BASKAYA v. TURKEY ; OKCUOGLU v. TURKEY
Doc ref: 23536/94;24408/94 • ECHR ID: 001-45956
Document date: January 13, 1998
- Inbound citations: 65
- •
- Cited paragraphs: 18
- •
- Outbound citations: 3
EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 23536/94
Fikret BASKAYA
against
Turkey
and
Application No. 24408/94
Mehmet Selim OKÇUOGLU
against
Turkey
REPORT OF THE COMMISSION
(adopted on 13 January 1998)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-19). . . . . . . . . . . . . . . . . . . . . .1
A. The applications
(paras. 2-5). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 6-14) . . . . . . . . . . . . . . . . . . .2
C. The present Report
(paras. 15-19). . . . . . . . . . . . . . . . . . .3
II. ESTABLISHMENT OF THE FACTS
(paras. 20-46) . . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 20-33). . . . . . . . . . . . . . . . . . .4
B. Relevant domestic law
(paras. 34-46). . . . . . . . . . . . . . . . . . .6
III. OPINION OF THE COMMISSION
(paras. 47-107). . . . . . . . . . . . . . . . . . . . 12
A. Complaints declared admissible
(para. 47). . . . . . . . . . . . . . . . . . . . 12
B. Points at issue
(para. 48). . . . . . . . . . . . . . . . . . . . 12
C. As regards Articles 9 and 10 of the Convention
(paras. 49-75). . . . . . . . . . . . . . . . . . 13
CONCLUSION
(para. 76). . . . . . . . . . . . . . . . . . . . 17
D. As regards Article 7 of the Convention
(paras. 77-80). . . . . . . . . . . . . . . . . . 18
CONCLUSIONS
(paras. 81-82). . . . . . . . . . . . . . . . . . 18
E. As regards Article 14 of the Convention
(paras. 83-85). . . . . . . . . . . . . . . . . . 18
CONCLUSION
(para. 86). . . . . . . . . . . . . . . . . . . . 19
F. As regards the applicants' complaint under
Article 6 para. 1 of the Convention that their
case was not heard by an independent and
impartial tribunal
(paras. 87-93). . . . . . . . . . . . . . . . . . 19
CONCLUSION
(para. 94). . . . . . . . . . . . . . . . . . . . 20
G. As regards the first applicant's complaint under
Article 6 para. 1 of the Convention that he did
not have a fair trial
(paras. 95-96). . . . . . . . . . . . . . . . . . 20
CONCLUSION
(para. 97). . . . . . . . . . . . . . . . . . . . 21
H. As regards the first applicant's complaint under
Article 6 para. 2 of the Convention
(paras. 98-99). . . . . . . . . . . . . . . . . . 21
CONCLUSION
(para. 100) . . . . . . . . . . . . . . . . . . . 21
I. Recapitulation
(paras. 101-107). . . . . . . . . . . . . . . . . 21
PARTLY DISSENTING OPINION OF MR E. A. ALKEMA. . . . . . . . 23
APPENDIX No. 1:DECISION OF THE COMMISSION AS TO
THE ADMISSIBILITY OF
APPLICATION No. 23536/94 . . . . . . . . . . 24
APPENDIX No. 2:DECISION OF THE COMMISSION AS TO
THE ADMISSIBILITY OF
APPLICATION No. 24408/94 . . . . . . . . . . 32
I. INTRODUCTION
1. The following is an outline of the cases as submitted to the
Loading citations...European Commission of Human Rights by the parties, and of the
procedure before the Commission.
A. The applications
2. The first applicant is a Turkish national. He was born in 1940
and lives in Ankara. He was represented before the Commission by
Mr. Tekin Akillioglu, a lawyer practising in Ankara.
The second applicant is a Turkish national. He was born in 1964
and lives in istanbul. He was represented before the Commission by
Ms. Emire Eren Keskin, a lawyer practising in istanbul.
3. Both applications are directed against Turkey. The respondent
Government were represented by Mr. Bakir Çaglar, Professor at istanbul
University.
4. The cases concern the applicants' conviction by the State
Security Court for having published a book entitled "Batililasma,
Çagdaslasma, Kalkinma - Paradigmanin iflasi" ("Westernisation,
Modernisation, Development - Collapse of a Paradigm"). The first
applicant is the author of the book. The second applicant is the owner
of the publishing company where the book was published.
5. The applicants complain under Articles 9 and 10 of the Convention
that their convictions on account of the publication of this book
constituted an unjustified interference with their freedom of thought
and freedom of expression.
