EUROPEAN COMMISSION OF HUMAN RIGHTS

                       Application No. 26682/95

                           Kamil Tekin Sürek

                                against

                                Turkey

                       REPORT OF THE COMMISSION

                     (adopted on 2 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. 19-46). . . . . . . . . . . . . . . . . . . . . . . . 4

      A.   The particular circumstances of the case

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

      B.   Relevant domestic law

           (paras. 32-46) . . . . . . . . . . . . . . . . . . . . . 7

III.  OPINION OF THE COMMISSION

      (paras. 47-79) . . . . . . . . . . . . . . . . . . . . . . . 13

      A.   Complaints declared admissible

           (para. 47) . . . . . . . . . . . . . . . . . . . . . . .13

      B.   Points at issue

           (para. 48) . . . . . . . . . . . . . . . . . . . . . . .13

      C.   As regards Article 10 of the Convention

           (paras. 49-69) . . . . . . . . . . . . . . . . . . . . .13

           CONCLUSION

           (para. 70) . . . . . . . . . . . . . . . . . . . . . . .17

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

           (paras. 71-76) . . . . . . . . . . . . . . . . . . . . .17

           CONCLUSION

           (para. 77) . . . . . . . . . . . . . . . . . . . . . . .18

      E.   Recapitulation

           (paras. 78-79) . . . . . . . . . . . . . . . . . . . . .19

PARTLY DISSENTING OPINION OF MR F. MARTINEZ

JOINED BY MR R. NICOLINI. . . . . . . . . . . . . . . . . . . . . .20

PARTLY DISSENTING OPINION OF MR B. CONFORTI

JOINED BY MRS G.H. THUNE, MM L. LOUCAIDES,

M.A. NOWICKI, G. RESS, K. HERNDL, M. VILA AMIGÓ,

MRS M. HION,  MM N. NICOLINI AND A. ARABADJIEV. . . . . . . . . . .21

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 two readers'

articles in a weekly review. The applicant is the major shareholder in

the publishing company concerned.

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

his conviction constituted an unjustified interference with his freedom

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

Convention that his case was not tried by an independent and impartial

tribunal.

B.    The proceedings

6.    The application was introduced on 20 February 1995 and registered

on 9 March 1995.

7.    On 4 September 1995, the Commission decided, pursuant to

Rule 48 para. 2(b) of its Rules of Procedure, to give notice of the

application to the Turkish Government and to invite the parties to

submit written observations on the admissibility and merits of the

applicant's complaints based (under Article 10 of the Convention) on

the alleged violation of his freedom of expression and (under Article 6

para. 1 of the Convention) on the alleged violation of the principle

of a fair trial by a court satisfying the conditions of independence

and impartiality.

8.    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.

9.    The Government's written observations were submitted on

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

purpose. The applicant replied on 7 June 1996.

10.   On 14 October 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 impartiality and

independence 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.

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.   On 27 February 1997 the Government submitted supplementary

observations. The applicant submitted comments in reply on

16 April 1997.

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 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

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

Deniz Basin Yayin Sanayi ve Ticaret Organizasyon A.S., a Turkish

company, which owns a weekly review entitled Haberde Yorumda Gerçek

(The Truth of News and Comments), published in istanbul.

20.   In issue No. 23 dated 30 August 1992, two readers' articles,

entitled "Silahlar Özgürlügü Engelleyemez" ("Weapons cannot win against

freedom") and "Suç Bizim" ("It is our fault"), were published.

21.   A translation of these articles is as follows:

a)    "Weapons cannot win against freedom

      In the face of the escalating war of national liberation in

      Kurdistan, the fascist Turkish army continues to carry out

      bombings. The «Sirnak massacre» which Gerçek journalists revealed

      at the cost of great self-sacrifice has been another concrete

      example of this week.

      The brutalities in Kurdistan are in fact the worst that have been

      experienced there in the past few years. The massacre carried out

      in Halepçe in Southern Kurdistan by the reactionary BAAS

      administration is now taking place in Northern Kurdistan. Sirnak

      is concrete proof of it. By causing provocation in Kurdistan, the

      Turkish Republic was heading for a massacre. Many people were

      killed. In a 3-day attack with tanks, shells and bombs, Sirnak

      was razed to the ground.

