Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 24762/94

Kamil Tekin Sürek

against

Turkey

REPORT OF THE COMMISSION

(adopted on 13 January 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1

A. The application

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

B. The proceedings

(paras. 6-13) . . . . . . . . . . . . . . . . . . .1

C. The present Report

(paras. 14-18). . . . . . . . . . . . . . . . . . .2

II. ESTABLISHMENT OF THE FACTS

(paras. 19-46) . . . . . . . . . . . . . . . . . . . . .4

A. The particular circumstances of the case

(paras. 19-31). . . . . . . . . . . . . . . . . . .4

B. Relevant domestic law

(paras. 32-46). . . . . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION

(paras. 47-77) . . . . . . . . . . . . . . . . . . . . . . . 14

A. Complaints declared admissible

(para. 47). . . . . . . . . . . . . . . . . . . . 14

B. Points at issue

(para. 48). . . . . . . . . . . . . . . . . . . . 14

C. As regards Article 10 of the Convention

(paras. 49-67). . . . . . . . . . . . . . . . . . 14

CONCLUSION

(para. 68). . . . . . . . . . . . . . . . . . . . 18

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

(paras. 69-74). . . . . . . . . . . . . . . . . . 18

CONCLUSION

(para. 75). . . . . . . . . . . . . . . . . . . . 19

E. Recapitulation

(paras. 76-77). . . . . . . . . . . . . . . . . . 20

JOINT CONCURRING OPINION OF MS J. LIDDY

AND MR N. BRATZA. . . . . . . . . . . . . . . . . . . . . . 21

PARTLY DISSENTING OPINION OF MR S. TRECHSEL . . . . . . . . 22

PARTLY DISSENTING OPINION OF MR E. A. ALKEMA. . . . . . . . 23

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 24

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 commentary and

a political declaration in a weekly review. The applicant was 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 27 July 1994 and registered on

3 August 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 (under Article 10 of the Convention) based 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 a court satisfying the conditions of

independence and impartiality.

8. The Government's written observations were submitted on

26 October 1995. The applicant replied on 5 December 1995.

9. Meanwhile, on 4 December 1995 the Government submitted

information concerning the amendments made to the Anti-Terror Law (Law

No. 3713) and developments in the cases of persons convicted and

sentenced under Article 8 of the said Law. The applicant submitted

comments in reply on 18 June 1996.

10. On 2 September 1996 the Commission declared admissible the

applicant's complaints relating to the alleged interference with his

freedom of expression and to 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. On the same date the Commission decided to

join the case to Application Nos. 23927/94, 24122/94, 24277/94 and

24735/94.

11. 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.

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

from Application Nos. 23927/94, 24122/94, 24277/94 and 24735/94.

13. 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

14. 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

15. 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.

16. 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.

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

is appended to this Report.

18. 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

19. At the material time, the applicant was the major shareholder in

the 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.

20. In issue No. 51 of the review, dated 13 March 1993, a news

commentary entitled "Kawa and Dehak Once Again" was published. The

article analysed possible events which could occur during the upcoming

celebrations of Newroz.

21. A translation of the relevant parts of the news commentary is as

follows:

"... It's Newroz week in Kurdistan. The biggest confrontation

between the demands of the Kurdish people and non-tolerance in

the face of the expression of these demands occurs during these

days. The tradition of rebellion is awakened. Dehak and Kawa are

once again invested with flesh and bones. It is time to settle

accounts. There is nothing vague about Kawa. All the mountains,

all the cities are full of Kawa. There are millions of them. All

right, who, then, is Dehak? Who is the candidate for representing

Dehak in our day? Is it Demirel? Is it Güres? The regional

Governor? Or the new commander ilter? This time round, is Dehak

represented by every counter-insurgency chief, indeed, every

counter-insurgency operative, every special team member, every

police commissioner or superintendent officer? Has Dehak become

anonymous too? Be it as it may, but Dehak and Kawa will settle

their accounts once again. ...

Last year, a revolutionary publication described the days

preceding Newroz as follows:

«Nowadays over 200 thousand soldiers massed into Kurdistan.

Tanks and weapons are sent over. Bombs are raining on

Kurdish villages and mountains. The Chief of the General

Staff has inspected the preparations for the offensive.

Instructions are being issued to provincial and district

governors, special team leaders, police chiefs and military

officials. The Head of MiT intelligence agency talks of the

prospect of much blood being shed. Members of Parliament

are organising information gathering trips in order to

take the pulse of the people.» ...

Unlike previous years, the P.K.K.-leaning Kurdistan National

Assembly (KUM) is also expected to take on a role during Newroz

this year. ...