The applicants also complain that their convictions contravened
Article 7 of the Convention. The first applicant explains that the text
of Article 8 of the Anti-Terror Law, under which he was convicted, was
so unclear and the concept of dissemination of "propaganda against the
indivisibility of the State" was so vague that his conviction
thereunder was not foreseeable. He also invokes Article 6 para. 2 of
the Convention in this respect. The second applicant complains that his
conviction contravened the principle "nullum crimen, nulla poena sine
lege".
Moreover, both applicants complain under Article 6 para. 1 of the
Convention that their case was not heard by an independent and
impartial tribunal; they assert in this regard that one of the three
members of the State Security Court is a military judge answerable to
his military superiors whose presence prejudices the independence of
the Court.
The first applicant also submits that he did not have a fair
trial, as guaranteed by Article 6 para. 1 of the Convention, in that
the domestic courts failed to consider his book as a whole and
convicted him merely on the basis of an assessment of one chapter
thereof.
The second applicant complains under Article 14 in conjunction
with Article 10 of the Convention that his conviction for publishing
a book, in which certain political views, contrary to State policy,
were expressed, constitutes discrimination on the ground of political
opinion.
B. The proceedings
6. The applications were introduced on 22 February and 9 June 1994
and registered on 25 February and 15 June 1994, respectively.
7. On 20 February 1995, the Commission decided, pursuant to Rule 48
para. 2 (b) of its Rules of Procedure, to give notice of both
applications to the Turkish Government and to invite the parties to
submit written observations on the admissibility and merits of the
applicants' complaints based (under Article 10 of the Convention) on
the alleged violation of their freedom of expression, (under
Article 6 para. 1 of the Convention) on the alleged violation of their
right to a fair trial by an independent and impartial court, and (under
Article 7 of the Convention) on the alleged violation of their rights
in the context of the principle "nullum crimen, nulla poena sine lege"
as well as of the second applicant's complaint based (under Article 14
in conjunction with Article 10 of the Convention) on the allegation
that his conviction constituted discrimination on the ground of
political opinion.
8. As to Application No. 23536/94, the Government's written
observations were submitted on 4 August 1995, after an extension of the
time-limit fixed for that purpose. The first applicant replied on
26 September 1995.
9. As to Application No. 24408/94, the Government's written
observations were submitted on 21 February 1996, after an extension of
the time-limit fixed for that purpose. The second applicant replied
on 8 April 1996.
10. Meanwhile, on 4 December 1995, the Government submitted
information concerning the amendments made to the Anti-Terror Law (Law
No. 3713) and the developments in the cases of persons convicted and
sentenced under Article 8 of the said Law. The applicants submitted
comments in reply on 5 February and 11 March 1996, respectively.
11. On 2 September and 14 October 1996, respectively, the Commission
declared the applications admissible. On the latter date the Commission
decided to join the two applications.
12. The texts of the Commission's decisions on admissibility were
sent to the parties on 16 September and 31 October 1996, respectively,
and they were invited to submit such further information or
observations on the merits as they wished.
13. As to Application No. 24408/94, on 15 November 1996 the
Government submitted observations on the documents annexed to the
Commission's decision on admissibility. The Government considered
unjustified the publication by the Commission of "confidential
documents which are part of the investigation file". The Government
requested the Commission to desist from publishing the appendix to the
decision in this application.
14. After declaring the cases admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, placed itself
at the disposal of the parties with a view to securing a friendly
settlement. In the light of parties' reaction, the Commission now finds
that there is no basis on which such a settlement can be effected.
C. The present Report
15. 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
16. 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.
17. 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.
18. The Commission's decisions on the admissibility of the
applications are appended to this Report.
19. 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 cases
20. In April 1991 a book entitled "Batililasma, Çagdaslasma, Kalkinma
- Paradigmanin iflasi / Resmi ideolojinin Elestirisine Giris"
("Westernisation, Modernisation, Development - Collapse of a Paradigm
/ An Introduction to the Critique of the Official Ideology"), written
by the first applicant, was published by the company DOZ Basim ve
Yayincilik Ltd Sti, owned by the second applicant. The first applicant
is a university professor and a journalist.
21. The book is an academic essay of 219 pages, containing
370 references, which involves a description of the socio-economic
evolution of Turkey since the 1920s and the analysis and criticism of
the "official ideology" of the State. According to the table of
contents, the author covers the following topics: Intelligentsia and
Official Ideology; The Characteristics of the National Struggle; The
Question of the National Character of the National Struggle; The
Comintern and the Question whether the National Struggle was Anti-
Imperialist; Mustafa Kemal and the Individual's Role in History; The
Characteristics of the Kemalist Regime: an Original Form of
Bonapartism; Productive Forces and Economic Policies; Bonapartist
Regime and Accumulation of Capital; A Classless, Privilegeless,
Populist Dictatorship; The Evolution of Socio-Economic Formation in the
Neo-Colonialist Era; The Eighties: Strengthening of the Satellitisation
Process; The Collapse of the Paradigm and the Science of Economics:
Means to Legitimise Existing Tendencies.
