GERGER v. TURKEY



              EUROPEAN COMMISSION OF HUMAN RIGHTS

                   Application No. 24919/94

                         Haluk Gerger

                            against

                            Turkey

                   REPORT OF THE COMMISSION

                 (adopted on 11 December 1997)

                       TABLE OF CONTENTS

                                                          Page

I.   INTRODUCTION

     (paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1

     A.   The application

          (paras. 2-5). . . . . . . . . . . . . . . . . . . .1

     B.   The proceedings

          (paras. 6-13) . . . . . . . . . . . . . . . . . . .1

     C.   The present Report

          (paras. 14-18). . . . . . . . . . . . . . . . . . .2

II.  ESTABLISHMENT OF THE FACTS

     (paras. 19-40) . . . . . . . . . . . . . . . . . . . . .4

     A.   The particular circumstances of the case

          (paras. 19-27). . . . . . . . . . . . . . . . . . .4

     B.   Relevant domestic law

          (paras. 28-40). . . . . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION

     (paras. 41-84) . . . . . . . . . . . . . . . . . . . . 12

     A.   Complaints declared admissible

          (para. 41). . . . . . . . . . . . . . . . . . . . 12

     B.   Points at issue

          (para. 42). . . . . . . . . . . . . . . . . . . . 12

     C.   As regards Articles 9 and 10 of the Convention

          (paras. 43-64). . . . . . . . . . . . . . . . . . 12

          CONCLUSION

          (para. 65). . . . . . . . . . . . . . . . . . . . 16

     D.   As regards Article 6 para. 1 of the Convention

          (paras. 66-72). . . . . . . . . . . . . . . . . . 16

          CONCLUSION

          (para. 73). . . . . . . . . . . . . . . . . . . . 17

     E.   As regards Article 14 of the Convention

          (paras. 74-80). . . . . . . . . . . . . . . . . . 17

          CONCLUSION

          (para. 81). . . . . . . . . . . . . . . . . . . . 18

                       TABLE OF CONTENTS

                                                          Page

     F.   Recapitulation

          (paras. 82-84). . . . . . . . . . . . . . . . . . 18

PARTLY DISSENTING OPINION OF MR A.S. G GÖZÜBÜYÜK. . . . . . 20

PARTLY DISSENTING OPINION OF MR E.A. ALKEMA . . . . . . . . 21

APPENDIX :     DECISION OF THE COMMISSION AS TO THE

               ADMISSIBILITY OF THE APPLICATION . . . . . . 22

I.   INTRODUCTION

1.   The following is an outline of the case as submitted to the

European Commission of Human Rights by the parties, and of the

procedure before the Commission.

A.   The application

2.   The applicant is a Turkish national. He was born in 1948 and

lives in Ankara.  He was represented before the Commission by

Mr. Ersen Sansal, a lawyer practising in Ankara.

3.   The application is directed against Turkey.  The respondent

Government were represented by Mr. Bakir Çaglar, Professor at istanbul

University.

4.   The case concerns the applicant's conviction by the State

Security Court for sending a message to a memorial meeting.

5.   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. He also 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. Moreover, 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. Lastly, he

complains of discrimination under Article 14 in conjunction with

Articles 5 and 6 of the Convention. In this respect 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.

B.   The proceedings

6.   The application was introduced on 22 June 1994 and registered on

17 August 1994.

7.   On 20 February 1995, the Commission decided, pursuant to

Rule 48 para. 2(b) of its Rules of Procedure, to give notice of the

application to the Turkish Government and to invite the parties to

submit written observations on the admissibility and merits of the

applicant's complaints (under Article 10 of the Convention) based on

the alleged violation of his freedom of expression; (under Article 14

in conjunction with Article 5 para. 1 of the Convention) on the alleged

discrimination against prisoners sentenced under the Anti-Terror Law

and (under Article 6 para. 1 of the Convention) on the alleged

violation of the principle of a fair trial by a court satisfying the

conditions of independence and impartiality.

8.   The Government's written 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.

9.   On 4 December 1995 the Government submitted information

concerning the amendments made to the Anti-Terror Law (Law No. 3713)

and developments in the cases of persons convicted and sentenced under

Article 8 of the said Law. The applicant submitted comments in reply

on 30 September 1996.

