MARSALI v. TURKEY

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40077/98
by Recep MARAŞLI
against Turkey

The European Court of Human Rights (Second Section), sitting on 19 October 2000 as a Chamber composed of

MrC.L. Rozakis, President,
MrA.B. Baka,
MrR. Türmen

MrsV. Stráznická,
MrP. Lorenzen,
MrE. Levits,

MrA. Kovler, judges,

andMrE. Fribergh, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 10 December 1997 and registered on 3 March 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 observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Turkish citizen of Kurdish origin, born in 1956. He is currently detained in Ankara Central Prison. The applicant is represented before the Court by Mr İrfan Güler and Ms Fatma Karakaş, both lawyers practising in Istanbul, Turkey.

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

The applicant wrote an article entitled “ Kurdistan: will it become a common colony of Europe?” (“Kürdistan, Avrupa’nın “Ortak Sömürgesi” olacak mı?”) in the 31 December 1994-5 January 1995 issue of “Nevroz” (“New Day”), a weekly newspaper published in Istanbul.

The article read:

“The Turkish Bourgeoisie have being advancing their intention of associating with the European Community since the date of the Treaty of Rome. However, the economic and political problems of Turkey have not been solved since that date. The conditions for association have not been established either.

On the other hand, the founders of the European Union are not keen on taking on board a huge problem with its fifteen million unemployed people and serious economic and social problems.

Considering the still unresolved problems of German unification and the unexpected economic integration of East European countries, the acceptance of Turkey by the Community seems definitely impossible.

However, Europe does not want to keep out Turkey completely. It is keen on keeping Turkey within its hinterland as an investment area and a market. The dilemma of either being part of Europe or outside Europe is a common thread.

Briefly, the structural problem of Turkey and the unwillingness of Europe for association with it are intersecting. On the one hand, the pressures on Turkey from the various institutions of European association on matters such as  “Democracy”, “Human Rights”, “the Kurdish Problem”, etc. reflect the reaction of domestic public opinion in Europe. On the other hand, these pressures are being used as an excuse to keep Turkey out.

The above issue has to be emphasised in order to point out the defects in the sincerity both of the approaches to the solution of the Kurdish problem and the idea that the European institutions are the purest supporters of democracy and human rights.

The customs union seems an acquired right or an opportunity for Turkey. However, it also seems very difficult for Turkey having regard to her political and economic problems.

The way to the customs union and European Union will result in important changes for the Kurdish National Movement. In the first instance, Kurdistan, already shared by the colonialist Middle East States, will become a common colony of Europe along with her Turkish part. Accordingly, Kurdistan’s political and social problems which originate from her colonial status will be directly addressed to Europe.

It will become easier for Turkey to control Kurdistan by economic means that has been the case with its control through military force and political violence. This means that Kurdistan will become an economic and political environment for Turkey such that she will have neither the need for nor the possibility to keep Kurdistan as a classic colony.

One of the direct political effects of this situation will be Europe’s insistence on the direct application of its rules to solve the Kurdish problem. Europe is closely interested in both national matters and in the Kurdistan problem and has its own experiences of colonialism.   

Another political effect is that most of the Kurdish refugee organisations in Europe are supporting and promoting the European solution. This approach considers the future of the Kurdish community in a Turkish Republic associated with Europe. Kurdish intellectuals in Europe are also supporting this approach and conveying their political message to Kurdistan.

Any possible tension with Europe will have a direct effect on the politics of the subject groups. The improvement of relations or a possible customs union with the European Union will benefit this approach and will have increased political effect or will gain more acceptance from the Turkish Government in consequence.

However, the Kurdish Revolution has already abolished the classical colonial conditions and has stressed the need for a local/national solution.

The dimensions of the problem and the strict militarist bureaucracy of the Turkish political structure prove that Europe is not and will not be the determining factor for either Turkey or Kurdistan.”

On 13 February 1995 the public prosecutor at the Istanbul State Security Court accused the applicant, the publisher of the newspaper and its editor-in-chief of disseminating propaganda against the unity of the Turkish nation and the “indivisible unity of the State”. He requested, inter alia, that the applicant be convicted under section 8 of the Prevention of Terrorism Act 1991 (Law no. 3713). He relied on the terms of the above article in support of his application. During the proceedings an amendment to section 8 entered into force (Law no. 4126) and, in consequence, the public prosecutor pressed for the applicant’s conviction on the strength of the new amendment which increased the level of the fine for the offence with which he was charged but decreased the term of imprisonment which could be imposed.

In the proceedings before the Istanbul State Security Court the applicant did not dispute that he had drafted the article. He asserted, however, that the expression of an opinion could not constitute an offence.