      And the bourgeois press, en masse, wrote about the slaughter.

      And as the bourgeois press has said, there are indeed scores of

      «unanswered» questions to be asked. As to Sirnak, the attack on

      Sirnak is the most effective form of the campaign that is being

      waged throughout Turkey to eradicate the Kurds. Fascism will

      follow it up with many more Sirnaks.

      But the struggle of our people for national freedom in Kurdistan

      has reached a point where it can no longer be thwarted by

      bloodshed, tanks and shells. Every attack launched by the Turkish

      Republic to wipe out the Kurds intensifies the struggle for

      freedom. The bourgeoisie and its toadying press, which draw

      attention every day to the brutalities in Bosnia-Herzegovina,

      fail to see the brutalities committed in Kurdistan. Of course,

      one can hardly expect reactionary fascists who call for a halt

      in the brutalities in Bosnia-Herzegovina to call for a halt in

      the brutalities in Kurdistan.

      The Kurdish people, who are being torn from their homes and their

      fatherland, have nothing to lose. But they have much to gain."

b)    "It is our fault

      The TC murder gang is continuing its murders... on the grounds

      of  «protecting the Republic of Turkey». But as people wake up

      to what is happening and become more aware, as they gradually

      learn to stand up for their rights and the idea that «if they

      won't give, then we'll take by force» gradually germinates in

      people's minds and grows stronger day by day - as long as this

      continues, the murders will obviously also continue...  Beginning

      of course with those who planted the seed in people's minds -

      according to the generals, imperialism's hired killers, and

      according to the double-chinned, pot-bellied, stiff-necked

      Turguts, Süleymans and Bülents...  Hence the events of 12 March,

      hence the events of 12 September...  Hence the gallows, hence the

      prisons, hence the people sentenced to 300 or 400 years. Hence

      the people murdered in the torture rooms «in order to protect the

      Republic of Turkey». Hence the Mazlum Dogans exterminated in

      Diyarbakir Prison... Hence the Revolutionaries recently

      officially assassinated... The TC murder gang is continuing - and

      will continue - to commit its murders. Because the awakening of

      the people is like a flood of enthusiasm... Hence Zonguldak,

      hence the municipal workers, hence the public service

      employees... Hence Kurdistan. Can the «murder gangs» stop that

      flood? There may be some who see the title of this letter and

      wonder what on earth it has to do with the text.

      The «hired killers» of imperialism, i.e. the authors of the

      12 September coup d'état, and their successors of yesterday and

      today, those who are still looking for «democracy», who in the

      past participated in one way or another in the struggle for

      democracy and freedom, who now covertly or openly criticise their

      past actions, who confuse the masses and present the

      parliamentary system and the rule of law as the means of

      salvation, give the green light to the killings of the TC murder

      gang.

      I am addressing the «faithful servants» of imperialism and its

      hardened spokesman(-men), the one(s) who said some time ago «You

      won't get me to say that the nationalists commit crimes», who

      say(s) today «Those are not what we call journalists», who say(s)

      «Who's against demonstrations? Who's against claiming one's

      rights? Of course they can hold a march... They're my workers,

      my peasants, my public employees», but then has (have) the public

      employees who march to Ankara beaten up in the very heart of the

      city and say(s) afterwards «The police did the right thing», and

      who postpone(s) strikes for months on end. I am addressing the

      blabbers, the deserters and the charlatans who are stirring up

      the reactionary consciousness of the masses, who try to judge

      these people by their attitude towards Kurdistan and try to work

      out how «democratic» they are. The guilt of the murder gang is

      proven. It is through flesh and blood experience that people are

      beginning to see it and realise it. But what about the guilt of

      the charlatans, the ones who are thwarting the struggle for

      democracy and freedom... Yes, what about their guilt... They have

      their share in the killings by the murder gang... May their

      «union» be a happy one!"

