Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24735/94

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 18 July 1994 by

Mr. Kamil Tekin Sürek against Turkey and registered on 29 July 1994

under file No. 24735/94;

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

31 July 1995 and the observations in reply submitted by the

applicant on 5 September 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, 24122/94 and 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.

On 10 January 1993 the Istanbul State Security Court ordered the

seizure of the forty-second edition of the review which appeared on 9

January 1993 on the grounds that it allegedly disseminated propaganda

against the indivisibility of the State.

In an indictment dated 28 January 1993, the Public Prosecutor at

the Istanbul State Security Court, on account of a news commentary

concerning the activities of the PKK which was published in the forty-

second edition of the review, charged the applicant, as the owner of

the periodical, 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 State Security Court, the applicant

denied the charges. He pleaded that the commentary on which the charges

were based in fact criticised the activities of the PKK. As regards his

freedom of expression, he invoked Article 10 of the Convention and

referred to the case-law of the Commission and the Court. He stated

that pluralism of opinions including those opinions which shock or

offend is essential in a democratic society. He argued that the

provisions of Article 8 of the Anti-Terror Law restrict the right to

freedom of expression in contravention of the Turkish Constitution and

the criteria laid down by the case-law of the Commission and the Court.

In a judgment dated 27 September 1993, the Court found the

applicant guilty of making propaganda against the indivisibility of the

State. The applicant was first sentenced to a fine of 100,000,000

Turkish lira. The Court, considering the good conduct of the applicant

during the trial, reduced the fine to 83,333,333 Turkish lira. The

Court based its judgment on certain extracts from the published news

commentary. It held, inter alia, that "in the news commentary a certain

part of Turkish territory had been referred to as 'Kurdistan' and the

actions of the PKK had been described as part of the national

independence struggle". The Court concluded that the commentary

disseminated propaganda against the indivisibility of the State.

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

he had made before the State Security Court.

On 18 February 1994 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 8 of the Anti-Terror Law and Article 7 of the Press 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

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 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 clause enclosed in brackets in the text of Article 8 of the Anti-

Terror Law to be contrary to the Constitution and annulled it. 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 this clause 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.

C. Extracts from the relevant news commentary

The following is an English translation of domestic court

rulings:

" According to the contents of the file, the defence submissions

and the offending article it is understood that the defendant

Kamil Tekin Sürek is the proprietor and defendant Yücel Özdemir

the managing editor, that an article on page 8 of the 42. issue

dated 9.1.1993 of the periodical "Gerçek" [Truth] titled "In

Botan the poor peasants are expropriating the landlords" contains

the following views: "The waves of the earthquake centred on

Botan have reached all Kurdistan. The national liberation

struggle, growing like the ripples caused by a stone cast into

a pool of water, has already gone past Botan in waves, currently

embracing 50 districts in 8 provinces in the active front of

armed struggle. PKK sources briefly describe the extent of the

national struggle in Kurdistan as follows: The said 8 provinces

(together with their districts) are Hakkari, Sirnak, Siirt,

Mardin, Batman, Urfa and Diyarbakir; while the provinces of Van,

Malatya, Bitlis, Mus and Gaziantep and their districts are

described as being partially involved in the war. The popular

movements in the Botan area, where approximately 4.5 to 5 million

Kurds live, which have developed with the rise of the national

liberation movement have made rapid strides in the years 1990-92.

The political point reached in the area is that the state has

almost become inoperative... The domain vacated by the state in

the political sense has since been occupied by PKK in the rural

areas and HEP organisations in the cities ... Land cannot be

redistributed before it is transferred to the free will of the

Kurdish people, because it is inconceivable to distribute land

that bears the seal of the Republic of Turkey ... Today, our

struggle is a foreign war directed against the forces of the

Republic of Turkey. We want to wage a total liberation struggle."

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 a news commentary, 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 18 July 1994 and registered on

29 July 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 31 July 1995,

after an extension of the time-limit fixed for that purpose. The

applicant replied on 5 September 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 8 of the Anti-Terror Law. They state

that the applicant, in his review, published a news commentary in which

a certain part of Turkish territory had been referred to as "Kurdistan"

and the actions of the illegal organisation PKK had been described as

part of the national independence struggle. 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 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 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 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 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.

Furthermore the applicant maintains that the penal sanctions

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

that pluralism of opinions including those which shock or offend is

essential in a democratic society.

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, the application 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 10 January 1993 when the domestic court ordered the seizure of all

copies of the forty-second edition of the review and ended on 18

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

therefore amounted to 13 months and 8 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 Court's 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. 1 (Art. 27-1) 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