EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 24762/94
Kamil Tekin Sürek
against
Turkey
REPORT OF THE COMMISSION
(adopted on 13 January 1998)
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). . . . . . . . . . . . . . . . . . .6
III. OPINION OF THE COMMISSION
(paras. 47-77) . . . . . . . . . . . . . . . . . . . . . . . 14
A. Complaints declared admissible
(para. 47). . . . . . . . . . . . . . . . . . . . 14
B. Points at issue
(para. 48). . . . . . . . . . . . . . . . . . . . 14
C. As regards Article 10 of the Convention
(paras. 49-67). . . . . . . . . . . . . . . . . . 14
CONCLUSION
(para. 68). . . . . . . . . . . . . . . . . . . . 18
D. As regards Article 6 para. 1 of the Convention
(paras. 69-74). . . . . . . . . . . . . . . . . . 18
CONCLUSION
(para. 75). . . . . . . . . . . . . . . . . . . . 19
E. Recapitulation
(paras. 76-77). . . . . . . . . . . . . . . . . . 20
JOINT CONCURRING OPINION OF MS J. LIDDY
AND MR N. BRATZA. . . . . . . . . . . . . . . . . . . . . . 21
PARTLY DISSENTING OPINION OF MR S. TRECHSEL . . . . . . . . 22
PARTLY 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 a news commentary and
a political declaration in a weekly review. The applicant was 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 dealt with by an independent and
impartial tribunal.
B. The proceedings
6. The application was introduced on 27 July 1994 and registered on
3 August 1994.
7. On 20 February 1995, the Commission decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the Turkish Government and to invite the parties to
submit written observations on the admissibility and merits of the
applicant's complaints (under Article 10 of the Convention) based on
the alleged violation of his freedom of expression and (under
Article 6 para. 1 of the Convention) on the alleged violation of the
principle of a fair trial by a court satisfying the conditions of
independence and impartiality.
8. The Government's written observations were submitted on
26 October 1995. The applicant replied on 5 December 1995.
9. Meanwhile, 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.
10. On 2 September 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 independence and
impartiality 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. On the same date the Commission decided to
join the case to Application Nos. 23927/94, 24122/94, 24277/94 and
24735/94.
11. The text of the Commission's decision on admissibility was sent
to the parties on 16 September 1996 and they were invited to submit
such further information or observations on the merits as they wished.
On 4 March 1997 the Government submitted supplementary observations.
The applicant submitted comments in reply on 17 April 1997.
12. On 13 January 1998 the Commission decided to disjoin the case
from Application Nos. 23927/94, 24122/94, 24277/94 and 24735/94.
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
MM J.-C. GEUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
Mrs G.H. THUNE
MM H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
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
13 January 1998 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
the 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. 51 of the review, dated 13 March 1993, a news
commentary entitled "Kawa and Dehak Once Again" was published. The
article analysed possible events which could occur during the upcoming
celebrations of Newroz.
21. A translation of the relevant parts of the news commentary is as
follows:
"... It's Newroz week in Kurdistan. The biggest confrontation
between the demands of the Kurdish people and non-tolerance in
the face of the expression of these demands occurs during these
days. The tradition of rebellion is awakened. Dehak and Kawa are
once again invested with flesh and bones. It is time to settle
accounts. There is nothing vague about Kawa. All the mountains,
all the cities are full of Kawa. There are millions of them. All
right, who, then, is Dehak? Who is the candidate for representing
Dehak in our day? Is it Demirel? Is it Güres? The regional
Governor? Or the new commander ilter? This time round, is Dehak
represented by every counter-insurgency chief, indeed, every
counter-insurgency operative, every special team member, every
police commissioner or superintendent officer? Has Dehak become
anonymous too? Be it as it may, but Dehak and Kawa will settle
their accounts once again. ...
Last year, a revolutionary publication described the days
preceding Newroz as follows:
«Nowadays over 200 thousand soldiers massed into Kurdistan.
Tanks and weapons are sent over. Bombs are raining on
Kurdish villages and mountains. The Chief of the General
Staff has inspected the preparations for the offensive.
Instructions are being issued to provincial and district
governors, special team leaders, police chiefs and military
officials. The Head of MiT intelligence agency talks of the
prospect of much blood being shed. Members of Parliament
are organising information gathering trips in order to
take the pulse of the people.» ...
Unlike previous years, the P.K.K.-leaning Kurdistan National
Assembly (KUM) is also expected to take on a role during Newroz
this year. ...
On the other hand emergency measures are being implemented in
large cities outside Kurdistan where there are concentrations of
Kurdish people. It is highly likely that there will be large
demonstrations in the Kurdish quarters there."
