EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 26680/95

Pelin Åžener

against

Turkey

REPORT OF THE COMMISSION

(adopted on 23 April 1999)

I. INTRODUCTION

(paras. 1-16) ........................................................ 1

A. The application

(paras. 2-4) ..................................................... 1

B. The proceedings

(paras. 5-11) .................................................... 1

C. The present Report

(paras. 12-16) .................................................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17- 58) ...................................................... 4

A. The particular circumstances of the case

(paras. 17 - 29) ................................................. 4

B. Relevant domestic law

(paras. 30 - 58) ................................................. 6

III. OPINION OF THE COMMISSION

(paras. 59 - 107) .................................................... 18

A. Complaints declared admissible

(para. 59) ..................................................... 18

B. Points at issue

(para. 60) ..................................................... 18

C. As regards Article 10 of the Convention

(paras. 61 - 87) ................................................ 18

CONCLUSION

(para. 88) ..................................................... 22

D. As regards Article 18 of the Convention

(paras. 89 - 92) ................................................ 22

CONCLUSION

(para. 93) ..................................................... 23

E. As regards Article 6 para. 1 of the Convention

(paras. 94 - 103) ............................................... 23

CONCLUSION

(para. 104) .................................................... 26

F. Recapitulation

(paras. 105 - 107) ............................................... 26

APPENDIX : DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION ............... 27

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a Turkish citizen, born in 1969 and resident in Cologne, Germany. She was represented before the Commission by Mr Kamil Tekin Sürek, a lawyer practising in İstanbul.

3. The application is directed against Turkey. The respondent Government were represented by their Agent.

4. The case concerns the applicant's conviction by the State Security Court on account of the publication of an article in a weekly review. The applicant is the responsible editor of the review. She complains under Article 10 of the Convention that her conviction constituted an unjustified interference with her freedom of expression. She also complains under Article 18 of the Convention that the restrictions which were applied to her freedom of expression were inconsistent with the legitimate aims prescribed in Article 10 para. 2 of the Convention.

Furthermore, the applicant complains under Article 6 para. 1 of the Convention that the Ä°stanbul State Security which dealt with her case was not an independent and impartial tribunal.

B. The proceedings

5. The application was introduced on 7 March 1995 and registered on 9 March 1995.

6. 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 respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. 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.

8. The Government's observations were submitted on 20 March 1996 after an extension of the time-limit fixed for this purpose. The applicant replied on 7 June 1996 after an extension of the time-limit.

9. On 21 October 1997 the Commission declared admissible the applicant's complaints under Article 6 para. 1 and Articles 10 and 18 of the Convention. It declared inadmissible the remainder of the application.

10. The text of the Commission's decision on admissibility was sent to the parties on 31 October 1997 and they were invited to submit such further information or observations on the merits as they wished. The Government submitted observations on 18 March 1998.

11. After declaring the case admissible, the Commission, acting in accordance with former [1] Article 28 para. 1 (b) of the Convention, also 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

12. The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr F. MARTINEZ

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

M.P. PELLONP  

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

Sir Nicolas BRATZA

I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENIČ

C. BÃŽRSAN

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

13. The text of this Report was adopted on 23 April 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to former 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 State concerned of its obligations under the Convention.

15. The Commission's decision on the admissibility of the application is appended to this Report.

16. 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

17. At the material time, the applicant was the owner and the responsible editor of a weekly review entitled "Haberde Yorumda Gerçek" (The Truth of News and Comments) and published in İstanbul.

18. On 5 September 1993 the Ä°stanbul State Security Court ordered the seizure of the twenty-third edition of the review, dated 4 September 1993, on the ground that it contained separatist propaganda.

19. In an indictment dated 29 September 1993, the Public Prosecutor at the Ä°stanbul State Security Court, on account of an article entitled "Aydın Ä°tirafı" ("The confession of an intellectual") published in the twenty-third edition of the review dated 4 September 1993, charged the applicant, as the owner and "responsible editor", with disseminating propaganda  against the indivisibility of the State. The charges were brought under section 8 of the Anti-Terror Law.

20. The indictment against the applicant incriminated certain passages of the article, including the following:

"Confession of an Intellectual

We are watching the extermination of a nation; we are watching a genocide such that it will not be a mistake to call it unprecedented; we are groaning night and day between the cogs of a dirty war ... We are claiming the right of nations to determine their own fate; we are saying that there should be no impediments to the exercise of this right. We are trying to explain that recognition of the Kurdish reality is an important step. The reason for the (..) civil war is American imperialism and we think that to stand up against war is an obligation for every human being. The Namaz mountains, the Tendürek mountains, Nurhak and many others are being bombed and at this moment Kurdistan is blazing; the genocide is continuing violently; we are watching the brutality in Bosnia on our colour screens, suddenly we are full of anger, we become human rights advocates; chemical weapons are being used in the Nurhak mountains. <> says a military authority. Their determination to exterminate a whole nation echoes in our ears ... We know that an oppressed nation cannot be chauvinist, yet, we are still trying to deceive one another.  We are preaching the necessity of trying peaceful methods in resolving the Kurdish problem and discussing what could be the solution. Brazenly, we are filling our newspapers with made-up news which tell how the terrorists who raided the Sündüz plateau killed the women and children; knowing that the public was not aware of the briefing given to the press, we are announcing in our columns, in a democratic way, that the Kurdish and Turkish citizens have been living in brotherhood for centuries, but the terrorists’ intention was to spoil that brotherhood. And we are denigrating the attitude of the Kurdish peasant who started a freedom march.”

