Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24122/94

by Kamil Tekin SUREK

against Turkey

The European Commission of Human Rights sitting in private on

2 September 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

J.-C. SOYER

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 9 March 1994 by

Mr. Kamil Tekin Sürek against Turkey and registered on 11 May 1994

under file No. 24122/94;

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 25

September 1995 and the observations in reply submitted by the

applicant on 6 November 1995;

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, 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 an indictment dated 29 May 1992, the Public Prosecutor at the

Istanbul Security Court, on account of a news report concerning a press

declaration by former deputies Leyla Zana and Orhan Dogan and an

English Committee which was published on 26 April 1992, charged the

applicant as the owner of the review, with disseminating the identities

of the officials mandated to fight terrorism and rendering them

targets. The charges were brought under Article 6 of the Anti-Terror

Law.

In the proceedings before the Istanbul State Security Court, the

applicant denied the charges. He pleaded that the news report was

published with the aim of informing the public of the events which had

occurred during the 1992 Newroz celebrations. He further pleaded that

the reports were based on a joint press declaration by former deputies

Leyla Zana and Orhan Dogan and an English Committee after their visit

to the south-east region of Turkey. He maintained that as Article 6 of

the Anti-Terror Law prohibits in all circumstances the disclosure and

dissemination of the identity of the officials appointed to fight

terrorism, it enables officials to misuse their authority, violate the

law and subject citizens to ill-treatment. He stated that the right to

receive and impart information, including information concerning the

acts of officials, is one of the fundemental rights in a democratic

society. He alleged that Article 6 of the Anti-Terror Law contravened

the Turkish Constitution. He invoked Article 10 of the Convention and

referred to the case-law of the Commission and the Court in this

respect. He stated that pluralism of opinions including those which

shock or offend is essential in a democratic society.

In a judgment dated 2 September 1993, the Court sentenced the

applicant to a fine of 54,000,000 Turkish lira under Article 6 of the

Anti-Terror Law. The Court held that in the news report it was alleged

that the Governor of Sirnak had told the visiting Committee that the

order to open fire on the people had been given by the Sirnak Chief

Police Officer. The Court further held that, according to the news

reports, a gendarme commander had allegedly told Leyla Zana, "your

death gives us pleasure; drinking all your blood would not quench my

thirst". The Court noted that the identities of these officials were

disclosed in the news reports. It concluded that the reports contained

declarations rendering these officials targets for terrorist attack.

The applicant appealed. He asserted that the press declaration

at issue had already been reported in other newspapers and magazines

and that the present news report added nothing to them. He, inter alia,

reiterated the defence he had made before the State Security Court.

On 10 December 1993 the Court of Cassation 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.

B. Relevant domestic law:

The relevant domestic law in the present case is contained in

Article 6 of the Anti-Terror Law and Article 7 of the Press Law.

Article 6 of the Anti-Terror Law No. 3713 of 12 April 1991

"Those who announce that a crime will be committed by terrorist

organisations against certain persons either expressly or without

mentioning their names, or who disseminate or disclose to the

public the identity of officials appointed to fight terrorism,

or who render such officials targets, shall be subject to a fine

of between 5 and 10 million Turkish lira.

Those who print or publish the leaflets of terrorist

organisations shall be subject to a fine of between 5 and 10

million Turkish lira.

Those who, contrary to Article 14 of this Law, disclose or

publish the identity of informants shall be subject to a fine of

between 5 and 10 million Turkish lira.

If one of the crimes defined above is committed by means of

periodicals, as defined in Article 3 of the Press Law, 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 of the previous month;

- for periodicals published monthly or at more than monthly

intervals, the fine shall be ninety per cent of the average

real sales of the previous issue;

- [for printed works that are not periodicals or for

periodicals which have recently started business, the fine

shall be ninety per cent of the 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 given half the

sentences of the publishers."

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.