10.  On 14 October 1996 the Commission declared the application

admissible.

11.  The text of the Commission's decision on admissibility was sent

to the parties on 31 October 1996 and they were invited to submit such

further information or observations on the merits as they wished.

12.  The parties did not submit any observations.

13.  After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement. In the light of parties' reaction, the Commission now finds

that there is no basis on which such a settlement can be effected.

C.   The present Report

14.  The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, 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

               J.-C. SOYER

               H. DANELIUS

               F. MARTINEZ

               C.L. ROZAKIS

               L. LOUCAIDES

               J.-C. GEUS

               M.P. PELLONPÄÄ

               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

          Mrs. M. HION

          MM.  R. NICOLINI

               A. ARABADJIEV

15.  The text of this Report was adopted by the Commission on

11 December 1997 and is now transmitted to the Committee of Ministers

of the Council of Europe, in accordance with Article 31 para. 2 of the

Convention.

16. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

     (i)  to establish the facts, and

     (ii) to state an opinion as to whether the facts found disclose

          a breach by the respondent Government of their obligations

          under the Convention.

17.  The Commission's decision on the admissibility of the application

is appended to this Report.

18.  The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II.  ESTABLISHMENT OF THE FACTS

A.   The particular circumstances of the case

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

prisoners who had been 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.

20.  Extracts from the relevant message are as follows:

     "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, and 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."

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

the Ankara State Security Court (Ankara Devlet Güvenlik Mahkemesi)

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.

22.  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 had 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 on 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.

23.  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 sum of the fine was then

multiplied by five on account of the yearly inflation rate, thus

amounting to 250,000,000 Turkish lira. Eventually the Court,

considering the good conduct of the applicant during the trial, reduced

the sentence to one year and eight months' imprisonment and the fine

to 208,333,333 Turkish lira.

24.  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.

25.  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.

26.  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.

27.  The applicant served 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

a)   Anti-Terror Legislation

28.  Article 8 of Anti-Terror Law No. 3713 of 12 April 1991 (before

the amendments of 27 October 1995)

     "Hangi yöntem, maksat ve düsünceyle olursa olsun Türkiye

     Cumhuriyeti Devletinin ülkesi ve milletiyle bölünmez bütünlügünü

     bozmayi hedef alan yazili ve sözlü propaganda ile toplanti,

     gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda 2 yildan 5 yila

     kadar agir hapis ve ellimilyon liradan yüzmilyon liraya kadar

     agir para cezasi hükmolunur."

     "Written and spoken propaganda, meetings, assemblies and

     demonstrations aimed at undermining the indivisible territorial

     and national unity of the State of the Turkish Republic are

     prohibited, irrespective of the methods used or the intention or

     ideas behind them. Anyone who carries on such an activity shall

     be sentenced to imprisonment between two and five years and a

     fine of between fifty and one hundred million Turkish liras."

29.  Each year the Council of Ministers (Bakanlar Kurulu) determines,

according to the yearly rate of inflation, a rate by which, inter alia,

the amounts of fines, as prescribed by law, shall be multiplied. In

1993 these figures were ordered to be multiplied by five.

30.  Article 8 paragraph 1 of Anti-Terror Law, as amended by Law

No. 4126 of 27 October 1995

     "Türkiye Cumhuriyeti Devleti'nin ülkesi ve milletiyle bölünmez

     bütünlügünü bozmayi hedef alan yazili ve sözlü propaganda ile

     toplanti, gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda 1

     yildan 3 yila kadar hapis ve yüzmilyon liradan üçyüzmilyon liraya

     kadar agir para cezasi hükmolunur. Bu suçun mükerreren islenmesi

     halinde verilecek cezalar paraya çevrilemez."

     "No one shall make written or oral propaganda or hold assemblies,

     demonstrations or manifestations against the indivisible

     integrity of the State of the Turkish Republic, its territory and

     nation. Those carrying out such an activity shall be sentenced

     to imprisonment between one and three years and a fine of between

     one hundred and three hundred million Turkish liras. In case of

     re-occurrence of this offence, sentences shall not be commuted

     to fines."

31.  Article 13 of Anti-Terror Law

     "... Bu kanun kapsamina giren suçlardan dolayi verilen cezalar

     para cezasina veya tedbirlerden birine çevrilemez, ertelenemez."

