Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 24246/94

Ahmet Zeki OKÇUOGLU

against

Turkey

REPORT OF THE COMMISSION

(adopted on 11 December 1997)

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. 19-35) . . . . . . . . . . . . . . . . . . . . .4

A. The particular circumstances of the case

(paras. 19-26). . . . . . . . . . . . . . . . . . .4

B. Relevant domestic law

(paras. 27-35). . . . . . . . . . . . . . . . . . .6

III. OPINION OF THE COMMISSION

(paras. 36-71) . . . . . . . . . . . . . . . . . . . . 11

A. Complaints declared admissible

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

B. Points at issue

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

C. As regards Articles 9 and 10 of the Convention

(paras. 38-56). . . . . . . . . . . . . . . . . . 11

CONCLUSION

(para. 57). . . . . . . . . . . . . . . . . . . . 14

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

(paras. 58-63). . . . . . . . . . . . . . . . . . 15

CONCLUSION

(para. 64). . . . . . . . . . . . . . . . . . . . 16

E. As regards Article 14 of the Convention

(paras. 65-67). . . . . . . . . . . . . . . . . . 16

CONCLUSION

(para. 68). . . . . . . . . . . . . . . . . . . . 16

F. Recapitulation

(paras. 69-71). . . . . . . . . . . . . . . . . . 16

PARTLY DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK . . . . . . 18

PARTLY DISSENTING OPINION OF MR E.A. ALKEMA . . . . . . . . 19

APPENDIX : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . 20

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 1950 and

lives in istanbul. He was represented before the Commission by

Mr. Selim Okçuoglu, a lawyer practising 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 for having given a speech when participating in a

discussion on "the present and the past of the Kurdish problem" and for

having had it published subsequently in a review entitled "Demokrat".

5. The applicant complains under Articles 9 and 10 of the Convention

that his conviction for giving and publishing a speech constituted an

unjustified interference with his freedom of thought and freedom of

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

that his case was not heard by an independent and impartial tribunal.

He asserts in this regard that one of the three members of the State

Security Court is a military judge, answerable to his military

superiors, whose presence prejudices the independence of the Court.

Moreover, he complains under Article 14 of the Convention that his

conviction for expressing his views, contrary to State policy, on the

"Kurdish problem" constituted discrimination on the ground of political

opinion.

B. The proceedings

6. The application was introduced on 15 March 1994 and registered

on 1 June 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, (under Article 6

para. 1 of the Convention) on the alleged violation of his right to a

fair trial by an independent and impartial court, and (under Article 14

in conjunction with Article 10 of the Convention) on the allegation

that his conviction constituted discrimination on the ground of

political opinion.

8. On 4 December 1995 the Government submitted information

concerning the amendments made to the Anti-Terror Law (Law No. 3713)

and the developments in the cases of persons convicted and sentenced

under Article 8 of the said Law. The applicant submitted comments in

reply on 21 January 1996.

9. The Government's written observations were submitted on

21 February 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 8 April 1996.

10. On 14 October 1996 the Commission declared the application

admissible.

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

to the parties on 31 October 1996 and they were invited to submit such

further information or observations on the merits as they wished.

12. None of the parties submitted any observations.

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

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

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

11 December 1997 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. The applicant participated in a discussion on "the present and

the past of the Kurdish problem" organised by a review entitled

"Demokrat". The speech he had made during the discussion was published

in Demokrat's May 1991 issue.

20. A translation of the speech, as published, is as follows:

"DISCUSSION ABOUT THE KURDISH QUESTION

The Kurdish Question Yesterday and Today

...

INTERVIEWER - Mr. Okçuoglu, can you answer the same question

[i.e. the question whether developments in the region take place

mostly under the control of the United States and the Western

States], having regard to the unitarian state?

Ahmet Zeki OKÇUOGLU - Your question is wrong. It bears some

ideological concerns. Before responding to your question, I need

to explain what the Kurdish question is. The Kurdish question is

the question of a population totalling up to approximately

40 million people which was dominated by other states by being

deprived of the rights of sovereignty; its land being divided

between the regional states all of its national rights were

removed by regional powers as well as the international [super]

powers. The Kurdish nation occupies an important place in the

regional history and it has existed since the old ages. In order

to produce something on this subject we can only act from this

perspective. This, of course, does not mean that the question can

find a radical solution in a matter of days.

