SUREK and OZDEMIR v. TURKEY
Doc ref: 23927/94;24277/94 • ECHR ID: 001-45957
Document date: January 13, 1998
- Inbound citations: 22
- •
- Cited paragraphs: 7
- •
- Outbound citations: 4
EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 23927/94
Kamil Tekin Sürek
against
Turkey
and
Application No. 24277/94
Yücel Özdemir
against
Turkey
REPORT OF THE COMMISSION
(adopted on 13 January 1998)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-22). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-7). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 8-17) . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 18-22). . . . . . . . . . . . . . . . . . .3
II. ESTABLISHMENT OF THE FACTS
(paras. 23-49) . . . . . . . . . . . . . . . . . . . . .4
A. The particular circumstances of the case
(paras. 23-35). . . . . . . . . . . . . . . . . . .4
B. Relevant domestic law
(paras. 36-49). . . . . . . . . . . . . . . . . . .9
III. OPINION OF THE COMMISSION
(paras. 50-87) . . . . . . . . . . . . . . . . . . . . . . . 16
A. Complaints declared admissible
(para. 50). . . . . . . . . . . . . . . . . . . . 16
B. Points at issue
(para. 51). . . . . . . . . . . . . . . . . . . . 16
C. As regards Article 10 of the Convention
(paras. 52-71). . . . . . . . . . . . . . . . . . 16
CONCLUSION
(para. 72). . . . . . . . . . . . . . . . . . . . 20
D. As regards Article 18 of the Convention
(paras. 73-76). . . . . . . . . . . . . . . . . . 20
CONCLUSION
(para. 77). . . . . . . . . . . . . . . . . . . . 21
E. As regards Article 6 para. 1 of the Convention
(paras. 78-83). . . . . . . . . . . . . . . . . . 21
CONCLUSION
(para. 84). . . . . . . . . . . . . . . . . . . . 22
F. Recapitulation
(paras. 85-87). . . . . . . . . . . . . . . . . . 22
JOINT PARTLY DISSENTING OPINION OF
MM S. TRECHSEL, E. BUSUTTIL, G. JÖRUNDSSON,
A.S. GÖZÜBÜYÜK, A. WEITZEL, MS J. LIDDY,
MM I. CABRAL BARRETO, N. BRATZA, D. SVÁBY,
G. RESS, A. PERENIC, C. BÃŽRSAN, K. HERNDL,
E. BIELIUNAS AND E. A. ALKEMA . . . . . . . . . . . . . . . 23
PARTLY DISSENTING OPINION OF MR E. A. ALKEMA. . . . . . . . 25
APPENDIX No. 1 : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF APPLICATION
No. 23927/94. . . . . . . . . . . . . . 26
APPENDIX No. 2 : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF APPLICATION
No. 24277/94. . . . . . . . . . . . . . 36
I. INTRODUCTION
1. The following is an outline of the cases as submitted to the
European Commission of Human Rights by the parties, and of the
procedure before the Commission.
A. The application
2. The first applicant is a Turkish national. He was born in 1957
and lives in istanbul.
3. The second applicant is a Turkish national. He was born in 1968
and lives in Duisburg, Germany. He was represented before the
Commission by Mr. Semih Mutlu, a lawyer practising in istanbul.
4. The applications are directed against Turkey. The respondent
Government were represented by Mr. Bakir Çaglar, Professor at istanbul
University.
5. The cases concern the applicants' convictions by the State
Security Court on account of the publication of an interview and a
declaration in a weekly review. The first applicant was the major
shareholder in the publishing company concerned. The second applicant
was the responsible editor of the review.
6. The applicants complain under Article 10 of the Convention that
their convictions constituted an unjustified interference with their
freedom of expression. They also complain under Article 6 para. 1 of
the Convention that their case was not dealt with by an independent and
impartial tribunal.
7. Furthermore, the second applicant complains under Article 18 of
the Convention that the restrictions which were applied to his freedom
of expression were inconsistent with the legitimate aims prescribed in
Article 10 para. 2 of the Convention.
B. The proceedings
8. Application No. 23927/94 was introduced on 25 February 1994 and
registered on 20 April 1994. Application No. 24277/94 was introduced
on 4 May 1994 and registered on 6 June 1994.
9. On 20 February 1995, the Commission decided, pursuant to
Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
applications to the Turkish Government and to invite the parties to
submit written observations on the admissibility and merits of the
applicants' complaints (under Article 10 of the Convention) based on
the alleged violation of their freedom of expression and (under
Article 6 para. 1 of the Convention) on the alleged violation of the
principle of a fair trial by a court satisfying the conditions of
independence and impartiality; and of the second applicant's complaint
(under Article 18 of the Convention) based on the allegation that the
restrictions on his freedom of expression were not applied for the
purposes prescribed in Article 10 of the Convention.
10. As to Application No. 23927/94, the Government's written
observations were submitted on 15 September 1995. The first applicant
replied on 24 October 1995.
11. As to Application No. 24277/94, the Government's written
observations were submitted on 17 July 1995. The second applicant
replied on 31 October 1995.
12. 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 first applicant submitted comments in
reply on 18 June 1996. The second applicant submitted comments in reply
on 13 February 1996.
13. On 2 September 1996 the Commission declared admissible the
applicants' complaints relating to the alleged interferences with their
freedom of expression and to the alleged lack of independence and
impartiality of the tribunal which convicted them. The Commission
declared inadmissible the remainder of the applications which concerned
an original complaint of the applicants about the length of the
criminal proceedings against them. Moreover, the Commission decided to
join the two applications and also to join them to
Application Nos. 24122/94, 24735/94 and 24762/94.
