Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24277/94

by Yücel ÖZDEMIR

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 4 May 1994 by Mr.

Yücel Özdemir against Turkey and registered on 6 June 1996 under file

No. 24277/94;

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

17 July 1995 and the observations in reply submitted by the

applicant on 31 October 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen, born in 1968 and residing in

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

represented by Semih Mutlu, 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 responsible editor

of a weekly review entitled "Haberde Yorumda Gerçek" (The Truth of News

and Comments) and published in Istanbul.

In the 31 May 1992 and 7 June 1992 editions of the review, an

interview with a PKK leader and a joint declaration by four socialist

organisations were published.

On 1 June 1992 the Istanbul State Security Court ordered the

seizure of all copies of the tenth edition of the review because it

allegedly contained a declaration by terrorist organisations and

disseminated separatist propaganda.

In an indictment dated 16 June 1992 the Public Prosecutor at the

Istanbul State Security Court, on account of an interview with a PKK

leader published in the seized edition, charged the applicant as the

responsible editor of the review, with disseminating propaganda in the

interview against the indivisibility of the State. The applicant was

also charged with publishing a declaration by four socialist

organisations. The charges were brought respectively under Articles 6

and 8 of the Anti-Terror Law.

In another indictment dated 30 June 1992, the applicant was

charged with disseminating propaganda against the indivisibility of the

State in a further interview which was published in the eleventh issue

of the review. The charges were brought under Article 8 of the Anti-

Terror Law.

On 4 February 1993 the criminal proceedings were joined for being

a single interview published in two parts.

In the proceedings before the Istanbul State Security Court, the

applicant denied the charges. He pleaded that the interview was

published with the aim of giving information to the public within the

scope of journalism and the liberty of the press.

In a judgment dated 27 May 1993 the State Security Court found

the applicant guilty of offences under Articles 6 and 8 of the Anti-

Terror Law. The applicant was sentenced to six months' imprisonment

plus a fine of 150,000,000 Turkish lira. The Court held that the

interview was published in the form of a news commentary. It further

held that the interviewee had referred to a certain part of the Turkish

territory as "Kurdistan", he had asserted that certain Turkish citizens

who are of Kurdish race form a separate society and that the Republic

of Turkey expels the Kurdish people from their villages and massacres

them. It further considered that the interviewee had praised Kurdish

terrorist activities and had claimed that the Kurds should form a

separate state. On these grounds, the Court found that the interview,

as a whole, disseminated propaganda against the indivisibility of the

State. The Court further held that another page of the review contained

a declaration by terrorist organisations and thus constituted a

separate offence under Article 6 of the Anti-Terror Law.

The applicant appealed. His legal representative stated that in

a democratic society opinions must be freely expressed and argued. She

maintained that there had been no prosecutions for the publication of

other interviews with the leaders of the PKK in other newspapers or

magazines. She reiterated the defence which the applicant had made

before the State Security Court.

On 4 November 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.

After the amendments made by Law No. 4126 to the Anti-Terror Law,

the Istanbul State Security Court re-examined the applicant's case and

sentenced him to the same fine.

B. Relevant domestic law:

The relevant domestic law in the present case is contained in

Articles 6 and 8 of the Anti-Terror Law and Article 7 of the Press Law.

The text of these Articles is set out below:

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."

Article 8 of the 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.

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

between six months and two years' imprisonment 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 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.

Article 8 paragraph 1 of the 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."

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, 18 and 6

of the Convention.

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

his conviction as the responsible editor of a periodical in which an

interview with a PKK leader was published, as well as a joint

declaration by four socialist organisations, 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 18 of the Convention the applicant complains that

the restrictions which were applied to his freedom of expression, under

Articles 6 and 8 of the Anti-Terror Law, were inconsistent with the

legitimate aims prescribed in Article 10 para. 2 of the Convention.

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 4 May 1994 and registered on

6 June 1994.

On 20 February 1995 the Commission decided to communicate the

application under Articles 10 (freedom of expression), 18 (prohibition

against an improper use of the restrictions), and 6 para. 1 (a 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 17 July 1995. 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 the developments in the cases of persons convicted and sentenced

under Article 8 of the said Law. The applicant submitted comments in

reply on 13 February 1996.

THE LAW

1. The applicant first complains that his conviction as the

responsible editor of a periodical constitutes an unjustified

interference with his freedom of expression, in particular his right

to receive and impart ideas and information under Article 10 (Art. 10)

of the Convention which 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 that in his case there has been a

breach of Article 18 (Art. 18) of the Convention in that the

restrictions which were applied to his freedom of expression, under

Articles 6 and 8 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 Articles 6 and 8 of the Anti-Terror Law. They

state that the applicant, in his review, published an interview, in

which the person being interviewed had referred to a certain part of

the Turkish territory as "Kurdistan" and had asserted that certain

Turkish citizens who are of Kurdish race form a separate society and

that the Republic of Turkey expels the Kurdish people from their

villages and massacres them. The respondent Government assert that

according to Articles 6 and 8 of the Anti-Terror Law these forms of

expression constitute a propaganda against the indivisible integrity

of the State. They consider that therefore the domestic courts

interpreted the law reasonably.

The Government also maintain that the purpose of the conviction

of the applicant was linked to the control of the terrorism carried out

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 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 the 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 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 there had been no prosecution for the publication of interviews

with the leaders of the PKK in other newspapers or magazines.

With regard to the amendments made by Law No. 4126 to the Article

8 of the Anti-Terror Law, the applicant states 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 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 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 on 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 period to be considered began on

1 June 1992 when the domestic court ordered the seizure of all copies

of the tenth edition of the review and ended on 4 November 1993 when

the Court of Cassation delivered its judgment. It therefore amounted

to about one year and five 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).

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

Menu

ÖZDEMIR v. TURKEY

ÖZDEMIR v. TURKEY

LEXI