Going back to your question ... the thesis suggesting that the

Kurdish question is a matter forced upon by the external powers,

imperialist powers, is not a new one. The problem has been

explained in the above-portrayed manner for approximately one

century. We can count the basic reasons for this as follows:

Primarily, it is the concern of those nations who keep Kurds

under their sovereignties, because these powers try to create an

image that Kurds are not a national entity and do not demand

anything from them [from the regional powers]. It has been

suggested that various external powers provoke the Kurds. The

intention is to prevent international powers from intervening in

the problem. A secondary [reason] is to overshadow the legitimacy

and distract attention. Another one is the concept of imperialism

amongst the international socialist movement and its related

circles. As you know, the Soviet Union is equivalent to an

Empire in the classical meaning. The Soviet administration has

always been against the Kurds by thinking that if Kurds gained

certain rights, this will inevitably lead the way to the nations

forcibly kept under its reign to voice certain demands which

would result in creating problems on the international level. For

this reason, since Lenin, the Soviet Union has always sided with

the powers which kept Kurds under their sovereignty. Local

Socialist powers under their control inevitably developed such

a thesis. In the adverse attitude towards Kurds, these socialist

powers were also influenced by their close proximity to the

regional powers and their official views. The Soviet thesis makes

this even easier. Because the Soviet ideology is a downright

sovereign state ideology. In this meaning the Soviet dominant

ideology corresponds with the regional Turkish national ideology.

However, we observe that the imperialist concept does not stop

there. Following the 1970s, certain Kurdish circles repeated the

same concept under the influence of Soviet and Chinese socialist

propaganda. Whether they are aware of this or not, they repeat

the same concept. This has dragged the Kurdish question into

great insolvencies.

The allegation, that the Kurdish question was brought onto the

agenda by means of external provocations, is an untrue claim. If

anyone is about to suggest imperialist protection in the Middle

East, we observe that Kurds did not make any use of it. On the

contrary, Turks, Arabs and Persians went under the protective

umbrella of such powers and made enough use of it. If the British

did not intervene in the interest of Ottomans in the Crimean war,

the Russian Tsar would have wiped out the Ottoman State and taken

over the Byzantian heritage. Contrary to what some leftist

historians suggest, imperialists did not intend to kill the 'sick

man', they tried to save him. This is also valid for the Arabs.

Up to the present day, with the exception of Palestinians, the

only nation that fought for its national rights in the Middle

East is the Kurds. Neither Turks nor Arabs or Persians fired one

bullet for their national rights. When the British occupied the

Ottoman State in 1918, not one bullet was fired. The so-called

independence war is the historical rift between Greeks and Turks.

One can argue who is right and who is wrong. The resistance

started in Urfa and Antep was a Kurdish resistance against the

French. Let me rephrase, it was a Turkish-Kurdish resistance

under the leadership of local powers. It is the peoples'

spontaneous resistance. The Turkish Army and political centres

did not have any role in this. Up to the present day, the delay

in gaining national rights on the Kurds' part is not due to their

dependency on external powers, as some circles suggest; on the

contrary, it depends on the Kurds' failure to establish

international relations and the fact that international powers

closed their doors on the Kurds."

21. On 10 June 1991 the Public Prosecutor at the istanbul State

Security Court (istanbul Devlet Güvenlik Mahkemesi) issued an

indictment charging the applicant with disseminating propaganda against

the indivisibility of the State in his speech. The charges were brought

under Article 8 paragraph 1 of the Anti-Terror Law.

22. In the proceedings before the State Security Court, the applicant

denied the charges.

23. In a judgment dated 11 March 1993, the Court found the applicant

guilty of an offence under Article 8 of the Anti-Terror Law. It first

sentenced the applicant to two years' imprisonment and a fine of

50,000,000 Turkish lira. Then, considering the good conduct of the

applicant during the trial, it reduced his sentence to one year and

eight months' imprisonment and a fine of 41,666,666 Turkish lira.

24. The Court held that, to the extent that the applicant, in his

speech, had alleged that "the citizens of Kurdish race were denied

their national rights; their land was divided among the States in the

region; the Kurds were fighting for their national rights", his speech

as a whole contained elements of propaganda against the indivisibility

of the State.

25. The applicant appealed against this judgment. On

24 September 1993 the Court of Cassation upheld the decision of the

trial court.

26. On 21 February 1995 the applicant was granted conditional

release, as he had paid the fine imposed and it was considered that he

had served one-third of his prison sentence. Therefore, the amendments

made by Law No. 4126 of 27 October 1995 to the Anti-Terror Law were not

applied to the applicant's case, as his sentence had already been

executed.

B. Relevant domestic law

a) Anti-Terror Legislation

27. Article 8 paragraph 1 of Anti-Terror Law No. 3713 of

12 April 1991 (before the amendments of 27 October 1995)

"Hangi yöntem, maksat ve düsünceyle olursa olsun Türkiye

Cumhuriyeti Devletinin ülkesi ve milletiyle bölünmez bütünlügünü

bozmayi hedef alan yazili ve sözlü propaganda ile toplanti,

gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda 2 yildan 5 yila

kadar agir hapis ve ellimilyon liradan yüzmilyon liraya kadar

agir para cezasi hükmolunur."