On the other hand emergency measures are being implemented in

large cities outside Kurdistan where there are concentrations of

Kurdish people. It is highly likely that there will be large

demonstrations in the Kurdish quarters there."

22. In the same issue and within the context of the above news

commentary, an interview by the Kurdish News Agency (KURD-HA) with a

representative of the E.R.N.K. was also published.

23. A translation of the relevant part of the interview is as

follows:

"... We wish to emphasise this finding, indeed, we feel that it

ought to be underlined. And we call on all European countries.

We are open to any humanitarian, political solution, including

the calls for an armistice. The P.K.K. movement and its struggle

are absolutely not terrorist movements. This misapprehension must

be abandoned - it must definitely be abandoned - and a move must

be made towards co-operation and support. The real terrorist is

the Republic of Turkey. We believe that attitudes on this matter

will be much clarified this year, that very positive dialogues

will develop and that the Republic of Turkey will be gradually

further isolated."

24. On 14 March 1993 the istanbul State Security Court (istanbul

Devlet Güvenlik Mahkemesi) ordered the seizure of the issue, holding

that it contained separatist propaganda.

25. In an indictment dated 22 April 1993 the Public Prosecutor at the

istanbul State Security Court, on account of the publication of the

above news commentary, charged the applicant, as the owner of the

review, with making propaganda by means of the press against the

indivisibility of the State. The applicant was also charged with

publishing the declaration of the E.R.N.K, an illegal terrorist

organisation being the political wing of the P.K.K. (Kurdistan Workers

Party - a terrorist organisation). The charges were brought under

Articles 8 and 6 of the Anti-Terror Law, respectively.

26. In the proceedings before the istanbul State Security Court, the

applicant denied the charges. He pleaded that the news commentary for

which he was charged did not fall within the scope of Article 8 of the

Anti-Terror Law. He maintained that arguing and commenting on possible

activities in which the illegal terrorist organisation P.K.K. might

engage during the Newroz celebrations, could not be considered as

publishing a declaration of a terrorist organisation within the meaning

of Article 6 of the Anti-Terror Law. As regards his freedom of

expression, he invoked Article 10 of the Convention and referred to the

case-law of the Commission and the Court. He stated that pluralism of

opinions including those opinions which shock or offend is essential

in a democratic society. 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

by the case-law of the Commission and the Court.

27. In a judgment dated 27 September 1993, the Court found the

applicant guilty. The applicant was sentenced under Article 8 para. 2

of the Anti-Terror Law to a fine of 100,000,000 Turkish lira. The

Court, considering the good conduct of the applicant during the trial,

reduced the fine to 83,333,333 Turkish lira.

28. The Court based its judgment on certain extracts from the news

commentary. It held that the news commentary - in which a certain part

of the Turkish territory was referred to as "Kurdistan" and a certain

section of the population as "Kurds" - disseminated propaganda against

the indivisibility of the State. The Court further held that the review

had published the declaration of an illegal terrorist organisation in

which the Republic of Turkey was referred to as a terrorist State.

However, it considered that the declaration constituted a part of the

news commentary at issue and, having regard to the provisions of

Article 79 of the Turkish Criminal Code, did not find any grounds for

a separate conviction under Article 6 of the Anti-Terror Law.

29. The applicant appealed. He, inter alia, reiterated the defence

he had made before the State Security Court.

30. On 8 February 1994 the Court of Cassation dismissed the appeal.

It upheld the cogency of the State Security Court's assessment of

evidence in rejecting the applicant's defence.

31. 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

applicant's case. On 22 April 1996 the Court held that these amendments

could not be applied to the applicant's case as his sentence had

already been executed.

B. Relevant domestic law

a) Anti-Terror Legislation

32. 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."

33. 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."

34. 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."

35. 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.

36. 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

37. 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'.... "

38. 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) Criminal Code

39. Article 79 of the Criminal Code provides that if someone's single

act constitutes a violation of several provisions of the Law, he shall

be punished in accordance with the single provision which imposes the

heaviest punishment.

d) Legislation on the State Security Court

40. Article 143 of the Turkish Constitution

"Devletin ülkesi ve milletiyle bölünmez bütünlügü, hür demokratik

düzen ve nitelikleri Anayasada belirtilen Cumhuriyet aleyhine

islenen ve dogrudan dogruya Devletin iç ve dis güvenligini

ilgilendiren suçlara bakmakla görevli Devlet Güvenlik Mahkemeleri

kurulur.