On 13 December 1996 the State Security Court, composed of three judges including a military judge, found the applicant guilty of the offence charged. The court accepted the public prosecutor’s submissions. It ruled that the impugned article referred to a particular region of Turkey as “Kurdistan” and that the applicant’s comments, taken as a whole, amounted to separatist propaganda. The court sentenced the applicant under section 8(1) of Law no. 3713, as amended by Law no. 4126, to a term of imprisonment of one year, eight months and ten days and a fine of 111,111,111 Turkish liras (TRL), to be paid in twenty monthly instalments. The publisher was fined TRL 83,333,303. The editor-in-chief was fined TRL 3,025,000.

The applicant appealed against his conviction to the Court of Cassation. The applicant’s lawyer pleaded that in a democratic society opinions must be allowed to be freely expressed and debated. The applicant’s lawyer also claimed that section 8 of Law no. 3713 under which the charges against him had been brought had been annulled by the provisions of Law no. 4126. He contended that the first instance court had therefore erred in not discontinuing the criminal proceedings against the applicant. He further asserted that the Prevention of Terrorism Act 1991 was contrary to Articles 26 and 28 of the Turkish Constitution and that his conviction contravened Articles 9 and 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

On 12 June 1997 the Court of Cassation dismissed the applicant’s appeal, upholding the State Security Court’s assessment of the evidence and its reasons for rejecting the applicant’s defence. The judgment of the court was lodged with the court’s registry on 10 July 1997. The applicant’s lawyer was only apprised of this on 6 November 1997.

COMPLAINTS

1.The applicant submits that his case was not heard by an independent and impartial tribunal in breach of Article 6 § 1 of the Convention, having regard to the presence of a military judge on the bench of the Istanbul State Security Court. In addition the fairness of the proceedings was also undermined by other shortcomings.

2.The applicants complains that his conviction and sentence violated Articles 9 and 10 of the Convention.

3.The applicant further complains that he is the victim of discrimination on the grounds of his political opinions, contrary to Article 14 of the Convention read in conjunction with Articles 9 and 10 thereof.

4.The applicant finally maintains that by failing to notify either him or his lawyer of its final judgment the Court of Cassation hindered the effective exercise of his right of individual application as guaranteed under Article 34 (former Article 25 of the Convention).

THE LAW

1.The applicant asserts that he was tried and convicted before the Istanbul State Security Court, which, by reason of the presence of a military judge on the bench, did not meet the requirements of Article 6 § 1 of the Convention which reads in relevant part:

“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.”

In the applicant’s further submission, irrespective of the court’s lack of independence and impartiality, the proceedings at first instance and on appeal failed to meet the other fairness requirements of Article 6 of the Convention. In this connection the applicant states that the domestic courts failed both to give adequate reasons for their decisions and to inform him of the observations which the public prosecutor submitted during the proceedings at first instance and on appeal.

The Government maintain in reply that the State Security Courts are neither extraordinary courts nor political or military courts, but specialised tribunals set up in various major cities to try persons accused of offences against the Turkish Republic. They operate in accordance with the general provisions of the Code of Criminal Procedure and an appeal lies against their decisions to the Court of Cassation. In the Government’ submission, there is nothing to suggest that the appointment of a military judge to the bench of a State Security Court impairs its independence and impartiality. A military judge enjoys the same guarantees as any senior judge. The fact that a military judge is subject to the disciplinary rules of the military service does not in any way imply that he is subordinated to his superior officers in the exercise of his judicial functions.

The Government report that by virtue of an amendment to Article 143 of the Constitution on 18 June 1999 the military judges in the State Security Courts have now been replaced by civil judges. Parallel amendments have been made to the Law on the Establishment of State Security Courts by virtue of Law no. 4390 of 22 June 1999.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2.The applicant states that he was convicted and punished under the Prevention of Terrorism Act, section 8 of which makes it an offence merely to express thoughts and opinions. That law is still in force and continues to threaten his right to freedom to hold and express opinions. The Court has examined this complaint under Article 7 § 1 of the Convention, which states:

“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 state that the applicant was convicted under section 8 § 1 of the Prevention of Terrorism Act 1991. During the proceedings an amendment to this section entered into force on 27 October 1995. As this amendment was favourable to the applicant the domestic court decided to apply it to him when determining the sanction to be imposed and he received a lighter sentence in application of the amendment.

The Court observes that the applicant has not disputed the Government’s claim that he obtained a lighter sentence on account of the decision to apply the amendment to the Prevention of Terrorism Act 1991 in his favour. It notes in this connection that had the applicant been punished in accordance with section 8 of the Act it would have been open to the Istanbul State Security Court to impose a sanction of between two to five years’ imprisonment and a fine of between fifty and one hundred million Liras. In application of the amendment to that Act which entered into force on 27 October 1995, the applicant received a sentence of one year and eight months’ imprisonment and a fine of one hundred and eleven million Liras.