     "... The penalties for the crimes under this Law cannot be

     converted to a fine or to another sanction and cannot be

     deferred."

32.  Article 17 of Anti-Terror Law

     "Bu kanun kapsamina giren suçlardan mahkum olanlardan,... diger

     sahsi hürriyeti baglayici cezalara mahkum edilmis olanlar,

     hükumlülük süresinin 3/4 ünü çekmis olup da iyi halli hükümlü

     niteliginde bulunduklari takdirde talepleri olmaksizin sartla

     saliverilirler." ...

     "Bu hükümlüler hakkinda 647 sayili cezalarin infazi hakkinda

     kanunun 19 maddesinin 1 ve 2. fikralari ile Ek 2 maddesi

     uygulanmaz."

     "Convicts sentenced for crimes under this Law shall, without

     their application to that effect, be granted a conditional

     release, after they have completed three-quarters of their term

     of imprisonment in good conduct." ...

     "Article 19 paragraphs 1 and 2 and the supplementary Article 2

     of Law No. 647 on the Execution of Penalties shall not be applied

     to these prisoners."

b)   The composition of the State Security Court

33.  Article 143 of the Turkish Constitution

     "Devletin ülkesi ve milletiyle bölünmez bütünlügü, hür demokratik

     düzen ve nitelikleri Anayasada belirtilen Cumhuriyet aleyhine

     islenen ve dogrudan dogruya Devletin iç ve dis güvenligini

     ilgilendiren suçlara bakmakla görevli Devlet Güvenlik Mahkemeleri

     kurulur.

     Devlet Güvenlik Mahkemesinde bir Baskan, iki asil ve iki yedek

     üye ile savci ve yeteri kadar savci yardimcisi bulunur.

     Baskan, bir asil ve bir yedek üye ile savci, birinci sinifa

     ayrilmis hakim ve Cumhuriyet savcilari arasindan; bir asil ve bir

     yedek üye, birinci sinif askeri hakimler arasindan; savci

     yardimcilari ise  Cumhuriyet savcilari ve askeri hakimler

     arasindan özel kanunlarda gösterilen usule göre atanirlar.

     Devlet Güvenlik Mahkemesi Baskani üye ve yedek üyeleri ile savci

     ve savci yardimcilari dört yil için atanirlar, süresi bitenler

     yeniden atanabilirler.

     Devlet Güvenlik Mahkemeleri kararlarinin temyiz mercii

     Yargitaydir.   ..."

     "State Security Courts are to be established to deal with

     offences against the indivisible integrity of the State and its

     territory and nation, offences against the Republic which are

     contrary to the democratic order enunciated in the Constitution,

     and offences which undermine the internal or external security

     of the State.

     The State Security Court shall be composed of a president, two

     titular members and two substitute members, a public prosecutor

     and a sufficient number of substitutes.

     The president, the public prosecutor, a titular member and a

     substitute member shall be appointed, according to the procedures

     laid down by special laws, from the Republic's first class rank

     of judges and prosecutors, a titular member and a substitute

     member from the first class rank of judges, and the substitutes

     from the Republic's public prosecutors and military judges.

     The president, titular members and substitute members, the public

     prosecutor and the substitutes of the State Security Courts are

     appointed for four years; they can be reappointed after the

     expiry of their mandate.

     There is an appeal against the decisions of the State Security

     Courts to the Court of Cassation. ..."

34.  Article 145 of the Turkish Constitution

     "... Askeri yargi organlarinin kurulusu, isleyisi, askeri

     hakimlerin özlük isleri, askeri savcilik görevlerini yapan askeri

     hakimlerin mahkemesinde görevli bulunduklari komutanlik ile

     iliskileri, mahkemelerin bagimsizligi, hakimlik teminati,

     askerlik hizmetinin gereklerine göre kanunla düzenlenir. Kanun,

     ayrica askeri hakimlerin yargi hizmeti disindaki askeri hizmetler

     yönünden askeri hizmetlerin gereklerine göre teskilatinda görevli

     bulunduklari komutanlik ile olan iliskilerini gösterir."