21. In the proceedings before the Ä°stanbul State Security Court, the applicant denied the charges. She pleaded that the article did not contain elements of separatist propaganda and that the author had expressed his opinion in accordance with his freedom of expression.

22. In a statement to the İstanbul State Security Court, the applicant's legal representative asserted that section 8 of the Anti-Terror Law was contrary to the Constitution and Article 10 of the Convention. He further maintained that trying the applicant  before the State Security Court was contrary to Article 6 para. 1 of the Convention. He finally requested the applicant's acquittal.

23. In a judgment dated 5 July 1994, the court found the applicant guilty of an offence under section 8 of the Anti-Terror Law. It sentenced her to six months' imprisonment and a fine of fifty million Turkish Lira. The Court referred in its judgment to certain extracts from the article and observed the following:

"The examination of the article as a whole, which refers to part  of the Turkish territory as <> and states that it is intended to exterminate the Kurdish nation there, that a genocide is taking place, that the places referred to as Kurdistan are being bombed and blazing, that chemical weapons are being used,  and that the people living there are Kurdish citizens, led to the Court's conclusion that by referring to certain parts of the Turkish State in those areas, the offence of propaganda aiming at the destruction of the indivisible integrity of the Turkish Republic with its land and nation has been committed; the material and moral elements (mens rea) with respect to the imputed offence have been established."             

24. On 6 July 1994 the applicant lodged an appeal with the Court of Cassation. In his notice of appeal the applicant's legal representative challenged the Ä°stanbul State Security Court's interpretation of the article in question and asserted that section 8 of the Anti-Terror Law was contrary to the Constitution.

25. On 30 November 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.

26. The Ä°stanbul State Security Court, on 17 November 1995, also found the author of the article, Erhan Altun, guilty of an offence under section 8 of the Anti-Terror Law. It sentenced him to one year and one month's imprisonment and a fine of 111,111,110 Turkish Lira. However, the court, taking into account the good conduct of the author during the trial, suspended his sentence.

27. After the amendments made by Law No. 4126 of 27 October 1995 to the Anti-Terror Law, the İstanbul State Security Court re-examined the applicant’s case. On 8 March 1996 the court sentenced the applicant to the previous sentence. The applicant appealed again.

28. On 10 June 1997 the Court of Cassation quashed the judgment of 8 March 1996 on the ground that the İstanbul State Security Court had not commuted the applicant’s sentence of imprisonment to a fine.

29. On 25 September 1997 the İstanbul State Security Court suspended the delivery of the final judgment in the applicant’s case pursuant to section 1 of Law No. 4304 of 14 July 1997. The court also decided, under section 2 of the same law, that the initiated criminal proceedings would be set aside if the applicant did not commit any offence deliberately as a responsible editor within three years after this decision.

B. Relevant domestic law

1. Criminal Law

a) The Constitution

30. Article 14

"Anayasada yer alan hak ve hürriyetlerden hiçbiri, Devletin ülkesi ve milletiyle bölünmez bütünlüğünü bozmak, Türk devletinin ve Cumhuriyetin varlığını tehlikeye düşürmek, temel hak ve hürriyetleri yok etmek, Devletin bir kişi veya zümre tarafından yönetilmesini veya sosyal bir sınıfın diger sosyal sınıflar  üzerinde egemenliğini sağlamak veya dil, ırk, din ve mezhep ayırımı yaratmak veya sair herhangi bir yoldan bu kavram ve görüşlere dayanan bir devlet düzenini kurmak amacıyla kullanılamazlar.

..."

"None of the rights and freedoms embodied in the Constitution shall be exercised with a view to violating the indivisible integrity of the State, its territory and people, endangering the existence of the Turkish State or Republic, destroying fundamental rights and freedoms, placing the government of the State in the hands of a single individual or group, ensuring the rule of one social class over others, creating discrimination between individuals on the grounds of language, race, religion or denomination, or establishing by any other means a political system based on any of the above concepts.

..."

b) Anti-Terror Legislation

31. Section 8 paragraph 1 of Anti-Terror Law No. 3713 of 12 April 1991 (before the amendments of 27 October 1995)

"Hangi yöntem, maksat ve düşünceyle olursa olsun Türkiye Cumhuriyeti Devletinin ülkesi ve milletiyle bölünmez bütünlüğünü bozmayı hedef alan yazılı ve sözlü propaganda ile toplantı, gösteri ve yürüyüş yapılamaz. Yapanlar hakkinda 2 yıldan 5 yıla kadar ağır hapis ve ellimilyon liradan yüzmilyon liraya kadar ağır para cezası 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."

32. Section 8 paragraph 2 of Anti-Terror Law

"Yukarıdaki fıkrada belirtilen propaganda suçunun 5680 sayılı Basın Kanunun 3 üncü maddesinde belirtilen mevkuteler vasıtası ile işlenmesi halinde, ayrıca sahiplerine de mevkute bir aydan az süreli ise, bir önceki ay ortalama satış miktarının: [mevkute niteliğinde bulunmayan basılı eserler ile yeni yayına giren mevkuteler hakkında ise, en yükek tirajlı günlük mevkutenin bir önceki ay ortalama satış tutarının]; yüzde doksanı kadar ağır para cezası verilir. Ancak, bu para cezaları yüzmilyon liradan az olamaz. Bu mevkutelerin sorumlu müdürlerine, sahiplerine verilecek para cezasının yarısı uygulanır ve altı aydan iki yıla kadar hapis cezası 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."

33. 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.

