Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 24122/94

Kamil Tekin Sürek

against

Turkey

REPORT OF THE COMMISSION

(adopted on 13 January 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-17). . . . . . . . . . . . . . . . . . . . . .1

A. The application

(paras. 2-5). . . . . . . . . . . . . . . . . . . .1

B. The proceedings

(paras. 6-12) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 13-17). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 18-35) . . . . . . . . . . . . . . . . . . . . .4

A. The particular circumstances of the case

(paras. 18-25). . . . . . . . . . . . . . . . . . .4

B. Relevant domestic law

(paras. 26-35). . . . . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION

(paras. 36-60) . . . . . . . . . . . . . . . . . . . . 11

A. Complaints declared admissible

(para. 36). . . . . . . . . . . . . . . . . . . . 11

B. Points at issue

(para. 37). . . . . . . . . . . . . . . . . . . . 11

C. As regards Article 10 of the Convention

(paras. 38-50). . . . . . . . . . . . . . . . . . 11

CONCLUSION

(para. 51). . . . . . . . . . . . . . . . . . . . 14

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

(paras. 52-57). . . . . . . . . . . . . . . . . . 14

CONCLUSION

(para. 58). . . . . . . . . . . . . . . . . . . . 15

E. Recapitulation

(paras. 59-60). . . . . . . . . . . . . . . . . . 15

JOINT PARTLY DISSENTING OPINION OF

MM S. TRECHSEL, J.-C. GEUS, MS G. H. THUNE,

MS J. LIDDY, MM L. LOUCAIDES, N. BRATZA,

I. BÉKÉS AND M. VILA AMIGÓ. . . . . . . . . . . . . . . . . 17

PARTLY DISSENTING OPINION OF MR E. A. ALKEMA. . . . . . . . 18

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 19

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights by the parties, and of the

procedure before the Commission.

A. The application

2. The applicant is a Turkish national. He was born in 1957 and

lives in istanbul.

3. The application is directed against Turkey. The respondent

Government were represented by Mr. Bakir Çaglar, Professor at istanbul

University.

4. The case concerns the applicant's conviction by the State

Security Court on account of the publication of a news report in a

weekly review. The applicant is the major shareholder in the publishing

company concerned.

5. The applicant complains under Article 10 of the Convention that

his conviction constituted an unjustified interference with his freedom

of expression. He also complains under Article 6 para. 1 of the

Convention that his case was not dealt with by an independent and

impartial tribunal.

B. The proceedings

6. The application was introduced on 9 March 1994 and registered on

11 May 1994.

7. On 20 February 1995, the Commission decided, pursuant to Rule 48

para. 2(b) of its Rules of Procedure, to give notice of the application

to the Turkish Government and to invite the parties to submit written

observations on the admissibility and merits of the applicant's

complaints based (under Article 10 of the Convention) on the alleged

violation of his freedom of expression and (under Article 6 para. 1 of

the Convention) on the alleged violation of the principle of a fair

trial by an independent and impartial tribunal.

8. The Government's written observations were submitted on

25 September 1995. The applicant replied on 6 November 1995.

9. On 2 September 1996 the Commission declared admissible the

applicant's complaints relating to the alleged interference with his

freedom of expression and the alleged lack of independence and

impartiality of the tribunal which convicted him. The Commission

declared inadmissible the remainder of the application which concerned

an original complaint of the applicant about the length of the criminal

proceedings against him. Moreover, the Commission decided to join the

case to Application Nos. 23927/94, 24277/94, 24735/94 and 24762/94.

10. The text of the Commission's decision on admissibility was sent

to the parties on 16 September 1996 and they were invited to submit

such further information or observations on the merits as they wished.

On 4 March 1997 the Government submitted supplementary observations.

The applicant submitted comments in reply on 17 April 1997.

11. On 13 January 1998 the Commission decided to disjoin the case

from Application Nos. 23927/94, 24277/94, 24735/94 and 24762/94.

12. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement. In the light of the parties' reaction, the Commission now

finds that there is no basis on which such a settlement can be

effected.

