied the charges. He pleaded that in his message he had only

expressed the view that the denial of the existence of the Kurdish

people has given rise to a war from which both the Turkish and Kurdish

people suffer. He asserted that there is consensus on the negative

effects of this war. He stated that, in his opinion, the national

awakening of the Kurds was a reaction against the policy which was

based on the denial of their existence and their annihilation. He

further stated that his sociological conclusions could in no way be

considered to be propaganda against the indivisibility of the State.

He added that the highest authorities of the Turkish Republic admitted

that there is a "Kurdish reality". He asserted that the first condition

of this admission should be to discuss the "Kurdish problem" without

any restrictions.

     In a judgment dated 9 December 1993, the Court found the

applicant guilty under Article 8 paragraph 1 of the Anti-Terror Law.

The Court first sentenced the applicant to two years' imprisonment and

a fine of 50,000,000 Turkish lira. The fine was then increased to

250,000,000 Turkish lira. The Court, considering the good conduct of

the applicant during the trial, reduced his sentence to one year and

eight months' imprisonment and the fine to 208,333,333 Turkish lira.

The Court, in its judgment, quoted certain extracts from the

applicant's message. It held that such sentences as "... the Turkish

Republic is founded upon the negation of the basic rights of Kurds",

"... any demand for freedom, any claim for the rights of the Labourer

and Kurd have always met a riposte of ruthless aggression from the

rulers to annihilate and deny such claim or action...", "... those

seeds of liberation of the Kurdish people sown in those days, have now

turned into guerrilla warfare in the mountains of Kurdistan" amounted

to propaganda against the indivisibility of the State.

     The applicant appealed. In a statement to the Court of Cassation

dated 20 April 1994, the applicant's lawyers first contested the

interpretation of the concept of the indivisibility of the State

prescribed by Article 8 of the Anti-Terror Law. Secondly, they stressed

that the trial court had relied only on certain extracts from the

message. They pleaded that the text of the message as a whole was

within the limits of permissible criticism. They reiterated the defence

which the applicant had made before the State Security Court.

     In a decision of 22 April 1994 which was delivered on 27 April

1994, the Court of Cassation dismissed the appeal. It upheld the

cogency of the State Security Court's assessment of evidence and its

reasons in rejecting the applicant's defence.

     The applicant served his twenty months in prison but did not pay

the fine which amounted to 208,333,333 Turkish lira. The fine was

therefore converted to a prison sentence and he was kept in prison for

a further 33 days.

B.   Relevant domestic law

     Article 8 of the Anti-Terror Law No. 3713 of 12 April 1991

     (before the amendments of 27 October 1995)

     "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 to a fine of between 50 and 100 million

     Turkish lira."

C.   The text of the impugned message

     The following is an English translation of extracts from the

relevant message constituting the grounds for the domestic court

rulings:

     "Dear friends,

     I regret being unable to be amongst you due to my illness;

     nevertheless, I salute all of you with revolutionary feelings of

     solidarity.

     The Turkish Republic is founded upon the negation of the basic

     rights of Labour and that of the Kurds. Within this geography any

     human activity, any demand for freedom, any claim for the rights

     of the Labourer and the Kurd have always met a riposte of

     ruthless aggression from the rulers to annihilate and deny such

     claim or action; for, starting right from their origins and

     traditions, these rulers have always been afflicted with a cruel

     militarism because of their feebleness, retardedness, lack of

     capital accumulation and finally because of the nature of the

     Republic that was subservient to imperialism. As the structural

     crisis of the order gradually deepened, the ruling classes tried

     to remedy the situation by clinging ever more strongly to

     imperialism and to militarism.

     The rulers who aimed at completely transforming the social and

     political atmosphere of the country into a wasteland, put the

     yoke of non-pluralism and dependence around the neck of the

     society to suppress all resistance and revolt from the masses,

     have succeeded for many decades in reducing our peoples to a dark

     silence.

     However, the awakening in the 60s; organised action by such

     dynamic social strata as the workers, the intelligentsia, and the

     youth who were until then excluded from participating in the

     political life of the country; and finally, the revolutionary-

     democratic resistance movement of the early 70s, have all

     contributed to the transformation of the history of the nation -

     the radical consequences of this transformation are deeply felt

     even today.

     It is the red rose of hope that grows within the barren and

     wearied breast of the worker. It is a saga that is written into

     the history of the oppressed which abounds with defeats.

     From now on, nothing or nobody is ever the same again!