     "... The composition and functioning of military judicial organs,

     matters relating to the status of military judges and relations

     between military judges acting as military prosecutors and the

     commanders under whom they serve shall be regulated by law in

     accordance with the principles of the independence of the courts

     and the security of tenure of the judiciary and requirements of

     military duty. Relations between military judges and the

     commanders under whom they serve with regard to military duties

     other than judicial functions shall also be regulated by law."

35.  Article 16 of the Law on Military Judges

     "Askeri hakimlerin atanmalari (...) Milli Savunma Bakani ve

     Basbakanin müsterek kararnamesi ile Cumhurbaskaninin onayina

     sunulur.  ..."

     "The appointment of military judges by the decree of the Minister

     of Defence and the Prime Minister is subject to the approval of

     the President of the Republic. ..."

36.  Article 29 of the Law on Military Judges

     "Askeri hakim subaylar hakkinda  Milli Savunma Bakani tarafindan,

     savunmalari aldirilarak, asagida açiklanan disiplin cezalari

     verilebilir .

     A. Uyarma ...

     B. Kinama..."

     "The Defence Minister may apply the following disciplinary

     sanctions to military judges, after hearing their defence:

     A. Written warning ...

     B. Rebuke ..."

37.  Article 7 annexed to the Law on Military Judges

     "Devlet Güvenlik Mahkemesi üyeligi, yedek üyeligi ve Cumhuriyet

     savci yardimciligi görevlerine atanan askeri hakim subaylarin

     rütbe terfii, rütbe kidemliligi, kademe ilerlemesi yapmalarini

     saglayacak yeterlilikleri, bu Kanunun ve Türk Silahli Kuvvetleri

     Personel Kanununun  hükümleri sakli kalmak sarti ile, asagida

     belirtilen sekilde düzenlenecek sicillerle saptanir.

     a) Birinci sinifa ayrilmis üye ve yedek üye askeri hakimlere

     subay sicil belgesi düzenlemeye  ve sicil vermeye yetkili birinci

     sicil amiri Milli Savunma Bakanligi Müstesari, ikinci sicil amiri

     Milli Savunma Bakanidir.

     b) Cumhuriyet savci yardimciligi kadrolarina atanan askeri

     subaylar hakkinda;

     1. Mesleki sicil belgesi, Yargitayda incelem yapan dairece ve

     adalet müfettislerince, bu Kanundaki esaslar gözönünde tutularak

     verilecek sicil notlarina göre düzenlenir ve bu sicil belgesi

     süresi içinde Milli Savunma Bakanligina gönderilir.

     2. Subay sicil belgesi, sirasiyla; Milli Savunma Bakanligi ilgili

     müstesar yardimcisi, Müstesari ve  Milli Savunma Bakani

     tarafindan düzenlenir.

     Cumhuriyet savci yardimcisi askeri hakim subaylar hakkinda Devlet

     Güvenlik Mahkemesi Cumhuriyet savcisi tarafindan, subay sicil

     formu esaslarina göre kanaat notu verilir".

     "The eligibility for promotion, seniority in grade and salary

     increments of officers acting as judges in the capacity of

     assistant public prosecutors and State Security Court members,

     is subject both to the said Law and the Law on Military Personnel

     and assessed in accordance with the following procedure:

     a) The first hierarchical superior competent to issue an

     assessment certificate for military judges who are to be

     appointed is the Secretary to the Ministry of Defence, the second

     superior is the Minister of Defence.

     b) In respect of judges acting as military prosecutors:

     1. The professional assessment certificate is issued, according

     to the procedure laid down in the said Law, by the competent

     chamber of the Court of Cassation and the Inspector of Legal

     Affairs. This certificate has to be sent to the Minister of

     Defence within the prescribed time-limit.

     2. The assessment certificate for officers is established by the

     Under-Secretary and the Secretary of State to the Minister of

     Defence, and the Minister of Defence.

     The judges acting as military prosecutors are evaluated according

     to the assessment formula. This evaluation is carried out by the

     Public Prosecutor attached to the State Security Court."

38.  Article 8 annexed to the Law on Military Judges

     "Devlet Güvenlik Mahkemelerinin askeri yargiya mensup mahkeme

     üyeleri ile Cumhuriyet savci yardimcilari, Genelkurmay Personel

     Baskani, Adli Müsaviri ile atanacaklarin mensup oldugu Kuvvet

     Komutanliginin personel baskani ile adli müsaviri ve Milli

     Savunma Bakanligi Askeri Adalet isleri Baskanindan olusan Kurul

     tarafindan seçilir ve usulüne uygun olarak atanirlar."