14. The texts of the Commission's decisions on admissibility were
sent to the parties on 16 September 1996 and they were invited to
submit such further information or observations on the merits as they
wished.
15. On 4 March 1997 the Government submitted supplementary
observations as to both applications. The applicants submitted comments
in reply on 17 April 1997.
16. On 13 January 1998 the Commission decided to disjoin the cases
from Application Nos. 24122/94, 24735/94 and 24762/94.
17. 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
18. 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
19. 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.
20. 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.
21. The Commission's decisions on the admissibility of the
applications are appended to this Report.
22. 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
23. At the material time, the first applicant was the major
shareholder in Deniz Basin Yayin Sanayi ve Ticaret Organizasyon A.S.,
a Turkish company, which owns a weekly review entitled Haberde Yorumda
Gerçek (The Truth of News and Comments), published in istanbul. The
second applicant was the responsible editor of the review.
24. In the 31 May 1992 and 7 June 1992 issues of the review, an
interview, made with a leader of the P.K.K. (the Kurdish Workers Party
- a terrorist organisation), was published in two parts. Moreover, in
the 31 May 1992 edition a joint declaration by four socialist
organisations was published.
25. A translation of the relevant parts of these publications is as
follows:
a) Interview with Mr. C. B., the P.K.K. second-in-command (Part 1)
... "Q: What do you mean when you say [the elections present]
dangers?
A: The US say: «The Kurds are oppressed. Saddam is slaughtering
them. We are protecting the Kurds against Saddam's massacres. Their
survival is in our safekeeping.» But it is quite obvious that this is
a big swindle. If they were really protecting the Kurds against
massacre as they claim, they ought to be protecting them against the
Turkish State, too. Since the massacre which the Turkish State is
carrying out against our people in the North is as horrible as that of
Saddam. In fact, there are practices which are much more extreme than
those of Saddam. So the US ought to be doing the same thing against
Turkey. The double standard is clear for all to see. The US take action
against Saddam, but support Turkey's massacres against the Kurdish
people in both the North and the South. There have been many signs of
this and our people are aware of it. They want to make the Kurds an
instrument for gaining their own ends. Their aim in the elections is
both to contain the positive developments in the South through the
organisations they want to promote and to block the fight for
independence and freedom which is developing in Kurdistan in general.
They want to bring all the Kurdish movements under the control of those
two organisations already controlled by them [the US]. So that is why
they all present a danger for the Kurdish people.
Q: Laws will be enacted once a parliament has been established in
Southern Kurdistan. Treaties will be signed, on the one hand with
neighbours, i.e. Turkey and Iraq, and, on the other hand, with the US.
Turkey can have only one demand from these countries, that the P.K.K.
be excluded. If Kurdish parties take part in such an environment, what
would be the P.K.K.'s attitude?
A: It is a well-known fact that Turkey and/or imperialism wants to
divert our people from its national identity and struggle. But we want
to achieve our identity as a nation and have a fatherland. That is what
we are fighting for. They want to uproot us and drive us out of our
territory; they want to annihilate us or force us to change. But we
fight to live in freedom in our own territory. If either the US or
Turkey or any other power which claims to be acting in the name of
Kurdish identity attempts to force us out of any part of our country,
we will fight in order to stay where we are. That is what we are
fighting for right now. The Turkish State wants to oust us from our
territory. It is driving people out of their villages. It wants
Kurdistan to become a totally uninhabited area. But we are resisting.
No one can tell us or ask us to get out. We are not on anyone else's
territory; we are on our own territory. No one can tell us to leave our
own territory. We make no distinction between the North and the South;
we are in Kurdistan. We are amongst our own people. If they want us to
leave our territory, they must know that we will never agree to it. We
are a people who have lost everything we had and who are fighting to
regain what we have lost. That is the purpose of our action. We have
nothing to lose. We shrink from nobody and are afraid of no one. All we
can lose is our slavery. That is why we act without fear....
Q: It is said that broadcasting programmes in Kurdish on Turkish
State television would be interpreted as making a concession to the
P.K.K. Could that be true? It is also rumoured that the P.K.K. is going
to set up a TV station. Is that right?
A: It is not true that the P.K.K. is going to broadcast on
television. We have no such facilities. Television broadcasting either
by satellite or through any other channel is not an issue for the
P.K.K. It was Turgut Özal who brought up the issue of Kurdish TV in
Turkey when he went to the US. That is what is being debated. A very
small fraction of people say that Özal was right, but a very large
proportion are against it. Those who are suggesting Kurdish TV are
doing so deliberately. The aim is supposedly to influence and win over
the masses and thus to isolate the P.K.K. That is what the idea is. But
even if Kurdish TV became a reality, it would do them no service. That
is why they are against it. The purpose of those who want to create
Kurdish TV is to isolate the P.K.K. For there is no mention of any
argument such as «Here is a people who have their own language and we
must broadcast in their language. There is need for respect for that
people. It is wrong to ban a people's language, that also harms the
Turkish people.» Far from it. The debate has revealed the real
intentions: «How can we wipe out the influence of the P.K.K.? How can
we isolate the P.K.K.? How can we pull the wool over the Kurdish
people's eyes?» It is a tactical approach. It is a trick. But no matter
what steps they take, they will be working to the advantage of the
P.K.K. The Turkish State has now lost Kurdistan. That is a fact. Any
move the State makes in Kurdistan after this will turn out to the
advantage of the P.K.K. and the disadvantage of the Turkish State. ...
Q: A different tactic was applied in the Uludere attack. Previously,
attacks were always carried out at night. But this time, the attack was
carried out during the day and the clashes continued throughout the
day. It is said that this entails more risk for the guerrillas. What
was the reason for it?