34. 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 bütünlüğünü bozmayı hedef alan yaz ı lı ve sözlü propaganda ile toplantı, gösteri ve yürüyüş yapılamaz. Yapanlar hakkında bir yıldan üç yıla kadar hapis ve yüz milyon liradan üçyüzmilyon liraya kadar ağır para cezası hükmolunur. Bu suçun mükerreren işlenmesi 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."

2. Press Act (Law No. 5680 of 24 July 1950)

35. Section 3

"Gazetelere, haber ajansları neşriyatına ve belli aralıklarla yayınlanan diğer bütün basılmış eserlere bu kanunda 'mevkute' denir.

Basılmış eserlerin herkesin görebileceği veya girebileceği yerlerde gösterilmesi veya asılması veya dağıtılması veya dinletilmesi veya satılması veya satışa arzı 'neşir' sayılır. .."

"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'.  ... "

36. Under section 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.

3. State Security Courts

a) The Constitution

37. Article 138 paras. 1 and 2

"Hakimler, görevlerinde bağımsızdırlar; Anayasaya, kanuna ve hukuka uygun olarak vicdani kanaatlerine göre hüküm verirler.

Hiçbir organ, makam, merci veya kişi, yargı yetkisinin kullanılmasında mahkemelere emir ve talimat veremez; tavsiye ve telkinde bulunamaz."

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

No organ, authority, officer or other person may give orders or instructions to courts or judges in the exercise of their judicial powers, nor send them circulars or make recommendations or suggestions to them."

38. Article 139 para. 1

"Hakimler ... azlolunamaz, kendileri istemedikce Anayasada gösterilen yaştan önce emekliye ayrılamaz ..."

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

39. Article 143

"Devletin ülkesi ve milletiyle bölünmez bütünlüğü, hür demokratik düzen ve nitelikleri Anayasada belirtilen Cumhuriyet aleyhine işlenen ve doğrudan doğruya Devletin iç ve dış güvenliğini ilgilendiren suçlara bakmakla görevli Devlet Güvenlik Mahkemeleri kurulur.

...

Başkan, bir asıl ve bir yedek üye ile savcı, birinci sınıfa ayrılmış hakim ve Cumhuriyet savcıları arasından; bir asıl ve bir yedek üye, birinci sınıf askeri hakimler arasından; savcı yardımcıları ise Cumhuriyet savcıları ve askeri hakimler arasından özel kanunlarda gösterilen usule göre atanırlar.

Devlet Güvenlik Mahkemesi Başkanı üye ve yedek üyeleri ile savcı ve savcı yardımcıları dört yıl için atanırlar, süresi bitenler yeniden atanabilirler.

Devlet Güvenlik Mahkemeleri kararlarının temyiz mercii Yargıtaydır.  ..."

"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 president, the public prosecutor, a full 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, full members and substitute judges of the State Security Courts shall be appointed for a renewable period of four years.

There is an appeal against the decisions of the State Security Courts to the Court of Cassation. ..."

40. Article 145 para. 4

"Askeri yargı organlarının kuruluşu, işleyişi, askeri hakimlerin özlük işleri, askeri savcılık görevlerini yapan askeri hakimlerin mahkemesinde görevli bulundukları komutanlık ile ilişkileri, mahkemelerin bağımsızlığı, hakimlik teminatı, askerlik hizmetinin gereklerine göre kanunla düzenlenir. Kanun, ayrıca askeri hakimlerin yargı hizmeti dışındaki askeri hizmetler yönünden askeri hizmetlerin gereklerine göre teşkilatında görevli bulundukları komutanlık ile olan ilişkilerini gösterir."

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

b) Law No. 2845 on the creation and the rules of procedure of the State Security Courts

41. Section 1

"Devletin ülkesi ve milletiyle bölünmez bütünlüğü, hür demokratik düzen ve nitelikleri Anayasada belirtilen Cumhuriyet aleyhine işlenen ve doğrudan doğruya Devletin iç ve dış güvenliğini ilgilendiren suçlara ilişkin davalara bakmak üzere ... il merkezlerinde, bu illerin adlarıyla anılan Devlet güvenlik mahkemeleri kurulmuştur."

"In the capitals of the provinces of ... State Security Courts shall be established to try persons accused of offences against the Republic - whose constituent qualities are enunciated in the Constitution - against the indivisible unity of the State - meaning both the national territory and its people - or against the free, democratic system of government and offences directly affecting the State's internal or external security."

42. Section 3

"Devlet güvenlik mahkemeleri, bir başkan ile iki üyeden oluşur. Her Devlet güvenlik mahkemesinde ayrıca iki yedek üye bulunur."

"The State Security Courts shall be composed of a president and two full members. In addition, there shall sit at each State Security Court two substitute members."

43. Section 5

"Devlet güvenlik mahkemesinin başkanı ve bir asıl bir yedek üyesi ... birinci sınıfa ayrılmış adli yargı hakim ... arasından; bir asıl bir yedek üyesi birinci sınıfa ayrılmış askeri hakimler arasından ... atanır."

"The president of a State Security Court, one of the full members and one of the substitutes shall be civilian ... judges, the other members, whether full or substitute, military judges of the first rank             

..."

44. Section 6 paras. 2, 3 and 6

"Askeri hakimler arasından üye, yedek üye ... atanmaları, özel kanunlarında gösterilen usule göre yapılır.

Devlet güvenlik mahkemeleri başkan, üye ve yedek üyeleri ... meşru mazeretleri halinde muvafakatları alınmadıkça dört yıldan önce başka bir yere veya atanamazlar. Bu kanun ve diğer kanunlardaki istisnalar saklıdır.