22. In the same issue and within the context of the above news
commentary, an interview by the Kurdish News Agency (KURD-HA) with a
representative of the E.R.N.K. was also published.
23. A translation of the relevant part of the interview is as
follows:
"... We wish to emphasise this finding, indeed, we feel that it
ought to be underlined. And we call on all European countries.
We are open to any humanitarian, political solution, including
the calls for an armistice. The P.K.K. movement and its struggle
are absolutely not terrorist movements. This misapprehension must
be abandoned - it must definitely be abandoned - and a move must
be made towards co-operation and support. The real terrorist is
the Republic of Turkey. We believe that attitudes on this matter
will be much clarified this year, that very positive dialogues
will develop and that the Republic of Turkey will be gradually
further isolated."
24. On 14 March 1993 the istanbul State Security Court (istanbul
Devlet Güvenlik Mahkemesi) ordered the seizure of the issue, holding
that it contained separatist propaganda.
25. In an indictment dated 22 April 1993 the Public Prosecutor at the
istanbul State Security Court, on account of the publication of the
above news commentary, charged the applicant, as the owner of the
review, with making propaganda by means of the press against the
indivisibility of the State. The applicant was also charged with
publishing the declaration of the E.R.N.K, an illegal terrorist
organisation being the political wing of the P.K.K. (Kurdistan Workers
Party - a terrorist organisation). The charges were brought under
Articles 8 and 6 of the Anti-Terror Law, respectively.
26. In the proceedings before the istanbul State Security Court, the
applicant denied the charges. He pleaded that the news commentary for
which he was charged did not fall within the scope of Article 8 of the
Anti-Terror Law. He maintained that arguing and commenting on possible
activities in which the illegal terrorist organisation P.K.K. might
engage during the Newroz celebrations, could not be considered as
publishing a declaration of a terrorist organisation within the meaning
of Article 6 of the Anti-Terror Law. As regards his freedom of
expression, he invoked Article 10 of the Convention and referred to the
case-law of the Commission and the Court. He stated that pluralism of
opinions including those opinions which shock or offend is essential
in a democratic society. He argued that the provisions of
Articles 6 and 8 of the Anti-Terror Law restrict freedom of expression
in contravention of the Turkish Constitution and the criteria laid down
by the case-law of the Commission and the Court.
27. In a judgment dated 27 September 1993, the Court found the
applicant guilty. The applicant was sentenced under Article 8 para. 2
of the Anti-Terror Law to a fine of 100,000,000 Turkish lira. The
Court, considering the good conduct of the applicant during the trial,
reduced the fine to 83,333,333 Turkish lira.
28. The Court based its judgment on certain extracts from the news
commentary. It held that the news commentary - in which a certain part
of the Turkish territory was referred to as "Kurdistan" and a certain
section of the population as "Kurds" - disseminated propaganda against
the indivisibility of the State. The Court further held that the review
had published the declaration of an illegal terrorist organisation in
which the Republic of Turkey was referred to as a terrorist State.
However, it considered that the declaration constituted a part of the
news commentary at issue and, having regard to the provisions of
Article 79 of the Turkish Criminal Code, did not find any grounds for
a separate conviction under Article 6 of the Anti-Terror Law.
29. The applicant appealed. He, inter alia, reiterated the defence
he had made before the State Security Court.
30. On 8 February 1994 the Court of Cassation dismissed the appeal.
It upheld the cogency of the State Security Court's assessment of
evidence in rejecting the applicant's defence.
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 22 April 1996 the Court held that these amendments
could not be applied to the applicant's case as his sentence had
already been executed.