A: What they say is right. Our combat has reached a certain level.
Tactics have to be developed which match that level, because it is a
mistake to wage war with less developed tactics. Progress can be
achieved in the war by using tactics in keeping with the level of
warfare which has now been reached. That is why an action of that
nature was planned. The idea was to attack in the morning and hold our
ground, continuing the clashes throughout the day - and it was
successful in the end. It was an experiment. From our point of view
there are conclusions to be drawn from it. We are studying the matter.
We shall benefit from that in the actions we carry out in the future."
b) Interview with Mr. C. B., the P.K.K. second-in-command (Part 2)
"Q: What do you think about the assassinations by unknown
perpetrators in Kurdistan and the actions ascribed to the «Hizbi-
contra»?
A: It is true that there is an organisation known as Hizbullah. But
it is a weak organisation. It is not that organisation which is
carrying out the massacres, contrary to what is being said. Since the
organisation is weak, the Republic of Turkey has captured its members
in many places. Many massacres are carried out in the name of that
organisation, but it is actually the Turkish State itself which is
doing the killings. We say this to the members of Hizbullah: «If you
are really Muslims, [you should know that] the Islamic faith is against
repression and injustice and advocates what is right and just.» It is
a well-known fact that the Turkish State is repressive and carries out
massacres and inhuman actions. They [the Hizbullah] must respect those
who oppose these acts. If they want to wage war, they must join forces
with them. That is what we are asking of them. We warn them as friends
that they must throw out the contra-guerrillas who infiltrate their
ranks. For unless they do that, they will come to grief. We have not,
as yet, reacted more seriously, we have just warned them. We say that
that phenomenon has served the Turkish State and we have received a
favourable response from certain quarters. They have said that
Hizbullah people or Muslims have not in fact been involved in that sort
of action and that the acts have not been carried out by Hizbullah
people. That is favourable as far as we are concerned. But it [the
State] is still carrying out massacres in some places in Hizbullah's
name....
Q: On what lines will the struggle be carried out from now on?
A: The climate does affect a war, although the effects are not
decisive. The 1991-92 winter was very hard and that affected our
movements, the capacity for combat and caused several difficulties -
both for us and for the Turkish State. But they have the advantage of
using technology and they used that advantage to the full. To no avail,
however. They intended to deal us murderous blows last winter. They
thought they would have overthrown us and ousted us by the spring. But
they did not achieve what they wanted. Our capacity for movement was
reduced by the hard winter conditions and, as a result, steps could
only be taken late as compared to previous years. The season is
gradually becoming more suitable, however. There is still snow on the
ground in many places, but it is presenting less and less of an
obstacle. 1992 will be more different compared to other years, but we
never say: «Let us improve our armed combat, let us expand it further.»
If we continue the war, we do so because we have to. Because there is
no possibility of achieving a different life and developing. All roads
have been blocked for us. We are waging war because we are forced to.
Any further expansion of the war will depend on the attitude of the
Turkish State. The State is intensifying the war. So we have to extend
the war to that degree. The war will escalate. Before the P.K.K., there
was a one-sided war being waged in Kurdistan. In the last few years
that war has begun to be a two-sided war. In the old days, the Turkish
State used to achieve whatever ends it intended to achieve in the war
it was waging, and the Kurdish people was being rapidly wiped out as a
result. But the Kurdish people have begun to say «Stop!». They began to
resist in order to avoid annihilation. It was the State which started
the war and the ending of the war will also depend on the Turkish
State. We did not start the war. We developed a defensive war against
the war of annihilation that was being waged on us. This war will
continue as long as the Turkish State refuses to accept the will of the
people of Kurdistan: there will be not one single step backwards. The
war will go on until there is only one single individual left on our
side."
c) Call «to unite forces» - Joint Statement of TDKP, TKEP, TKKKÖ and
TKP-ML Hareketi
"The Central Committees of the Revolutionary Communist Party of
Turkey (TDKP), the Communist Labour Party of Turkey (TKEP), the Turkish
Organisation for the Liberation of Northern Kurdistan (TKKKÖ) and the
Communist Party / Marxist-Leninist Movement of Turkey (TKP/ML Hareketi)
have called on all revolutionaries and democrats to unite forces.
«Let us unite against State terrorism, against the repression on
and oppression of the Kurdish people, against the massacres, the street
killings, the dismissals and unemployment; let us unite and step up our
efforts for freedom, democracy and socialism!» Such is the heading of
the appeal in which it is stated that the only means of action for the
ruling classes is that of force and violence. And the «democratisation»
initiatives of the DYP and SHP government are described as a manoeuvre,
purely a means of concealing their attacks.
The appeal goes on to state the following views:
«Workers, labourers and young people of the Kurdish and Turkish
nation!
It is possible and perfectly feasible for us to drive back the
attacks levelled on us by imperialism and the collaborating ruling
classes and to obtain our economic and political rights and freedoms.
To do so we must rally our forces around our common demands and join
battle. Aware of its historic revolutionary role, the working class
must take action, must lead that action, must call the bluff of the
trade union bosses of every camp and smash the barriers they have put
up to curb our movement and must develop the fight and action.
- The Turkish army must withdraw from Kurdistan. Action must be
taken to put an end to the double standards in the legal system and all
Kurdish prisoners must be released.
- The Turkish parliament must end its authority over Kurdistan.
Kurdish people must be free to determine their own destiny, including
the establishment of a separate State.
- The State terrorism and street executions, carried out by MiT
[State Intelligence Organisation] agents, contra-guerrillas and special
squads, must stop immediately and they must be called upon to account
for the massacres and murders.
- The servicing of external debts to imperialists must be stopped,
and those resources must be used for the benefit of the proletariat.