...

Devlet güvenlik mahkemelerinde görevli baÅŸkan, üye, yedek üye ... hakkında kendi kanunlarına göre yapılacak soruÅŸturma sonunda görev yerlerinin deÄŸiÅŸtirilmesine dair yetkili kurul veya mercilerce karar verildiÄŸi takdirde, ilgili hakim, askeri hakim ... görev yeri veya görevi, özel kanunlarında gösterilen usule göre deÄŸiÅŸtirilebilir." 

"The appointment of military judges to sit as full members, substitutes ... shall be carried out according to the procedure laid down for that purpose in the special legislation [concerning those posts].

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

...

If, after an investigation concerning the presidents and full or substitute members of the State Security Courts conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of a military judge, the duty station of that judge or his duties [themselves] ... may be changed in accordance with the procedure laid down in that legislation."

45. Section 27 para. 1

"Devlet güvenlik mahkemesi kararlarının temyiz mercii Yargıtaydır."

"The Court of Cassation shall hear appeals from the judgments of the State Security Courts."

46. Section 34 paras. 1 and 2

"Devlet güvenlik mahkemelerinde göreve atanan hakim, askeri hakim ... özlük işlerinde, denetimlerinde, haklarında disiplin soruşturması açılması ve disiplin cezası verilmesinde, şahsi ve görevle ilgili suçlarının soruşturma ve kovuşturulmasında ... kendi mesleklerine ait kanun hükümleri uygulanır...

Askeri yargıya mensup hakim ... hakkında verilecek Yargıtay notları ve adalet müfettişlerince düzenlenecek siciller ... ve bunlar hakkında adalet müfettişlerince yapılacak soruşturmalara ilişkin evrak Milli Savunma Bakanlığına gönderilir."

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

The observations of the Court of Cassation and the assessment reports drawn up by Ministry of  Justice assessors on judges of the Military Legal Service ... and the files on any investigations conducted against them ... shall be transmitted to the Ministry of Justice."

47. Section 38

"Devlet güvenlik mahkemesinin yargı çevresinin tamamını veya bir kısmını kapsayacak şekilde sıkıyönetim ilan edilmesi halinde o yargı çevresinde birden fazla Devlet güvenlik mahkemesi olmak kaydıyla, Devlet güvenlik mahkemesi aşağıdaki esaslara göre sıkıyönetim askeri mahkemesine dönüştürülebilir..."

"A State Security Court may transformed into a Martial Law Court, under the conditions set forth below, when a state of emergency has been declared in all or part of the territory in respect of which the State Security Court concerned has jurisdiction, provided that within that territory there is more than one State Security Court..."

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

48. Section 16 paras. 1 and 3

"Askeri hakimlerin atanmaları ... Silahlı Kuvvetleri mensuplarının nakil ve tayinleri hakkındaki hükümler esas alınarak Milli Savunma Bakanı ve Başbakanın müşterek kararnamesi ile Cumhurbaşkanının onayına sunulur...

...

Askeri hakimlik ... görevlere yapılacak atamalarda ... Askeri Yargıtay notları, müfettiş raporları ve idari üstlerce düzenlenen siciller gözönünde tutularak işlem yapılır.

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

...

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

49. Section 18 para. 1

"Askeri hakimler[in] ... maaÅŸ dereceleri, maaÅŸ yükselmeleri ve diÄŸer özlük hakları subaylar              hakkındaki kanun hükümlerine tabidir."

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

50. Section 29 of the Law on Military Judges

"Askeri hakim subaylar hakkında Milli Savunma Bakanı tarafından, savunmaları aldırılarak, aşağıda açıklanan disiplin cezaları verilebilir:

A. Uyarma: Görevde daha dikkatli olması gerektiğinin yazı ile bildirilmesidir.

...

B. Kınama: Belli bir eylem veya davranışın kusurlu sayıldığının yazı ile bildirilmesidir.

...

Bu cezalar kesin olup, ilgilinin kuvvet komutanlığındaki dosyası ile kıta şahsi dosyasına konur, siciline işlenir.

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

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

...

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

...

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

51. Section 38

"Askeri hakimler ... görevlerini yaparlarken eşiti adliye hakimlerinin ... kıyafetini taşırlar."

"When military judges ... sit in court they shall wear the special robes of their civilian              counterparts..."

52. Additional section 7

"Devlet Güvenlik Mahkemesi üyeliği, yedek üyeliği ve Cumhuriyet savcı yardımcılığı görevlerine atanan askeri hakim subayların rütbe terfii, rütbe kıdemliliği, kademe ilerlemesi yapmalarını sağlayacak yeterlilikleri, bu Kanunun ve Türk Silahlı Kuvvetleri Personel Kanununun hükümleri saklı kalmak şartı ile, aşağıda belirtilen şekilde düzenlenecek sicillerle saptanır.

(a) Birinci sınıfa ayrılmış üye ve yedek üye askeri hakimlere subay sicil belgesi düzenlemeye ve sicil vermeye yetkili birinci sicil amiri Milli Savunma Bakanlığı Müsteşarı, ikinci sicil amiri Milli Savunma Bakanıdır.

..."

"The aptitude of military judges ... appointed as full or substitute members of the State Security Courts required for promotion or advancement in salary level, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Act and the Turkish Armed Forces Personnel Act (Law No. 926).

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

..."