Devlet Güvenlik Mahkemesinde bir Baskan, iki asil ve iki yedek

üye ile savci ve yeteri kadar savci yardimcisi bulunur.

Baskan, bir asil ve bir yedek üye ile savci, birinci sinifa

ayrilmis hakim ve Cumhuriyet savcilari arasindan; bir asil ve bir

yedek üye, birinci sinif askeri hakimler arasindan; savci

yardimcilari ise Cumhuriyet savcilari ve askeri hakimler

arasindan özel kanunlarda gösterilen usule göre atanirlar.

Devlet Güvenlik Mahkemesi Baskani üye ve yedek üyeleri ile savci

ve savci yardimcilari dört yil için atanirlar, süresi bitenler

yeniden atanabilirler.

Devlet Güvenlik Mahkemeleri kararlarinin temyiz mercii

Yargitaydir. ..."

"State Security Courts are to be established to deal with

offences against the indivisible integrity of the State and its

territory and nation, offences against the Republic which are

contrary to the democratic order enunciated in the Constitution,

and offences which undermine the internal or external security

of the State.

The State Security Court shall be composed of a president, two

titular members and two substitute members, a public prosecutor

and a sufficient number of substitutes.

The president, the public prosecutor, a titular member and a

substitute member shall be appointed, according to the procedures

laid down by special laws, from the Republic's first class rank

of judges and prosecutors, a titular member and a substitute

member from the first class rank of judges, and the substitutes

from the Republic's public prosecutors and military judges.

The president, titular members and substitute members, the public

prosecutor and the substitutes of the State Security Courts are

appointed for four years; they can be reappointed after the

expiry of their mandate.

There is an appeal against the decisions of the State Security

Courts to the Court of Cassation. ..."

41. Article 145 of the Turkish Constitution

"... Askeri yargi organlarinin kurulusu, isleyisi, askeri

hakimlerin özlük isleri, askeri savcilik görevlerini yapan askeri

hakimlerin mahkemesinde görevli bulunduklari komutanlik ile

iliskileri, mahkemelerin bagimsizligi, hakimlik teminati,

askerlik hizmetinin gereklerine göre kanunla düzenlenir. Kanun,

ayrica askeri hakimlerin yargi hizmeti disindaki askeri hizmetler

yönünden askeri hizmetlerin gereklerine göre teskilatinda görevli

bulunduklari komutanlik ile olan iliskilerini gösterir."

"... The composition and functioning of military judicial organs,

matters relating to the status of military judges and relations

between military judges acting as military prosecutors and the

commanders under whom they serve shall be regulated by law in

accordance with the principles of the independence of the courts

and the security of tenure of the judiciary and requirements of

military duty. Relations between military judges and the

commanders under whom they serve with regard to military duties

other than judicial functions shall also be regulated by law."

42. Article 16 of the Law on Military Judges

"Askeri hakimlerin atanmalari (...) Milli Savunma Bakani ve

Basbakanin müsterek kararnamesi ile Cumhurbaskaninin onayina

sunulur. ..."

"The appointment of military judges by the decree of the Minister

of Defence and the Prime Minister is subject to the approval of

the President of the Republic. ..."

43. Article 29 of the Law on Military Judges

"Askeri hakim subaylar hakkinda Milli Savunma Bakani tarafindan,

savunmalari aldirilarak, asagida açiklanan disiplin cezalari

verilebilir .

A. Uyarma ...

B. Kinama..."

"The Defence Minister may apply the following disciplinary

sanctions to military judges, after hearing their defence:

A. Written warning ...

B. Rebuke ..."

44. Article 7 annexed to the Law on Military Judges

"Devlet Güvenlik Mahkemesi üyeligi, yedek üyeligi ve Cumhuriyet

savci yardimciligi görevlerine atanan askeri hakim subaylarin

rütbe terfii, rütbe kidemliligi, kademe ilerlemesi yapmalarini

saglayacak yeterlilikleri, bu Kanunun ve Türk Silahli Kuvvetleri

Personel Kanununun hükümleri sakli kalmak sarti ile, asagida

belirtilen sekilde düzenlenecek sicillerle saptanir:

a) Birinci sinifa ayrilmis üye ve yedek üye askeri hakimlere

subay sicil belgesi düzenlemeye ve sicil vermeye yetkili birinci

sicil amiri Milli Savunma Bakanligi Müstesari, ikinci sicil amiri

Milli Savunma Bakanidir.

b) Cumhuriyet savci yardimciligi kadrolarina atanan askeri

subaylar hakkinda:

1. Mesleki sicil belgesi, Yargitayda incelem yapan dairece ve

adalet müfettislerince, bu Kanundaki esaslar gözönünde tutularak

verilecek sicil notlarina göre düzenlenir ve bu sicil belgesi

süresi içinde Milli Savunma Bakanligina gönderilir.