22.   In an indictment dated 21 September 1992, the Public Prosecutor

at the istanbul State Security Court (istanbul Devlet Güvenlik

Mahkemesi), on account of the published articles, charged the

applicant, being the owner of the review, with disseminating propaganda

against the indivisibility of the State and provoking enmity and hatred

among the people. The charges were brought under Article 8 of the

Anti-Terror Law and Article 312 of the Turkish Criminal Code.

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

applicant denied the charges. He asserted that expression of an opinion

cannot constitute an offence. He stated that the said articles had been

written by the readers of the review.

24.   In a judgment dated 12 April 1993, the Court found the applicant

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

no grounds for conviction under Article 312 of the Turkish Criminal

Code. The Court first sentenced the applicant to a fine of

200,000,000 Turkish lira. Then, considering his good conduct during the

trial, it reduced the fine to 166,666,666 Turkish lira.

25.   In the reasoning of its judgment, the Court held that the

incriminated articles contravened Article 8 of the Anti-Terror Law to

the extent that they referred to a certain part of Turkish territory

as an independent state, "Kurdistan", alleged the existence of a

"national independence war" against the Turkish State, made

discriminatory statements on the grounds of race and contained views

which aimed at provoking enmity against the Turkish State.

26.   The applicant appealed. He stated that his trial and conviction

contravened Articles 6 and 10 of the Convention. He asserted that

Article 8 of the Anti-Terror Law was contrary to the Constitution. He

denied that the articles in question disseminated separatist

propaganda. He also asserted that he had not been able to be present

at the hearing during which the decision on his conviction had been

given. He pleaded that the decision given in his absence and without

taking his final statement was contrary to law.

27.   On 26 November 1993 the Court of Cassation found the amount of

the fine, as imposed by the State Security Court, excessive. It set

aside the applicant's conviction and sentence in this respect.

28.   In a judgment dated 12 April 1994, the istanbul State Security

Court first sentenced the applicant to a fine of 100,000,000 Turkish

lira. Thereupon it reduced the fine to 83,333,333 Turkish lira. As to

the grounds for conviction, the Court, inter alia, reiterated its

reasoning dated 12 April 1993.

29.   The applicant appealed. He reiterated the defence which he had

made earlier. He also stated that the State Security Court had

convicted him without having duly heard his defence.

30.   On 30 September 1994 the Court of Cassation dismissed the appeal.

It upheld the cogency of the State Security Court's reasoning and its

assessment of evidence.

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 8 March 1996 the Court sentenced the applicant to

the previous sentence.

B.    Relevant domestic law

a)    Anti-Terror Legislation

32.   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 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."

33.   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 dosani 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."

34.   In its judgment No. 1991-18/20, dated 31 March 1992, the

Constitutional Court found the above clause in square brackets to be

contrary to the Constitution and annulled it. The decision was

published in the Official Gazette on 27 January 1993. The annulled

clause ceased to have effect on 27 July 1993.

35.   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

36.   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'.  ... "

37.   Under Article 7 of the Press Law, in cases where a periodical is

owned by a company, the major shareholder in that company is considered

to be the owner of the periodical.

c)    Legislation on the State Security Court

38.   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. ..."

39.   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."

40.   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.  ..."

41.   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 ..."

42.   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."

43.   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."

44.   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.

d)    Turkish Criminal Code

45.   Article 312 paras. 2 and 3

      "Halki; sinif, irk, din, mezhep veya bölge farkliligi gözeterek

      kin ve düsmanliga açikça tahrik eden kimse bir yildan üç yila

      kadar hapis ve ucbin liradan onikibin liraya kadar agir para

      cezasi ile cezalandirilir. Bu tahrik umumun emniyeti için

      tehlikeli olabilecek bir sekilde yapildigi takdirde faile

      verilecek ceza üçte birden yariya kadar arttirilir.

      Yukaridaki fikralarda yazili suçlari 311 inci maddenin ikinci

      fikrasinda sayilan vasitalarla isleyenlere verilecek cezalar bir

      misli arttirilir."