53. Additional section 8

"Devlet Güvenlik Mahkemelerinin askeri yargıya mensup mahkeme üyeleri ile Cumhuriyet savcı yardımcıları, Genelkurmay Personel Başkanı, Adli Müşaviri ile atanacakların mensup olduğu Kuvvet Komutanlığının personel başkanı ile adli müşaviri ve Milli Savunma Bakanlığı Askeri Adalet işleri Başkanından oluşan Kurul tarafından seçilir ve usulüne uygun olarak atanırlar."

"Members ... of the State Security Courts belonging to the Military Legal Service ... shall be appointed by a committee composed of the personnel director and legal advisor of the General Staff, the personnel director and legal advisor attached to the staff of the arm in which the person concerned is serving and the Director of Military judicial Affairs at the Ministry of Defence..."

d) The Military Criminal Code of 22 May 1930

54. Article 112

"Memuriyetinin nüfuzunu suistimal ile askeri mahkemeler üzerinde tesir yapanlar beş seneye kadar hapsolunur."

"It shall be an offence, punishable by up to five years' imprisonment, to abuse one's authority as              a [public official] in order to influence the military courts."

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

55. Under section 22 of Law No. 1602 the First Division of the Supreme Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their promotion and professional advancement.

f) The Code of Criminal Procedure

56. Section 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.

g) Law No. 4304 of 14 August 1997

57. Section 1

"12.7.1997 tarihine kadar işlenmiş suçlar nedeniyle 5680 sayılı Basın Kanununun 16 nci maddesi veya sair kanunlar hükümlerine göre sorumlu müdür sıfatıyla mahkum edilmiş bulunan kimselerin cezalarının infazı ertelenmiştir.

Halen cezalarını çekmekte bulunan sorumlu müdürler hakkında da birinci fıkra hükmü uygulanır.

İşlenen suçlardan dolayı sorumlu müdürler hakkında henüz takibata geçilmemiş veya hazırlık soruşturmasına girişilmiş olmakla beraber henüz hüküm kurulmamış veya verilen hüküm kesinleşmemiş ise, davanın açılması veya kesin hükme bağlanması ertelenir.

“The execution of sentences of those who were convicted as responsible editors for offence              committed until 12.7.1997 under Press Law No. 5680 or other laws are postponed.

Paragraph 1 also applies to responsible editors who are still serving their sentences.

Institution of criminal proceedings or delivery of final judgments for crimes committed by responsible editors shall be postponed, provided that an investigation has not yet been commenced or a preliminary investigation has been commenced but a criminal proceeding has not been instituted or final investigation has been commenced but judgment has not yet been delivered or judgment has not become final.”

58. Section 2

“Haklarında 1 inci madde hükümleri uygulanmış bulunan sorumlu müdürler, ertelenme tarihinden itibaren üç yıl içerisinde işlenen kasıtlı bir cürümden dolayı sorumlu müdür sıfatıyla mahkum edildiklerinde ertelenen cezalar aynen çektirilir.

Sorumlu müdürün infazı ertelenen mahkumiyetinden bu Kanunun yürürlüğe girdiği tarihe kadar çektiği kısmı, birinci fıkrada belirtilen halde çekilecek cezaya mahsup edilir. Şartla salıverilmeye ilişkin hükümler saklıdır.

Davanın açılması veya hükme bağlanmasının ertelenmiş bulunduğu hallerde ertelenme tarihinden itibaren üç yıllık süre içerisinde işlenen kasıtlı bir suç nedeni ile sorumlu müdür sıfatıyla mahkum olunduğunda, ertelenen suçtan dolayı dava açılır veya ertelenmiş olan davaya devam edilerek hüküm kurulur.

Üç yıllık süre, sorumlu müdur sıfatıyla yeniden kasıtlı bir cürümden mahkum edilmeksizin geçirildiğinde, sorumlu müdür hakkındaki mahkumiyet vaki olmamış sayılır veya bu suçtan dolayı kamu davası açılamaz. Açılmış olan davanın ortadan kaldırılmasına karar verilir.”

“Postponed sentences of responsible editors who have been subject to the provisions of section 1 shall be executed if these responsible editors are convicted for a deliberate offence as such within three years after the date of postponement.

The part of the postponed conviction which was served by the responsible editor until the date on which this Law is put into force shall be deducted from the sentence to be served as indicated in section 1. The provisions concerning conditional release are reserved.

In the case of institution of criminal proceedings or postponement of the delivery of judgment, if one is convicted, within three years after the date of postponement, for committing a deliberate offence as responsible editor, criminal proceedings shall be instituted before a court or the postponed criminal trial shall proceed and judgment shall be delivered.

In case a period of three years is passed without the responsible editor being convicted for committing a new deliberate offence as responsible editor, his conviction shall be deemed never to have occurred and no criminal proceedings shall be instituted in connection with this offence. It shall be decided that the initiated criminal proceedings are to be set aside.”

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

59. The Commission has declared admissible:

- the applicant's complaint that her conviction on account of the publication of the article in question constituted an unjustified interference with her freedom of expression;

- the applicant's complaint that the restrictions which were applied to her freedom of expression were inconsistent with the legitimate aims for which they had been prescribed;

- the applicant's complaint that her case was not tried by an independent and impartial tribunal.             

B. Points at issue

60. The points at issue in the present case are as follows:

- whether there has been a violation of Article 10 of the Convention;

- whether there has been a violation of Article 18 of the Convention;

- whether there has been a violation of Article 6 para. 1 of the Convention.

C. As regards Article 10 of the Convention

61. The applicant complains, under Article 10 of the Convention, that her conviction and sentence for publishing an article, as the owner and "responsible editor" of a periodical, constituted an unjustified interference with her freedom of expression and in particular with her right to receive and impart information and ideas.