C. Extracts from the relevant news report

The following is an English translation of extracts from the

relevant news report constituting the grounds for the domestic court

rulings:

"Gendarmerie Regiment Commander ismet Yediyildiz:

'Your blood wouldn't quench my thirst...'

While the British delegation and Diyarbakir MP Leyla Zana, Sirnak

MP Orhan Dogan and Bismil District Governor Mehmet Kurdoglu

managed to persuade the people of Tepe village, which was

blockaded by the security forces, after talking to them for a

while and told them that permission had been obtained for them

to get the bodies of their dead, an interesting conversation took

place between Diyarbakir Police Department Head Ramazan Er and

Gendarmerie Regiment Commander ismet Yediyildiz.

The conversation between the MP's Leyla Zana and Sirnak, on the

one hand, and Colonel ismet Yediyildiz, on the other, was

recounted by Leyla Zana as follows:

Colonel Yediyildiz: What business do you have here? There was

nobody here until you arrived. You have come and stirred it up

again.

Leyla Zana: No, Sir. The situation was extremely tense before we

arrived. We have come with the district government and are trying

to calm down the tension here. Here is the district governor [you

can ask him].

Colonel Yediyildiz: No, that's not true. We saw it when we were

flying in the helicopter, there was nobody here before. People

gathered when you arrived.

Orhan Dogan: No, you can ask the District Governor if you like.

(Meanwhile, the District Governor Mehmet Kurdoglu is also being

censured).

Colonel Yediyildiz: Do you know who these dead people are?

Orhan Dogan: Yes, they are our children, the children of all of

us.

Colonel Yediyildiz: No, these are not our children, they are your

children.Orhan Dogan: But my*) Colonel...

Colonel Yediyildiz: Do not call me your colonel. I am not your

colonel. Your blood wouldn't quench my thirst. You should also

be honest and freely admit that my blood wouldn't quench your

thirst. Right now I could kill you like a rat. Your death would

give us pleasure. Your blood wouldn't quench my thirst.

Leyla Zana: If the problem can be solved by killing us, then here

are our people; let's go among them and you kill us so that this

problem gets solved.

Colonel Yediyildiz: No, I wouldn't kill you now. I'd kill you

after I'll have you disgraced in the eyes of the people."

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 as the owner of a periodical for publishing a news

report constituted an unjustified interference with his freedom of

expression, and in particular with his right to receive and impart

information and ideas.

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 9 March 1994 and registered on

11 May 1994.

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 25 September

1995. The applicant replied on 6 November 1995.

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, in particular his right to impart ideas and

information 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. 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."

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 6 of the Anti-Terror Law. They state

that the applicant, in his review, published a news report concerning

a press declaration which was disclosing to the public the identity of

officials appointed to fight terrorism and rendering them targets for

terrorist attack. They assert that Article 6 of the Anti-Terror Law

clearly prohibits the action of revealing the identity of officials

mandated to fight terrorism. 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. The Government maintain that turning the public

officials of strategic importance into targets by means of revealing

their identity is prohibited and penalised by legislation in many

countries. They submit that the incriminated news report was disclosing

the identity of the officials appointed to fight terrorism and

rendering them targets for terrorist attack.

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 the

interview was published with the aim of giving information to the

public within the scope of journalism. He contends that, in the

circumstances of the present case, there was no social need for his

conviction.

The applicant also maintains that his conviction cannot be

justified 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.

Furthermore the applicant maintains that the penal sanctions

inflicted upon him were not necessary in a democratic society. He notes

that the press declaration at issue had already been reported in other

newspapers and the present news report added nothing to them.

The Commission has conducted a preliminary examination of the

parties' arguments. It considers that 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 also 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 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 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 states 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 period to be considered began on

29 May 1992 when the Public Prosecutor charged the applicant with an

offence committed as the owner of the review and ended on 10 December

1993 when the Court of Cassation delivered its judgment. It therefore

amounted to 18 months and 11 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 the 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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SUREK v. TURKEY

SUREK v. TURKEY

LEXI