EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 24246/94
Ahmet Zeki OKÇUOGLU
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. 19-35) . . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 19-26). . . . . . . . . . . . . . . . . . .4
B. Relevant domestic law
(paras. 27-35). . . . . . . . . . . . . . . . . . .6
III. OPINION OF THE COMMISSION
(paras. 36-71) . . . . . . . . . . . . . . . . . . . . 11
A. Complaints declared admissible
(para. 36). . . . . . . . . . . . . . . . . . . . 11
B. Points at issue
(para. 37). . . . . . . . . . . . . . . . . . . . 11
C. As regards Articles 9 and 10 of the Convention
(paras. 38-56). . . . . . . . . . . . . . . . . . 11
CONCLUSION
(para. 57). . . . . . . . . . . . . . . . . . . . 14
D. As regards Article 6 para. 1 of the Convention
(paras. 58-63). . . . . . . . . . . . . . . . . . 15
CONCLUSION
(para. 64). . . . . . . . . . . . . . . . . . . . 16
E. As regards Article 14 of the Convention
(paras. 65-67). . . . . . . . . . . . . . . . . . 16
CONCLUSION
(para. 68). . . . . . . . . . . . . . . . . . . . 16
F. Recapitulation
(paras. 69-71). . . . . . . . . . . . . . . . . . 16
PARTLY DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK . . . . . . 18
PARTLY DISSENTING OPINION OF MR E.A. ALKEMA . . . . . . . . 19
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 20
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 1950 and
lives in istanbul. He was represented before the Commission by
Mr. Selim Okçuoglu, a lawyer practising in istanbul.
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 having given a speech when participating in a
discussion on "the present and the past of the Kurdish problem" and for
having had it published subsequently in a review entitled "Demokrat".
5. The applicant complains under Articles 9 and 10 of the Convention
that his conviction for giving and publishing a speech constituted an
unjustified interference with his freedom of thought and freedom of
expression. 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, he complains under Article 14 of the Convention that his
conviction for expressing his views, contrary to State policy, on the
"Kurdish problem" constituted discrimination on the ground of political
opinion.
B. The proceedings
6. The application was introduced on 15 March 1994 and registered
on 1 June 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 based (under Article 10 of the Convention) on
the alleged violation of his freedom of expression, (under Article 6
para. 1 of the Convention) on the alleged violation of his right to a
fair trial by an independent and impartial court, and (under Article 14
in conjunction with Article 10 of the Convention) on the allegation
that his conviction constituted discrimination on the ground of
political opinion.
8. On 4 December 1995 the Government submitted information
concerning the amendments made to the Anti-Terror Law (Law No. 3713)
and the developments in the cases of persons convicted and sentenced
under Article 8 of the said Law. The applicant submitted comments in
reply on 21 January 1996.
9. The Government's written observations were submitted on
21 February 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 8 April 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. None of the parties submitted 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 the 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. The applicant participated in a discussion on "the present and
the past of the Kurdish problem" organised by a review entitled
"Demokrat". The speech he had made during the discussion was published
in Demokrat's May 1991 issue.
20. A translation of the speech, as published, is as follows:
"DISCUSSION ABOUT THE KURDISH QUESTION
The Kurdish Question Yesterday and Today
...
INTERVIEWER - Mr. Okçuoglu, can you answer the same question
[i.e. the question whether developments in the region take place
mostly under the control of the United States and the Western
States], having regard to the unitarian state?
Ahmet Zeki OKÇUOGLU - Your question is wrong. It bears some
ideological concerns. Before responding to your question, I need
to explain what the Kurdish question is. The Kurdish question is
the question of a population totalling up to approximately
40 million people which was dominated by other states by being
deprived of the rights of sovereignty; its land being divided
between the regional states all of its national rights were
removed by regional powers as well as the international [super]
powers. The Kurdish nation occupies an important place in the
regional history and it has existed since the old ages. In order
to produce something on this subject we can only act from this
perspective. This, of course, does not mean that the question can
find a radical solution in a matter of days.