B. Relevant domestic law
a) Anti-Terror Legislation
32. Article 6 of the Anti-Terror Law No. 3713 of 12 April 1991
"isim ve kimlik belirterek veya belirtmeyerek kime yönelik oldugunun anlasilmasini saglayacak surette kisilere karsi terör örgütleri tarafindan suç islenecegini veya terörle mücadelede görev almis kamu görevlilerinin hüviyetlerini açiklayanlar veya yayinlayanlar veya bu yolla kisileri hedef gösterenler besmilyon liradan onmilyon liraya kadar agir para cezasi ile cezalandirilir. Terör örgütlerinin bildiri veya açiklamalarini basanlara veya yayinlayanlara besmilyon liradan onmilyon liraya kadar agir para cezasi verilir. Bu Kanunun 14 üncü maddesine aykiri olarak muhbirlerin hüviyetlerini açiklayanlar veya yayinlayanlar besmilyon liradan onmilyon liraya kadar agir para cezasi ile cezalandirilir. Yukaridaki fikralarda belirtilen fiillerin 5680 sayili Basin Kanununun 3 üncü maddesindeki mevkuteler vasitasiyle islenmesi halinde, ayrica sahiplerine de; mevkute bir aydan az süreli ise bir önceki ay ortalama fiili satis miktarinin, aylik veya bir aydan fazla süreli ise bir önceki fiili satis miktarinin,[mevkute niteliginde bulunmayan basili eserler ile yeni yayina giren mevkuteler hakkinda ise, en yüksek tirajli günlük mevkutenin bir önceki ay ortalama satis tutarinin] yüzde doksani kadar agir para cezasi verilir. Ancak, bu ceza ellimilyon liradan az olamaz. Bu mevkutelerin sorumlu müdürlerine, sahiplerine verilecek cezanin yarisi uygulanir." "Those who announce that a crime will be committed by terrorist organisations against certain persons either expressly or without mentioning their names, or who disseminate or disclose to the public the identity of officials appointed to fight terrorism, or who render such officials targets, shall be subject to a fine of between 5 and 10 million Turkish lira. Those who print or publish the leaflets of terrorist organisations shall be subject to a fine of between 5 and 10 million Turkish lira. Those who, contrary to Article 14 of this Law, disclose or publish the identity of informants shall be subject to a fine of between 5 and 10 million Turkish lira. If one of the crimes defined 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 periodicals published monthly or at more than monthly intervals, the fine shall be ninety per cent of the average real sales revenue of the previous issue [; for printed works that are not periodicals or for periodicals which have recently started business, the fine shall be ninety per cent of the monthly sales revenue of the highest circulating daily periodical]. In any case, the fine may not be less than 50 million Turkish lira. Responsible editors of these periodicals shall be sentenced to half of the sentences to be imposed upon the publishers." 33. Article 8 paragraph 1 of Anti-Terror Law (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." 34. 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 doksani 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." 35. In a judgment dated 31 March 1992, the Constitutional Court found the clauses in square brackets in the text of Articles 6 and 8 of the Anti-Terror Law to be contrary to the Constitution and annulled them. The decision was published in the Official Gazette on 27 January 1993. The annulled clauses ceased to have effect on 27 July 1993. 36. 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 37. 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'.... " 38. 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) Criminal Code 39. Article 79 of the Criminal Code provides that if someone's single act constitutes a violation of several provisions of the Law, he shall be punished in accordance with the single provision which imposes the heaviest punishment. d) Legislation on the State Security Court 40. 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. ..." 41. 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." 42. 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. ..." 43. 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 ..." 44. 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." 45. 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." 46. 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 47. The Commission has declared admissible: - the applicant's complaint that his conviction on account of the publication of the news commentary and the interview in question constituted an unjustified interference with his freedom of expression; - the applicant's complaint that his case was not dealt with by an independent and impartial tribunal, given that one of the three members of the State Security Court is a military judge, answerable to his military superiors, whose presence prejudices the independence of the Court. B. Points at issue 48. The points at issue in the present case are as follows: - whether the applicant's conviction constituted a violation of Article 10 (Art. 10) of the Convention; - whether the applicant's conviction constituted a violation 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 a news commentary and an interview. 50. Article 10 (Art. 10-1) 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. (Art. 10-2) 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 describing and commenting on possible activities in which the P.K.K. might engage during Newroz celebrations, cannot be considered as publishing a declaration by a terrorist organisation. In fact, the weekly review concerned has never displayed any support for terrorism. The penal sanction inflicted upon him was not necessary in a democratic society and cannot be justified by any reasons permitted under the Convention. He recalls that pluralism of opinions, including those which shock or offend, is essential in a democratic society. He asserts that various limitations of freedom of expression have existed in Turkey for decades and their existence cannot be considered justified by the upheaval of terrorism during the recent years. In any event, his sentence was disproportionate, in particular, in the light of the limited circulation of the review. 52. 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 a news commentary in which a certain part of Turkish territory had been referred to as "Kurdistan" and a certain section of the population as "Kurds". Moreover, the review had published a declaration by the E.R.N.K., an illegal terrorist organisation, in which the Republic of Turkey was referred to as a terrorist State. According to Article 8 of the Anti-Terror Law, such publication constitutes propaganda against the indivisible integrity of the State. The domestic courts, therefore, interpreted the law reasonably. 53. The Government also maintain that the purpose of the applicant's conviction was linked to the control of terrorism carried out by illegal organisations and, consequently, served to protect territorial integrity and national security. As to the necessity of the measure in a democratic society, the Government submit that the threat posed to Turkey by the P.K.K. 