EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 26682/95
Kamil Tekin Sürek
against
Turkey
REPORT OF THE COMMISSION
(adopted on 2 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. 19-46). . . . . . . . . . . . . . . . . . . . . . . . 4
A. The particular circumstances of the case
(paras. 19-31) . . . . . . . . . . . . . . . . . . . . . 4
B. Relevant domestic law
(paras. 32-46) . . . . . . . . . . . . . . . . . . . . . 7
III. OPINION OF THE COMMISSION
(paras. 47-79) . . . . . . . . . . . . . . . . . . . . . . . 13
A. Complaints declared admissible
(para. 47) . . . . . . . . . . . . . . . . . . . . . . .13
B. Points at issue
(para. 48) . . . . . . . . . . . . . . . . . . . . . . .13
C. As regards Article 10 of the Convention
(paras. 49-69) . . . . . . . . . . . . . . . . . . . . .13
CONCLUSION
(para. 70) . . . . . . . . . . . . . . . . . . . . . . .17
D. As regards Article 6 para. 1 of the Convention
(paras. 71-76) . . . . . . . . . . . . . . . . . . . . .17
CONCLUSION
(para. 77) . . . . . . . . . . . . . . . . . . . . . . .18
E. Recapitulation
(paras. 78-79) . . . . . . . . . . . . . . . . . . . . .19
PARTLY DISSENTING OPINION OF MR F. MARTINEZ
JOINED BY MR R. NICOLINI. . . . . . . . . . . . . . . . . . . . . .20
PARTLY DISSENTING OPINION OF MR B. CONFORTI
JOINED BY MRS G.H. THUNE, MM L. LOUCAIDES,
M.A. NOWICKI, G. RESS, K. HERNDL, M. VILA AMIGÓ,
MRS M. HION, MM N. NICOLINI AND A. ARABADJIEV. . . . . . . . . . .21
DISSENTING OPINION OF MR E.A. ALKEMA. . . . . . . . . . . . . . . .23
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . .24
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 1957 and
lives 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 on account of the publication of two readers'
articles in a weekly review. The applicant is the major shareholder in
the publishing company concerned.
5. The applicant complains under Article 10 of the Convention that
his conviction constituted an unjustified interference with his freedom
of expression. He also complains under Article 6 para. 1 of the
Convention that his case was not tried by an independent and impartial
tribunal.
B. The proceedings
6. The application was introduced on 20 February 1995 and registered
on 9 March 1995.
7. On 4 September 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 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. 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 18 June 1996.
9. The Government's written observations were submitted on
14 February 1996, after an extension of the time-limit fixed for that
purpose. The applicant replied on 7 June 1996.
10. On 14 October 1996 the Commission declared admissible the
applicant's complaints relating to the alleged interference with his
freedom of expression and to the alleged lack of impartiality and
independence of the tribunal which convicted him. The Commission
declared inadmissible the remainder of the application which concerned
an original complaint of the applicant about the length of the criminal
proceedings against him.
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. On 27 February 1997 the Government submitted supplementary
observations. The applicant submitted comments in reply on
16 April 1997.
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
2 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. At the material time, the applicant was the major shareholder in
Deniz Basin Yayin Sanayi ve Ticaret Organizasyon A.S., a Turkish
company, which owns a weekly review entitled Haberde Yorumda Gerçek
(The Truth of News and Comments), published in istanbul.
20. In issue No. 23 dated 30 August 1992, two readers' articles,
entitled "Silahlar Özgürlügü Engelleyemez" ("Weapons cannot win against
freedom") and "Suç Bizim" ("It is our fault"), were published.
21. A translation of these articles is as follows:
a) "Weapons cannot win against freedom
In the face of the escalating war of national liberation in
Kurdistan, the fascist Turkish army continues to carry out
bombings. The «Sirnak massacre» which Gerçek journalists revealed
at the cost of great self-sacrifice has been another concrete
example of this week.