22. It appears that the prosecution authorities took cognizance of
the publication of the book on 3 May 1991 (cf. below para. 39).
23. On 2 August 1991 the Public Prosecutor at the istanbul State
Security Court (istanbul Devlet Güvenlik Mahkemesi), having regard to
the contents of the book in question, issued an indictment against the
applicants. The first applicant was charged, under
Article 8 paragraph 1 of the Anti-Terror Law, with disseminating
propaganda in his book against the indivisibility of the State. The
second applicant, as the owner of the publishing company, was charged
with the same offence under Article 8 paragraph 2 of the Anti-Terror
Law. In the bill of indictment, the Public Prosecutor quoted extracts
from a single chapter of the book in which reference was made to "the
Kurdish problem".
24. In the proceedings before the State Security Court, the
applicants denied the charges and requested their acquittal. In a
written statement to the Court, the first applicant submitted that his
book was an academic work which could not be deemed to be propaganda.
He asserted that nobody had the right to try and convict someone for
the expression of an opinion. He stated that a professor, whose duty
was to conduct research and publish his conclusions, could not be
forced to accept the "official reality". He maintained that his book
might be judged by academics, but not by the Court. The second
applicant submitted, inter alia, that it was not possible to reach a
conclusion about the book as a whole based solely on the assessment of
extracts from a single chapter. He alleged that Article 8 of the Anti-
Terror Law was contrary to the Turkish Constitution and the
international treaties to which Turkey is a party. He asserted that
there was a "Kurdish problem" in Turkey and that commenting or
expressing ideas on this problem could not constitute an offence.
25. In a final opinion dated 18 March 1992, the Public Prosecutor
requested the conviction of the first applicant under
Article 8 paragraph 1 of the Anti-Terror Law and that of the second
applicant under paragraph 2 of the same Article. The Public Prosecutor
also requested the seizure of all copies of the book. The Public
Prosecutor considered that the offence had been committed on
3 May 1991.
26. On 14 October 1992 the Court acquitted the applicants. It held
that the book as a whole was an academic work with no elements of
propaganda.
27. The Public Prosecutor appealed. He submitted that the book
alleged that a certain part of Turkish territory had belonged to
"Kurdistan" which the Turks had annexed and colonised. Concluding that
the book thus indeed disseminated propaganda against the indivisibility
of the State, he requested that the verdict be set aside.
28. On 4 February 1993 the Court of Cassation quashed the decision
of the trial court and referred the case back for retrial.
29. In a judgment dated 5 August 1993, the istanbul State Security
Court found the applicants guilty of the offences with which they had
been charged. It sentenced the first applicant to two years'
imprisonment and a fine of 50,000,000 Turkish lira and the second
applicant to six months' imprisonment and a fine of 50,000,000 Turkish
lira. Thereupon the Court, considering the applicants' good conduct
during the trial, reduced the first applicant's sentence to one year
and eight months' imprisonment and a fine of 41,666,666 Turkish lira
and the second applicant's sentence to five months' imprisonment and
a fine of 41,666,666 Turkish lira.
30. In its reasoning, the Court relied, inter alia, on extracts taken
from pages 51, 52 and 59 of the book. It concluded that the reference
to a certain part of Turkish territory as "Kurdistan" and assertions
about its colonisation amounted to propaganda against the
indivisibility of the State.
31. The applicants appealed. The first applicant maintained that he
could not be tried and convicted under Article 8 of the Anti-Terror Law
which contravened the Turkish Constitution and the Convention. In their
statement of 15 December 1993 to the Court of Cassation, the
applicants' legal representatives, also reiterating the defence made
before the State Security Court, emphasised that the State Security
Court had not considered the book as a whole and had erroneously based
its decision on an assessment of one chapter thereof. They maintained
that, in a democratic society, it was required that opinions could be
expressed without any restriction. As to the second applicant's
sentence, they asserted that the imprisonment imposed upon him was
unlawful in that the second applicant, the publisher of a book rather
than that of a periodical, could have been punished only by a fine. At
the hearing before the Court of Cassation on 15 December 1993, the
first applicant also referred to the lack of clarity of the relevant
provisions of the Anti-Terror Law.