62. Article 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."

63. The applicant submits that her conviction cannot be justified for any of the reasons permitted under the Convention. She considers that the article in question was within the limits of permissible criticism.

64. The applicant also maintains that her conviction for an offence under Article 8 of Anti-Terror Law was contrary to law. In this context she explains that the courts suspended the sentence of the author who had been charged on account of the same article and under the same provisions. She alleges that, by giving two contradictory decisions, the national authorities exceeded the margin of appreciation conferred on the Contracting States by the Convention.

65. The respondent Government maintain that in this case the interference with the applicant's rights under Article 10 of the Convention was prescribed by law i.e. by Article 8 of the Anti-Terror Law. They state that the applicant, in her review, published an article, in which the author referred to a certain part of Turkish territory as "Kurdistan" and claimed that "Kurdistan" was being destroyed by the State Security forces, that genocide was being carried out against the Kurdish people and that the media were dishonouring "the walk towards independence" undertaken by the Kurds.

66. The Government further submit that, pursuant to Law No. 4304 of 14 August 1997, the delivery of the final judgment in the applicant’s case was postponed for three years. They explain that, in case the period of three years is passed by the applicant without any conviction for a new deliberate offence as responsible editor, the initiated criminal proceedings against the applicant will be set aside. In this regard, the Government point to the fact that, by the enactment of a new law, the aim of the legislative body was to provide for more lenient sanctions for offences committed through the press.

67. 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.

68. As to the necessity of the measure in a democratic society, the respondent Government state that the threat posed to Turkey by the PKK and its affiliates 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 article in question called for the establishment of an independent Kurdish State against the Turkish State. They submit that it is a generally accepted tenet of 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.

69. In this respect the Government claim that the decisions of the Ä°stanbul State Security Court and the Court of Cassation did not exceed the margin of appreciation conferred on States by the Convention.

70. The Government conclude that the applicant's conviction was fully justified under the second paragraph of Article 10 of the Convention, for reasons of national security, territorial integrity and public safety.

71. The Commission notes that, following the amendmends made by Law No. 4126 of 27 October 1995 to the Anti-Terror Law, the applicant requested the re-opening of the proceedings. Thereafter, by its judgment of 8 March 1996, the Ä°stanbul State Security Court convicted the applicant for disseminating separatist propaganda and sentenced her to imprisonment and to a fine. Upon the applicant’s appeal, the Court of Cassation quashed this judgment on the sole ground that the court had not commuted the applicant’s sentence of imprisonment to a fine.

72. The Commission also notes that, in its provisional judgment of 25 December 1997, the İstanbul State Security Court, pursuant to Law No. 4304 of 14 July 1997, postponed the delivery of the final judgment and decided that the criminal proceedings in question would be set aside if the applicant did not commit any offence as responsible editor within the following three years. Accordingly,  the guilt of the applicant was established by the courts, but the sentence remained to be decided.

73. The Commission considers that the conviction of the applicant for publishing an article undoubtedly constituted an "interference" with the exercise of her freedom of expression as guaranteed by Article 10 para. 1 of the Convention. Indeed, this point was not contested by the parties.

74. Therefore, the question arises whether this interference was prescribed by law, pursued a legitimate aim under Article 10 para. 2 and was "necessary in a democratic society" in order to realise such legitimate aim.

75. The Commission notes that the criminal charges against the applicant were brought under Article 8 of the Anti-Terror Law. It considers therefore that the interference was prescribed by law.

76. As regards the aims of the interference, the Commission notes that the criminal proceedings against the applicant and his conviction were intended by the authorities to serve the aim of the protection of territorial integrity and the prevention of disorder or crime. Therefore, the interference was in the interests of national security and public safety, which are legitimate aims under Article 10 para. 2 of the Convention.

77. 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, in particular, Eur. Court HR, Zana v. Turkey judgment of 25 November 1997, Reports of Judgments and Decisions 1997-VII, p. 2547, para. 51):

«(i) Freedom of expression, as enshrined in paragraph 1 of Article 10 constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress. It is applicable not only to "information" or "ideas" that are favourably received or are regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broad-mindedness without which there is no "democratic society".

(ii) The adjective "necessary", within the meaning of Article 10 para. 2, 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".»

78. 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 (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 applied standards which were in conformity with the principles embodied in Article 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).

79. 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. Zana v. Turkey judgment, op. cit., para. 55).

80. The Commission observes in this connection that Article 10 para. 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 (cf. No. 23462/94, Arslan v. Turkey, Dec. 11.12.1997, para. 49).

81. The Commission notes that the incriminated publication was an article of an intellectual, whose statements contained a sharp criticism of the policy and action of Turkey in regard to its population of Kurdish origin. The article attempts to give a political explanation of the resumption of violence over recent years in Eastern and South-East Anatolia. In this respect, it suggested that the Kurdish reality must be recognised and peaceful methods be tried in resolving the Kurdish problem. Reference was made to the general view of the Turkish press, criticising the fact that it was denigrating the attitude of the Kurdish peasants who had started a freedom march.

82. The Commission also notes that the criminal proceedings were instituted against the applicant because she had disseminated propaganda against the indivisibility of the State she had by publishing an article in which a part of Turkish territory was referred to as "Kurdistan" and because it had been alleged that it was intended to exterminate the Kurdish nation there, that genocide was taking place, and that Kurdistan was being bombed and was blazing, chemical weapons were being used and people living there were Kurdish.