- Dismissals must be stopped and sacked workers must be given their
jobs back. All the obstacles which have been placed in the way of trade
union organisation must be removed and the right to organise without
restriction must be granted.
- Measures must be taken to prevent the State Economic Enterprises,
which are the resources of the country and of the people, from being
sold for a song to imperialists. Labour sub-contracting, which is a
means of eliminating trade union coverage, must be stopped immediately.
- The strike bans must be lifted and lockout must be prohibited.
The right to hold general strikes, political strikes, strikes to obtain
rights and sympathy strikes must be recognised. And all the bans on
freedom of assembly, freedom to demonstrate, freedom of opinion and of
the press must be ended.
- Act no. 657 pertaining to civil servants must be repealed and all
working people must be granted the right to join a trade union with the
right to strike and to conclude collective agreements.
- All working people must have insurance coverage; all workers must
be granted unemployment insurance and the facilities must be provided
for free health services and health care for everyone.
- The discrimination based on sex which prevails in working and
social life and the pressure exerted on working women must be ended.
- The YÖK [High Council for Education] must be done away with and
young people in higher education must be allowed to have a say and to
participate in decision-making in university administration. All the
obstacles that have been placed on youth organisations must be removed
and education and training must be free of charge at every level.
- Education boards must be given full autonomy; textbooks must meet
contemporary requirements and must be re-written with democratic
contents.
- All debts owed to the State by the peasantry must be cancelled
and the rural population must be allowed to set the minimum prices of
products.»"
26. On 1 June 1992 the istanbul State Security Court (istanbul Devlet
Güvenlik Mahkemesi) ordered the seizure of all copies of the
31 May 1992 issue of the review, since it allegedly contained a
declaration by terrorist organisations and disseminated separatist
propaganda.
27. In an indictment dated 16 June 1992, the Public Prosecutor at the
istanbul State Security Court charged the applicants with having
disseminated propaganda against the indivisibility of the State by
having published an interview with a P.K.K. leader and a declaration
made by four terrorist organisations. The charges were brought under
Articles 6 and 8 of the Anti-Terror Law, respectively.
28. In another indictment dated 30 June 1992, the applicants were
again charged, on account of having published the second part of the
interview in the 7 June 1992 issue, with disseminating propaganda
against the indivisibility of the State. The charges were brought under
Article 8 of the Anti-Terror Law.
29. On 4 February 1993 the criminal proceedings were joined in view
of the fact that the incriminated articles was considered to constitute
a single interview, which was published in two parts.
30. In the proceedings before the istanbul State Security Court, the
applicants denied the charges. They pleaded that the interview had been
published with the aim of providing the public with information within
the scope of journalism and the liberty of press. As regards his
freedom of expression, the first applicant referred to the Convention
and the case-law of the Commission and the Court. He stated that
pluralism of opinions is essential in a democratic society including
those opinions which shock or offend. He argued that the provisions of
Articles 6 and 8 of the Anti-Terror Law restrict freedom of expression
in contravention of the Turkish Constitution and the criteria laid down
in the case-law of the Commission and the Court.
31. In a judgment dated 27 May 1993 the State Security Court found
the applicants guilty of offences under Articles 6 and 8 of the Anti-
Terror Law. The first applicant was sentenced (under Article 6) to a
fine of 100,000,000 Turkish lira and (under Article 8) to a further
fine of 200,000,000 Turkish lira. The second applicant was sentenced
(under Article 6) to a fine of 50,000,000 Turkish lira and (under
Article 8) to six months' imprisonment and a further fine of
100,000,000 Turkish lira.
32. In its reasoning, the Court held that the incriminated interview
was published in the form of a news commentary. It further held that
the interviewee had referred to a certain part of Turkish territory as
"Kurdistan", he had asserted that certain Turkish citizens who are of
Kurdish race form a separate society and that the Republic of Turkey
expels Kurdish people from their villages and massacres them. It
further considered that the interviewee had praised Kurdish terrorist
activities and had claimed that the Kurds should form a separate State.
On these grounds, the Court found that the interview, as a whole,
disseminated propaganda against the indivisibility of the State. The
Court further held that another page of the review contained a
declaration by terrorist organisations and the publication thereof thus
constituted a separate offence under Article 6 of the Anti-Terror Law.
33. The applicants appealed. In addition to the defence which the
applicants had made before the State Security Court, their legal
representative emphasised that in a democratic society opinions must
be freely expressed and argued. Noting that there had been no
prosecutions for the publication of other interviews with the leaders
of the P.K.K. in other newspapers or magazines, the applicant's
representative asserted that the applicants had not been convicted for
publishing the incriminated interview, but for publishing a Marxist
review.
34. On 4 November 1993 the Court of Cassation dismissed the appeal.
It upheld the cogency of the State Security Court's assessment of the
evidence and its reasoning in rejecting the applicants' defence.
35. 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
applicants' case and confirmed their respective sentences.
B. Relevant domestic law
a) Anti-Terror Legislation
36. Article 6 of the Anti-Terror Law No. 3713 of 12 April 1991
"isim ve kimlik belirterek veya belirtmeyerek kime yönelik
oldugunun anlasilmasini saglayacak surette kisilere karsi terör
örgütleri tarafindan suç islenecegini veya terörle mücadelede
görev almis kamu görevlilerinin hüviyetlerini açiklayanlar veya
yayinlayanlar veya bu yolla kisileri hedef gösterenler besmilyon
liradan onmilyon liraya kadar agir para cezasi ile
cezalandirilir.
Terör örgütlerinin bildiri veya açiklamalarini basanlara veya
yayinlayanlara besmilyon liradan onmilyon liraya kadar agir para
cezasi verilir.
