Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23168/94

by Hüseyin KARATAS

against Turkey

The European Commission of Human Rights sitting in private on

14 October 1996, 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

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

G.B. REFFI

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

Mr. H.C. KRÜGER, 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 27 August 1993 by

Hüseyin Karatas against Turkey and registered on 4 January 1994 under

file No. 23168/94;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 20 February 1995 to communicate the

application ;

- the observations submitted by the respondent Government on 1

August 1995 and the observations in reply submitted by the

applicant on 30 May 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish national of Kurdish origin, born in 1963

and residing in istanbul, is a poet. Before the Commission, he is

represented by Gulizar Tuncer, 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:

In November 1991 the applicant had an anthology of his poems

entitled "Dersim - Bir isyanin Türküsü" (Dersim - Folk Song of a

Rebellion) published in istanbul.

In an indictment dated 8 January 1992 the Public Prosecutor at

the istanbul State Security Court charged the applicant with

disseminating propaganda in his poetry against the indivisibility of

the State. In his indictment the Public Prosecutor quoted certain

extracts from the applicant's poems. The charges were brought under

Article 8 paragraph 1 of the Anti-Terror Law.

In the proceedings before the istanbul State Security Court, the

applicant denied the charges. He stated that the extracts from his

anthology, relied on by the Public Prosecutor in his indictment, were

merely quotations that the applicant had taken from other sources.

In a judgment dated 22 February 1993 the court found the

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

It originally sentenced the applicant to two years' imprisonment and

a fine of 50,000,000 Turkish lira. Then, taking into consideration 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. The Court relied on certain extracts from applicant's

published poems. It held, inter alia, that the following passages

amounted to propaganda against the indivisibility of the State: "...let

us go! children of those who do not yield, we have heard, there is a

rebellion in the mountains, would one stay behind upon hearing

this?"..."let the guns speak freely"..."the whelps of the Ottoman

whore"..."I invite you to die, in these mountains, freedom is blessed

with death"..."Kurds and Kurdistan will live"..."the Kurdish youth will

take revenge".

The applicant appealed.

On 1 July 1993 the Court of Cassation, after a hearing, dismissed

the appeal. It upheld the cogency of the State Security Court's

assessment of evidence and its reasoning in rejecting the applicant's

defence.

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 and sentenced him to one year and one month's

imprisonment and a fine of 133,333,333 Turkish lira under Article 8

paragraph 1 of the Anti-Terror Law as amended.

B. Relevant domestic law:

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

(before the amendments of 27 October 1995)

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

written and oral propaganda or hold assemblies, demonstrations

or manifestations against the indivisible integrity of the State

of the Turkish Republic with its land and nation. Those carrying

out such an activity shall be sentenced to imprisonment between

two and five years and to a fine of between 50 and 100 million

Turkish lira.

Article 8 paragraph 1 of Anti-Terror Law as amended by Law No.

4126 of 27 October 1995

"No one shall make written and oral propaganda or hold

assemblies, demonstrations and manifestations against the

indivisible integrity of the State of the Turkish Republic with

its land and nation. Those carrying out such an activity shall

be sentenced to imprisonment between one and three years and a

fine of between 100 and 300 million Turkish lira. In case of re-

occurrence of this offence, sentences shall not be commuted to

fines."

COMPLAINTS

The applicant complains of violations of Articles 9, 10 and 6 of

the Convention.

As to Articles 9 and 10 of the Convention, the applicant

complains that his conviction on account of the publication of his

poems constituted an unjustified interference with his freedom of

thought and freedom of expression.

As to Article 6 para. 1 of the Convention the applicant complains

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.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 August 1993 and registered

on 4 January 1994.

On 20 February 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure. The Government's observations

were submitted on 29 July 1995, after an extension of the time-limit

fixed for that purpose. The applicant replied on 31 October 1995.

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 30 May 1996.

THE LAW

1. The applicant first complains that his conviction for publishing

his poems constituted an unjustified interference with his freedom of

thought and freedom of expression. The Commission has examined this

complaint under Article 10 (Art. 10) of the Convention which 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..."