"No one shall, by any means or with any intention or idea, make

written or oral propaganda or hold assemblies, demonstrations or

manifestations against the indivisible integrity of the State of

the Turkish Republic, its land and 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."

28. 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 land and

nation. Those carrying out 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 shall not be commuted to fines."

b) The composition of the State Security Court

29. 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. ..."

30. 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."

31. 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. ..."

32. 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 ..."

33. 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."

34. 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."

35. 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

36. The Commission has declared admissible:

- the applicant's complaint that his conviction for giving a

speech, followed by the publication of the speech in a review,

constituted an unjustified interference with his freedom of thought and

freedom of expression;

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

independent and impartial tribunal in that one of the three members of

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

military superiors, whose presence prejudices the independence of the

Court;

- the applicant's complaint that his conviction for expressing his

views, contrary to State policy, on the "Kurdish problem" constituted

discrimination on the ground of political opinion.

B. Points at issue

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

- whether the applicant's conviction for giving a speech, followed

by the publication of the speech in a review, infringed his freedom of

thought and of expression as guaranteed by Articles 9 and 10

(Art. 9, 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

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

- whether the applicant's conviction for expressing his views,

contrary to State policy, on the "Kurdish problem" constituted

discrimination on the ground of political opinion, in breach of

Article 14 (Art. 14) of the Convention.

C. As regards Articles 9 and 10 (Art. 9, 10) of the Convention

38. The applicant complains that his freedom of thought and

expression has been infringed, contrary to Articles 9 and 10

(Art. 9, 10) of the Convention, in that he was convicted for having

given a speech which was subsequently published.

39. The Commission considers that the applicant's complaint

essentially concerns an alleged violation of his freedom of expression.

The Commission will therefore examine this complaint under Article 10

(Art. 10) of the Convention, which states:

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

shall include freedom to hold opinions and to receive and impart

information and ideas without interference by public authority

and regardless of frontiers. This Article shall not prevent

States from requiring the licensing of broadcasting, television

or cinema enterprises.

2. The exercise of these freedoms, since it carries with it

duties and responsibilities, may be subject to such formalities,

conditions, restrictions or penalties as are prescribed by law

and are necessary in a democratic society, in the interests of

national security, territorial integrity or public safety, for

the prevention of disorder or crime, for the protection of health

or morals, for the protection of the reputation or rights of

others, for preventing the disclosure of information received in

confidence, or for maintaining the authority and impartiality of

the judiciary."

40. The applicant submits that he was convicted for having expressed

his views on the "Kurdish problem" in Turkey. He asserts that he

commented on the facts concerning the Kurdish people living in Turkey.

He maintains that his conviction cannot be justified by any of the

reasons permitted under the Convention. He considers that the speech

in question was within the limits of permissible criticism. With regard

to the amendments made by Law No. 4126 of 27 October 1995 to Article 8

of the Anti-Terror Law, he observes that they were made after he had

served his sentence and, therefore, did not apply to his case.

41. The respondent Government maintain that the interference with the

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

prescribed by the Anti-Terror Law. They state that the comments made

by the applicant in his speech constitute a provocation of enmity and

hatred between the Kurdish and Turkish societies which serves to

mobilise people to revolt. They assert that, according to the

Anti-Terror Law, these forms of expression constitute propaganda

against the indivisible integrity of the State. 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 prevention of terrorism carried out by

illegal organisations and, consequently, served to protect territorial

integrity and national security.

43. As to the necessity of the measure in a democratic society, the

respondent Government state that terrorism strikes at the heart of

democracy, the fundamental rights which that concept enshrines and the

judicial and political systems. They assert that the offending speech

was based on the glorification of the activities of the P.K.K. which

is an illegal terrorist organisation with the objective of establishing

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. In this respect the Government assert that 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.

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 8 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 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.

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) 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 further notes that, while freedom of political

debate is at the very core of the concept of a democratic society

(Eur. Court HR, Lingens v. Austria judgment of 8 July 1986, Series A

no. 103, p. 26, para. 42), that freedom is not absolute. A Contracting

State is entitled to subject it to certain "restrictions" or

"penalties", but the Convention organs are empowered to give the final

ruling on whether they are reconcilable with freedom of expression as

protected by Article 10 (Art. 10) (Eur. Court HR, the Observer and

Guardian v. the United Kingdom judgment of 26 November 1991, Series A

no. 216, p. 30, para. 59(c)). In doing so, the Convention organs must

satisfy themselves that the national authorities did apply standards

which were in conformity with the principles embodied in Article 10

(Art. 10) and, moreover, that they based themselves on an acceptable

assessment of the relevant facts (Eur. Court HR, Jersild v. Denmark

judgment of 23 September 1994, Series A no. 298, p. 24, para. 31).