32. In its decision of 16 December 1993, delivered on
22 December 1993, the Court of Cassation upheld the cogency of the
State Security Court's assessment of the evidence and its reasoning in
rejecting the applicants' defence and dismissed the appeals.
33. The first applicant served his sentence in prison and paid the
fine. 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
second applicant's case. On 19 April 1996 the Court held that these
amendments could not be applied to his case as he had already served
his sentence.
B. Relevant domestic law
a) Anti-Terror Legislation
34. Article 8 paragraph 1 of Anti-Terror Law No. 3713 of
12 April 1991 (before the amendments of 27 October 1995)
"Hangi yöntem, maksat ve düsünceyle olursa olsun Türkiye
Cumhuriyeti Devletinin ülkesi ve milletiyle bölünmez bütünlügünü
bozmayi hedef alan yazili ve sözlü propaganda ile toplanti,
gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda 2 yildan 5 yila
kadar agir hapis ve ellimilyon liradan yüzmilyon liraya kadar
agir para cezasi hükmolunur."
"No one shall, by any means or with any intention or idea, make
written or oral propaganda or hold assemblies, demonstrations or
manifestations against the indivisible integrity of the State of
the Turkish Republic, its territories and the nation. Those
carrying out any such activity shall be sentenced to imprisonment
between two and five years and a fine between 50 and 100 million
Turkish lira."
35. Article 8 paragraph 2 of Anti-Terror Law
"Yukaridaki fikrada belirtilen propaganda suçunun 5680 sayili
Basin Kanunun 3 üncü maddesinde belirtilen mevkuteler vasitasi
ile islenmesi halinde, ayrica sahiplerine de mevkute bir aydan
az süreli ise, bir önceki ay ortalama satis miktarinin: [mevkute
niteliginde bulunmayan basili eserler ile yeni yayina giren
mevkuteler hakkinda ise, en yükek tirajli günlük mevkutenin bir
önceki ay ortalama satis tutarinin]; yüzde dosani kadar agir para
cezasi verilir. Ancak, bu para cezalari yüzmilyon liradan az
olamaz. Bu mevkutelerin sorumlu müdürlerine, sahiplerine
verilecek para cezasinin yarisi uygulanir ve alti aydan iki yila
kadar hapis cezasi hükmolunur."
"If the offence of propaganda, referred to in paragraph 1 above,
is committed by means of periodicals, as defined in Article 3 of
Press Law No. 5680, the owners of such periodicals shall be
punished by a fine to be determined in accordance with the
following provisions: for periodicals published at less than
monthly intervals, the fine shall be ninety per cent of the
average real sales revenue of the previous month; [for printed
works that are not periodicals or for periodicals which have
recently started business, the fine shall be the average monthly
sales revenue of the highest circulating daily periodical]. In
any case, the fine may not be less than 100 million Turkish lira.
Responsible editors of these periodicals shall be sentenced to
imprisonment of between six months and two years and to half of
the fine determined in accordance with the provisions concerning
the owners."
36. 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.
37. 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 and Printing Legislation
38. Article 3 of Press Law No. 5680 (of 24 July 1950)
"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'. ... "
39. Article 4 of Law No. 5681 (of 24 July 1950) on Printing
"Tâbiler, bastiklari eserlerden ikiser nüshasini basmanin sona
erdigi günün çalisma saati içinde, bulunduklari yerin Cumhuriyet
Savcisi ile en büyük mülkiye âmirine vermeye mecburdurlar. ..."
"Owners of printing houses shall, within the office hours, submit
to the competent Public Prosecutor's Office and to the District
Governor two sample copies of all printed matter, the printing
of which has been completed during the day. ... "
c) 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 applicants' complaints that their convictions on account of
the publication of an academic book constituted unjustified
interferences with their freedom of thought and freedom of expression;
- the first applicant's complaint that, due to the lack of
sufficient clarity of the relevant law, his conviction was not
foreseeable;
- the second applicant's complaint that, due to the lack of
sufficient clarity of the relevant law, his conviction was not
foreseeable and that he was convicted in contravention of the principle
"nullum crimen, nulla poena sine lege";
- the second applicant's complaint that his conviction constituted
discrimination on the ground of political opinion;
- the applicants' complaints that their case was not heard by an
independent and impartial tribunal;
- the first applicant's complaint that he did not have a fair
trial;
- the first applicant's complaint that his conviction involved a
breach of the principle of presumption of innocence.