The brutalities in Kurdistan are in fact the worst that have been
experienced there in the past few years. The massacre carried out
in Halepçe in Southern Kurdistan by the reactionary BAAS
administration is now taking place in Northern Kurdistan. Sirnak
is concrete proof of it. By causing provocation in Kurdistan, the
Turkish Republic was heading for a massacre. Many people were
killed. In a 3-day attack with tanks, shells and bombs, Sirnak
was razed to the ground.
And the bourgeois press, en masse, wrote about the slaughter.
And as the bourgeois press has said, there are indeed scores of
«unanswered» questions to be asked. As to Sirnak, the attack on
Sirnak is the most effective form of the campaign that is being
waged throughout Turkey to eradicate the Kurds. Fascism will
follow it up with many more Sirnaks.
But the struggle of our people for national freedom in Kurdistan
has reached a point where it can no longer be thwarted by
bloodshed, tanks and shells. Every attack launched by the Turkish
Republic to wipe out the Kurds intensifies the struggle for
freedom. The bourgeoisie and its toadying press, which draw
attention every day to the brutalities in Bosnia-Herzegovina,
fail to see the brutalities committed in Kurdistan. Of course,
one can hardly expect reactionary fascists who call for a halt
in the brutalities in Bosnia-Herzegovina to call for a halt in
the brutalities in Kurdistan.
The Kurdish people, who are being torn from their homes and their
fatherland, have nothing to lose. But they have much to gain."
b) "It is our fault
The TC murder gang is continuing its murders... on the grounds
of «protecting the Republic of Turkey». But as people wake up
to what is happening and become more aware, as they gradually
learn to stand up for their rights and the idea that «if they
won't give, then we'll take by force» gradually germinates in
people's minds and grows stronger day by day - as long as this
continues, the murders will obviously also continue... Beginning
of course with those who planted the seed in people's minds -
according to the generals, imperialism's hired killers, and
according to the double-chinned, pot-bellied, stiff-necked
Turguts, Süleymans and Bülents... Hence the events of 12 March,
hence the events of 12 September... Hence the gallows, hence the
prisons, hence the people sentenced to 300 or 400 years. Hence
the people murdered in the torture rooms «in order to protect the
Republic of Turkey». Hence the Mazlum Dogans exterminated in
Diyarbakir Prison... Hence the Revolutionaries recently
officially assassinated... The TC murder gang is continuing - and
will continue - to commit its murders. Because the awakening of
the people is like a flood of enthusiasm... Hence Zonguldak,
hence the municipal workers, hence the public service
employees... Hence Kurdistan. Can the «murder gangs» stop that
flood? There may be some who see the title of this letter and
wonder what on earth it has to do with the text.
The «hired killers» of imperialism, i.e. the authors of the
12 September coup d'état, and their successors of yesterday and
today, those who are still looking for «democracy», who in the
past participated in one way or another in the struggle for
democracy and freedom, who now covertly or openly criticise their
past actions, who confuse the masses and present the
parliamentary system and the rule of law as the means of
salvation, give the green light to the killings of the TC murder
gang.
I am addressing the «faithful servants» of imperialism and its
hardened spokesman(-men), the one(s) who said some time ago «You
won't get me to say that the nationalists commit crimes», who
say(s) today «Those are not what we call journalists», who say(s)
«Who's against demonstrations? Who's against claiming one's
rights? Of course they can hold a march... They're my workers,
my peasants, my public employees», but then has (have) the public
employees who march to Ankara beaten up in the very heart of the
city and say(s) afterwards «The police did the right thing», and
who postpone(s) strikes for months on end. I am addressing the
blabbers, the deserters and the charlatans who are stirring up
the reactionary consciousness of the masses, who try to judge
these people by their attitude towards Kurdistan and try to work
out how «democratic» they are. The guilt of the murder gang is
proven. It is through flesh and blood experience that people are
beginning to see it and realise it. But what about the guilt of
the charlatans, the ones who are thwarting the struggle for
democracy and freedom... Yes, what about their guilt... They have
their share in the killings by the murder gang... May their
«union» be a happy one!"