50. 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).

51. 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.

52. The Commission notes that the applicant's speech, as published,

attempts to give an explanation of what the Kurdish question represents

historically. In particular, the applicant points out what alleged role

some external political powers have played in creating the situation

of the Kurdish people as it stands nowadays. As one of his conclusions,

the applicant considers that "the [Kurdish] question can [not] find a

radical solution in a matter of days". As to the reasons for which

there is a "delay in gaining national rights on the Kurds' part", the

applicant finds that this is a problem depending "on the Kurds' failure

to establish international relations and the fact that international

powers closed their doors on the Kurds".

53. The Turkish courts held that, to the extent that the applicant,

in his speech, had alleged that "the citizens of Kurdish race were

denied their national rights; their land was divided among the States

in the region; the Kurds were fighting for their national rights", his

speech as a whole contained elements of propaganda against the

indivisibility of the State.

54. However, in the Commission's view the applicant expressed his

views on the Kurdish question in relatively moderate terms, and did not

associate himself with the use of violence in the context of the

Kurdish separatist struggle.

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

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

expressing or publishing ideas of a similar kind again in the future.

In the context of political debate such a sentence is likely to deter

citizens from contributing to public discussion of important political

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

para. 44).

56. 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 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

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

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

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

58. 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."

59. The applicant claims that the State Security Courts are

extraordinary courts dealing with political offences and that they are

not sufficiently independent. He contends that one of the three members

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

military superiors; the members of the State Security Court are

appointed by the High Council of Judges and Prosecutors and the

president of this Council is the Minister of Justice and one other

member also holds office in the Ministry of Justice.

60. The respondent Government maintain that this part of the

application is ill-founded and abstract. In this context they submit

that the applicant did not raise any complaint related to the actual

fairness of his trial.

61. 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."

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

present case.

63. 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

64. 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. As regards Article 14 (Art. 14) of the Convention

65. Article 14 (Art. 14) of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

66. The applicant maintains that his conviction for expressing his

views, contrary to State policy, on the "Kurdish problem" constituted

discrimination on the ground of political opinion.

67. Having found a violation of Article 10 (Art. 10) of the

Convention in respect of the applicant's expression of his views, the

Commission considers that no separate issue arises in respect of

Article 14 in conjunction with Article 10 (Art. 14+10).

CONCLUSION

68. The Commission concludes, by 31 votes to 1, that no separate

issue arises in regard to Article 14 in conjunction with Article 10

(Art. 14+10) of the Convention.

F. Recapitulation

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

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

para. 57).

70. 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. 64).

71. The Commission concludes, by 31 votes to 1, that no separate

issue arises in regard to Article 14 in conjunction with Article 10

(Art. 14+10) of the Convention (see above para. 68).

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

PARTLY DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK

I do not find it possible to join the majority in concluding that

there has been a breach of Article 10 of the Convention. In my opinion,

there are no solid grounds for concluding that, in this case, the

interference was not necessary in a democratic society and, in

particular, not proportionate to the aim of maintaining national

security and public safety.

In order to assess whether Mr Okçuoglu's conviction and sentence

answered a "pressing social need" and whether they were "proportionate

to the legitimate aims pursued", it is important to analyse the content

of the applicant's remarks in the light of the situation prevailing in

south-east Turkey at the time. In so doing, the Commission, taking

account of the margin of appreciation left to the Government, should

have confined itself to the question whether the judicial authorities

had good reasons to believe that there was a pressing social need for

such a measure, based on an acceptable assessment of the relevant

facts.

I note in this regard that, according to the national courts,

the applicant had alleged in his speech that "the citizens of Kurdish

race were denied their national rights; their land was divided among

the States in the region; the Kurds were fighting for their national

rights". His speech as a whole thus contained elements of propaganda

against the indivisibility of the State. I find that certain

indissociable sections of the applicant's speech are in fact of an

inflammatory nature and could, therefore, be deemed dangerous

propaganda. In these circumstances, the applicant's conviction and the

penalty imposed on him on account of his speech could reasonably be

said to arise out of a pressing social need.

In the light of these considerations and having regard to the

State's margin of appreciation in this area, I am of the opinion that

the restriction placed on the applicant's freedom of expression was

proportionate to the legitimate aims pursued and that, therefore, it

could reasonably be regarded as necessary in a democratic society to

achieve those aims.

(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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OKÇUOGLU v. TURKEY

OKÇUOGLU v. TURKEY

LEXI