C. The present Report

13. 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:

MM S. TRECHSEL, President

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

14. 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.

15. 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.

16. The Commission's decision on the admissibility of the application

is appended to this Report.

17. 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

18. At the material time, the 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.

19. In the issue of 26 April 1992 a news report concerning a press

declaration by former deputies Leyla Zana and Orhan Dogan and an

English Committee was published.

20. A translation of the relevant part of this news report is as

follows:

"Gendarmerie Regiment Commander ismet Yediyildiz:

«Your blood would not quench my thirst...»

While the British delegation and Diyarbakir MP Leyla Zana, Sirnak

MP Orhan Dogan and Bismil District Governor Mehmet Kurdoglu

managed to persuade the people of Tepe village, which was

blockaded by the security forces, after talking to them for a

while and telling them that permission had been obtained for them

to get the bodies of their dead, an interesting conversation took

place between Diyarbakir Security Director Ramazan Er and

Gendarmerie Regiment Commander ismet Yediyildiz.

The conversation between the MPs Leyla Zana and Orhan Dogan on

the one hand and Colonel ismet Yediyildiz on the other hand was

recounted by Leyla Zana as follows:

Colonel Yediyildiz: What business do you have here? There had

been nobody here until you arrived. You have come and stirred

things up again.

Leyla Zana: No, Sir. The situation had been extremely tense

before we arrived. We have come with the District Governor and

are trying to calm down the tension here. Here is the District

Governor.

Colonel Yediyildiz: No, that's not true. We saw when we were

flying by helicopter that there was nobody here before. People

gathered when you arrived.

Orhan Dogan: No, you can ask the District Governor if you like.

(Meanwhile, District Governor Mehmet Kurdoglu was also being told

off.)

Colonel Yediyildiz: Do you know who these dead people are?

Orhan Dogan: Yes, they are our children, the children of all of

us.

Colonel Yediyildiz: No, these are not our children, they are your

children.

Orhan Dogan: But my Colonel...

Colonel Yediyildiz: Do not call me your colonel. I am not your

colonel. Your blood would not quench my thirst. You should also

be honest and freely admit that my blood would not quench your

thirst. Right now I could kill you like a rat. Your death would

give us pleasure. Your blood would not quench my thirst.

Leyla Zana: If the problem can be solved by killing us, then here

are our people; let's go among them and you kill us and this

problem is solved.

Colonel Yediyildiz: No, I would not kill you now. I would kill

you after I will have you disgraced in the eyes of the people."

21. In an indictment dated 29 May 1992, the Public Prosecutor at the

istanbul Security Court (istanbul Devlet Güvenlik Mahkemesi), on

account of the publication of the news report, charged the applicant

as the owner of the review with revealing the identity of officials

mandated to fight terrorism and thus rendering them terrorist targets.

The charges were brought under Article 6 of the Anti-Terror Law.

22. In the proceedings before the istanbul State Security Court the

applicant denied the charges. He pleaded that the news report was

published with the aim of informing the public of the events which had

occurred during the 1992 Newroz celebrations. He further pleaded that

the reports were based on a joint press declaration by former deputies

Leyla Zana and Orhan Dogan and an English Committee, following their

visit to the south-east region of Turkey. He maintained that, since

Article 6 of the Anti-Terror Law prohibits in any circumstances the

disclosure and dissemination of the identity of officials appointed to

fight terrorism, it enables officials to abuse their authority, violate

the law and subject citizens to ill-treatment. He stated that the right

to receive and impart information, including information concerning the

acts of officials, is one of the fundamental rights in a democratic

society. He alleged that Article 6 of the Anti-Terror Law contravened

the Turkish Constitution. He invoked Article 10 of the Convention and

referred to the case-law of the Commission and the Court in this

respect. He stated that pluralism of opinions, including those which

shock or offend, is essential in a democratic society.