Going back to your question ... the thesis suggesting that the
Kurdish question is a matter forced upon by the external powers,
imperialist powers, is not a new one. The problem has been
explained in the above-portrayed manner for approximately one
century. We can count the basic reasons for this as follows:
Primarily, it is the concern of those nations who keep Kurds
under their sovereignties, because these powers try to create an
image that Kurds are not a national entity and do not demand
anything from them [from the regional powers]. It has been
suggested that various external powers provoke the Kurds. The
intention is to prevent international powers from intervening in
the problem. A secondary [reason] is to overshadow the legitimacy
and distract attention. Another one is the concept of imperialism
amongst the international socialist movement and its related
circles. As you know, the Soviet Union is equivalent to an
Empire in the classical meaning. The Soviet administration has
always been against the Kurds by thinking that if Kurds gained
certain rights, this will inevitably lead the way to the nations
forcibly kept under its reign to voice certain demands which
would result in creating problems on the international level. For
this reason, since Lenin, the Soviet Union has always sided with
the powers which kept Kurds under their sovereignty. Local
Socialist powers under their control inevitably developed such
a thesis. In the adverse attitude towards Kurds, these socialist
powers were also influenced by their close proximity to the
regional powers and their official views. The Soviet thesis makes
this even easier. Because the Soviet ideology is a downright
sovereign state ideology. In this meaning the Soviet dominant
ideology corresponds with the regional Turkish national ideology.
However, we observe that the imperialist concept does not stop
there. Following the 1970s, certain Kurdish circles repeated the
same concept under the influence of Soviet and Chinese socialist
propaganda. Whether they are aware of this or not, they repeat
the same concept. This has dragged the Kurdish question into
great insolvencies.
The allegation, that the Kurdish question was brought onto the
agenda by means of external provocations, is an untrue claim. If
anyone is about to suggest imperialist protection in the Middle
East, we observe that Kurds did not make any use of it. On the
contrary, Turks, Arabs and Persians went under the protective
umbrella of such powers and made enough use of it. If the British
did not intervene in the interest of Ottomans in the Crimean war,
the Russian Tsar would have wiped out the Ottoman State and taken
over the Byzantian heritage. Contrary to what some leftist
historians suggest, imperialists did not intend to kill the 'sick
man', they tried to save him. This is also valid for the Arabs.
Up to the present day, with the exception of Palestinians, the
only nation that fought for its national rights in the Middle
East is the Kurds. Neither Turks nor Arabs or Persians fired one
bullet for their national rights. When the British occupied the
Ottoman State in 1918, not one bullet was fired. The so-called
independence war is the historical rift between Greeks and Turks.
One can argue who is right and who is wrong. The resistance
started in Urfa and Antep was a Kurdish resistance against the
French. Let me rephrase, it was a Turkish-Kurdish resistance
under the leadership of local powers. It is the peoples'
spontaneous resistance. The Turkish Army and political centres
did not have any role in this. Up to the present day, the delay
in gaining national rights on the Kurds' part is not due to their
dependency on external powers, as some circles suggest; on the
contrary, it depends on the Kurds' failure to establish
international relations and the fact that international powers
closed their doors on the Kurds."
21. On 10 June 1991 the Public Prosecutor at the istanbul State
Security Court (istanbul Devlet Güvenlik Mahkemesi) issued an
indictment charging the applicant with disseminating propaganda against
the indivisibility of the State in his speech. The charges were brought
under Article 8 paragraph 1 of the Anti-Terror Law.
22. In the proceedings before the State Security Court, the applicant
denied the charges.
23. In a judgment dated 11 March 1993, the Court found the applicant
guilty of an offence under Article 8 of the Anti-Terror Law. It first
sentenced the applicant to two years' imprisonment and a fine of
50,000,000 Turkish lira. Then, considering the good conduct of the
applicant during the trial, it reduced his sentence to one year and
eight months' imprisonment and a fine of 41,666,666 Turkish lira.