22. In an indictment dated 21 September 1992, the Public Prosecutor
at the istanbul State Security Court (istanbul Devlet Güvenlik
Mahkemesi), on account of the published articles, charged the
applicant, being the owner of the review, with disseminating propaganda
against the indivisibility of the State and provoking enmity and hatred
among the people. The charges were brought under Article 8 of the
Anti-Terror Law and Article 312 of the Turkish Criminal Code.
23. In the proceedings before the istanbul State Security Court, the
applicant denied the charges. He asserted that expression of an opinion
cannot constitute an offence. He stated that the said articles had been
written by the readers of the review.
24. In a judgment dated 12 April 1993, the Court found the applicant
guilty of an offence under Article 8 of the Anti-Terror Law. It found
no grounds for conviction under Article 312 of the Turkish Criminal
Code. The Court first sentenced the applicant to a fine of
200,000,000 Turkish lira. Then, considering his good conduct during the
trial, it reduced the fine to 166,666,666 Turkish lira.
25. In the reasoning of its judgment, the Court held that the
incriminated articles contravened Article 8 of the Anti-Terror Law to
the extent that they referred to a certain part of Turkish territory
as an independent state, "Kurdistan", alleged the existence of a
"national independence war" against the Turkish State, made
discriminatory statements on the grounds of race and contained views
which aimed at provoking enmity against the Turkish State.
26. The applicant appealed. He stated that his trial and conviction
contravened Articles 6 and 10 of the Convention. He asserted that
Article 8 of the Anti-Terror Law was contrary to the Constitution. He
denied that the articles in question disseminated separatist
propaganda. He also asserted that he had not been able to be present
at the hearing during which the decision on his conviction had been
given. He pleaded that the decision given in his absence and without
taking his final statement was contrary to law.
27. On 26 November 1993 the Court of Cassation found the amount of
the fine, as imposed by the State Security Court, excessive. It set
aside the applicant's conviction and sentence in this respect.
28. In a judgment dated 12 April 1994, the istanbul State Security
Court first sentenced the applicant to a fine of 100,000,000 Turkish
lira. Thereupon it reduced the fine to 83,333,333 Turkish lira. As to
the grounds for conviction, the Court, inter alia, reiterated its
reasoning dated 12 April 1993.
29. The applicant appealed. He reiterated the defence which he had
made earlier. He also stated that the State Security Court had
convicted him without having duly heard his defence.
30. On 30 September 1994 the Court of Cassation dismissed the appeal.
It upheld the cogency of the State Security Court's reasoning and its
assessment of evidence.
31. After the amendments made by Law No. 4126 of 27 October 1995 to
the Anti-Terror Law, the istanbul State Security Court re-examined the
applicant's case. On 8 March 1996 the Court sentenced the applicant to
the previous sentence.
B. Relevant domestic law
a) Anti-Terror Legislation
32. 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 territories and the 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." 33. Article 8 paragraph 2 of Anti-Terror Law "Yukaridaki fikrada belirtilen propaganda suçunun 5680 sayili Basin Kanunun 3 üncü maddesinde belirtilen mevkuteler vasitasi ile islenmesi halinde, ayrica sahiplerine de mevkute bir aydan az süreli ise, bir önceki ay ortalama satis miktarinin: [mevkute niteliginde bulunmayan basili eserler ile yeni yayina giren mevkuteler hakkinda ise, en yükek tirajli günlük mevkutenin bir önceki ay ortalama satis tutarinin]; yüzde dosani kadar agir para cezasi verilir. Ancak, bu para cezalari yüzmilyon liradan az olamaz. Bu mevkutelerin sorumlu müdürlerine, sahiplerine verilecek para cezasinin yarisi uygulanir ve alti aydan iki yila kadar hapis cezasi hükmolunur." "If the offence of propaganda, referred to in paragraph 1 above, is committed by means of periodicals, as defined in Article 3 of Press Law No. 5680, the owners of such periodicals shall be punished by a fine to be determined in accordance with the following provisions: for periodicals published at less than monthly intervals, the fine shall be ninety per cent of the average real sales revenue of the previous month; [for printed works that are not periodicals or for periodicals which have recently started business, the fine shall be the average monthly sales revenue of the highest circulating daily periodical]. In any case, the fine may not be less than 100 million Turkish lira. Responsible editors of these periodicals shall be sentenced to imprisonment of between six months and two years and to half of the fine determined in accordance with the provisions concerning the owners." 