23. In a judgment dated 2 September 1993, the Court sentenced the

applicant to a fine of 54,000,000 Turkish lira under Article 6 of the

Anti-Terror Law. The Court held that in the incriminated news report

it had been alleged that the Governor of Sirnak had told the visiting

Committee that the order to open fire on the people had been given by

the Sirnak Chief Police Officer. The Court further held that, according

to the news reports, a gendarme commander had allegedly told Leyla Zana

that "your death gives us pleasure; drinking all your blood would not

quench my thirst". The Court noted that the identity of these officials

was disclosed in the news reports. It concluded that the report

contained a declaration which rendered these officials targets for

terrorist attack.

24. The applicant appealed. He asserted that the press declaration

at issue had already been reported in other newspapers and magazines

and that the present news report added nothing to them. He, inter alia,

reiterated the defence he had made before the State Security Court.

25. On 10 December 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 applicant's defence.

B. Relevant domestic law

a) Anti-Terror Legislation

26. 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."

27. In a judgment dated 31 March 1992, the Constitutional Court found

the clause in square brackets in the text of Article 6 of the Anti-

Terror Law to be contrary to the Constitution and annulled it. The

decision was published in the Official Gazette on 27 January 1993. The

annulled clause ceased to have effect on 27 July 1993.

b) The composition of the State Security Court

28. 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. ..."

29. 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."

30. 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...."

31. 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 ..."

32. 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."

33. 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."

34. 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.

c) The Press Law (Law No. 5680)

35. 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.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

36. The Commission has declared admissible:

- the applicant's complaint that his conviction on account of the

publication of the news report in question constituted an unjustified

interference with his freedom of expression;

- the applicant's complaint that his case was not dealt with by an

independent and impartial tribunal, given that one of the three members

of the State Security Court is a military judge, answerable to his

military superiors, whose presence prejudices the independence of the

Court.

B. Points at issue

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

- whether the applicant's conviction on account of the publication

of the news report in question infringed his freedom of expression as

guaranteed by Article 10 (Art. 10) of the Convention;

- whether the fact that the applicant was convicted by the State

Security Court constituted a violation of his right to a fair hearing

by an independent and impartial tribunal within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 10 (Art. 10) of the Convention

38. The applicant complains that his freedom of expression has been

infringed, contrary to Article 10 (Art. 10) of the Convention, in that

he was convicted on account of the publication of a news report.

39. Article 10 (Art. 10-1) of the Convention states:

"1. Everyone has the right to freedom of expression. This right

shall include freedom to hold opinions and to receive and impart

information and ideas without interference by public authority

and regardless of frontiers. This Article shall not prevent

States from requiring the licensing of broadcasting, television

or cinema enterprises.

2. (Art. 10-2) The exercise of these freedoms, since it carries

with it duties and responsibilities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society, in

the interests of national security, territorial integrity or

public safety, for the prevention of disorder or crime, for the

protection of health or morals, for the protection of the

reputation or rights of others, for preventing the disclosure

of information received in confidence, or for maintaining the

authority and impartiality of the judiciary."

40. The applicant submits that the incriminated news report 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 sanction inflicted upon

him was not necessary in a democratic society and cannot be justified

by any reasons permitted under the Convention. He also asserts that

various limitations of freedom of expression have existed in Turkey for

decades and their existence cannot be considered justified by the

upheaval of terrorism during the recent years. In any event, his

sentence was disproportionate, in particular, in the light of the

limited circulation of the review. The press declaration at issue had

already been reported in other newspapers and the present news report

added nothing to these reports.

41. The respondent Government maintain that the interference with the

applicant's rights under Article 10 (Art. 10) of the Convention was

prescribed by law, i.e. by Article 6 of the Anti-Terror Law. They state

that the applicant, in his review, published a news report concerning

a press declaration which disclosed to the public the identity of

officials appointed to fight terrorism and thus rendered them targets

for terrorist attack. Article 6 of the Anti-Terror Law clearly

prohibits the action of revealing the identity of officials mandated

to fight terrorism. The Government consider that the domestic courts

therefore interpreted the law reasonably.