     "The military members of the State Security Court and assistant

     public prosecutors are appointed by a committee consisting of the

     personnel director, the legal adviser of the General Military

     Staff, the personnel director, the legal adviser of the regiment

     to which the candidate belongs and the director of military

     judicial affairs attached to the Ministry of Defence."

39.  Article 307 of the Code of Criminal Procedure provides that

cassation appeals only lie in respect of alleged illegality and non-

compliance of the first instance judgment with the relevant procedure.

40.  Article 19 paragraph 1 of the Code on the Execution of Penalties

(Law No. 647)

     "... diger sahsi hürriyeti baglayici cezalara mahkum edilmis

     olanlar hükümlülük süresinin 1/2 sini çekmis olup da tüzüge göre

     iyi halli hükümlü niteliginde bulunduklari takdirde talepleri

     olmazsa dahi sartla saliverilirler."

     "... Convicts, sentenced to penalties constituting a deprivation

     of individual freedom, shall, without their application to that

     effect, be granted a conditional release, if they have served

     half of their term of imprisonment in good conduct, i.e. in

     accordance with the regulation."

III. OPINION OF THE COMMISSION

A.   Complaints declared admissible

41.  The Commission has declared admissible:

-    the applicant's complaint that his conviction for sending a

message to the memorial meeting in question 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;

-    the applicant's complaint that his case was not dealt with by an

independent and impartial tribunal, given 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 and that he did not have a fair trial in that the domestic court

failed to give any reasons for its judgment;

-    the applicant's complaint that the provisions of the Anti-Terror

Law, which envisaged fewer possibilities for his conditional release

compared to prisoners sentenced under other laws, constituted

discrimination.

B.   Points at issue

42.  The points at issue in the present case are as follows:

-    whether the applicant's conviction for sending the impugned

message to the memorial meeting in question infringed his freedom of

thought and expression as guaranteed by Articles 9 and 10 (Art. 9, 10)

of the Convention;

-    whether the fact that the applicant was convicted by the State

Security Court constituted a violation of his right to a fair hearing

within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention;

-    whether the provisions of the Anti-Terror Law, which envisaged

fewer possibilities for the applicant's conditional release compared

to prisoners sentenced under other laws, constituted discrimination

contrary to Article 14 in conjunction with Article 5 para. 1

(Art. 14+5-1) of the Convention.

C.   As regards Articles 9 and 10 (Art. 9, 10) of the Convention

43.  The applicant complains that his freedom of thought and

expression has been infringed, contrary to Articles 9 and 10

(Art. 9, 10) of the Convention, in that he was convicted for sending

a message to a memorial meeting.

44.  The Commission considers that the applicant's complaint

essentially concerns an alleged violation of his freedom of expression.

The Commission will therefore examine this complaint under Article 10

(Art. 10) of the Convention, which states:

     "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.  This Article shall not prevent

     States from requiring the licensing of broadcasting, television

     or cinema enterprises.

     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."

45.  The applicant submits at the outset that the concept of the

indivisibility of the State, as prescribed by Article 8 of the Anti-

Terror Law, is so vague that his conviction thereunder was not

foreseeable.

46.  Moreover, he asserts that his conviction was not for any

legitimate purpose under the Convention. He submits that he was

convicted on account of having used expressions like "Kurdish people"

and of having asserted the questionability of the "official reality"

in his message. He considers that the views expressed by him were

within the limits of permissible criticism.

47.  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.

48.  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.

49.  The respondent 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 expressions like "... the Turkish Republic is founded

upon the negation of the basic rights of Kurds" or "... 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: "...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.

50.  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.

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

respondent Government state that the threat posed to Turkey by the

P.K.K. 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.

52.  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.

53.  The Commission is of the opinion that the penalty imposed on the

applicant constituted an "interference" in the exercise of his freedom

of expression as guaranteed by Article 10 para. 1 (Art. 10-1) of the

Convention.  This point has not been in dispute between the parties.

54.  Therefore, the question is whether this interference was

prescribed by law, pursued a legitimate aim under Article 10 para. 2

55.(Art. 10-2) and was "necessary in a democratic society" in order to

realise that legitimate aim.