34. In its judgment No. 1991-18/20, dated 31 March 1992, the Constitutional Court found the above clause in square brackets to be contrary to the Constitution and annulled it. The decision was published in the Official Gazette on 27 January 1993. The annulled clause ceased to have effect on 27 July 1993. 35. 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 territories and the nation. Those carrying out any 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 of imprisonment shall not be commuted to fines." b) Press Law No. 5680 of 24 July 1950 36. Article 3 "Gazetelere, haber ajanslari nesriyatina ve belli araliklarla yayinlanan diger bütün basilmis eserlere bu kanunda 'mevkute' denir. Basilmis eserlerin herkesin görebilecegi veya girebilecegi yerlerde gösterilmesi veya asilmasi veya dagitilmasi veya dinletilmesi veya satilmasi veya satisa arzi 'nesir' sayilir. .." "Newspapers, publications of news agencies and all other published matter, published at specific intervals, are referred to as 'periodicals' in this Law. The display, distribution, broadcast, sale and supply of published matter in locations accessible to the public shall be regarded as 'publication'. ... " 37. Under Article 7 of the Press Law, in cases where a periodical is owned by a company, the major shareholder in that company is considered to be the owner of the periodical. c) Legislation on the State Security Court 38. 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. ..." 39. 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." 40. 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. ..." 41. 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 ..." 42. 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." 43. 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." 44. 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. d) Turkish Criminal Code 45. Article 312 paras. 2 and 3 "Halki; sinif, irk, din, mezhep veya bölge farkliligi gözeterek kin ve düsmanliga açikça tahrik eden kimse bir yildan üç yila kadar hapis ve ucbin liradan onikibin liraya kadar agir para cezasi ile cezalandirilir. Bu tahrik umumun emniyeti için tehlikeli olabilecek bir sekilde yapildigi takdirde faile verilecek ceza üçte birden yariya kadar arttirilir. Yukaridaki fikralarda yazili suçlari 311 inci maddenin ikinci fikrasinda sayilan vasitalarla isleyenlere verilecek cezalar bir misli arttirilir." "It shall be an offence punishable by not less than one and not more than three years' imprisonment, and by a fine of not less than three thousand and not more than twelve thousand lira, to provoke feelings of hatred and enmity among the people by discriminating on the grounds of social class, race, religion, sect or region. If such provocation imperils public safety, the punishment shall be increased by one third to one half of the sentence. The punishment for the acts defined in the preceding paragraph shall be doubled where they have been committed by the means enumerated in paragraph 2 of Article 311." 46. The means enumerated in Article 311 para. 2 of the Criminal Code are: mass media, audio tapes, records, films, newspapers, magazines, handwritten texts distributed in the form of leaflets, placards and posters. III. OPINION OF THE COMMISSION A. Complaints declared admissible 47. The Commission has declared admissible: - the applicant's complaint that his conviction on account of the publication of the readers' letters in question constituted an unjustified interference with his freedom of expression; - the applicant's complaint that his case was not tried by an independent and impartial tribunal. B. Points at issue 48. The points at issue in the present case are as follows: - whether the applicant's conviction on account of the publication of the two readers' articles infringed his freedom of expression as guaranteed by Article 10 (Art. 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 by an independent and impartial tribunal within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention. C. As regards Article 10 (Art. 10) of the Convention 49. The applicant complains that his freedom of expression has been infringed, contrary to Article 10 (Art. 10) of the Convention, in that he was convicted on account of the publication of two readers' articles. 50. Article 10 (Art. 10) of the Convention provides as follows: "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. 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." 51. The applicant submits that the expression of an opinion cannot constitute an offence. He maintains that his conviction cannot be justified by any of the reasons permitted under the Convention. Various limitations on freedom of expression have existed in Turkey for decades and their existence cannot be considered justified by the upheaval of terrorism during recent years. 