      "It shall be an offence punishable by not less than one and not

      more than three years' imprisonment, and by a fine of not less

      than three thousand and not more than twelve thousand lira, to

      provoke feelings of hatred and enmity among the people by

      discriminating on the grounds of social class, race, religion,

      sect or region. If such provocation imperils public safety, the

      punishment shall be increased by one third to one half of the

      sentence.

      The punishment for the acts defined in the preceding paragraph

      shall be doubled where they have been committed by the means

      enumerated in paragraph 2 of Article 311."

46.   The means enumerated in Article 311 para. 2 of the Criminal Code

are: mass media, audio tapes, records, films, newspapers, magazines,

handwritten texts distributed in the form of leaflets, placards and

posters.

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 readers' letters in question constituted an

unjustified interference with his freedom of expression;

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

independent and impartial tribunal.

B.    Points at issue

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

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

of the two readers' articles infringed his freedom of expression as

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

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

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

by an independent and impartial tribunal within the meaning of

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

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

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 two readers'

articles.

50.   Article 10 (Art. 10) of the Convention provides as follows:

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

      shall include freedom to hold opinions and to receive and impart

      information and ideas without interference by public authority

      and regardless of frontiers.  This Article shall not prevent

      States from requiring the licensing of broadcasting, television

      or cinema enterprises.

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

      duties and responsibilities, may be subject to such formalities,

      conditions, restrictions or penalties as are prescribed by law

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

      national security, territorial integrity or public safety, for

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

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

      others, for preventing the disclosure of information received in

      confidence, or for maintaining the authority and impartiality of

      the judiciary."

51.   The applicant submits that the expression of an opinion cannot

constitute an offence. He maintains that his conviction cannot be

justified by any of the reasons permitted under the Convention. Various

limitations on freedom of expression have existed in Turkey for decades

and their existence cannot be considered justified by the upheaval of

terrorism during recent years.

52.   The applicant also submits that the weekly review concerned has

never displayed any support for terrorism. The incriminated letters

were written by readers of the review and he, having simply been the

major shareholder of the publishing company, had no personal

involvement whatsoever in their creation or publication. In any event,

his sentence was disproportionate, particularly in the light of the

limited circulation of the review. As to the amendments made to the

Anti-Terror Law, he submits that the re-examination of the cases of

those persons who had been convicted and sentenced under Article 8 of

the said Law resulted in the mere repetition of the previous sentences.

53.   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 letters written by readers

in which a certain part of Turkish territory had been referred to as

"Kurdistan" and a certain part of the population as "Kurds". The

incriminated letters alleged the existence of a "national independence

war" against the Turkish State and contained statements which aimed at

provoking enmity against the Turkish State. According to Article 8 of

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.

54.   The Government also maintain that the aim of the applicant's

conviction was linked to the control of fierce terrorist activities

carried out by illegal organisations and, consequently, was the

protection of territorial integrity and national security.

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

respondent Government state that the threat posed to Turkey by the

P.K.K. (the Kurdistan Workers Party - a terrorist organisation) and its

affiliations is internationally recognised, as is the need to react

firmly to it. Terrorism strikes at the heart of democracy, the

fundamental rights which that concept enshrines and the judicial and

political systems. They assert that the articles in question imply the

glorification of the P.K.K.'s activities, the P.K.K. being an illegal

terrorist organisation fighting for 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.

56.   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).

57.   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.

58.   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.

59.   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.

60.   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.

61.  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".

62. 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).

63.   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).

64.   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.

65.   The Commission notes that the reader's letter entitled "Weapons

cannot win against freedom" contains phrases such as an "escalating war

of national liberation in Kurdistan" and "the fascist Turkish army".

In the article it is stated that "by causing provocation in Kurdistan,

the Turkish Republic was heading for a massacre", a "campaign ... is

being waged throughout Turkey to eradicate the Kurds" and "every attack

launched by the Turkish Republic to wipe out the Kurds intensifies the

struggle for freedom". As a conclusion, it is suggested that "the

Kurdish people, who are being torn from their homes and their

fatherland, have nothing to lose. But they have much to gain."