Bu Kanunun 14 üncü maddesine aykiri olarak muhbirlerin
hüviyetlerini açiklayanlar veya yayinlayanlar besmilyon liradan
onmilyon liraya kadar agir para cezasi ile cezalandirilir.
Yukaridaki fikralarda belirtilen fiillerin 5680 sayili Basin
Kanununun 3 üncü maddesindeki mevkuteler vasitasiyle islenmesi
halinde, ayrica sahiplerine de; mevkute bir aydan az süreli ise
bir önceki ay ortalama fiili satis miktarinin, aylik veya bir
aydan fazla süreli ise bir önceki fiili satis miktarinin,[mevkute
niteliginde bulunmayan basili eserler ile yeni yayina giren
mevkuteler hakkinda ise, en yüksek tirajli günlük mevkutenin bir
önceki ay ortalama satis tutarinin] yüzde doksani kadar agir para
cezasi verilir. Ancak, bu ceza ellimilyon liradan az olamaz. Bu
mevkutelerin sorumlu müdürlerine, sahiplerine verilecek cezanin
yarisi uygulanir."
"Those who announce that a crime will be committed by terrorist
organisations against certain persons either expressly or without
mentioning their names, or who disseminate or disclose to the
public the identity of officials appointed to fight terrorism,
or who render such officials targets, shall be subject to a fine
of between 5 and 10 million Turkish lira.
Those who print or publish the leaflets of terrorist
organisations shall be subject to a fine of between 5 and
10 million Turkish lira.
Those who, contrary to Article 14 of this Law, disclose or
publish the identity of informants shall be subject to a fine of
between 5 and 10 million Turkish lira.
If one of the crimes defined above is committed by means of
periodicals, as defined in Article 3 of Press Law No. 5680, the
owners of such periodicals shall be punished by a fine to be
determined in accordance with the following provisions: for
periodicals published at less than monthly intervals, the fine
shall be ninety per cent of the average real sales revenue of the
previous month; for periodicals published monthly or at more than
monthly intervals, the fine shall be ninety per cent of the
average real sales revenue of the previous issue [; for printed
works that are not periodicals or for periodicals which have
recently started business, the fine shall be ninety per cent of
the monthly sales revenue of the highest circulating daily
periodical]. In any case, the fine may not be less than
50 million Turkish lira. Responsible editors of these periodicals
shall be sentenced to half of the sentences to be imposed upon
the publishers."
37. Article 8 paragraph 1 of Anti-Terror Law (before the amendments
of 27 October 1995)
"Hangi yöntem, maksat ve düsünceyle olursa olsun Türkiye
Cumhuriyeti Devletinin ülkesi ve milletiyle bölünmez bütünlügünü
bozmayi hedef alan yazili ve sözlü propaganda ile toplanti,
gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda 2 yildan 5 yila
kadar agir hapis ve ellimilyon liradan yüzmilyon liraya kadar
agir para cezasi hükmolunur."
"No one shall, by any means or with any intention or idea, make
written or oral propaganda or hold assemblies, demonstrations or
manifestations against the indivisible integrity of the State of
the Turkish Republic, its territories and the nation. Those
carrying out any such activity shall be sentenced to imprisonment
between two and five years and a fine between 50 and 100 million
Turkish lira."
38. Article 8 paragraph 2 of Anti-Terror Law
"Yukaridaki fikrada belirtilen propaganda suçunun 5680 sayili
Basin Kanunun 3 üncü maddesinde belirtilen mevkuteler vasitasi
ile islenmesi halinde, ayrica sahiplerine de mevkute bir aydan
az süreli ise, bir önceki ay ortalama satis miktarinin: [mevkute
niteliginde bulunmayan basili eserler ile yeni yayina giren
mevkuteler hakkinda ise, en yükek tirajli günlük mevkutenin bir
önceki ay ortalama satis tutarinin]; yüzde doksani kadar agir
para cezasi verilir. Ancak, bu para cezalari yüzmilyon liradan
az olamaz. Bu mevkutelerin sorumlu müdürlerine, sahiplerine
verilecek para cezasinin yarisi uygulanir ve alti aydan iki yila
kadar hapis cezasi hükmolunur."
"If the offence of propaganda, referred to in paragraph 1 above,
is committed by means of periodicals, as defined in Article 3 of
Press Law No. 5680, the owners of such periodicals shall be
punished by a fine to be determined in accordance with the
following provisions: for periodicals published at less than
monthly intervals, the fine shall be ninety per cent of the
average real sales revenue of the previous month; [for printed
works that are not periodicals or for periodicals which have
recently started business, the fine shall be the average monthly
sales revenue of the highest circulating daily periodical]. In
any case, the fine may not be less than 100 million Turkish lira.
Responsible editors of these periodicals shall be sentenced to
imprisonment of between six months and two years and to half of
the fine determined in accordance with the provisions concerning
the owners."
39. In a judgment dated 31 March 1992, the Constitutional Court found
the clauses in square brackets in the text of Articles 6 and 8 of the
Anti-Terror Law to be contrary to the Constitution and annulled them.
The decision was published in the Official Gazette on 27 January 1993.
The annulled clauses ceased to have effect on 27 July 1993.
40. Article 8 paragraph 1 of the Anti-Terror Law as amended by
Law No. 4126 of 27 October 1995
"Türkiye Cumhuriyeti Devleti'nin ülkesi ve milletiyle bölünmez
bütünlügünü bozmayi hedef alan yazili ve sözlü propaganda ile
toplanti, gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda bir
yildan üç yila kadar hapis ve yüz milyon liradan üçyüzmilyon
liraya kadar agir para cezasi hükmolunur. Bu suçun mükerreren
islenmesi halinde, verilecek cezalar paraya cevrilemez."