83. The Commission considers, however, that the criterion for establishing whether or not the interference was proportionate should not be whether the language used was exaggerated nor whether the text referred to part of the Turkish territory as "Kurdistan", but whether the text could be considered to encourage or incite to violence.

84. In the Commission’s opinion, the terminology of the incriminated article which contained statements such as "genocide", "extermination", "freedom march", "oppressed people", "made up news" and "Kurdistan" are value judgments of the author who was calling for recognition of Kurdish reality. Those statements could reasonably be regarded as shocking and disturbing by the public. However, the author of the article did not associate himself with the use of violence in any context and did not call upon people to resort to any illegal action. On the contrary, he preached the necessity of employing peaceful methods in resolving the Kurdish issue.

85. Accordingly, in the Commission's view, the grounds of the charges brought against the applicant are not sufficient to justify the interference with the applicant’s freedom of expression. Nor is the interference with the applicant’s freedom of expression rendered proportionate by reason of the fact that trial judgment in the applicant’s case was postponed. In this regard, although it is true that, pursuant to Law No. 4304 of 14 August 1997, the criminal proceedings against the applicant would be set aside on condition that she did not commit any offence as responsible editor for three years, it nonetheless remains the case that the imposition of such a condition affected the substance of the applicant’s freedom of expression (see, mutatis mutandis , Hertel v. Switzerland judgment of 25 August 1998, to be published in Reports of Judgments and Decisions ..., para. 50). The effect of the condition was to restrict the applicant’s work as an editor and substantially reduce her ability to put forward in public views which have their place in a debate on an issue of public importance. Furthermore, if the applicant fails to comply with the condition she will automatically be sentenced on account of the current offence. Indeed, the Court of Cassation quashed the İstanbul State Security Court’s judgment on the sole ground that the latter had not commuted the term of imprisonment to a fine, which means that the guilt of the applicant was established, but the sentence, having a condition attached remained to be decided.

86. In the light of the foregoing, the Commission finds that the interference with the applicant's freedom of expression amounted to a kind of censorship, which was likely to discourage her or others from publishing ideas of a similar kind again in the future. In the context of a political debate this kind of conviction is likely to deter citizens from contributing to public discussion of important political issues (cf. Lingens v. Austria judgment, op. cit., p. 27, para. 44; see also Nos. 23536/94 - 24408/94, Dec. 13.1.98, p. 17, para. 74).

87. Consequently, the Commission, even taking into account the margin of appreciation of the national authorities in this context, finds that the interference with the applicant's freedom was not proportionate to the legitimate aims pursued and could, therefore, not be regarded as necessary in a democratic society to achieve the aims of national security and public safety.       

CONCLUSION

88. The Commission concludes, unanimously, that in the present case there has been a violation of Article 10 of the Convention.

D. As regards Article 18 of the Convention

89. Article 18 of the Convention provides as follows:

"The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed."

90. The applicant submits that in her case there has been a breach of Article 18 of the Convention in that the restrictions which were applied to her freedom of expression under the provisions of the Anti-Terror Law, were inconsistent with the legitimate aims prescribed in Article 10 para. 2 of the Convention.

91. The respondent Government recall that Article 18 of the Convention has no independent character and that, inter alia , in the cases of Engel and others v. the Netherlands, Sporrong and Lönnroth v. Sweden and Bozano v. France (Eur. Court HR, judgments of Series A no. 22, 52 and 111) the Court was reluctant to proceed under Article 18 of the Convention, once a violation had been found by reason of a failure to comply with the specific limits of a restriction clause. Moreover, they claim that the restrictions contained in Article 8 of the Anti-Terror Law are consistent with the legitimate aims prescribed in Article 10 para. 2 of the Convention.

92. The Commission has already found that the restrictions which were applied to the applicant’s freedom of expression were consistent with the legitimate aims prescribed by Article 10 para. 2 of the Convention (see para. 76 above). It accordingly does not find any basis for the finding of a violation of Article 18 of the Convention.

CONCLUSION

93. The Commission concludes, unanimously, that there has been no violation of Article 18 of the Convention.

E. As regards Article 6 para. 1 of the Convention

94. The applicant complains that her case was not heard by an independent and impartial tribunal. She invokes Article 6 of the Convention which provides, inter alia , that:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal established by law."

95. The applicant maintains that the State Security Courts are extraordinary courts dealing with political offences. She points out that the members of the State Security Courts are appointed by the Supreme 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.

96. 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 army for the relevant period. Military judges and prosecutors are independent of their commander and their security of tenure is established. The judges of the 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.

97. The Commission recalls in this respect the Ä°ncal v. Turkey judgment of 9 June 1998 (Eur. Court HR, Reports 1998-..., p. ..., paras. 61-73). The Court there stated:

"65. The Court reiterates that in order to establish whether a tribunal can be considered «independent» for the purposes of Article 6 para. 1 of the Convention, regard must be had, inter alia , to the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures and the question whether it presents an appearance of independence (see, among many other authorities, the Findlay v. the United Kingdom judgment of 25 February 1997, Reports 1997-I, p. 281, para. 73).

As to the condition of «impartiality» within the meaning of that provision, there are two tests to be applied: the first consists in trying to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect. It was not contested before the Court that only the second of these tests was relevant in the instant case (see, mutatis mutandis , the Gautrin and Others v. France judgment of 20 May 1998, Reports 1998-..., p. ..., para. 58).

...

66. Law no. 2845, promulgated on 16 June 1983, pursuant to Article 143 of the Constitution, governs the composition and functioning of the National Security. Under the provisions of section              5, these courts are composed of three judges, one of whom is a regular officer and member of the Military Legal Service .