56.  The Commission notes that the applicant's conviction was based

on Article 8 of the Anti-Terror Law and therefore considers that the

interference was prescribed by law.

57.  As regards the aims of the interference, the Commission notes

that the applicant's conviction was part of the efforts of the

authorities to combat illegal terrorist activities and to maintain

national security and public safety, which are legitimate aims under

Article 10 para. 2 (Art. 10-2) of the Convention.

58.  The remaining issue is whether the interference was "necessary in

a democratic society". In this respect the Commission recalls the

following principles adopted by the Court (see, as the latest

authority, Eur. Court HR, Zana v. Turkey judgment of 25 November 1997,

Judgments and Decisions 1997 ...., para. 51):

     (i) Freedom of expression, as enshrined in paragraph 1 of

Article 10 constitutes one of the essential foundations of a democratic

society and one of the basic conditions for its progress. It is

applicable not only to "information" or "ideas" that are favourably

received or are

regarded as inoffensive or as a matter of indifference, but also to

those that offend, shock or disturb; such are the demands of that

pluralism, tolerance and broad-mindedness without which there is no

"democratic society".

     (ii) The adjective "necessary", within the meaning of

Article 10 para. 2 (Art. 10-2), implies the existence of a "pressing

social need". The Contracting States have a certain margin of

appreciation in assessing whether such a need exists, but it goes hand

in hand with European supervision, embracing both the legislation and

the decisions applying it, even those given by an independent court.

     (iii) In exercising its supervisory jurisdiction, the organs of

the Convention must look at the impugned interference in the light of

the case as a whole, including the content of the remarks held against

the applicant and the context in which he made them. In particular,

they must determine whether the interference in issue was

"proportionate to the legitimate aims pursued" and whether the reasons

adduced by the national authorities to justify it are "relevant and

sufficient".

59.  The Commission further notes that, while freedom of political

debate is at the very core of the concept of a democratic society

(Eur. Court HR, Lingens v. Austria judgment of 8 July 1986, Series A

no. 103, p. 26, para. 42), that freedom is not absolute.  A Contracting

State is entitled to subject it to certain "restrictions" or

"penalties", but the Convention organs are empowered to give the final

ruling on whether they are reconcilable with freedom of expression as

protected by Article 10 (Art. 10) (Eur. Court HR, the Observer and

Guardian v. the United Kingdom judgment of 26 November 1991, Series A

no. 216, p. 30, para. 59(c)). In doing so, the Convention organs must

satisfy themselves that the national authorities did apply standards

which were in conformity with the principles embodied in Article 10

(Art. 10) and, moreover, that they based themselves on an acceptable

assessment of the relevant facts (Eur. Court HR, Jersild v. Denmark

judgment of 23 September 1994, Series A no. 298, p. 24, para. 31).

60.  Even where, as in the present case, an interference with freedom

of expression is based on considerations of national security and

public safety and is part of a State's fight against terrorism, the

interference can be regarded as necessary only if it is proportionate

to the aims pursued. Consequently, the Commission must, with due regard

to the circumstances of each case and the State's margin of

appreciation, ascertain whether a fair balance has been struck between

the individual's fundamental right to freedom of expression and a

democratic society's legitimate right to protect itself against the

activities of terrorist organisations (cf. above-mentioned

Zana judgment, para. 55).

61.  The Commission observes in this connection that

Article 10 para. 2 (Art. 10-2) also refers to "duties and

responsibilities" which the exercise of the freedom of expression

carries with it. Thus, it is important for persons addressing the

public on sensitive political issues to take care that they do not

support unlawful political violence. On the other hand, freedom of

expression must be considered to include the right openly to discuss

difficult problems such as those facing Turkey in connection with the

prevailing unrest in part of its territory in order, for instance, to

analyse the background causes of the situation or to express opinions

on the solutions to those problems.

62.  The Commission notes that the applicant, in his message to a

memorial meeting, accused the Turkish State of denying the Kurds their

basic rights. He stated that there had been an awakening among the

Kurds, which had led to resistance and quest for freedom. He referred

to socialism as the only alternative to the capitalist system and added

that the seeds of liberation of the Kurdish people had turned into

guerrilla warfare in the mountains of Kurdistan.