B. Points at issue
48. The points at issue in the present case are as follows:
- whether there has been a violation of Articles 9 and 10
(Art. 9, 10) of the Convention;
- whether the first applicant's conviction violated Article 7
(Art. 7) of the Convention;
- whether the second applicant's conviction violated Article 7
(Art. 7) of the Convention;
- whether, as regards the second applicant, there has been a
violation of Article 14 in conjunction with Article 10 (Art. 14+10) of
the Convention;
- whether, as regards the independence and impartiality of the
court, there has been a violation of Article 6 para. 1 (Art. 6-1) of
the Convention;
- whether the first applicant's trial was in conformity with
Article 6 para. 1 (Art. 6-1) of the Convention;
- whether, as regards the first applicant, there has been a
violation of Article 6 para. 2 (Art. 6-2) of the Convention.
C. As regards Articles 9 and 10 (Art. 9, 10) of the Convention
49. The applicants complain under Articles 9 and 10 (Art. 9, 10) of
the Convention that their convictions on account of the publication of
an academic book constituted unjustified interferences with their
freedom of thought and freedom of expression.
50. The Commission considers that the applicants' complaints
essentially concern alleged violations of their freedom of expression.
The Commission will therefore examine these complaints under Article 10
(Art. 10) of the Convention, which states:
"1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority
and regardless of frontiers. This Article shall not prevent
States from requiring the licensing of broadcasting, television
or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
51. The applicants submit that their convictions were not for any
legitimate purpose under the Convention. They maintain that they were
convicted because the incriminated book contained certain expressions,
such as "Kurdistan", and raised questions as to the "official reality".
They consider that the views expressed in the book were within the
limits of permissible criticism. The sanctions inflicted upon them were
not necessary in a democratic society. They explain in this context
that the book as a whole was an academic work with no elements of
propaganda.
52. The respondent Government submit that the interferences with the
applicants' rights under Article 10 (Art. 10) of the Convention were
prescribed by law, i.e. by Article 8 of the Anti-Terror Law. They
maintain that the incriminated book referred to a certain region of
Turkish territory as "Kurdistan" and alleged that "the Republic of
Turkey had colonised these territories". According to Article 8
of the Anti-Terror Law, these forms of expression constituted
propaganda against the indivisible integrity of the State. Moreover,
certain comments made by the author in his book constituted a
provocation of enmity and hatred between the Kurdish and Turkish
societies which serves to mobilise revolt. Therefore, the domestic
courts interpreted the law reasonably.
53. Furthermore, the Government maintain that the purpose of the
applicants' convictions was linked to the control of terrorism carried
out by illegal organisations and, consequently, served to protect
territorial integrity and national security. The threat posed to Turkey
by the P.K.K. (the Kurdistan Workers Party - a terrorist organisation)
and its affiliations is internationally recognised, as is the need to
react firmly to it, since terrorism strikes at the heart of democracy,
the fundamental rights which are enshrined in that concept and the
judicial and political systems.
54. The Government recall that freedom of expression constitutes one
of the essential foundations of a democratic society. However, in a
situation where politically motivated violence poses a constant threat
to the lives and security of the population and where advocates of this
violence seek access to the mass media for publicity purposes, it is
particularly difficult to strike a fair balance between the
requirements of freedom of information and the imperatives of
protecting the State and the public against armed conspirators seeking
to overthrow the democratic order which guarantees this freedom and
other human rights.
55. The Government reiterate that the book in question is based on
propaganda against the indivisible integrity of the State. They submit
that it is generally accepted in comparative and international law on
terrorism that restrictions on Convention rights will be deemed
necessary in a democratic society threatened by terrorist violence, as
being proportionate to the aim of protecting public order. In this
respect they assert that the decisions of the domestic courts did not
exceed the margin of appreciation conferred on States by the
Convention. Accordingly, the Government submit that this part of the
application is ill-founded.
56. The Commission is of the opinion that the penalties imposed on
the applicants constituted "interferences" in the exercise of their
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.
57. Therefore, the question is whether these interferences were
prescribed by law, pursued a legitimate aim under Article 10 para. 2
(Art. 10-2) and were "necessary in a democratic society" in order to
realise that legitimate aim.
58. As to the question of lawfulness, the Commission recalls that,
in the particular case of restrictions on the freedom of expression
taking the form of criminal sanctions, Article 7 (Art. 7) must be taken
into account in addition to the more general requirement of lawfulness
laid down in Article 10 para. 2 (Art. 10-2) of the Convention
(No. 8710/79, Dec. 7.5.82, D.R. 28, p. 77). In the sphere of criminal
law, Article 7 para. 1 (Art. 7-1) of the Convention confirms the
general principle that legal provisions which interfere with individual
rights must be adequately accessible and formulated with sufficient
precision to enable the citizen to regulate his conduct (No. 13079/87,
Dec. 6.3.89, D.R. 60, pp. 256, 261).