24. The Court held that, to the extent that the applicant, in his
speech, had alleged that "the citizens of Kurdish race were denied
their national rights; their land was divided among the States in the
region; the Kurds were fighting for their national rights", his speech
as a whole contained elements of propaganda against the indivisibility
of the State.
25. The applicant appealed against this judgment. On
24 September 1993 the Court of Cassation upheld the decision of the
trial court.
26. On 21 February 1995 the applicant was granted conditional
release, as he had paid the fine imposed and it was considered that he
had served one-third of his prison sentence. Therefore, the amendments
made by Law No. 4126 of 27 October 1995 to the Anti-Terror Law were not
applied to the applicant's case, as his sentence had already been
executed.
B. Relevant domestic law
a) Anti-Terror Legislation
27. Article 8 paragraph 1 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." "No one shall, by any means or with any intention or idea, make written or oral propaganda or hold assemblies, demonstrations or manifestations against the indivisible integrity of the State of the Turkish Republic, its land and nation. Those carrying out any such activity shall be sentenced to imprisonment between two and five years and a fine between 50 and 100 million Turkish lira." 28. Article 8 paragraph 1 of the 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 bir yildan üç yila kadar hapis ve yüz milyon liradan üçyüzmilyon liraya kadar agir para cezasi hükmolunur. Bu suçun mükerreren islenmesi halinde, verilecek cezalar paraya cevrilemez." "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 land and nation. Those carrying out such activity shall be sentenced to imprisonment between one and three years and to a fine between 100 and 300 million Turkish lira. In case of re-occurrence of this offence, sentences shall not be commuted to fines." b) The composition of the State Security Court 29. 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. ..." 30. 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." 31. 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. ..." 32. 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 ..." 33. 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." 34. 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." 35. 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. III. OPINION OF THE COMMISSION A. Complaints declared admissible 36. The Commission has declared admissible: - the applicant's complaint that his conviction for giving a speech, followed by the publication of the speech in a review, constituted an unjustified interference with his freedom of thought and freedom of expression; - the applicant's complaint that his case was not heard by an independent and impartial tribunal in 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 applicant's complaint that his conviction for expressing his views, contrary to State policy, on the "Kurdish problem" constituted discrimination on the ground of political opinion. B. Points at issue 37. The points at issue in the present case are as follows: - whether the applicant's conviction for giving a speech, followed by the publication of the speech in a review, infringed his freedom of thought and of 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 applicant's conviction for expressing his views, contrary to State policy, on the "Kurdish problem" constituted discrimination on the ground of political opinion, in breach of Article 14 (Art. 14) of the Convention. C. As regards Articles 9 and 10 (Art. 9, 10) of the Convention 38. 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 having given a speech which was subsequently published. 39. 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." 40. The applicant submits that he was convicted for having expressed his views on the "Kurdish problem" in Turkey. He asserts that he commented on the facts concerning the Kurdish people living in Turkey. He maintains that his conviction cannot be justified by any of the reasons permitted under the Convention. He considers that the speech in question was within the limits of permissible criticism. With regard to the amendments made by Law No. 4126 of 27 October 1995 to Article 8 of the Anti-Terror Law, he observes that they were made after he had served his sentence and, therefore, did not apply to his case. 41. The respondent Government maintain that the interference with the applicant's rights under Article 10 ( Art. 10) of the Convention was prescribed by the Anti-Terror Law. They state that the comments made by the applicant in his speech constitute a provocation of enmity and hatred between the Kurdish and Turkish societies which serves to mobilise people to revolt. They assert that, according to the Anti-Terror Law, these forms of expression constitute propaganda against the indivisible integrity of the State. The Government consider that the domestic courts therefore interpreted the law reasonably. 42. The Government also maintain that the purpose of the applicant's conviction was linked to the prevention of terrorism carried out by illegal organisations and, consequently, served to protect territorial integrity and national security. 43. As to the necessity of the measure in a democratic society, the respondent Government state that terrorism strikes at the heart of democracy, the fundamental rights which that concept enshrines and the judicial and political systems. They assert that the offending speech was based on the glorification of the activities of the P.K.K. which is an illegal terrorist organisation with the objective of establishing an independent Kurdish 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 istanbul State Security Court and the Court of Cassation did not exceed the margin of appreciation conferred on States by the Convention. 