Information Note on the Court’s case-law 20
July 2000
Şener v. Turkey - 26680/95
Judgment 18.7.2000 [Section III]
Article 10
Article 10-1
Freedom of expression
Conviction for making separatist propaganda: violation
Facts: The applicant was owner and editor of a weekly review, the 23rd edition of which was seized on the orders of the Istanbul State Security Court in September 1993, on the ground that an article in it contained separatist propaganda. The applicant was convicted by the State Security Court, including a military judge, of having disseminated separatist propaganda and sentenced to 6 months’ imprisonment and a fine of 50 million Turkish liras. The court noted that the article in question referred to “Kurdistan” and claimed that genocide had taken place. It ordered confiscation of the publication. The applicant’s appeal was rejected by the Court of Cassation. Following amendments to the law, her case was re-examined by the State Security Court, which imposed the same sentence. However, the Court of Cassation quashed this judgment on the ground that the prison sentence had not been commuted to a fine. The State Security Court then decided to defer imposition of a final sentence, which would only be given if the applicant was convicted again within three years. The author of the article was convicted in 1995, but the sentence imposed on him was suspended.
Law: Article 10 – It is clear and undisputed that there has been an interference with freedom of expression. The interference was prescribed by law and pursued the legitimate aims of the protection of national security and public safety. As to necessity, although certain phrases in the impugned article seem aggressive in tone, the article as a whole does not glorify violence or incite to hatred, revenge, recrimination or armed resistance; on the contrary, it is an intellectual analysis of the Kurdish problem which calls for an end to the armed conflict. In any case, the applicant was not convicted for incitement to violence but for disseminating separatist propaganda, and in that respect the authorities failed to give sufficient weight to the public’s right to be informed of a different perspective on the situation. The reasons given by the State Security Court, while relevant, cannot be regarded as sufficient to justify the interference. Although the applicant’s sentence was suspended, she was faced with the threat of a heavy penalty and if she fails to comply with the condition imposed she will automatically be sentenced for the original offence. The conditional suspension of her sentence thus did not deprive her of her victim status, but in fact had the effect of restricting her work and reducing her ability to offer views to the public. The convicton was consequently disproportionate to the aims.
Conclusion: violation (6 votes to 1).
Article 6 § 1 – The Court has already held that civilians tried by a State Security Court may legitimately fear that that court lacks independence and impartiality due to the presence of a military judge (Incal and Çiraklar judgments, Reports 1998-IV and VII). There is no reason to reach a different conclusion in the present case.
Conclusion: violation (6 votes to 1).
Artice 18 - The Court considered that since the restrictions were consistent with the legitimate aims contained in Article 10(2), there had been no violation of Article 18.
Conclusion: no violation (unanimous).
Article 41 - The Court awarded the applicant 30,000 French francs (FRF) in respect of non-pecuniary damage. It also made an award in respect of costs.
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This summary by the Registry does not bind the Court.
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