66.   In the reader's letter entitled "It is our fault", the Turkish

army is denounced as a "murder gang" which "is continuing - and will

continue - to commit its murders". It is stated that "people [were]

murdered in ... torture rooms «in order to protect the Republic of

Turkey»". As a conclusion, it is suggested that "the guilt of the

murder gang is proven. It is through flesh and blood experience that

people are beginning to see it and realise it" and that "the ones who

are thwarting the struggle for democracy and freedom ... have their

share in the killings by the murder gang... ".

67.   The Commission considers that the fact of using strong language

against the Turkish State and the Turkish army or of referring to the

events in south-east Turkey as a war of national liberation was not

sufficient to justify the applicant's criminal conviction. However, the

language used in the articles was such that, in addition to advocating

political change, it could be understood as an expression of support

for armed struggle against the Turkish State for separatist purposes.

The articles could therefore be interpreted as an encouragement of

further violence.

68. Consequently, the Commission, while also taking into account the

sensitive situation in south-east Turkey, finds that the Turkish

authorities were entitled to consider that the publication of the

articles was harmful to national security and public safety. As the

owner of the review, the applicant was subject to duties and

responsibilities which were incumbent upon him even when he permitted

publication of articles by readers in that review. In these

circumstances, the applicant's conviction and the penalty imposed on

him on account of the publication of the articles could reasonably be

regarded as answering to a pressing social need.

69. In the light of these considerations, the Commission, having regard

to the State's margin of appreciation in this area, is 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.

      CONCLUSION

70.   The Commission concludes, by 19 votes to 13, that there has been

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

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

71.   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."

72.   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.

73.   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.

74.   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."

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

present case.

76.   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

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.

E.    Recapitulation

78.   The Commission concludes, by 19 votes to 13, that there has been

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

para. 70).

79.   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. 77).

        M. de SALVIA                          S. TRECHSEL

         Secretary                              President

      to the Commission                     of the Commission

                                                         (or. French)

             PARTLY DISSENTING OPINION OF MR F. MARTINEZ

                       JOINED BY MR R. NICOLINI

      Avec la majorité de la Commission, j'ai voté pour la violation

de l'article 6 par. 1 de la Convention du fait du manque d'impartialité

et d'indépendance de la Cour de Sûreté de l'Etat intervenue en

l'espèce.

      Je pense donc qu'une cour qui ne satisfait pas aux exigences de

l'article 6 de la Convention n'a pas de pouvoir légitime pour décider

du bien-fondé de l'accusation en matière pénale dirigée contre le

requérant.

      Le statut de la Cour de Sûreté de l'Etat étant en soi la source

d'une violation de la Convention, l'arrêt rendu par cette cour et qui

condamne le requérant ne peut être justifié à l'égard de l'article 10

de la Convention.

      A mon avis, le fait de conclure à la violation de l'article 6

par. 1 en même temps qu'à la non-violation de l'article 10 constitue

une "contradictio in terminis".

      Cette contradiction d'ordre logique ébranle un vieux principe

général du droit selon lequel un vice à l'origine de la procédure rend

vicieuses toutes les conséquences qui découlent de cette procédure.

      C'est la raison pour laquelle je pense que, après avoir constaté

un vice dans la composition de la cour qui a condamné le requérant, la

meilleure solution consiste à dire qu'aucune question séparée ne se

pose à l'égard de l'article 10 de la Convention.

                                                         (or. French)

PARTLY DISSENTING OPINION OF MR B. CONFORTI JOINED BY

MRS G.H. THUNE, MM L. LOUCAIDES, M.A. NOWICKI, G. RESS,

K. HERNDL, M. VILA AMIGÓ, MRS M. HION,

MM R. NICOLINI AND A. ARABADJIEV

      J'ai voté contre la conclusion de la majorité selon laquelle il

n'y a pas eu violation de l'article 10 de la Convention.