44. 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. 45. Therefore, the question is whether this interference was prescribed by law, pursued a legitimate aim under Article 10 para. 2 (Art. 10-2) and was "necessary in a democratic society" in order to realise that legitimate aim. 46. 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. 47. 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. 48. 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 (Art. 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". 49. 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). 50. 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). 51. 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. 52. The Commission notes that the applicant's speech, as published, attempts to give an explanation of what the Kurdish question represents historically. In particular, the applicant points out what alleged role some external political powers have played in creating the situation of the Kurdish people as it stands nowadays. As one of his conclusions, the applicant considers that "the [Kurdish] question can [not] find a radical solution in a matter of days". As to the reasons for which there is a "delay in gaining national rights on the Kurds' part", the applicant finds that this is a problem depending "on the Kurds' failure to establish international relations and the fact that international powers closed their doors on the Kurds". 53. The Turkish courts held that, to the extent that the applicant, in his speech, had alleged that "the citizens of Kurdish race were denied their national rights; their land was divided among the States in the region; the Kurds were fighting for their national rights", his speech as a whole contained elements of propaganda against the indivisibility of the State. 54. However, in the Commission's view the applicant expressed his views on the Kurdish question in relatively moderate terms, and did not associate himself with the use of violence in the context of the Kurdish separatist struggle. 55. The Commission finds that the applicant's conviction amounted to a kind of censure, which was likely to discourage him or others from expressing or 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). 56. 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 57. The Commission concludes, by 31 votes to 1, 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 58. The applicant complains that his case was not heard by an independent and impartial tribunal. 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." 59. The applicant claims that the State Security Courts are extraordinary courts dealing with political offences and that they are not sufficiently independent. He contends that one of the three members of the State Security Court is a military judge answerable to his military superiors; the members of the State Security Court are appointed by the High Council of Judges and Prosecutors and the president of this Council is the Minister of Justice and one other member also holds office in the Ministry of Justice. 60. The respondent Government maintain that this part of the application is ill-founded and abstract. In this context they submit that the applicant did not raise any complaint related to the actual fairness of his trial. 61. 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." 62. The Commission finds that the same considerations apply in the present case. 63. 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. CONCLUSION 64. 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 65. Article 14 (Art. 14) of the Convention provides as follows: "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." 66. The applicant maintains that his conviction for expressing his views, contrary to State policy, on the "Kurdish problem" constituted discrimination on the ground of political opinion. 67. Having found a violation of Article 10 (Art. 10) of the Convention in respect of the applicant's expression of his views, the Commission considers that no separate issue arises in respect of Article 14 in conjunction with Article 10 (Art. 14+10). CONCLUSION 68. The Commission concludes, by 31 votes to 1, that no separate issue arises in regard to Article 14 in conjunction with Article 10 (Art. 14+10) of the Convention. F. Recapitulation 69. The Commission concludes, by 31 votes to 1, that there has been a violation of Article 10 (Art. 10) of the Convention (see above para. 57). 70. 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. 64). 71. The Commission concludes, by 31 votes to 1, that no separate issue arises in regard to Article 14 in conjunction with Article 10 (Art. 14+10) of the Convention (see above para. 68). 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 Okçuoglu'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 had alleged in his speech that "the citizens of Kurdish race were denied their national rights; their land was divided among the States in the region; the Kurds were fighting for their national rights". His speech as a whole thus contained elements of propaganda against the indivisibility of the State. I find that certain indissociable sections of the applicant's speech are in fact of an inflammatory nature and could, therefore, be deemed dangerous propaganda. In these circumstances, the applicant's conviction and the penalty imposed on him on account of his speech 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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