"No one shall make written or oral propaganda or hold assemblies,
demonstrations or manifestations against the indivisible
integrity of the State of the Turkish Republic, its territories
and the nation. Those carrying out any such activity shall be
sentenced to imprisonment between one and three years and to a
fine between 100 and 300 million Turkish lira. In case of re-
occurrence of this offence, sentences of imprisonment shall not
be commuted to fines."
b) Press Law No. 5680 of 24 July 1950
41. Article 3
"Gazetelere, haber ajanslari nesriyatina ve belli araliklarla
yayinlanan diger bütün basilmis eserlere bu kanunda 'mevkute'
denir.
Basilmis eserlerin herkesin görebilecegi veya girebilecegi
yerlerde gösterilmesi veya asilmasi veya dagitilmasi veya
dinletilmesi veya satilmasi veya satisa arzi 'nesir'
sayilir. ..."
"Newspapers, publications of news agencies and all other
published matter, published at specific intervals, are referred
to as 'periodicals' in this Law.
The display, distribution, broadcast, sale and supply of
published matter in locations accessible to the public shall be
regarded as 'publication'.... "
42. Under Article 7 of the Press Law, in cases where a periodical is
owned by a company, the major shareholder in that company is considered
to be the owner of the periodical.
c) Legislation on the State Security Court
43. 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. ..."
44. 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."
45. 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. ..."
46. 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 ..."
47. 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."
48. 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."
49. 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
50. The Commission has declared admissible:
- the applicants' complaints that their convictions on account of
the publication of the articles in question constituted unjustified
interferences with their freedom of expression;
- the second applicant's complaint that the restrictions which were
applied to his freedom of expression were inconsistent with the
legitimate aims for which they had been prescribed;
- the applicants' complaints that their case was not dealt with by
an independent and impartial tribunal.
B. Points at issue
51. The points at issue in the present case are as follows:
Loading citations...- whether the applicants' convictions constituted violations of
Article 10 (Art. 10) of the Convention;
- whether, as regards the second applicant, there has been a
violation of Article 18 (Art. 18) of the Convention;
- whether the applicants' convictions constituted violations of
Article 6 para. 1 (Art. 6-1) of the Convention.
C. As regards Article 10 (Art. 10) of the Convention
52. The applicants complain that their freedom of expression has been
infringed, contrary to Article 10 (Art. 10) of the Convention, in that
they were convicted on account of the publication of an interview and
a declaration by four socialist organisations.
53. Article 10 (Art. 10) of the Convention provides as follows:
"1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority
and regardless of frontiers. This Article shall not prevent
States from requiring the licensing of broadcasting, television
or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
54. The applicants submit that the incriminated interview was
published with the aim of providing the public with information within
the scope of journalism. In fact, the weekly review concerned has never
displayed any support for terrorism. The penal sanctions inflicted upon
them were not necessary in a democratic society and cannot be justified
by any reasons permitted under the Convention. They also assert that
various limitations of freedom of expression have existed in Turkey for
decades and their existence cannot be considered justified by the
upheaval of terrorism during the recent years. In any event, their
sentence was disproportionate, in particular, in the light of the
limited circulation of the review. Moreover, there had been no
prosecution for the publication of interviews with the leaders of the
P.K.K. in other newspapers or magazines. Lastly, notwithstanding the
amendments made by Law No. 4126 to Article 8 of the Anti-Terror Law,
the sentences imposed upon them remained enforceable.
55. The respondent Government maintain that the interferences with
the applicants' rights under Article 10 (Art. 10) of the Convention
were prescribed by law, i.e. by Articles 6 and 8 of the Anti-Terror
Law. They state that the applicants published an interview in which the
interviewee referred to a certain part of the Turkish territory as
"Kurdistan". It was asserted that certain Turkish citizens who are of
Kurdish race form a separate society and that the Republic of Turkey
expels Kurdish people from their villages and massacres them. According
to Articles 6 and 8 of the Anti-Terror Law, these forms of expression
constitute propaganda against the indivisible integrity of the State.
The domestic courts, therefore, interpreted the law reasonably.
56. The Government also 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. As to the necessity of the measure in
a democratic society, the Government submit that the threat posed to
Turkey by the P.K.K. and its affiliations is internationally
recognised, as is the need to react firmly to it. Terrorism strikes at
the heart of democracy, the fundamental rights which that concept
enshrines and the judicial and political systems. They assert that the
interview in question is based on the glorification of the activities
of the P.K.K., the P.K.K. being an illegal terrorist organisation
aiming at the establishment of an independent Kurdish State. They
submit that it is generally accepted in comparative and international
law on terrorism that restrictions on Convention rights will be deemed
necessary in a democratic society threatened by terrorist violence as
being proportionate to the aim of protecting public order. The
decisions of the istanbul State Security Court and the Court of
Cassation did not exceed the margin of appreciation conferred on States
by the Convention.
57. In the latter respect, the Government recall the Commission's
case-law which, in their view, allows for a wide margin of appreciation
to governments and to national public authorities with regard to
sanctions and restrictions imposed on freedom of expression on grounds
of national security and public safety. The authorities of a particular
Contracting Party are best placed to interpret the legal definition of
criminal offences against national security, territorial integrity or
public safety and to decide whether a restriction designed to protect
these matters is necessary (Critical perspectives on the scope and the
interpretation of Article 10 (Art. 10) of the European Convention on
Human Rights, Council of Europe, Mass Media Files no. 10, p. 23). The
Strasbourg organs should not substitute their own evaluation for that
of the national courts, where those courts, on reasonable grounds,
considered the restrictions to be necessary (cf. Eur. Court HR, markt
intern Verlag GmbH and Klaus Beermann v. Germany judgment of
20 November 1989, Series A no. 165, p. 21, para. 37).
58. 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.