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 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 in the impugned poems the applicant made a reference to a certain

region of Turkish territory as "Kurdistan", and supported the terrorist

activities of the PKK by referring to it as an "independence struggle

of the Kurds". The Government assert that according to Article 8 of the

Anti-Terror Law these forms of expression constitute propaganda against

the indivisible integrity of the State. They consider that the domestic

courts therefore interpreted the law reasonably.

The Government also maintain that the applicant's conviction was

part of the campaign to prevent terrorism by illegal organisations and

consequently served to protect the 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 affiliated organisations is internationally recognised, as is

the need to react firmly to it. They state that freedom of expression

constitutes one of the essential foundations of a democratic society.

However, in a situation where politically-motivated violence poses a

constant threat to the lives and security of the population and where

advocates of this violence seek access to the mass media for publicity

purposes, it is particularly difficult to strike a fair balance between

the requirements of protecting freedom of information and the

imperatives of protecting the State and the public against armed

conspirators seeking to overthrow the democratic order which guarantees

this freedom and other human rights. They assert that the poems in

question are based on propaganda against the indivisible integrity of

the 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 claim that the decisions of the

domestic courts did not exceed the margin of appreciation conferred on

States by the Convention.

The applicant contests all these arguments. He maintains that the

extracts from his poems relied on by the domestic courts in their

decisions were merely quotations from other sources.

The applicant also alleges that his conviction was not for any

legitimate purpose under the Convention. He states that he was

convicted because he had written poems about the facts concerning the

Kurdish people in Turkey.

He alleges that freedom of expression should also protect

opinions which carry a risk of damaging, or which actually damage the

interests of others, or opinions which are contrary to the official

line unless there exists a pressing social need for restraining them.

He contends that, in the circumstances of the present case, there was

no pressing social need for his conviction.

With regard to the amendments made by Law No. 4126 of 27 October

1995 to Article 8 of the Anti-Terror Law, the applicant states that

following the re-examination of the case, the sentence remains

enforceable against him. He emphasises that in these circumstances his

status has not changed following the amendments to the said Law.

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 his case was not heard by

an independent and impartial tribunal.

The Government maintain that State Security Courts, which are

special courts set up to deal with offences against the existence and

survival 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 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 profession and not being a member of the

military. The judges of State Security Courts evaluate the evidence and

take their decisions in accordance with the law and the dictates of

their 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 this part of the

application is 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 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.

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.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

ANNEX

T.R.

ISTANBUL

STATE SECURITY COURT

ATTORNEY GENERAL

NUMBER

Prel. : 1991/1126

Case : 1992/13

Indictment : 1992/9

I N D I C T E M E N T

STATE SECURITY COURT NO ( )

Plaintiff : Order of Law

Defendants: 1-HUSEYIN KARATAS, son of Ibis and Elif, DOB. 1963,

registered at Pinaronu village, Erzincan Central

province. Resident at Resitpasa caddesi 25/11,

Avcilar/ Istanbul.

2-SEVKI OMEROGLU, son of Huseyin and Hidayet, DOB.

1958, registered at Hocadede mah. Fatih [Istanbul],

resident at Fatih cad. 166/8 of the same district.

Offence :DISSEMINATING PROPAGANDA AGAINST INDIVISIBILITY OF

THE STATE.

Date of offence : December 1991

A.A.L. [Applicable Articles of the Law]:

Article 8/1 of the Act no: 3713 for Huseyin KARATAS,

Article 8/2 of the Act no: 3713 for Sevki OMEROGLU

Article 36 of the TPC for the confiscated book.

Preliminary investigation documents were examined.

Defendant Huseyin KARATAS is the author of the poetry book titled

A SONG OF REBELLION, DERSIM. Other defendant Sevki OMEROGLU is the

proprietor of Donem Publications, which released the aforementioned

book.

Page 5

...

a great passion

gaining significance

in our sacred hands

- the spark of ancient Kurdistan

unless and until Munzursuyu(1) turns crimson

with our scarlet blood

we will not be tramped upon

by the whelps of the Ottoman whore

after all

millenniums were spent under these customs

freedom becomes the tradition of the tribe

...

