Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26680/95

by Pelin Sener

against Turkey

The European Commission of Human Rights sitting in private on

21 October 1997, 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

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 March 1995 by

Pelin Sener against Turkey and registered on 9 March 1995 under file

No. 26680/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen, born in 1969 and residing in

Cologne, Germany, is a journalist. Before the Commission, she is

represented by Kamil Tekin Sürek, a lawyer practising in istanbul.

A. Particular circumstances of the case:

The facts of the present case as submitted by the parties may be

summarised as follows:

At the material time, the applicant was the owner and the

responsible editor of a weekly review entitled "Haberde Yorumda Gerçek"

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

On 5 September 1993 the istanbul State Security Court ordered the

seizure of the twenty-third edition of the review, dated 4 September

1993, on the grounds that it contained separatist propaganda.

In an indictment dated 29 September 1993, the Public Prosecutor

at the istanbul State Security Court, on account of an article entitled

"Aydin itirafi" ("The confession of an intellectual") published in the

twenty-third edition of the review dated 4 September 1993, charged the

applicant, as the owner and "responsible editor", with disseminating

propaganda against the indivisibility of the State. The charges were

brought under Article 8 of the Anti-Terror Law.

In the proceedings before the istanbul State Security Court, the

applicant denied the charges. She pleaded that the article did not

contain elements of separatist propaganda and that the author had

expressed his opinion in accordance with his freedom of expression.

In a statement to the istanbul State Security Court, the

applicant's legal representative asserted that Article 8 of the Anti-

Terror Law was contrary to the Constitution and Article 10 of the

Convention. He further maintained that trying the applicant before the

State Security Court was contrary to Article 6 para. 1 of the

Convention. He finally requested the applicant's acquittal.

In a judgment dated 5 July 1994, the court found the applicant

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

sentenced her to six months' imprisonment and a fine of fifty million

Turkish Lira. The Court referred in its judgment to certain extracts

from the article. It held, inter alia, that by publishing the article

which referred to a certain part of the Turkish territory as

"Kurdistan" and claimed that a genocide was being carried out in those

territories by the Turkish State, that "Kurdistan" was being bombed,

that chemical weapons were being used there, that people living in

those territories were "Kurdish nationals" and that the media were

dishonouring "the walk towards independence", the applicant had

disseminated propaganda against the indivisible integrity of the

Turkish State with its land and nation.

The applicant appealed and her legal representative, inter alia,

reiterated the defence which she had made before the State Security

Court.

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

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

evidence in rejecting the applicant's defence.

The istanbul State Security Court, on 17 November 1995, also

found the author of the article, Erhan Altun, guilty of an offence

under Article 8 of the Anti-Terror Law. It sentenced him to one year

and one month's imprisonment and a fine of 111,111,110 Turkish Lira.

However, the court, taking into account the good conduct of the author

during the trial, suspended his sentence.

B. Relevant domestic law:

Article 8 of the Anti-Terror Law No.3713 of 12 April 1991 before

the amendments of 27 October 1995

"Written and spoken propaganda, meetings, assemblies and

demonstrations aimed at undermining the indivisible territorial

and national unity of the State of the Turkish Republic are

prohibited irrespective of the methods used or the intention and

ideas behind them. Whosoever carries on such an activity shall

be sentenced to a term of imprisonment between two and five

years' imprisonment and to a fine of between fifty and one

hundred million Turkish Lira."

If the offence of propaganda referred to in the preceding

paragraph is committed by means of a periodical, as defined in

Article 3 of the Press Law No. 5680, the owners of such

periodicals shall also 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 of the previous month;

- [for printed works that are not periodicals or for

periodicals which have recently started business, the fine

shall be ninety per cent of the average monthly sales of

the daily publication with the highest circulation.]

In any case, the fine may not be less than 100 million Turkish

Lira.

Responsible editors of these periodicals shall be sentenced to

between six months and two years' imprisonment and to half the

fine determined in accordance with the foregoing provisions."

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

those provisions of Article 8 of the Anti-Terror Law reproduced above

in brackets to be contrary to the Constitution and annulled them. The

Constitutional Court held that the annulled text would cease to have

effect six months after the date of publication of the annulment

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

January 1993 and therefore these clauses ceased to have effect as of

27 July 1993.

COMPLAINTS

1. The applicant complains, under Article 10 of the Convention,

that her conviction and sentence for publishing an article, as the

owner and "responsible editor" of a periodical, constituted an

unjustified interference with her freedom of expression and in

particular with her right to receive and impart information and ideas.

2. The applicant also complains under Article 18 of the

Convention that the restrictions which were applied to her freedom of

expression under the provisions of the Anti-Terror Law were

inconsistent with the legitimate aims prescribed in Article 10 para.

2 of the Convention.

3. The applicant further complains under Article 6 para. 1 of

the Convention that her case was not heard by an independent and

impartial tribunal. In this regard she asserts that one of the three

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

his military superiors.

4. The applicant lastly complains under Article 6 para. 1 of

the Convention of the length of the criminal proceedings. She asserts

that a trial which lasted for 14 months cannot be considered to have

satisfied the reasonable time requirement of this Convention provision.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 7 March 1995 and registered on

9 March 1995.

On 4 September 1995 the Commission decided pursuant to Rule 48

para. 2 (b) of the Rules of Procedure to communicate the application

to the respondent Government. The Government's observations were

submitted on 20 March 1996. The applicant replied on 7 June 1996.