In these circumstances, and even though the applicant received a slightly heavier fine than envisaged in section 8 § 1 of the 1991 Act, it cannot be maintained that the authorities imposed an overall heavier penalty on the applicant than the one provided for at the time of the commission of the offence at issue.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3.The applicant complains that his prosecution and conviction violated his right to freedom of expression guaranteed by Article 10 of the Convention, which provides:

“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.”

The applicant also relies on Article 9 of the Convention, which reads:

“1.  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.  Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

In the applicant’s view, irrespective of whether or not the opinions which he expressed were true or false and could be considered by the authorities or a certain part of society to be disturbing or shocking, they were nonetheless compatible with the exercise of the right enshrined in Article 10. In particular, the interference with his Article 10 right was disproportionate and contrary to the requirements of a democratic society as defined in the Convention and its case law.

The Government state that the interference with the applicant’s Article 10 right was prescribed by law, namely section 8 of the Prevention of Terrorism Act. Furthermore, the interference pursued the legitimate aims of maintaining national security, public safety and the indivisibility of the State. The impugned article amounted to propaganda against the integrity of the State and incitement to persons of Kurdish origin to hatred and enmity based on race, class and religion. In sum, the interference satisfied the requirements of paragraph 2 of Article 10.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4.The applicant further maintains that he is the victim of discrimination on the grounds of his political opinions, contrary to Article 14 of the Convention read in conjunction with Articles 9 and 10 thereof. Article 14 provides as relevant:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as ... political or other opinion, (...).”

The Government did not make any submissions on this complaint.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

5.Finally, the applicant contends with reference to Article 34 of the Convention that he was not notified that the Court of Cassation had delivered its judgment on his appeal until 6 November 1997. In the applicant’s submission this amounted to an interference with the exercise of his right of individual petition guaranteed by Article 34 of the Convention .

The Court observes that the applicant’s application was lodged within six months of the date of the Court of Cassation’s judgment on his appeal, which was the final decision in his case for the purposes of Article 35 § 1 of the Convention. Furthermore, the applicant has in no way substantiated that the alleged delay in notifying him of the Court of Cassation’s decision was designed either directly or indirectly to frustrate his application under the Convention. It is also to be noted that it was open to the applicant and his lawyer to keep themselves informed of the outcome of the appeal by contacting the registry of either the Istanbul State Security Court or the Court of Cassation.

In these circumstances the Court considers that no issue arises under Article 34 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the applicant’s complaints concerning the lack of independence and impartiality of the Istanbul State Security Court and the unfairness of his trial before that court as well as the interference with his right to freedom of thought and expression and his allegation that he was discriminated against in the exercise of those rights (Articles 6, 9, 10 and 14 of the Convention);

DECLARES INADMISSIBLE the remainder of the application.

Erik FriberghChristos Rozakis
RegistrarPresident

APPENDIX

Relevant domestic law

1.The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991)[1]

The relevant provisions of the Prevention of Terrorism Act 1991 read as follows:

Section 6

“It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person’s ... identity is divulged provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target.

It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to print or publish declarations or leaflets emanating from terrorist organisations.

…

Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the sales of the previous issue if the periodical appears monthly or less frequently, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched[2]. However, the fine may not be less than fifty million Turkish liras. The editor of the periodical shall be ordered to pay a sum equal to half the fine imposed on the publisher.”

Section 8
(before amendment by Law no. 4126 of 27 October 1995)

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.

Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched2. However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.”

Section 8
(as amended by Law no. 4126 of 27 October 1995)

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine.

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.

Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras…

…”

Section 13
(before amendment by Law no. 4126 of 27 October 1995)

“The penalties for the offences contemplated in the present law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.”

Section 13
(as amended by Law no. 4126 of 27 October 1995)

“The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.

However, the provisions of this section shall not apply to convictions pursuant to section 8[3].”

Section 17

“Persons convicted of the offences contemplated in the present law who ... have been punished with a custodial sentence shall be granted automatic parole when they have served three-quarters of their sentence, provided they have been of good conduct.

…

The first and second paragraphs of section 19 … of the Execution of Sentence Act (Law no. 647) shall not apply to the convicted persons mentioned above.”

2.Law no. 4126 of 27 October 1995 amending sections 8 and 13 of Law no. 3713

The following amendments were made to the Prevention of Terrorism Act 1991 following the enactment of Law no. 4126 of 27 October 1995:

Temporary provision relating to section 2

“In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment ... to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4[4] and 6[5] of Law no. 647 of 13 July 1965.”;

3.The National Security Courts[6]

The constitutional provisions governing judicial organisation of the National Security Courts are worded as follows:

(a)The Constitution

Article 138 §§ 1 and 2

“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.

No organ, authority, ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.”

Article 139 § 1

“Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution…”

Article 143 §§ 1-5

“National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.