52. The applicant also submits that the weekly review concerned has never displayed any support for terrorism. The incriminated letters were written by readers of the review and he, having simply been the major shareholder of the publishing company, had no personal involvement whatsoever in their creation or publication. In any event, his sentence was disproportionate, particularly in the light of the limited circulation of the review. As to the amendments made to the Anti-Terror Law, he submits that the re-examination of the cases of those persons who had been convicted and sentenced under Article 8 of the said Law resulted in the mere repetition of the previous sentences. 53. The respondent Government maintain that 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 state that the applicant, in his review, published letters written by readers in which a certain part of Turkish territory had been referred to as "Kurdistan" and a certain part of the population as "Kurds". The incriminated letters alleged the existence of a "national independence war" against the Turkish State and contained statements which aimed at provoking enmity against the Turkish State. According to Article 8 of 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. 54. The Government also maintain that the aim of the applicant's conviction was linked to the control of fierce terrorist activities carried out by illegal organisations and, consequently, was the protection of territorial integrity and national security. 55. 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. (the Kurdistan Workers Party - a terrorist organisation) and its affiliations 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 the judicial and political systems. They assert that the articles in question imply the glorification of the P.K.K.'s activities, the P.K.K. being an illegal terrorist organisation fighting for the establishment of 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. 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. 56. In the latter respect, the Government recall the Commission's case-law which, in their view, allows for a wide margin of appreciation to governments and to national public authorities with regard to sanctions and restrictions imposed on freedom of expression on grounds of national security and public safety. The authorities of a particular Contracting Party are best placed to interpret the legal definition of criminal offences against national security, territorial integrity or public safety and to decide whether a restriction designed to protect these matters is necessary (Critical perspectives on the scope and the interpretation of Article 10 (Art. 10) of the European Convention on Human Rights, Council of Europe, Mass Media Files no. 10, p. 23). The Strasbourg organs should not substitute their own evaluation for that of the national courts, where those courts, on reasonable grounds, considered the restrictions to be necessary (cf. Eur. Court HR, markt intern Verlag GmbH and Klaus Beermann v. Germany judgment of 20 November 1989, Series A no. 165, p. 21, para. 37). 57. 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. 58. 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. 59. 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. 60. 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. 61. 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. 10-1) 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". 62. 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). 63. 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). 64. 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. 65. The Commission notes that the reader's letter entitled "Weapons cannot win against freedom" contains phrases such as an "escalating war of national liberation in Kurdistan" and "the fascist Turkish army". In the article it is stated that "by causing provocation in Kurdistan, the Turkish Republic was heading for a massacre", a "campaign ... is being waged throughout Turkey to eradicate the Kurds" and "every attack launched by the Turkish Republic to wipe out the Kurds intensifies the struggle for freedom". As a conclusion, it is suggested that "the Kurdish people, who are being torn from their homes and their fatherland, have nothing to lose. But they have much to gain." 66. In the reader's letter entitled "It is our fault", the Turkish army is denounced as a "murder gang" which "is continuing - and will continue - to commit its murders". It is stated that "people [were] murdered in ... torture rooms «in order to protect the Republic of Turkey»". As a conclusion, it is suggested that "the guilt of the murder gang is proven. It is through flesh and blood experience that people are beginning to see it and realise it" and that "the ones who are thwarting the struggle for democracy and freedom ... have their share in the killings by the murder gang... ". 