THE LAW

1. The applicant complains, under Article 10 (Art. 10) of the

Convention, that her conviction and sentence for publishing an article,

as the owner and "responsible editor" of a periodical, constituted an

unjustified interference with her freedom of expression and in

particular with her right to receive and impart information and ideas.

Article 10 (Art. 10) reads 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...

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."

The applicant also complains under Article 18 (Art. 18) of the

Convention that the restrictions which were applied to her freedom of

expression under the provisions of the Anti-Terror Law were

inconsistent with the legitimate aims prescribed in Article 10 para.

2 (Art. 10-2) of the Convention. Article 18 (Art. 18) reads as follows:

"The restrictions permitted under this Convention to the said

rights and freedoms shall not be applied for any purpose other

than those for which they have been prescribed."

The Government maintain that in this case 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 her review, published an article, in which the

author referred to a certain part of Turkish territory as "Kurdistan"

and claimed that "Kurdistan" was being destroyed by the State Security

forces, that genocide was being carried out against the Kurdish people

and that the media were dishonouring "the walk towards independence"

being undertaken by the Kurds.

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

conviction was linked to the control of terrorism carried out by

illegal organisations and consequently served to protect territorial

integrity and national security.

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

respondent Government state that the threat posed to Turkey by the PKK

and its affiliates 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 article in question called for

the establishment of an independent Kurdish State against the Turkish

State. They submit that it is a generally accepted tenet of

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 claim 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.

The Government conclude that the applicant's conviction was fully

justified under the second paragraph of Article 10 (Art. 10) of the

Convention, for reasons of national security, territorial integrity and

public safety.

Accordingly the Government submit that the applicant's above

complaints were manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

The applicant contests all these arguments. She maintains that

her conviction cannot be justified for any of the reasons permitted

under the Convention. She considers that the article in question was

within the limits of permissible criticism.

The applicant also maintains that her conviction for an offence

under Article 8 of Anti-Terror Law was contrary to law. In this context

she explains that the courts suspended the sentence of the author who

had been charged on account of the same article and under the same

provisions. She alleges that, by giving two contradictory decisions,

the national authorities exceeded the margin of appreciation conferred

on the Contracting States by the Convention.

The Commission has conducted a preliminary examination of the

parties' arguments. It considers that this part of the application

raises complex factual and legal issues which cannot be resolved at

this stage of the examination of the application, but require an

examination of the merits. Consequently, this complaint cannot be

declared manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

2. The applicant further complains that her case was not heard by

an independent and impartial tribunal as required by Article 6 para.

1 (Art. 6-1) of the Convention. In so far as relevant, this provision

reads as follows:

" In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law..."

The Government maintain that 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 were

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. State

Security Courts are composed of three members, one of whom is a

military judge. A civil judge acts as president and all 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 army for the

relevant period. The judges of State Security Courts evaluate the

evidence and take their decisions in accordance with the law and on

their own conscience as required by Article 138 of the Turkish

Constitution. The verdicts of such courts are subject to review by the

Court of Cassation.

Accordingly the Government submit that the applicants above

complaints are manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

The applicant claims that the State Security Courts are

extraordinary courts dealing with political offences. She contends that

the State Security Court lacks sufficient independence as its members

are appointed by the High Council of Judges and Prosecutors, the

president of this Council being the Minister of Justice and two other

members also holding office in the Ministry of Justice, and as one of

the three members of the State Security Court is a military judge

answerable to his military superiors.

The Commission has conducted a preliminary examination of the

parties' arguments. It considers that this part of the application

raises complex factual and legal issues which cannot be resolved at

this stage of the examination of the application, but require an

examination of the merits. Consequently, this complaint cannot be

declared manifestly ill-founded within the meaning of Article 27 para.

2 (Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

3. The applicant lastly complains that the criminal proceedings

brought against her were not dealt with within a "reasonable time" as

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

The Commission notes that the period to be considered began on

5 September 1993 when the domestic court ordered the seizure of all

copies of the twenty-third edition of the review and ended on 30

November 1994 when the Court of Cassation delivered its judgment. It

therefore lasted less than fifteen months.

The Commission recalls that the reasonableness of the length of

proceedings must be assessed in the light of the particular

circumstances of the case and having regard to the criteria laid down

in the established case-law, in particular the complexity of the case

and conduct of the applicant and of the relevant authorities (Eur.

Court HR, Yagci and Sargin v. Turkey judgment of 8 June 1995, Series

A no. 319, p. 20, para. 59). Furthermore, the Convention organs also

consider it appropriate to make an overall assessment of the length

of proceedings in some cases (see e.g. Eur. Court HR, Cifola v. Italy

judgment of 27 February 1992, Series A no. 231, p. 9, para. 14).

In the instant case, the Commission finds that the total period

at issue does not appear unreasonably long. Moreover, the applicant has

not shown any substantial periods of inactivity attributable to the

judicial authorities.

It follows that this part of this application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaints relating to the alleged interference with

her freedom of expression and the alleged lack of impartiality

and independence of the tribunal which convicted her;

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary of the Commission President to the Commission

(M. de SALVIA) (S. TRECHSEL)

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SENER v. TURKEY

SENER v. TURKEY

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