63.  The Commission considers that the message contained strong

language against the Turkish State and referred in somewhat poetic

terms to the liberation and freedom of the Kurds. However, these

elements are not sufficient to justify the applicant's criminal

conviction. While the message referred to guerrilla warfare in the

mountains of Kurdistan as a factual element, it was not so worded as

to incite to further violent action.

64.  The Commission finds that the applicant's conviction amounted to

a kind of censure, which was likely to discourage him or others from

publishing ideas of a similar kind again in the future. In the context

of political debate such a sentence is likely to deter citizens from

contributing to public discussion of important political issues

(cf. Eur. Court HR, Lingens judgment, op. cit., p. 27, para. 44).

65.  Consequently, the Commission, even taking into account the margin

of appreciation of the national authorities in this context, finds that

the interference with the applicant's freedom was not proportionate to

the legitimate aims pursued and could, therefore, not be regarded as

necessary in a democratic society to achieve the aims of national

security and public safety.

     CONCLUSION

66.  The Commission concludes, by 30 votes to 2, that there has been

a violation of Article 10 (Art. 10) of the Convention.

D.   As regards Article 6 para. 1 (Art. 6-1) of the Convention

67.  The applicant complains that his case was not heard by an

independent and impartial tribunal and that he did not have a fair

trial in that the domestic court failed to give any reasons for its

judgment. He invokes Article 6 (Art. 6) of the Convention which

provides, inter alia, that:

     "1.  In the determination of ... any criminal charge against

     him, everyone is entitled to a fair ... hearing ... by an

     independent and impartial tribunal established by law."

68.  The applicant maintains 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.

69.  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.

70.  The Commission has already examined the question whether the

State Security Court meets the requirements of independence and

impartiality, as required by Article 6 (Art. 6) of the Convention. It

recalls the following considerations in the case of Incal v. Turkey

(Comm. Report 25.2.97, paras. 74-77):

     "74. The Commission is of the opinion, given the current

     legislation on the composition of the State Security Courts, that

     the appointment and assessment of military judges raise certain

     questions and may cast doubt on the image of independence which

     they should project. In this respect, the Commission notes that

     military judges, being military officers, are accountable to

     their commanding officers.

     75.  Moreover, the fact that a military judge participates in a

     criminal procedure against a civilian, which in no way involves

     the internal discipline of the armed forces, indicates the

     exceptional nature of this procedure and could be viewed as an

     intervention by the armed forces in a non-military judicial

     domain, which, in a democratic country, should be beyond any

     suspicion of dependence or partiality.

     76.  In these circumstances, the Commission considers that the

     applicant, having been tried and convicted by a court which had

     a military judge amongst its three members, could be legitimately

     concerned about the objective impartiality of this jurisdiction.

     The fact that this court also included two non-military judges,

     whose independence and impartiality are not in question, makes

     no difference in this respect (see, e.g., Eur. Court HR,

     Langborger v. Sweden judgment of 22 June 1989, Series A no. 155,

     p. 16, para. 36; Mitap and Müftüoglu v. Turkey, Comm. Report

     8.12.94, p. 20, para. 106).

     77.  In the light of the above, the Commission considers that

     the independence and impartiality of the State Security Court

     which had to determine the criminal charges against the applicant

     was doubtful and that the applicant's fears were objectively

     justified. Accordingly, the Commission is of the opinion that the

     applicant's case was heard by a court which cannot be considered

     independent and impartial, within the meaning of

     Article 6 para. 1 (Art. 6-1) of the Convention."

71.  The Commission finds that the same considerations apply in the

present case.

72.  It follows that the applicant was convicted by a court which

cannot be considered independent and impartial within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention.

73.   Having found that the court was not independent and impartial,

the Commission does not find it necessary to examine the applicant's

further allegation that he did not have a fair trial and that the court

failed to give reasons for its judgment.

     CONCLUSION

74.  The Commission concludes, by 31 votes to 1, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

E.   As regards Article 14 (Art. 14) of the Convention

75.  The applicant complains that the provisions of the Anti-Terror

Law, which envisaged fewer possibilities for his conditional release

compared to prisoners sentenced under other laws, constituted

discrimination, contrary to Article 14 (Art. 14) of the Convention

which provides that:

     "The enjoyment of the rights and freedoms set forth in this

     Convention shall be secured without discrimination on any ground

     such as sex, race, colour, language, religion, political or other

     opinion, national or social origin, association with a national

     minority, property, birth or other status."