59. 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.
60. The Commission notes that the applicants' convictions were based
on Articles 6 and 8 of the Anti-Terror Law and therefore considers that
the interferences was prescribed by law.
61. 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.
62. 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".
63. 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).
64. Even where, as in the present case, an interference with freedom
of expression is based on considerations of national security and
public safety and is part of a State's fight against terrorism, the
interference can be regarded as necessary only if it is proportionate
to the aims pursued. Consequently, the Commission must, with due regard
to the circumstances of each case and the State's margin of
appreciation, ascertain whether a fair balance has been struck between
the individual's fundamental right to freedom of expression and a
democratic society's legitimate right to protect itself against the
activities of terrorist organisations (cf. above-mentioned Zana
judgment, para. 55).
65. 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.
66. The Commission first considers that the fact of publishing an
interview with a leading representative of the P.K.K., which is an
illegal organisation in Turkey, is in itself insufficient to justify
the interferences with the applicants' freedom of expression. What is
decisive are the contents of the interview and, in particular, whether
or not it constituted an encouragement of further violent acts.
67. In this regard, the Commission notes that C.B.'s statements
contained a sharp criticism of the policy of the United States of
America in regard to the Kurds in the Middle East area and harsh
attacks on the policy and action of Turkey in regard to its population
of Kurdish origin. Turkey was given the blame for a policy which had
resulted in armed resistance by the Kurds, and in particular by the
P.K.K. It was alleged that Turkey had started the war with the Kurdish
people and that the ending of the war would also depend on the Turkish
State. The action of the P.K.K. was described as a defensive war
against Turkish aggression.
68. The Commission considers that, although this analysis of the
situation included a clear prediction of continued armed action from
the Turkish State as well as from the P.K.K., the replies given could
hardly be interpreted as an incitement to further violence. Moreover,
it is important to note that the State Security Court convicted the
applicants for disseminating propaganda against the indivisibility of
the State insofar as the interviewed person had referred to a part of
Turkish territory as "Kurdistan", had asserted that certain Turkish
citizens formed a separate society and had alleged that Turkey had
expelled Kurdish people from their villages and had massacred them.
Moreover, he had, in the view of the State Security Court, praised
Kurdish terrorist activities and claimed that the Kurds should form a
separate State. The Commission cannot find that these elements, invoked
by the Court, could justify the applicants' convictions according to
the principles of freedom of expression inherent in Article 10
(Art. 10) of the Convention.
69. As regards the published declaration by four socialist
organisations, the Commission finds no element which could justify an
interference with the applicants' right to freedom of expression.
70. In these circumstances, the Commission considers that the
applicants' convictions amounted to a kind of censure, which was likely
to discourage them or others from publishing views on the situation in
south-east Turkey again in the future. In the context of political
debate such sentences are 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).
71. 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
72. The Commission concludes, by 17 votes to 15, that there has been
a violation of Article 10 (Art. 10) of the Convention.
D. As regards Article 18 (Art. 18) of the Convention
73. Article 18 (Art. 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."
74. The second applicant submits that in his case there has been a
breach of Article 18 (Art. 18) of the Convention in that the
restrictions which were applied to his freedom of expression, under
Articles 6 and 8 of the Anti-Terror Law, were inconsistent with the
legitimate aims prescribed in Article 10 para. 2 (Art. 10-2) of the
Convention.
75. The respondent Government recall that Article 18 (Art. 18) of the
Convention has no independent character and that, inter alia, in the
cases of Engel and others v. the Netherlands (Eur. Court HR, Series A
no. 22), Sporrong and Lönnroth v. Sweden (Eur. Court HR, Series A
no. 52) and Bozano v. France (Eur. Court HR, Series A no. 111) the
Court was reluctant to proceed under Article 18 (Art. 18) of the
Convention, once a violation has been found by reason of a failure to
comply with the specific limits of a restriction provision. Moreover,
they claim that the restrictions contained in Articles 6 and 8 of the
Anti-Terror Law are consistent with the legitimate aims prescribed in
Article 10 para. 2 (Art. 10-2) of the Convention.
76. Having found a violation of Article 10 (Art. 10) of the
Convention in the present case, the Commission considers that no
separate issue arises in regard to Article 18 (Art. 18) of the
Convention.
CONCLUSION
77. The Commission concludes, unanimously, that no separate issue
arises in regard to Article 18 (Art. 18) of the Convention.
E. As regards Article 6 para. 1 (Art. 6-1) of the Convention
78. 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:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law."
79. The applicants maintain that the State Security Courts are
extraordinary courts dealing with political offences. They contend that
the members of the State Security Courts are appointed by the High
Council of Judges and Prosecutors. The president of this Council is the
Minister of Justice and two other members also hold office in the
Ministry of Justice. One of the three members of the State Security
Court is a military judge answerable to his military superiors.
Furthermore, they question the independence and impartiality of the
Court of Cassation, given that its judgments do not have any specific
reasoning.
80. The respondent Government maintain that the State Security
Courts, which are special courts set up to deal with offences against
the existence and continuity of the State, are ordinary courts, given
that they have been established in accordance with the provisions of
Article 143 of the Constitution. As they are independent judicial
organs, no public authority or agent could give instructions to such
courts. The State Security Courts are composed of three members, one
of whom is a military judge. A civil judge acts as president and all
the judges have attained the first grade in the career scale. The
presence of a military judge in the court does not prejudice its
independence, this judge being a judge by career and not belonging to
the military. Military judges and prosecutors are independent of their
commander and their security of tenure is established. The judges of
State Security Courts evaluate the evidence and take their decisions
in accordance with the law and their own conscientious conviction as
required by Article 138 of the Turkish Constitution. The verdicts of
such courts are subject to review by the Court of Cassation. Moreover,
the Government point out that the applicants' 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.
