Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26682/95

by Kamil Tekin SÜREK

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 20 February 1995

by Kamil Tekin Sürek against Turkey and registered on 9 March 1995

under file No. 26682/95;

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 14

February 1996 and the observations in reply submitted by the

applicant on 7 June 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen, born in 1957 and resident in

istanbul, is a lawyer.

A. Particular circumstances of the case

Applications Nos. 23927/94, 24122/94, 24735/94, 24762/94 have

been brought by the same applicant, who was the owner of a periodical.

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

be summarised as follows:

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

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

company which owns a weekly review entitled "Haberde Yorumda Gerçek"

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

In the twenty-third issue of the review dated 30 August 1992, two

readers' articles, entitled "Silahlar özgürlügü engelleyemez" (Weapons

cannot win against freedom) and "Suç bizim" (We are guilty) were

published.

In an indictment dated 21 September 1992, the Public Prosecutor

at the istanbul State Security Court, 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.

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.

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 the good conduct of the applicant

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

Court held that the articles at issue contravened Article 8 of the

Anti-Terror Law to the extent that they referred to a certain part of

the Turkish territory as an independent state, "Kurdistan", alleged the

existence of a "national independence war" against the Turkish State,

discriminated on the grounds of race, and contained statements which

aimed at provoking enmity against the Turkish State.

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 at issue 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 was given. He pleaded that

the decision given in his absence and without taking his final

statement was contrary to law.

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

the fine adjudicated by the State Security Court excessive. It set

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

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

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

reasoning dated 12 April 1993.

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

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

had convicted him without duly hearing his defence.

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.

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:

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

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

two and five years and a fine between 50 and 100 million Turkish

lira.

If the offence of propaganda referred to in the preceding

paragraph is committed by means of periodicals, 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 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 from six months to two years and to half of

the fine determined in accordance with the foregoing

provisions."

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

the clauses enclosed in brackets in the text of Articles 6 and 8 of the

Anti-Terror Law above 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.

The Press Law (Law No. 5680)

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.

COMPLAINTS

The applicant complains of violations of Articles 10 and 6 of the

Convention.

As to Article 10 of the Convention, the applicant complains that

his conviction and sentence, as the owner of a periodical which

published articles by its readers, constituted an unjustified

interference with his 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.

The applicant also complains that the length of the criminal

proceedings against him exceeded the reasonable time requirement of

Article 6 para. 1.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 February 1995 and registered

on 9 March 1995.

On 20 February 1995 the Commission decided to communicate the

application, under Articles 10 (freedom of expression) and 6 para. 1

(lack of impartiality and independence) of the Convention, to the

respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of

Procedure.

The Government's 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.

THE LAW

1. The applicant first complains that his conviction as the owner

of a periodical constitutes an unjustified interference with his

freedom of expression 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 in this case, i.e. by Article 8 of the Anti-Terror

Law. They state that the applicant, in his review, published articles

by its readers in which a certain part of Turkish territory had been

referred to as "Kurdistan" and a certain section of the population as

"Kurds". They also state that the articles at issue alleged the

existence of a "national independence war" against the Turkish State

and contained statements which aimed at provoking enmity against the

Turkish State. They assert that 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.

The Government also maintain that the purpose of the conviction

of the applicant 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 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 interview in question is based

on the glorification of the activities of the PKK being an illegal

terrorist organisation for the establishment of an independent Kurdish

State against the Turkish State. They submit that it is generally

accepted in comparative and international law on terrorism, that

restrictions on Convention rights will be deemed necessary in a

democratic society threatened by terrorist violence, as being

proportionate to the aim of protecting public order.

In this respect the Government assert that the decisions of the

istanbul State Security Court and the Court of Cassation did not exceed

the margin of appreciation conferred on States by the Convention.

The applicant contests all these arguments. He maintains that

expression of an opinion cannot constitute an offence. He states that

the articles at issue had been written by readers of the review.

The applicant also maintains that his conviction cannot be

justified for any of the reasons permitted under the Convention. He

considers that it was completely out of proportion to rely on such

reasons, particularly in view of the limited circulation of the review.

The applicant claims that the amendments made to the Anti-Terror

Law and the developments in the re-examined cases of persons who had

been convicted and sentenced under Article 8 of the said Law are simply

repetitions of the previous sentences.

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, the above 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 as required by Article 6 para.

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

reads as follows:

"1. 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 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. 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. 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.

Accordingly the Government submit that 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. 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.

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 him 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 total period to be considered began

on 21 September 1992 when the public prosecutor charged the applicant

and ended on 30 September 1994 when the Court of Cassation delivered

its judgment. It therefore amounted to 24 months and 9 days.

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 the 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).

In the instant case, the Commission observes that the total

period at issue was not 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

his freedom of expression and the alleged lack of impartiality

and independence of the tribunal which convicted him.

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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SÜREK v. TURKEY

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