     The quest for independence and freedom that was engraved those

     days into the conscience of the society, into the collective

     memory of the labouring masses, into the memories of the youth

     and intelligentsia, into the consciousness of the working class,

     has, up to this day, been the haven of the society, protecting

     it from the crisis of the order. The spirit of resistance and

     revolt of those heroic years has been hovering over the country

     for the past two decades like a nightmare for the rulers. The

     banner of socialism that was raised high in those days, is still

     flying as the sole alternative for the existing capitalist

     system. And, those seeds of liberation of the Kurdish people sown

     in those days, now have turned into guerrilla warfare in the

     mountains of Kurdistan.

     And we, being the rivers, streams, brooks, waterfalls and

     cascades springing from the rising seas of those years, are

     flowing through our national, democratic and class courses to the

     final liberation of man, to the ocean of freedom of the classless

     society. Multiplying like so many Deniz Gezmis, we are heading

     for the boundless seas of freedom.

     Today, on the brink of the Ocean of Liberation, on this fertile

     alluvial soil composed of our unity and solidarity in the

     struggle, we fire a great salute for the ones who took their

     places in the banquet of the sun.

     Salutations to the friends!

     Salutations to those who march on "to the future, multiplying

     like so many Deniz Gezmis!"

     Here's to you,

     The three red roses of Deniz, Yusuf, Hüseyin...

     The three red roses of eternity

     Buried in my heart of hearts

     The three red roses of eternity

     Buried together with all the flowers

     That were watered with blood

     In the apple of my eye."

COMPLAINTS

1.   The applicant complains under Articles 9 and 10 of the Convention

that his conviction for sending a message to a memorial meeting

constituted an unjustified interference with his freedom of thought and

freedom of expression, and in particular with his right to receive and

impart information and ideas.

2.   The applicant complains under Article 6 para. 1 of the Convention

that his case was not heard by an independent and impartial tribunal.

He asserts in this regard that one of the three members of the State

Security Court is a military judge answerable to his military superiors

whose presence prejudices the independence of the Court.

3.   The applicant who complains under Article 6 para. 1 that he did

not have a fair trial, asserts that the domestic court failed to give

any reasons for its judgment.

4.   The applicant lastly complains of discrimination under Article

14 in conjunction with Articles 5 and 6 of the Convention. He alleges

that people who are convicted and sentenced to imprisonment under the

provisions of the Anti-Terror Law have no possibility of conditional

release until they have served three quarters of their sentence,

whereas generally prisoners may be conditionally released after having

served half of their sentence.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 22 June 1994 and registered on

17 August 1994.

     On 20 February 1995 the Commission decided to communicate the

application under Articles 10, 14 (in conjunction with Article 5) and

6 para. 1 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 4 September 1995,

after an extension of the time-limit fixed for that purpose. The

applicant replied on 30 October 1995.

     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 LAW

1.   The applicant complains that his conviction for sending a message

to a memorial meeting constituted an unjustified interference with his

freedom of thought and freedom of expression, and in particular with

his right to receive and impart information and ideas. In this context

he invokes Articles 9 and 10 (Art. 9, 10) of the Convention.

     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 Government maintain that in this case the interference with

the applicant's rights under Article 10 (Art. 10) of the Convention was

prescribed by law, i.e. by Article 8 of the Anti-Terror Law. They refer

to the message in question in which the applicant used some expressions

such as "...the Turkish Republic is founded upon the negation of the

basic rights of Kurds", "...any demand for freedom, any claim for the

rights of the Labourer and Kurd have always met a riposte of ruthless

aggression from the rulers to annihilate and deny such claim or

action...". They also refer to the conclusion which the applicant made,

such as "...those seeds of liberation of the Kurdish people sown in

those days, have now turned into guerrilla warfare in the mountains of

Kurdistan". The Government assert that according to Article 8 of the

Anti-Terror Law these forms of expression constitute propaganda against

the indivisible integrity of the State. They consider that the domestic

courts therefore interpreted the law reasonably.

     The Government also maintain that the purpose of the applicant's

conviction was linked to the prevention of the terrorism carried out

by illegal organisations and consequently served to protect territorial

integrity and national security.

     As to the necessity of the measure in a democratic society, the

respondent Government state that the threat posed to Turkey by the PKK

and its affiliated groups is internationally recognised, as is the need

to react firmly to it. Terrorism strikes at the heart of democracy, the

fundamental rights which that concept enshrines and at the judicial and

political systems. They assert that the message in question is based

on propaganda against the indivisible integrity of the State. 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.