National Security Courts shall be composed of a president, two other regular members, two substitute members, a prosecutor and a sufficient number of assistant prosecutors.

The president, one of the regular members, one of the substitutes and the prosecutor, shall be appointed from among judges and public prosecutors of the first rank, according to procedures laid down in special legislation; one regular member and one substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges.

Presidents, regular members and substitute members ... of National Security Courts shall be appointed for a renewable period of four years.

Appeal against decisions of National Security Courts shall lie to the Court of Cassation.

...”

Article 145 § 4

“Military legal proceedings

The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve in the performance of their non-judicial duties shall also be regulated by law...”

(b)Law no. 2845 on the creation and rules of procedure of the National Security Courts[7]

Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide as follows:

Section 1

“In the capitals of the provinces of … National Security Courts shall be established to try persons accused of offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free, democratic system of government and offences directly affecting the State’s internal or external security.”

Section 3

“The National Security Courts shall be composed of a president, two other regular members and two substitute members.”

Section 5

“The president of a National Security Court, one of the [two] regular members and one of the [two] substitutes ... shall be civilian … judges, the other members, whether regular or substitute, military judges of the first rank…”

Section 6(2) and (6)

“The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the Military Legal Service Act.

Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years…

…

If, after an investigation concerning the president or a regular or substitute member of a National Security Court conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of the person concerned, the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation.”

Section 9(1)(a)

“National Security Courts shall have jurisdiction to try persons charged with

(a)  the offences contemplated in Article 312 § 2 … of the Turkish Criminal Code,

…

(d)  offences having a connection with the events which made it necessary to declare a state of emergency, in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution,

(e)  offences committed against the Republic, whose constituent qualities are enunciated in the Constitution, against the indivisible unity of the State – meaning both the national territory and its people – or against the free, democratic system of government and offences directly affecting the State’s internal or external security.

…”

Section 27(1)

“The Court of Cassation shall hear appeals against the judgments of the National Security Courts.”

Section 34(1) and (2)

“The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession…

The observations of the Court of Cassation on military judges, the assessment reports on them drawn up by Ministry of Justice assessors … and the files on any investigations conducted in respect of them … shall be transmitted to the Ministry of Justice.”

Section 38

“A National Security Court may be transformed into a Martial Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court…”

(c)The Military Legal Service Act (Law no. 357)

The relevant provisions of the Military Legal Service Act are worded as follows:

Additional section 7

“The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Law and the Turkish Armed Forces Personnel Act (Law no. 926).

(a)  The first superior competent to carry out assessment and draw up assessment reports for military judges, whether regular or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence.

…”

Additional section 8

“Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence…”

Section 16(1) and (3)

“Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces…

…

The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the superiors…”

Section 18(1)

“The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.”

Section 29

“The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions:

A.  A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties.

…

B.  A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy.

…

The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file…”

Section 38

“When military judges … sit in court they shall wear the special dress of their civilian counterparts…”

(d)Article 112 of the Military Criminal Code (of 22 May 1930)

Article 112 of the Military Criminal Code of 22 May 1930 provides:

“It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a civil servant in order to influence the military courts.”

(e)Law no. 1602 of 4 July 1972 on the Supreme Military Administrative Court

Under section 22 the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their professional advancement.

[1].  This law, promulgated with a view to preventing acts of terrorism, refers to a number of offences defined in the Criminal Code which it describes as “acts of terrorism” or “acts perpetrated for the purposes of terrorism” (sections 3 and 4) and to which it applies.

[2].  The phrase in italics was deleted by a judgment of the Constitutional Court on 31 March 1992 and went out of force on 27 July 1993.

[3].  See the relevant provision of Law no. 4126, reproduced below.

[4].  This provision concerns substitute penalties and measures which may be ordered in connection with offences attracting a prison sentence.

[5].  This provision concerns reprieves.

[6].  The National Security Courts were created by Law no. 1773 of 11 July 1973, in accordance with Article 136 of the 1961 Constitution. That law was annulled by the Constitutional Court on 15 June 1976. The courts in question were later reintroduced into the Turkish judicial system by the 1982 Constitution. The relevant part of the statement of reasons contains the following passage:

“There may be acts affecting the existence and stability of a State such that when they are committed, special jurisdiction is required in order to give judgment expeditiously and appropriately. For such cases it is necessary to set up National Security Courts. According to a principle inherent in our Constitution, it is forbidden to create a special court to give judgment on a specific act after it has been committed. For that reason the National Security Courts have been provided for in our Constitution to try cases involving the above-mentioned offences. Given that the special provisions laying down their powers have been enacted in advance and that the courts have been created before the commission of any offence …, they may not be described as courts set up to deal with this or that offence after the commission of such an offence.”

[7].  These provisions are based on Article 143 of the Constitution, to the application of which they refer.

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