42. The Government also maintain that the purpose of the applicant's

conviction was linked to the control of terrorism carried out by

illegal organisations and consequently served to protect territorial

integrity and national security. As to the necessity of the measure in

a democratic society, the Government submit that the threat posed to

Turkey by the P.K.K. (the Kurdistan Workers Party - a terrorist

organisation) 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. The Government maintain that turning

the public officials of strategic importance into targets by means of

revealing their identity is prohibited and penalised by legislation in

many countries. 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.

43. 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).

44. The Commission is of the opinion that the penalty imposed on the

applicant constituted an "interference" in the exercise of his freedom

of expression as guaranteed by Article 10 para. 1 (Art. 10-1) of the

Convention. This point has not been in dispute between the parties.

45. Therefore, the question is whether this interference was

prescribed by law, pursued a legitimate aim under Article 10 para. 2

(Art. 10-2) and was "necessary in a democratic society" in order to

realise that legitimate aim.

46. The Commission notes that the applicant's conviction was based

on Article 6 of the Anti-Terror Law and therefore considers that the

interference was prescribed by law.

47. As regards the aims of the interference, the Commission notes

that the direct purpose of the prohibition against disclosing the

identity of officials entrusted with the task of combating terrorism

is to protect those persons against reprisals or other violent acts.

The principal aim is therefore the protection of the rights of others

within the meaning of Article 10 para. 2 (Art. 10-2) of the

Convention. The Commission does not find it necessary to examine

whether other aims, such as national security and public safety, could

also be relevant in this context.

48. The remaining issue is whether the interference was "necessary in

a democratic society". In this respect the Commission recalls the

following principles adopted by the Court (see, as the latest

authority, Eur. Court HR, Zana v. Turkey judgment of 25 November 1997,

Judgments and Decisions 1997 ...., para. 51):

(i) Freedom of expression, as enshrined in paragraph 1 of

Article 10 (Art. 10-1) constitutes one of the essential foundations of

a democratic society and one of the basic conditions for its progress.

It is applicable not only to "information" or "ideas" that are

favourably received or are regarded as inoffensive or as a matter of

indifference, but also to those that offend, shock or disturb; such are

the demands of that pluralism, tolerance and broad-mindedness without

which there is no "democratic society".

(ii) The adjective "necessary", within the meaning of

Article 10 para. 2 (Art. 10-2), implies the existence of a "pressing

social need". The Contracting States have a certain margin of

appreciation in assessing whether such a need exists, but it goes hand

in hand with European supervision, embracing both the legislation and

the decisions applying it, even those given by an independent court.

(iii) In exercising its supervisory jurisdiction, the organs of

the Convention must look at the impugned interference in the light of

the case as a whole, including the content of the remarks held against

the applicant and the context in which he made them. In particular,

they must determine whether the interference in issue was

"proportionate to the legitimate aims pursued" and whether the reasons

adduced by the national authorities to justify it are "relevant and

sufficient".

49. The Commission notes that the applicant was convicted and

sentenced for having published a news report, in which the identities

were revealed of a chief police officer who was alleged to have given

the order to open fire upon citizens and of a gendarmerie colonel on

duty in south-east Turkey who was reported as having made extremely

hostile and contemptuous statements in regard to two MPs of Kurdish

origin and of Kurdish people in the area.

50. The Commission notes the State Security Court's finding that the

disclosure of the identities of the officials concerned made them

possible targets of terrorist attack. Having regard to the general

tension and to the level of terrorism and violence occurring in south-

east Turkey, the Commission accepts that officials engaged in State

action against terrorist groups in that area are frequently exposed to

serious risks and therefore require a high degree of protection.

Moreover, the Commission notes that the incriminated news report, which

in itself may have contained information of public interest, could well

have been published without disclosure of the identities of the two

officials concerned. In these circumstances, the interference with the

applicant's freedom of expression was proportionate and could

reasonably be regarded as necessary for the purpose of protecting the

rights of the two officials concerned.

CONCLUSION

51. The Commission concludes, by 23 votes to 9, that there has been

no violation of Article 10 (Art. 10) of the Convention.