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 news commentary in question was based on the glorification of the activities of the P.K.K., the P.K.K. being an illegal terrorist organisation aiming at 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. 54. 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). 55. 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. 56. 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. 57. 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. 58. 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. 59. 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". 60. 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. 10-2) (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). 61. 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). 62. 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. 63. The Commission notes that the incriminated news commentary contained passages such as "the tradition of rebellion is awakened" and "it is time to settle accounts". Moreover, it was recalled in the incriminated article that, a year before, allegations had been published that "bombs [were] raining on Kurdish villages", that "the Chief of the General Staff [had] inspected the preparations for the offensive" and that "the Head of MiT intelligence agency [talked] of the prospect of much blood being shed". Finally, the news commentary envisaged that in 1993, "unlike previous years, the P.K.K.-leaning Kurdistan National Assembly [was] also expected to take on a role during Newroz". Moreover, an incriminated interview had been made with a representative of the illegal organisation E.R.N.K. The interviewee stated, inter alia, that "the real terrorist is the Republic of Turkey". 64. It thus appears that some of the statements in the news commentary were highly polemic and were based on the general view that the Turkish authorities were responsible for the present situation by suppressing Kurdish aspirations, even by using weapons, and that, as a result hereof, Kurdish resistance would continue in various places and at various levels. The Commission notes that the State Security Court convicted the applicant mainly because he had disseminated propaganda against the indivisibility of the State by referring to a part of Turkish territory as "Kurdistan" and to a part of the Turkish population as "Kurds" and also because he had published the declaration of an illegal terrorist organisation in which Turkey had been called a terrorist State. The Commission considers, however, that the criterion for establishing whether or not the conviction was proportionate should not be whether the language used was exaggerated or insulting to the State nor whether the text referred to part of Turkish territory as "Kurdistan", but whether it could be considered to encourage or incite to continue violence. 65. In this respect, the Commission notes that, while the published text conveys the opinion that violence is likely to continue to be used, neither the commentator nor the interviewed representative of the E.R.N.K. can be considered to have encouraged or incited to continue violence. In fact, the representative of the E.R.N.K. declared in the interview that his organisation was prepared to accept "any humanitarian, political solution, including the calls for an armistice". 66. The Commission finds that the applicant's conviction amounted to a kind of censure, which was likely to discourage him or others from publishing views on the situation in south-east Turkey 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). 67. 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 of expression 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 68. The Commission concludes, by 30 votes to 2, that there has been a violation of Article 10 (Art. 10-2) of the Convention. D. As regards Article 6 para. 1 (Art. 6-1) of the Convention 69. 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." 70. 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. 71. 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. 72. 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." 73. The Commission finds that the same considerations apply in the present case. 74. 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 75. 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 76. The Commission concludes, by 30 votes to 2, that there has been a violation of Article 10 (Art. 10) of the Convention (see above para. 68). 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 (see above para. 75). M. de SALVIA S. TRECHSEL Secretary President to the Commission of the Commission (Or. English) JOINT CONCURRING OPINION OF MS J. LIDDY AND MR N. BRATZA We have voted for a finding of violation with some hesitation. At first sight it might appear that in the light of the situation prevailing in South-East Turkey it fell within the margin of appreciation of the national authorities to regard the publication in a news commentary of the statement that Dehak (apparently symbolising the State forces) and Kawa (symbolising the leader of a peasants' uprising against Dehak) "will settle their accounts once again" as a statement in support of the use of evidence. On the other hand, we find no analysis or other indication to that effect in the judgment of the State Security Court which based itself on the apparent unlawfulness of using the words "Kurdistan" or "Kurds" in published matter. Moreover, the declaration of the E.R.N.K., which the State Security Court considered to constitute part of the news commentary in question, expressed the E.R.N.K.'s openness to a "humanitarian, political solution, including the calls for an armistice" and its thrust was in favour of political dialogue as distinct from fomenting evidence. Accordingly, having regard to the overall context, we agree with the conclusion of the majority. (Or. English) PARTLY DISSENTING OPINION OF MR S. TRECHSEL While I am in full agreement with the majority as regards the violation of Article 6, I have come to the conclusion that there has been no violation of Article 10 in the present case. The text of the Report shows quite clearly that we are faced with a border-line case. I regard the passages quoted in para. 63 of the Report as decisive - I see no reason to repeat them here. In my view these passages can in good faith be understood as encouraging violence. Having regard to the margin of appreciation which must be accorded to the national authorities I have come to the conclusion that the interference complained of cannot be regarded as a disproportionate response and does not constitute an unjustified interference with the applicant's right to freedom of expression - the interference could still be regarded as necessary in a democratic society. (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.
Full & Egal Universal Law Academy