Page 6

Dersim(2)'s heart is torn apart

roads forcing in like serpents

dynamites exploding

noise of excavators

military boots ...

bottle of medicine in one hand

poison in the other

Towers of Babylon in their hands

Turks are coming

with their schools

and tongue

do not think we are unaware

each sentence

is cruelty ...

Page 7

in the corridors of power

on the platforms

in the barracks

genocide has no time to lose

neither do those who commit them.

Page 8

I call the head of Hizir(3) a ram

we neither saw nor heard

anything like this

let me ask you brother,

what book can justify

such cruelty?

Page 11;

And now cruelty is riding full speed

more blood will flow

Resistance and betrayal,

freedom and surrender

side by side.

Page 12

Has it not been the custom

for millennia

that blood washes blood

Page 13

For millennia

we have become immune

against disasters

we are drunk on

rebellion's fire for our Kurdistan,

for Dersim (2).

Page 18

Let us go!...

children of those who do not yield

we have heard

there is a rebellion in the mountains

would one stay behind

upon hearing?

let the festivities begin

let the flames reach the sky(4)

let the guns speak freely

sacred Kurdistan!...

friendly Kurdistan!...

beautiful Kurdistan!...

Page 20

O my friend, for millennia,

we have lived with

the most barbaric cruelty.

let me ask you, in the name of these modern times

for how long will we put up with the burden

of such cruelty?

Page 21

to these majestic mountains

which will set us free...

Page 22

the whelps of the Ottoman whore

strikes at the mountains

at our rapid waters

at our springs

Page 23

genocide has no time to lose

neither do those who commit them.

...

millennia of tribal life

besieged in our besieged country.

Page 24

an unbounded anger in my heart

a speechless revenge

Page 26

Customs will not settle down

rebellion comes from the mountains

from the millennia of history

some died for it,

walked to death...

Page 27

A handful of heroes

they were,

hope and resistance baptised

their bodies

Page 28

Those who walked to death

before us,

contributed to freedom

ounce by ounce.

Page 29

Hail to thee Kurdish youth

At seventy-five

I am a martyr,

joining the Kurdish martyrs.

Dersim (2) is defeated

but the Kurdish culture ...

Page 30

and Kurdistan will survive

the Kurdish youth will take revenge

whilst my life leaves my skin,

my heart will not be in sorrow

it is a magnificent happiness

to have lived this day,

joining the Kurdish martyrs...

Page 32

We survived for centuries without a state,

in exiles, in massacres

through ages, through roads,

We were followed by swords on our trail

but not defeated by swords

Page 33

Sheik Alisar efendi of Hasanan (5)

was brave enough

to know how to die

for his honour, country and freedom.

How to describe

all these things courageous and heroic

that turns my body into pure bravery

to the next generation.

Page 35

I invite you to freedom

to death

In these mountains

In this sacred spring

one walks with death

freedom is blessed with death

I invite you to die

Time

Is injured like heartbeat.

Page 46

Barracks, barrack schools, children, women

handsome youngsters, mothers, songs of revenge, arm in arm

side by side, surrender and resistance, pride and honour,

the Kurd's honour

In the oaths of Delil Dogan, Mazlum Dogan, Ali Haydar

Yildiz, Hayri Durmus (6)

Becomes a secret rebellion, inch by inch, drop by drop.

Being of the opinion that the use of such expressions amount to

dissemination of propaganda against the indivisibility of the state,

Your court are requested, in the name of the law, to hold a

hearing whereby the defendants may be judged and sentenced for their

actions in accordance with article 39 of the Act No. 5680 and article

20 of the Act No. 2845.

P.Prosecutor 19015

Cevat Ozel

(Stamp)

Notes

(1)Munzursuyu : A river

(2)Dersim : A Kurdish town where in 1930's a rebellion was

suppressed by the government forces.

(3)Hizir : Mythical god of land, his annual meeting with

the marine god is publicly celebrated with

fire.

(4)Flames,

setting fire : Symbolic sign of starting the Newroz fire of

rebellion.

(5)Hasanan : Name of a tribe.

(6)Various individuals who lost their lives in the conflict with the

government forces.

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KARATAS v. TURKEY

KARATAS v. TURKEY

LEXI