     In this respect the Government assert that the decisions of the

domestic courts did not exceed the margin of appreciation conferred on

States by the Convention.

     Accordingly the Government submit that this part of 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 maintains that

the concept of the indivisibility of the State prescribed by Article

8 of the Anti-Terror Law is so vague that his conviction thereunder was

not foreseeable.

     The applicant also alleges that his conviction was not for any

legitimate purpose under the Convention. He states that he was

convicted because he had used certain expressions  such as "Kurdish

people" and had asserted the questionability of the "official reality"

in his message. The applicant considers that the views expressed by him

were within the limits of permissible criticism.

     Furthermore the applicant maintains that the criminal sanctions

imposed upon him were not necessary in a democratic society. He

explains in this connection that the message as a whole was a

sociological conclusion with no elements of propaganda.

     With regard to the amendments made by Law No. 4126 to Article 8

of the Anti-Terror Law, the applicant observes that they were made

after he had served his sentence and did not therefore apply in his

case.

     The Commission has conducted a preliminary examination of the

parties' arguments. It considers that this part of 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, this complaint cannot be

declared manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

2.   The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he did not enjoy a fair hearing before an independent

and impartial tribunal.

     The Government maintain that State Security Courts, which are

special courts set up to deal with offences against the existence and

continuity of the State, are ordinary courts, given that they were

established in accordance with the provisions of Article 143 of the

Constitution. As they are independent judicial organs, no public

authority or agent can give instructions to such courts. State Security

Courts are composed of three members, one of whom is a military judge.

A civil judge acts as president and all judges have attained the first

grade in the career scale. The presence of a military judge in the

court does not prejudice its independence, this judge being a career

judge, not belonging to the military. The judges of State Security

Courts evaluate the evidence and take their decisions in accordance

with the law and on their own conscientious conviction as required by

Article 138 of the Turkish Constitution. The verdicts of such courts

are subject to review by the Court of Cassation.

     Accordingly the Government submit that this part of the

application is manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

     The applicant states that one of the three members of the State

Security Court is a military judge answerable to his military superiors

whose presence prejudices the independence of the Court.

     The Commission has conducted a preliminary examination of the

parties' arguments. It considers that this part of 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, this complaint cannot be

declared manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

3.   The applicant finally complains of discrimination under Article

14 in conjunction with Articles 5 and 6 (Art. 14+5+6) of the

Convention. He alleges that people who are convicted and sentenced to

imprisonment under the provisions of the Anti-Terror Law have no

possibility of conditional release until they have served three

quarters of their sentence, whereas generally prisoners may be

conditionally released after having served half of their sentence.

     The Commission considers the present matter concerns "the lawful

detention of a person after conviction by a competent court" and

therefore is to be examined under Article 14 in conjunction with

Article 5 para. 1 (a) (Art. 14+5-1-a) of the Convention, not Article

6 (Art. 6).

     The Commission first observes that Article 5 para. 1 (a)

(Art. 5-1-a) of the Convention does not guarantee the right to a

conditional release (No. 7648/76, Dec. 6.12.77, D.R. 11 pp. 175, 190).

However, the Commission also recalls, where a settled sentencing policy

appears to affect individuals in a discriminatory fashion, this may

arise issues under Article 5 in conjuction with Article 14

(Art. 5+14) of the Convention (No. 11077/84, Dec. 13.10.86, D.R. 49 pp.

170, 174).

     The Commission further recalls that treatment is not

discriminatory if it pursues a legitimate aim or if there is a

reasonable relationship of proportionality between the means employed

and the aim sought to be realised (Eur Court H.R., Abdulaziz, Cabales

and Balkandali judgment of 28 May 1985, Series A no. 94, p. 35, para.

72).

     The Commission considers that the aim of the Anti-Terror Law, in

principle, is to punish persons who commit terrorist crimes. However,

in the Commission's opinion, Article 8 of that Law, under which

prohibits any kind of separatist propaganda against the indivisible

integrity of the State, irrespective of the method used. Moreover, in

the present case, the applicant was convicted for merely having sent

a message to a memorial meeting. In these circumstances, the more

restrictive possibilities for conditional release imposed on the

applicant do not appear to be clearly reasonable or proportionate to

the aim was pursued. Consequently, this complaint cannot be declared

manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

     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

 

Full & Egal Universal Law Academy