As the independence and impartiality of the two civilian judges is not disputed, the Court must determine what the position was with regard to the military judge.

67. The Court notes that the status of military judges sitting as members of National Security Courts provides certain guarantees of independence and impartiality. For example, military judges follow the same professional training as their civilian counterparts, which gives them the status of regular members of the Military Legal Service. When sitting as members of National Security Courts, military judges enjoy constitutional safeguards identical to those of civilian judges; in addition, with certain exceptions, they may not be removed from office or made to retire early without their consent; as full members of a National Security Court they sit as individuals; according to the Constitution, they must be independent and no public authority may give them instructions concerning their judicial activities or influence them in the performance of their duties (see paragraph 27 and 30 above and, mutatis mutandis , the Ettl and Others v. Austria judgment of 23 April 1987, Series A no. 117, p. 18, para. 38).         

68. Firstly, they are servicemen who still belong to the army, which in turn takes its orders from the executive. Secondly, they remain subject to military discipline and assessment reports are compiled on them by the army for that purpose. Decisions pertaining to their appointment are to a great extent taken by the army's administrative authorities. Lastly, their term of office as National Security Court judges is only four years and can be renewed.

69. The Court notes that the National Security Courts were set up pursuant to the Constitution to deal with offences affecting Turkey's territorial integrity and national unity, its democratic regime and its State security (see paragraphs 26 and 28 above). Their main distinguishing feature is that, although they are non-military courts, one of their judges is always a member of the Military Legal Service.

70. ...It is not for the Court - which is aware of the problems caused by terrorism - to pass judgment on these assertions. Its task is not to determine in abstracto whether it was necessary to set up such courts in a Contracting State or to review the relevant practice, but to ascertain whether the manner in which one of them functioned infringed the applicant’s right to a fair trial (see, among many other authorities, mutatis mutandis , the Fey v. Austria judgment of 24 February 1993, Series A no. 255, p. 12. para. 27).             

71. In this respect even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused (see, among other authorities, the Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, para. 48, the Thorgeirson v. Iceland judgment of 10 June 1996, cited above, p. 23, para. 51, and the Pullar v. United Kingdom judgment of 10 June 1996, Reports 1996-III, p. 794, para. 38). In deciding whether there is a legitimate reason to fear that a particular court lacks independence or impartiality, the standpoint of the accused is important without being decisive. What is decisive is whether his doubts can be held to be objectively justified (see, mutatis mutandis , the Hauschildt judgment, cited above, p. 21, para. 48, and the Gautrin and Others judgment, cited above, p. ..., para. 58).

72. In addition, the Court attaches great importance to the fact that a civilian had to appear before a court composed, even if only in part, of members of the armed forces.

It follows that the applicant could legitimately fear that because one of the judges of the Ä°zmir National Security Court was a military judge it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case. The Court of Cassation was not able to dispel these concerns, as it did not have full jurisdiction (see paragraph 25 above and, among other authorities, mutatis mutandis , the Helle v. Finland judgment of 19 December 1997, Reports-.., p. ..., para.46).

73. In conclusion, the applicant had legitimate cause to doubt the independence and impartiality of the the Ä°zmir National Security Court.

There has accordingly been a breach of Article 6 para. 1."

98. The Commission observes that the Turkish courts found the applicant guilty of  disseminating separatist propaganda against the indivisible integrity of the Turkish State with its land and nation.

99. The Commission notes that as in the case of Ä°ncal the act which gave rise to the present case was considered likely to endanger the founding principles of the Republic of Turkey, or to affect its security, it came ipso iure under the jurisdiction of the State Security Court (see, the Ä°ncal v. Turkey judgment, cited above, p. 26, para. 72).

100. The Commission notes that, at the hearing of the Ä°ncal case before the Court, the Government indicated the importance of the presence of military judges at the State Security Courts. They stressed their undoubted competence and experience in the battle against organised crime, including that committed by illegal armed groups (op. cit., p. 26, paras. 69 and 70).

101. However, in the Commission’s view, 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 and partiality.

102. In the circumstances of the present case, the Commission observes that the applicant published an article which contained criticism, in hard terms, concerning the means employed by the military forces in their battle against terrorism in the south-east part of Turkey. Accordingly, in the Commission's view, the applicant could legitimately fear that because one of the judges of the İstanbul State Security Court was a military judge, it might allow itself to be unduly influenced by considerations which had nothing to do with the nature of the case (see, as the latest authority, Eur. Court HR, Çıraklar v. Turkey judgment of 28 October 1998, to be published in Reports ..., para. 40).

103. In the light of the foregoing, the Commission considers that there was some doubt as to the independence and objective impartiality of the State Security Court which tried the applicant and that the applicant's fears were justified by objective factors. Furthermore, the proceedings in the Court of Cassation were not able to dispel these concerns (see the Ä°ncal v. Turkey judgment cited above, p. ..., para. 72). The Commission therefore considers that the applicant's case was examined by a court which cannot be considered to be independent and impartial within the meaning of Article 6 para. 1 of the Convention.                

CONCLUSION

104. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 of the Convention.

F. Recapitulation

105. The Commission concludes, unanimously, that in the present case there has been a violation of Article 10 of the Convention (para. 88).

106. The Commission concludes, unanimously, that there has been no violation of Article 18 of the Convention (para. 93).

107. The Commission concludes, unanimously, that there has been a violation of Article 6 para. 1 of the Convention (para. 104).

        M.-T. SCHOEPFER                    S. TRECHSEL

             Secretary                          President

         to the Commission                of the Commission 

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.