2. Subay sicil belgesi, sirasiyla; Milli Savunma Bakanligi ilgili

müstesar yardimcisi, Müstesari ve Milli Savunma Bakani

tarafindan düzenlenir.

Cumhuriyet savci yardimcisi askeri hakim subaylar hakkinda Devlet

Güvenlik Mahkemesi Cumhuriyet savcisi tarafindan, subay sicil

formu esaslarina göre kanaat notu verilir".

"The eligibility for promotion, seniority in grade and salary

increments of officers acting as judges in the capacity of

assistant public prosecutors and State Security Court members,

is subject both to the said Law and the Law on Military Personnel

and assessed in accordance with the following procedure:

a) The first hierarchical superior competent to issue an

assessment certificate for military judges who are to be

appointed is the Secretary to the Ministry of Defence, the second

superior is the Minister of Defence.

b) In respect of judges acting as military prosecutors:

1. The professional assessment certificate is issued, according

to the procedure laid down in the said Law, by the competent

chamber of the Court of Cassation and the Inspector of Legal

Affairs. This certificate has to be sent to the Minister of

Defence within the prescribed time-limit.

2. The assessment certificate for officers is established by the

Under-Secretary and the Secretary of State to the Minister of

Defence, and the Minister of Defence.

The judges acting as military prosecutors are evaluated according

to the assessment formula. This evaluation is carried out by the

Public Prosecutor attached to the State Security Court."

45. Article 8 annexed to the Law on Military Judges

"Devlet Güvenlik Mahkemelerinin askeri yargiya mensup mahkeme

üyeleri ile Cumhuriyet savci yardimcilari, Genelkurmay Personel

Baskani, Adli Müsaviri ile atanacaklarin mensup oldugu Kuvvet

Komutanliginin personel baskani ile adli müsaviri ve Milli

Savunma Bakanligi Askeri Adalet isleri Baskanindan olusan Kurul

tarafindan seçilir ve usulüne uygun olarak atanirlar."

"The military members of the State Security Court and assistant

public prosecutors are appointed by a committee consisting of the

personnel director, the legal adviser of the General Military

Staff, the personnel director, the legal adviser of the regiment

to which the candidate belongs and the director of military

judicial affairs attached to the Ministry of Defence."

46. Article 307 of the Code of Criminal Procedure provides that

cassation appeals only lie in respect of alleged illegality and non-

compliance of the first instance judgment with the relevant procedure.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

47. The Commission has declared admissible:

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

publication of the news commentary and the interview 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

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

- whether the applicant's conviction constituted a violation of

Article 10 (Art. 10) of the Convention;

- whether the applicant's conviction constituted a violation of

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

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

49. 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 commentary and

an interview.

50. Article 10 (Art. 10-1) 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. (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."

51. The applicant submits that describing and commenting on possible

activities in which the P.K.K. might engage during Newroz celebrations,

cannot be considered as publishing a declaration by a terrorist

organisation. 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 recalls that pluralism of

opinions, including those which shock or offend, is essential in a

democratic society. He 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.

52. 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 8 of the Anti-Terror Law. They state

that the applicant, in his review, published a news commentary in which

a certain part of Turkish territory had been referred to as "Kurdistan"

and a certain section of the population as "Kurds". Moreover, the

review had published a declaration by the E.R.N.K., an illegal

terrorist organisation, in which the Republic of Turkey was referred

to as a terrorist State. According to Article 8 of the Anti-Terror Law,

such publication constitutes propaganda against the indivisible

integrity of the State. The domestic courts, therefore, interpreted the

law reasonably.

53. 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. 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

news commentary in question was 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.

54. 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).

55. 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.

56. 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.

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

on Article 8 of the Anti-Terror Law and therefore considers that the

interference was prescribed by law.

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

that the applicant's conviction was 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.

59. 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".

60. 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. 10-2) (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).

61. 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).

62. 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.

63. The Commission notes that the incriminated news commentary

contained passages such as "the tradition of rebellion is awakened" and

"it is time to settle accounts". Moreover, it was recalled in the

incriminated article that, a year before, allegations had been

published that "bombs [were] raining on Kurdish villages", that "the

Chief of the General Staff [had] inspected the preparations for the

offensive" and that "the Head of MiT intelligence agency [talked] of

the prospect of much blood being shed". Finally, the news commentary

envisaged that in 1993, "unlike previous years, the P.K.K.-leaning

Kurdistan National Assembly [was] also expected to take on a role

during Newroz". Moreover, an incriminated interview had been made with

a representative of the illegal organisation E.R.N.K. The interviewee

stated, inter alia, that "the real terrorist is the Republic of

Turkey".

