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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

SUREK and OZDEMIR v. TURKEY

Doc ref: 23927/94;24277/94 • ECHR ID: 001-45957

Document date: January 13, 1998

Cited paragraphs only



              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:

-    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.

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