D. As regards Article 6 para. 1 (Art. 6-1) of the Convention

52. The applicant complains that his case was not heard by an

independent and impartial tribunal. He invokes Article 6 (Art. 6) of

the Convention which provides, inter alia, that:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair ... hearing ... by an

independent and impartial tribunal established by law."

53. The applicant maintains that the State Security Courts are

extraordinary courts dealing with political offences. He contends that

the members of these 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, he

questions the independence and impartiality of the Court of Cassation,

given that its judgments do not have any specific reasoning.

54. The respondent Government maintain that the State Security

Courts, which are special courts set up to deal with offences against

the existence and continuity of the State, are ordinary courts, given

that they have been established in accordance with the provisions of

Article 143 of the Constitution. As they are independent judicial

organs, no public authority or agent could give instructions to such

courts. The State Security Courts are composed of three members, one

of whom is a military judge. A civil judge acts as president and all

the judges have attained the first grade in the career scale. The

presence of a military judge in the court does not prejudice its

independence, this judge being a judge by career and not belonging to

the military. Military judges and prosecutors are independent of their

commander and their security of tenure is established. The judges of

State Security Courts evaluate the evidence and take their decisions

in accordance with the law and their own conscientious conviction as

required by Article 138 of the Turkish Constitution. The verdicts of

such courts are subject to review by the Court of Cassation. Moreover,

the Government point out that the applicant's submissions do not refer

to any actual misconduct on the part of the State Security Court. In

sum, they submit that this part of the application is ill-founded.

55. 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."

56. The Commission finds that the same considerations apply in the

present case.

57. It follows that the applicant was convicted by a court which

cannot be considered independent and impartial within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention.

CONCLUSION

58. The Commission concludes, by 31 votes to 1, that there has been

a violation of Article 6 para. 1 (Art. 6-1) of the Convention.

E. Recapitulation

59. The Commission concludes, by 23 votes to 9, that there has been

no violation of Article 10 (Art. 10) of the Convention (para. 51).

60. 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 (para.

58).

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

JOINT PARTLY DISSENTING OPINION OF MM S. TRECHSEL, J.-C. GEUS,

MS G. H. THUNE, MS J. LIDDY, MM L. LOUCAIDES,

N. BRATZA, I. BÉKÉS AND M. VILA AMIGÓ

We regret that we cannot share the view of the majority of the

Commission that there has been no violation of Article 10 of the

Convention in the present case.

The conviction of the applicant arose out of the publication of

a news item in which it was reported that the Governor of Sirnak had

told a visiting delegation that the order to open fire on the people

of Tepe village had been given by the Sirnak Chief Police Officer and

further reported that the Diyarbakir Gendarme Regiment Commander had

told a Member of Parliament on the same occasion that her death "would

give us pleasure" and that her blood "would not quench my thirst."

The applicant was prosecuted not for publishing statements which

were untrue (their truth was never contested) but for publishing the

identities of the Chief Police Officer and Gendarme Commander

concerned. The prosecution was brought under Section 6 of the Anti-

Terror Law which makes it an offence to "disseminate or disclose to the

public the identity of officials appointed to fight terrorism or [to]

render such officials targets." The provision is sweepingly broad in

its terms. It appears that disclosure of the identity of an official

constitutes an offence irrespective of the position or rank of the

official concerned or the context in which the identity is disclosed,

irrespective of whether the identity of the official is already

publicly known and irrespective of whether there is a public interest

in such disclosure.

In the present case, there was in our view a clear public

interest in publishing what the Governor of Sirnak had told the

visiting delegation as to the official responsible for the order to

open fire and in reporting the disgraceful remarks alleged to have been

made to a Member of Parliament by a senior gendarme officer. While we

do not underestimate the risks posed to officials engaged in the fight

against terrorism, we consider that the conviction and punishment of

the applicant for disclosing the identity of the two officials

concerned in the above circumstances represents a disproportionate

response and an unjustified interference with the applicant's right to

freedom of expression.

(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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SUREK v. TURKEY

SUREK v. TURKEY

LEXI