59. With regard to the requirement of the accessibility of the law,
the Commission notes that this issue has not been in dispute between
the parties. The Commission also notes that the applicants' convictions
were based on Article 8 of the Anti-Terror Law which entered into force
on 12 April 1991. The domestic authorities considered that the offence
had been committed on 3 May 1991.
60. With regard to the requirement of sufficient precision, the
Commission recalls that the need to avoid excessive rigidity and to
keep pace with changing circumstances means that many laws are
inevitably couched in terms which, to a greater or lesser extent, are
vague (Eur. Court HR, Kokkinakis v. Greece judgment of 25 May 1993,
Series A no. 260-A, p. 19, para. 40).
61. In this respect the applicants submit that their convictions were
based on legal principles which had not existed, or at least had not
been defined with sufficient clarity, at the time of the commission of
the offences. They maintain that the text of Article 8 of the Anti-
Terror Law was so unclear and, moreover, the concept of "dissemination
of propaganda against the indivisibility of the State" was so vague
that their convictions thereunder were not foreseeable; the text of
that provision did not enable them to distinguish between permissible
and prohibited behaviour.
62. The Commission considers that the wording of Article 8 para. 1
of the Anti-Terror Law, as in force when applied to the first
applicant, was sufficiently specific to enable the first applicant, if
necessary after taking legal advice, to regulate his conduct in the
matter and that the requirement of foreseeability was thus met. It
follows that, as far as the first applicant is concerned, the
interference with his rights was prescribed by law.
63. The situation of the second applicant is different because he
asserts that he was tried pursuant to a section of Article 8 para. 2
of the Anti-Terror Law, which was subsequently annulled by the
Constitutional Court. The annulment took effect before his conviction
was finally confirmed. He maintains that, at the time of the final
judgment, there was no penal provision applicable to publishers like
himself and that he had been unlawfully sentenced by an analogy being
made between his case and that of an editor. In particular, his prison
sentence was unlawful because he was the publisher of a book rather
than of a periodical and, therefore, could only be punished by a fine.
In sum, he alleges not only were the provisions of Article 8 of the
Anti-Terror Law vague and unforeseeable, but his conviction under
Article 8 para. 2 of this Law also contravened the principle "nullum
crimen, nulla poena sine lege".
64. The Commission notes that the second applicant was convicted
under Article 8 paragraph 2 of the Anti-Terror Law (see above para. 35)
for having published a book. According to the wording of this provision
as in force on 3 May 1991, both the publisher and the responsible
editor were to be prosecuted, if the "offence of propaganda" within the
meaning of paragraph 1 of that Article was committed by publishing a
periodical. The notion of periodicals was defined in Article 3 of the
Press Law (see above para. 38) and this definition did not seem to
cover books. It is true that, at the material time,
Article 8 paragraph 2 contained, in the context of the calculation of
fines, a reference to the publication of non-periodicals. However, the
general hypothesis of paragraph 2 appears, at the outset, to suggest
that an "offence of propaganda" would satisfy the criteria of the
provision if it were committed by publishing periodicals within the
meaning of Article 3 of the Press Law. In these circumstances the
Commission considers it doubtful whether the conviction of the second
applicant, whose publishing company published the incriminated book,
not a periodical, was in compliance with the principle "nullum crimen
sine lege".
65. In any event, the Commission notes that, according to the
provisions referred to above, the publisher of an incriminated
publication is to be sentenced to a fine, whereas its responsible
editor is to be sentenced to imprisonment and a fine. The second
applicant, although being the publisher, was sentenced to imprisonment
and a fine. The Commission finds, therefore, that this penalty, in so
far as the imprisonment is concerned, was inflicted upon the second
applicant in contravention of the principle "nulla poena sine lege".
It follows that the interference with the second applicant's rights was
not prescribed by law.
66. As regards the aims of the interferences, the Commission notes
that the applicants' convictions were 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.
67. The remaining issue is whether the interferences were "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".
68. The Commission further notes that, while freedom of political
debate is at the very core of the concept of a democratic society
(Eur. Court HR, Lingens v. Austria judgment of 8 July 1986, Series A
no. 103, p. 26, para. 42), that freedom is not absolute. A Contracting
State is entitled to subject it to certain "restrictions" or
"penalties", but the Convention organs are empowered to give the final
ruling on whether they are reconcilable with freedom of expression as
protected by Article 10 (Art. 10) (Eur. Court HR, the Observer and
Guardian v. the United Kingdom judgment of 26 November 1991, Series A
no. 216, p. 30, para. 59(c)). In doing so, the Convention organs must
satisfy themselves that the national authorities did apply standards
which were in conformity with the principles embodied in Article 10
(Art. 10) and, moreover, that they based themselves on an acceptable
assessment of the relevant facts (Eur. Court HR, Jersild v. Denmark
judgment of 23 September 1994, Series A no. 298, p. 24, para. 31).