81. The Commission has already examined the question whether the
State Security Courts meet the requirements of independence and
impartiality, as required by Article 6 (Art. 6) of the Convention. It
recalls the following considerations in the case of Incal v. Turkey
(Comm. Report 25.2.97, paras. 74-77):
"74. The Commission is of the opinion, given the current
legislation on the composition of the State Security Courts, that
the appointment and assessment of military judges raise certain
questions and may cast doubt on the image of independence which
they should project. In this respect, the Commission notes that
military judges, being military officers, are accountable to
their commanding officers.
75. Moreover, the fact that a military judge participates in a
criminal procedure against a civilian, which in no way involves
the internal discipline of the armed forces, indicates the
exceptional nature of this procedure and could be viewed as an
intervention by the armed forces in a non-military judicial
domain, which, in a democratic country, should be beyond any
suspicion of dependence or partiality.
76. In these circumstances, the Commission considers that the
applicant, having been tried and convicted by a court which had
a military judge amongst its three members, could be legitimately
concerned about the objective impartiality of this jurisdiction.
The fact that this court also included two non-military judges,
whose independence and impartiality are not in question, makes
no difference in this respect (see, e.g., Eur. Court HR,
Langborger v. Sweden judgment of 22 June 1989, Series A no. 155,
p. 16, para. 36; Mitap and Müftüoglu v. Turkey, Comm. Report
8.12.94, p. 20, para. 106).
77. In the light of the above, the Commission considers that
the independence and impartiality of the State Security Court
which had to determine the criminal charges against the applicant
was doubtful and that the applicant's fears were objectively
justified. Accordingly, the Commission is of the opinion that the
applicant's case was heard by a court which cannot be considered
independent and impartial, within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention."
82. The Commission finds that the same considerations apply in the
present cases.
83. 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
84. 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.
F. Recapitulation
85. The Commission concludes, by 17 votes to 15, that there has been
a violation of Article 10 (Art. 10) of the Convention (see above para.
72).
86. The Commission concludes, unanimously, that no separate issue
arises in regard to Article 18 (Art. 18) of the Convention (see above
para. 77).
87. The Commission concludes, by 31 votes to 1, that there has been
a violation of Article 6 para. 1 (Art. 6-1) of the Convention (see
above para. 84).
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
(or. English)
JOINT PARTLY DISSENTING OPINION OF MM S. TRECHSEL, E. BUSUTTIL,
G. JÖRUNDSSON, A.S. GÖZÜBÜYÜK, A. WEITZEL, MS J. LIDDY,
MM I. CABRAL BARRETO, N. BRATZA, D. SVÁBY, G. RESS, A. PERENIC,
C. BÃŽRSAN, K. HERNDL, E. BIELIUNAS AND E. A. ALKEMA
We regret that we are unable to share the view of the majority
of the Commission that there has been a violation of Article 10 of the
Convention in the present case.
While we agree that the published declaration by four socialist
organisations was not such as to justify an interference with the
applicants' right to freedom of expression, we take a different view
of the interview with C.B. which was published in two parts in the
31 May and 7 June 1992 editions of the applicants' weekly review.
We attach special significance to the fact that C.B. was at the
time of the interview the second-in-command of the P.K.K., an armed
terrorist organisation which was and is engaged in violent terrorist
acts. Like the majority of the Commission, we do not consider that the
mere fact of publication of an interview with a leading member of the
P.K.K. would be sufficient to justify an interference with freedom of
expression. Thus, for example, an interview with a terrorist leader
which contained a factual analysis of the development of the conflict
or which put forward suggestions for bringing about its peaceful
solution would not in our view of itself justify action against the
publisher. However, it is in our view incumbent on those who publish
such interviews to take special care to ensure that they do not contain
anything which can fairly be interpreted as an encouragement to further
violent acts.
The majority of the Commission conclude that the replies of C.B.,
while including a clear prediction of continued armed action from the
Turkish State as well as from the P.K.K., can hardly be interpreted as
an incitement to further violence. We cannot agree. There are in our
view a number of passages in the interview which can only be
interpreted as an encouragement to further terrorist violence. In
particular, we draw attention to the following replies: "Our combat has
reached a certain level. Tactics have to be developed which match that
level, because it is a mistake to wage war with less developed tactics.
Progress can be achieved in the war by using tactics in keeping with
the level of warfare which has now been reached. That is why an action
of that nature was planned. The idea was to attack in the morning and
hold our ground, continuing the clashes throughout the day - and it was
successful in the end. It was an experiment. From our point of view
there are conclusions to be drawn from it. We are studying the matter.
We shall benefit from that in the actions we carry out in the future.
... This war will continue as long as the Turkish State refuses to
accept the will of the people of Kurdistan. There will be not one
single step backwards. The war will go on until there is only one
single individual left on our side."
The Commission has previously drawn attention to the particular
difficulty in striking a fair balance between the requirements of
protecting freedom of information and the imperatives of protecting the
State and the public against armed conspiracies seeking to overthrow
the democratic order, in a situation where the advocates of this
violence seek access to the media for publicity purposes (see eg.,
No. 15404/89, Dec. 16.4.91, D.R. 70, p. 262).
In the present case we consider that the national authorities did
not exceed their margin of appreciation in taking measures against the
publications and that such measures may be regarded as necessary in a
democratic society to achieve the aims of national security and public
safety.
(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.