76.  The applicant maintains 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.

77.  The Commission considers that 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 (Art. 14) in conjunction

with Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.

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

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

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

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

policy appears to affect individuals in a discriminatory fashion, this

may give rise to issues under Article 5 in conjunction with Article 14

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

pp. 170, 174).

79.  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 HR, Abdulaziz, Cabales

and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A

no. 94, p. 35, para. 72).

80.  The Commission notes that the aim of the Anti-Terror Law is, in

principle, to punish persons who commit terrorist crimes. Article 8 of

that Law prohibits any kind of separatist propaganda against the

indivisible integrity of the State, irrespective of the method used.

Moreover, anyone convicted under the Anti-Terror Law, irrespective of

his status and of any other distinguishing criteria mentioned in

Article 14 (Art. 14) of the Convention, will be subjected to less

favourable treatment concerning conditional release than if he had been

convicted under another criminal law statute.

81.  In these circumstances, the Commission is of the opinion that the

impugned distinction made in Turkish law does not relate to different

groups of persons, but to different types of criminal offences. With

reference to its above findings as to the legitimate aim pursued by

convictions under the Anti-Terror Law, the Commission, bearing in mind

the serious nature of the crimes falling within the scope of that Law,

considers that such a distinction cannot be held discriminatory.

     CONCLUSION

82.  The Commission concludes, unanimously, that there has been no

violation of Article 14 in conjunction with Article 5 para. 1 (a)

(Art. 14+5-1) of the Convention.

F.   Recapitulation

83.  The Commission concludes, by 30 votes to 2, that there has been

a violation of Article 10 (Art. 10) of the Convention (see above

para. 65).

84.  The Commission concludes, by 31 votes to 1, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention (see

above para. 73).

85.  The Commission concludes, unanimously, that there has been no

violation of Article 14 in conjunction with Article 5 para. 1 (a)

(Art. 14+5-1) of the Convention (see above para. 81).

       M. de SALVIA                             S. TRECHSEL

        Secretary                                President

     to the Commission                       of the Commission

                                                 (Or. English)

PARTLY DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK

     I do not find it possible to join the majority in concluding that

there has been a breach of Article 10 of the Convention. In my opinion,

there are no solid grounds for concluding that, in this case, the

interference was not necessary in a democratic society and, in

particular, not proportionate to the aim of maintaining national

security and public safety.

     In order to assess whether Mr Gerger's conviction and sentence

answered a "pressing social need" and whether they were "proportionate

to the legitimate aims pursued", it is important to analyse the content

of the applicant's remarks in the light of the situation prevailing in

south-east Turkey at the time. In so doing, the Commission, taking

account of the margin of appreciation left to the Government, should

have confined itself to the question whether the judicial authorities

had good reasons to believe that there was a pressing social need for

such a measure, based on an acceptable assessment of the relevant

facts.

     I note in this regard that, according to the national courts, the

applicant's message amounted to propaganda against the indivisibility

of the State. I find that parts of the applicant's message are in fact

of an inflammatory nature, display support for an armed struggle

against the State and can be characterised as an apology for guerilla

warfare. In these circumstances, the applicant's conviction and the

penalty imposed on him on account of the publication of his article

could reasonably be said to arise out of a pressing social need.

     In the light of these considerations and having regard to the

State's margin of appreciation in this area, I am of the opinion that

the restriction placed on the applicant's freedom of expression was

proportionate to the legitimate aims pursued and that, therefore, it

could reasonably be regarded as necessary in a democratic society to

achieve those aims.

                                                 (or. English)

          PARTLY DISSENTING OPINION OF MR E.A. ALKEMA

     I have voted against the majority's conclusion that

Article 6 para. 1 has been violated in the present case.

     The majority is of the opinion that the independence and

impartiality of a State Security Court are not warranted.

     In my dissenting opinion in the Report of 20 May 1997 in the case

of Çiraklar v. Turkey, Application No. 19601/92, I have set out the

reasons why the majority's opinion is abstract and in need of further

foundation in fact and law in order to be justified.

 

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