67. The Commission considers that the fact of using strong language against the Turkish State and the Turkish army or of referring to the events in south-east Turkey as a war of national liberation was not sufficient to justify the applicant's criminal conviction. However, the language used in the articles was such that, in addition to advocating political change, it could be understood as an expression of support for armed struggle against the Turkish State for separatist purposes. The articles could therefore be interpreted as an encouragement of further violence. 68. Consequently, the Commission, while also taking into account the sensitive situation in south-east Turkey, finds that the Turkish authorities were entitled to consider that the publication of the articles was harmful to national security and public safety. As the owner of the review, the applicant was subject to duties and responsibilities which were incumbent upon him even when he permitted publication of articles by readers in that review. In these circumstances, the applicant's conviction and the penalty imposed on him on account of the publication of the articles could reasonably be regarded as answering to a pressing social need. 69. In the light of these considerations, the Commission, having regard to the State's margin of appreciation in this area, is 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. CONCLUSION 70. The Commission concludes, by 19 votes to 13, that there has been no violation of Article 10 (Art. 10) of the Convention. D. As regards Article 6 para. 1 (Art. 6-1) of the Convention 71. 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." 72. The applicant maintains that the State Security Courts are extraordinary courts dealing with political offences. He contends that the members of the State Security Court are appointed by the High Council of Judges and Prosecutors. The president of this Council is the Minister of Justice and two other members also hold office in the Ministry of Justice. One of the three members of the State Security Court is a military judge answerable to his military superiors. Furthermore, he questions the independence and impartiality of the Court of Cassation, given that its judgments do not have any specific reasoning. 73. The respondent Government maintain that the 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 have been established in accordance with the provisions of Article 143 of the Constitution. As they are independent judicial organs, no public authority or agent could give instructions to such courts. The State Security Courts are composed of three members, one of whom is a military judge. A civil judge acts as president and all the 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 judge by career and not belonging to the military. Military judges and prosecutors are independent of their commander and their security of tenure is established. The judges of State Security Courts evaluate the evidence and take their decisions in accordance with the law and 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. Moreover, the Government point out that the applicant's submissions do not refer to any actual misconduct on the part of the State Security Court. In sum, they submit that this part of the application is ill-founded. 74. 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." 75. The Commission finds that the same considerations apply in the present case. 76. 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 77. 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. Recapitulation 78. The Commission concludes, by 19 votes to 13, that there has been no violation of Article 10 (Art. 10) of the Convention (see above para. 70). 79. 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. 77). M. de SALVIA S. TRECHSEL Secretary President to the Commission of the Commission (or. French) PARTLY DISSENTING OPINION OF MR F. MARTINEZ JOINED BY MR R. NICOLINI Avec la majorité de la Commission, j'ai voté pour la violation de l'article 6 par. 1 de la Convention du fait du manque d'impartialité et d'indépendance de la Cour de Sûreté de l'Etat intervenue en l'espèce. Je pense donc qu'une cour qui ne satisfait pas aux exigences de l'article 6 de la Convention n'a pas de pouvoir légitime pour décider du bien-fondé de l'accusation en matière pénale dirigée contre le requérant. Le statut de la Cour de Sûreté de l'Etat étant en soi la source d'une violation de la Convention, l'arrêt rendu par cette cour et qui condamne le requérant ne peut être justifié à l'égard de l'article 10 de la Convention. A mon avis, le fait de conclure à la violation de l'article 6 par. 1 en même temps qu'à la non-violation de l'article 10 constitue une "contradictio in terminis". Cette contradiction d'ordre logique ébranle un vieux principe général du droit selon lequel un vice à l'origine de la procédure rend vicieuses toutes les conséquences qui découlent de cette procédure. C'est