69. Even where, as in the present case, interferences with freedom
of expression are based on considerations of national security and
public safety and are part of a State's fight against terrorism, the
interferences can be regarded as necessary only if they are
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).
70. 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.
71. In the present case the Commission notes that the book in
question is an academic essay covering topics such as the
intelligentsia and the "official ideology", the features and the
national character of Turkey's "national struggle", the characteristics
of the Kemalist regime, a survey of economic policies, and the
evolution of the society and economy in the "neo-colonialist" era. In
the incriminated chapter of the book, the author, examining the
evolution of the "Kurdish question" from a historical aspect, describes
how the notion of Kurdistan was allegedly "«effaced» from the world
map" by the "official" Ottoman-Turkish ideology. He marshals arguments
to show that Turkey, as an allegedly colonialist State, in fact
subjugated the Kurdish nation. He places his theses, supported by
numerous quotations from various authors, in the context of an analysis
as to the "national character" of Turkey's "national struggle".
72. The Turkish courts held that the references, as contained in the
incriminated chapter, to a certain part of Turkish territory as
"Kurdistan" and the assertions about its colonisation amounted to
propaganda against the indivisibility of the State.
73. However, in the Commission's view, the ideas contained in the
book are mainly of an analytical nature. The author expressed his
opinion on the Kurdish question in relatively moderate terms and did
not associate himself with the use of violence in the context of the
Kurdish separatist struggle.
74. The Commission finds that the applicants' convictions amounted
to a kind of censure, which was likely to discourage them or others
from expressing or publishing ideas of a similar kind again in the
future. In the context of political debate such a sentence is likely
to deter citizens from contributing to public discussion of important
political issues (cf. Eur. Court HR, Lingens judgment, op. cit., p. 27,
para. 44).
75. Consequently, the Commission, even taking into account the margin
of appreciation of the national authorities in this context, finds that
the interferences with the applicants' freedom of expression were 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
76. The Commission concludes, unanimously, that there has been a
violation of Article 10 (Art. 10) of the Convention.
D. As regards Article 7 (Art. 7) of the Convention
77. The applicants complain that their conviction contravened
Article 7 para. 1 (Art. 7-1) of the Convention which provides as
follows:
"No one shall be held guilty of any criminal offence on account
of any act or omission which did not constitute a criminal
offence under national or international law at the time when it
was committed. Nor shall a heavier penalty be imposed than the
one that was applicable at the time the criminal offence was
committed."
78. The applicants maintain that their convictions were based on
legal principles which had not existed, or at least had not been
defined with sufficient clarity, at the time of the commission of the
offence and, therefore, their convictions were not foreseeable (see
above para. 61). Moreover, the second applicant submits that his
conviction contravened the principle "nullum crimen, nulla poena sine
lege" (see above para. 63).
79. As regards the first applicant's conviction, the Commission has
found (see above para. 62) that the wording of Article 8 paragraph 1
of the Anti-Terror Law, as in force when the offence was committed, was
sufficiently specific to enable him, if necessary after taking legal
advice, to regulate his conduct in the matter. It follows that there
has been no infringement of the principle of the statutory nature of
offences and penalties, as guaranteed by Article 7 (Art. 7) of the
Convention.
80. As regards the second applicant, the Commission has concluded
that it is doubtful whether his conviction - in view of the fact that
his publishing company published the incriminated text in a book, not
a periodical - was in compliance with the principle "nullum crimen sine
lege" (see above para. 64). Moreover, the Commission has found that the
second applicant was sentenced to imprisonment in contravention of the
principle "nulla poena sine lege" (see above para. 65). It follows that
this sentence breached the principle that penalties should have a basis
in domestic law.
CONCLUSIONS
81. The Commission concludes, by 31 votes to 1, that, as regards the
first applicant's conviction, there has been no violation of Article 7
(Art. 7) of the Convention.
82. The Commission concludes, unanimously, that, as regards the
second applicant's conviction, there has been a violation of Article 7
(Art. 7) of the Convention.