64. It thus appears that some of the statements in the news

commentary were highly polemic and were based on the general view that

the Turkish authorities were responsible for the present situation by

suppressing Kurdish aspirations, even by using weapons, and that, as

a result hereof, Kurdish resistance would continue in various places

and at various levels. The Commission notes that the State Security

Court convicted the applicant mainly because he had disseminated

propaganda against the indivisibility of the State by referring to a

part of Turkish territory as "Kurdistan" and to a part of the Turkish

population as "Kurds" and also because he had published the declaration

of an illegal terrorist organisation in which Turkey had been called

a terrorist State. The Commission considers, however, that the

criterion for establishing whether or not the conviction was

proportionate should not be whether the language used was exaggerated

or insulting to the State nor whether the text referred to part of

Turkish territory as "Kurdistan", but whether it could be considered

to encourage or incite to continue violence.

65. In this respect, the Commission notes that, while the published

text conveys the opinion that violence is likely to continue to be

used, neither the commentator nor the interviewed representative of the

E.R.N.K. can be considered to have encouraged or incited to continue

violence. In fact, the representative of the E.R.N.K. declared in the

interview that his organisation was prepared to accept "any

humanitarian, political solution, including the calls for an

armistice".

66. The Commission finds that the applicant's conviction amounted to

a kind of censure, which was likely to discourage him or others from

publishing views on the situation in south-east Turkey again in the

future. In the context of political debate such a sentence is likely

to deter citizens from contributing to public discussion of important

political issues (cf. Eur. Court HR, Lingens judgment, op. cit., p. 27,

para. 44).

67. Consequently, the Commission, even taking into account the margin

of appreciation of the national authorities in this context, finds that

the interference with the applicant's freedom of expression was not

proportionate to the legitimate aims pursued and could, therefore, not

be regarded as necessary in a democratic society to achieve the aims

of national security and public safety.

CONCLUSION

68. The Commission concludes, by 30 votes to 2, that there has been

a violation of Article 10 (Art. 10-2) of the Convention.

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

69. 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."

70. The applicant maintains that the State Security Courts are

extraordinary courts dealing with political offences. He contends that

the members of the State Security Court 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.

71. 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.

72. The Commission has already examined the question whether the

State Security Court meets 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."

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

present case.

74. 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

75. 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

76. The Commission concludes, by 30 votes to 2, that there has been

a violation of Article 10 (Art. 10) of the Convention (see above para.

68).

77. 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. 75).

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

JOINT CONCURRING OPINION OF MS J. LIDDY AND MR N. BRATZA

We have voted for a finding of violation with some hesitation.

At first sight it might appear that in the light of the situation

prevailing in South-East Turkey it fell within the margin of

appreciation of the national authorities to regard the publication in

a news commentary of the statement that Dehak (apparently symbolising

the State forces) and Kawa (symbolising the leader of a peasants'

uprising against Dehak) "will settle their accounts once again" as a

statement in support of the use of evidence. On the other hand, we find

no analysis or other indication to that effect in the judgment of the

State Security Court which based itself on the apparent unlawfulness

of using the words "Kurdistan" or "Kurds" in published matter.

Moreover, the declaration of the E.R.N.K., which the State Security

Court considered to constitute part of the news commentary in question,

expressed the E.R.N.K.'s openness to a "humanitarian, political

solution, including the calls for an armistice" and its thrust was in

favour of political dialogue as distinct from fomenting evidence.

Accordingly, having regard to the overall context, we agree with

the conclusion of the majority.

(Or. English)

PARTLY DISSENTING OPINION OF MR S. TRECHSEL

While I am in full agreement with the majority as regards the

violation of Article 6, I have come to the conclusion that there has

been no violation of Article 10 in the present case. The text of the

Report shows quite clearly that we are faced with a border-line case.

I regard the passages quoted in para. 63 of the Report as decisive - I

see no reason to repeat them here. In my view these passages can in

good faith be understood as encouraging violence. Having regard to the

margin of appreciation which must be accorded to the national

authorities I have come to the conclusion that the interference

complained of cannot be regarded as a disproportionate response and

does not constitute an unjustified interference with the applicant's

right to freedom of expression - the interference could still be

regarded as necessary in a democratic society.

(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