la raison pour laquelle je pense que, après avoir constaté un vice dans la composition de la cour qui a condamné le requérant, la meilleure solution consiste à dire qu'aucune question séparée ne se pose à l'égard de l'article 10 de la Convention. (or. French) PARTLY DISSENTING OPINION OF MR B. CONFORTI JOINED BY MRS G.H. THUNE, MM L. LOUCAIDES, M.A. NOWICKI, G. RESS, K. HERNDL, M. VILA AMIGÓ, MRS M. HION, MM R. NICOLINI AND A. ARABADJIEV J'ai voté contre la conclusion de la majorité selon laquelle il n'y a pas eu violation de l'article 10 de la Convention. Comme la Cour l'a dit maintes fois, la liberté d'expression est l'un des biens fondamentaux qui mérite la plus grande protection au sein d'une société démocratique. C'est donc, à mon avis, avec la plus grande prudence que l'on doit examiner si, dans un cas d'espèce, et même en tenant compte de la marge d'appréciation reconnue à l'Etat, une limitation de cette liberté au sens du paragraphe 2 de l'article 10 peut être admise : il convient encore une fois de citer l'opinion de la Cour selon laquelle les exceptions prévues par ce paragraphe "appellent une interprétation étroite" (voir, dernièrement, arrêt Zana c. Turquie du 25 novembre 1997, à paraître dans le Recueil des arrêts et décision 1997, par. 51). Pour cette raison, je ne suis pas convaincu que l'on puisse justifier les sanctions prises à l'encontre du requérant, comme le fait la majorité, par les mots contenus dans la lettre intitulée "Les armes ne peuvent pas gagner sur la liberté" et en particulier par les phrases suivantes : "la montée de la guerre de libération nationale dans le Kurdistan", "l'armée fasciste de Turquie", "en causant des désordres dans le Kurdistan, la République turque veut provoquer des massacres", "une campagne est déclenchée dans toute la Turquie pour déraciner les kurdes", "chaque attaque lancée par la République turque pour éliminer les kurdes intensifie la lutte pour la liberté" et "les populations kurdes qui ont été chassées de leurs maisons et de leur patrie n'ont rien à perdre et tout à gagner". Je ne saurais voir dans ces propos une incitation à la violence ou à commettre des crimes, incitation qui, dans le Sud-Est de la Turquie, me paraît le seul comportement qui peut être considéré comme dépassant les limites d'une manifestation d'opinion protégée par la Convention. En effet, le requérant ne fait que décrire, certes dans des termes "heurtant, choquant et inquiétant", ce qui se passe dans cette région. D'autre part, ses appréciations sur le comportement de l'armée turque ne diffèrent pas, pour l'essentiel, de certaines appréciations que la Commission a considéré, dans d'autres affaires, comme tolérables et ne justifiant pas une dérogation au sens du paragraphe 2 de l'article 10 (voir Rapport N° 25556/94, Ceylan c. Turquie, par. 44, concernant un syndicaliste qui avait écrit dans un article qu'"un génocide est perpétré contre les kurdes en Turquie"; Rapport N° 23462, Arslan c. Turquie, par. 50, concernant un requérant qui avait soutenu dans un livre que l'Etat turc opprime la population d'origine kurde, essaye de détruire leur identité par le génocide, les exils, les tortures et commet des massacres contre elle ; Rapport N° 24246/94, Okçuoglu c. Turquie, par. 53, dans le cas d'un requérant qui avait dit, dans un discours publié dans la presse, que "les kurdes combattaient pour leurs droits nationaux"). Il est vrai que dans l'arrêt Zana c. Turquie (par. 57-60), la Cour a estimé que l'ingérence des autorités turques au sens de l'article 10, était justifiée par la paragraphe 2 de cet article lorsqu'un homme politique avait déclaré son soutien au "mouvement de libération nationale du PKK". Mais la Cour a tenu à préciser (par. 59-60) que cette déclaration ne devait pas être considérée isolément, qu'elle avait été prononcée lors d'un entretien publié dans un grand quotidien national, qu'elle avait pris une ampleur particulière, ayant coïncidé avec des attentats meurtriers perpétrés par le PKK contre des civils et enfin que le soutien apporté au PKK, qualifié de mouvement de libération nationale de la part du requérant, ancien maire de Diarbakir, la ville la plus importante du Sud-Est en Turquie, était en mesure d'aggraver une situation déjà explosive dans cette région. Or toute ces circonstances ne sont pas présentes dans l'espèce, et d'autre part, bien que le requérant ait parlé d'une "montée de la guerre de libération nationale face à laquelle l'armée fasciste de Turquie continue à effectuer des bombardements", il ne fait pas expressément une déclaration de soutien en faveur du PKK. Il s'agit de différences qui, compte tenu de la nécessité d'une interprétation étroite du paragraphe 2 de l'article 10, devaient conduire la Commission à conclure à la violation de l'article 10. (or. English) 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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