E. As regards Article 14 (Art. 14) of the Convention
83. Article 14 (Art. 14) of the Convention provides as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
84. The second applicant maintains, under Article 14 in conjunction
with Article 10 (Art. 14+10) of the Convention, that his conviction for
publishing a book, in which certain political views, contrary to State
policy, were expressed, constitutes discrimination on the ground of
political opinion.
85. Having found that Article 10 (Art. 10) of the Convention has been
violated, the Commission considers that no separate issue arises in
regard to Article 14 in conjunction with Article 10 (Art. 10) of the
Convention.
CONCLUSION
86. The Commission concludes, unanimously, that no separate issue
arises in regard to Article 14 in conjunction with Article 10
87.(Art. 14+10) of the Convention.
F. As regards the applicants' complaint under Article 6 para. 1
(Art. 6-1) of the Convention that their case was not heard by an
independent and impartial tribunal
88. The applicants complain that their case was not heard by an
independent and impartial tribunal. They invoke Article 6 (Art. 6) of
the Convention which provides, inter alia, that:
"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."
89. The applicants claim 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.
90. As regards the first applicant, 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 were 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 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. The judges of State Security Courts
evaluate the evidence and take their decisions in accordance with the
law and on 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. Accordingly, the
Government submit that this part of the application is ill-founded.
91. As regards the second applicant, the Government submit that his
allegations are ill-founded and abstract, given that he did not raise
any complaint related to the fairness of his trial and the lack of
independence and impartiality of the tribunal.
92. The Commission has already examined the question whether the
State Security Courts meet the requirements of independence and
impartiality, as laid down in 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."
93. The Commission finds that the same considerations apply in the
present case.
94. It follows that the applicants were 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
95. 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, since
the applicants were convicted by a court which cannot be considered
independent and impartial.
G. As regards the first applicant's complaint under Article 6
para. 1 (Art. 6-1) of the Convention that he did not have a fair
trial
96. The first applicant complains that he did not have a fair trial
in that the domestic courts failed to consider his book as a whole and
convicted him merely on the basis of an assessment of one chapter
thereof. He invokes Article 6 para. 1 (Art. 6-1) of the Convention
which, in so far as it is relevant, provides as follows:
"In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... "
97. The Commission has concluded that the applicants' case was not
heard by an independent and impartial tribunal, as required by Article
6 para. 1 (Art. 6-1) of the Convention, and that, consequently, there
has been a violation of that provision (see above para. 95). In these
circumstances, the Commission considers that it need not proceed to
examine the first applicant's further complaint under Article 6 para. 1
(Art. 6-1) of the Convention.
CONCLUSION
98. The Commission concludes, unanimously, that it is not necessary
to examine the first applicant's complaint as to the fairness of his
trial.
H. As regards the first applicant's complaint under Article 6
para. 2 (Art. 6-2) of the Convention
99. With regard to his complaints brought under Article 7 (Art. 7)
of the Convention (see above para. 79), the first applicant also relies
on Article 6 para. 2 (Art. 6-2) of the Convention which provides as
follows:
"Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
100. The Commission, having regard to its above conclusions concerning
Articles 10, 7 and 6 para. 1 (Art. 10, 7, 6-1) of the Convention (see
above paras. 77, 82 and 95 respectively), considers that it need not
proceed to examine the first applicant's complaint under Article 6
para. 2 (Art. 6-2) of the Convention.
CONCLUSION
101. The Commission concludes, unanimously, that it is not necessary
to examine the first applicant's complaint under Article 6 para. 2
(Art. 6-2) of the Convention.
I. Recapitulation
102. The Commission concludes, unanimously, that there has been a
violation of Article 10 (Art. 10) of the Convention (see above para.
76).
103. The Commission concludes, by 31 votes to 1, that, as regards the
first applicant's conviction, there has been no violation of Article 7
(Art. 7) of the Convention (see above para. 81).
104. The Commission concludes, unanimously, that, as regards the
second applicant's conviction, there has been a violation of Article 7
(Art. 7) of the Convention (see above para. 82).
105. The Commission concludes, unanimously, that no separate issue
arises in regard to Article 14 in conjunction with Article 10
(Art. 14+10) of the Convention (see above para. 86).
106. 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, since
the applicants were convicted by a court which cannot be considered
independent and impartial (see above para. 94).
107. The Commission concludes, unanimously, that it is not necessary
to examine the first applicant's complaint as to the fairness of his
trial (see above para. 97).
108. The Commission concludes, unanimously, that it is not necessary
to examine the first applicant's complaint under Article 6 para. 2
(Art. 6-2) of the Convention (see above para. 100).
M. de SALVIA S. TRECHSEL
Deputy Secretary President
to the Commission of the Commission
(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.