      Comme la Cour l'a dit maintes fois, la liberté d'expression est

l'un des biens fondamentaux qui mérite la plus grande protection au

sein d'une société démocratique. C'est donc, à mon avis, avec la plus

grande prudence que l'on doit examiner si, dans un cas d'espèce, et

même en tenant compte de la marge d'appréciation reconnue à l'Etat, une

limitation de cette liberté au sens du paragraphe 2 de l'article 10

peut être admise : il convient encore une fois de citer l'opinion de

la Cour selon laquelle les exceptions prévues par ce paragraphe

"appellent une interprétation étroite" (voir, dernièrement, arrêt Zana

c. Turquie du 25 novembre 1997, à paraître  dans le Recueil des arrêts

et décision 1997, par. 51).

      Pour cette raison, je ne suis pas convaincu que l'on puisse

justifier les sanctions prises à l'encontre du requérant, comme le fait

la majorité, par les mots contenus dans la lettre intitulée "Les armes

ne peuvent pas gagner sur la liberté" et en particulier par les phrases

suivantes : "la montée de la guerre de libération nationale dans le

Kurdistan", "l'armée fasciste de Turquie", "en  causant des désordres

dans le Kurdistan, la République turque veut provoquer des massacres",

"une campagne est déclenchée dans toute la Turquie pour déraciner les

kurdes", "chaque attaque lancée par la République turque pour éliminer

les kurdes intensifie la lutte pour la liberté" et "les populations

kurdes qui ont été chassées de leurs maisons et de leur patrie n'ont

rien à perdre et tout à gagner".

      Je ne saurais voir dans ces propos une incitation à la violence

ou à commettre des crimes, incitation qui, dans le Sud-Est de la

Turquie, me paraît le seul comportement qui peut être considéré comme

dépassant les limites d'une manifestation d'opinion protégée par la

Convention. En effet, le requérant ne fait que décrire, certes dans des

termes "heurtant, choquant et inquiétant", ce qui se passe dans cette

région. D'autre part, ses appréciations sur le comportement de l'armée

turque ne diffèrent pas, pour l'essentiel, de certaines appréciations

que la Commission a considéré, dans d'autres affaires, comme tolérables

et ne justifiant pas une dérogation au sens du paragraphe 2 de

l'article 10 (voir Rapport N° 25556/94, Ceylan c. Turquie, par. 44,

concernant un syndicaliste qui avait écrit dans un article qu'"un

génocide est perpétré contre les kurdes en Turquie"; Rapport N° 23462,

Arslan c. Turquie, par. 50, concernant un requérant qui avait soutenu

dans un livre que l'Etat turc opprime la population d'origine kurde,

essaye de détruire leur identité par le génocide, les exils, les

tortures et commet des massacres contre elle ; Rapport N° 24246/94,

Okçuoglu c. Turquie, par. 53, dans le cas d'un requérant qui avait dit,

dans un discours publié dans la presse, que "les kurdes combattaient

pour leurs droits nationaux").

      Il est vrai que dans l'arrêt Zana c. Turquie (par. 57-60), la

Cour a estimé que l'ingérence des autorités turques au sens de

l'article 10, était justifiée par la paragraphe 2 de cet

article lorsqu'un homme politique avait déclaré son soutien au

"mouvement de libération nationale du PKK". Mais la Cour a tenu Ã

préciser (par. 59-60) que cette déclaration ne devait pas être

considérée isolément, qu'elle avait été prononcée lors d'un entretien

publié dans un grand quotidien national, qu'elle avait pris une ampleur

particulière, ayant coïncidé avec des attentats meurtriers perpétrés

par le PKK contre des civils et enfin que le soutien apporté au PKK,

qualifié de mouvement de libération nationale de la part du requérant,

ancien maire de Diarbakir, la ville la plus importante du Sud-Est en

Turquie, était en mesure d'aggraver une situation déjà explosive dans

cette région. Or toute ces circonstances ne sont pas présentes dans

l'espèce, et d'autre part, bien que le requérant ait parlé d'une

"montée de la guerre de libération nationale face à laquelle l'armée

fasciste de Turquie continue à effectuer des bombardements", il ne fait

pas expressément une déclaration de soutien en faveur du PKK. Il s'agit

de différences qui, compte tenu de la nécessité d'une interprétation

étroite du paragraphe 2 de l'article 10, devaient conduire la

Commission à conclure à la violation de l'article 10.

                                                        (or. English)

                 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.