Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24762/94

by Kamil Tekin SÜREK

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 27 July 1994 by

Mr. Kamil Tekin Sürek against Turkey and registered on 3 August 1996

under file No. 24762/94;

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 26

October 1995 and the observations in reply submitted by the

applicant on 5 December 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, 24735/94 have been brought

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

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 14 March 1993 the Istanbul State Security Court ordered the

seizure of the fifty-first edition of the review which appeared on 13

March 1993, for separatist propaganda.

In an indictment dated 22 April 1993 the Public Prosecutor at the

Istanbul State Security Court, on account of a news commentary

concerning possible events which could occur during the celebrations

of Newroz published in the fifty-first edition of the review, charged

the applicant, as the owner of the review, with making propaganda by

means of the press against the indivisibility of the State. The

applicant was also charged with publishing the declaration of an

illegal terrorist organisation, the ERNK, which is the political branch

of the PKK. Charges were brought under Articles 6 and 8 of the Anti-

Terror Law respectively.

In the proceedings before the Istanbul State Security Court, the

applicant denied the charges. He pleaded that the news commentary for

which he was charged did not fall within the scope of Article 8 of the

Anti-Terror Law. He maintained that arguing and commenting on possible

activities in which the illegal terrorist organisation PKK might engage

during the Newroz celebrations, could not be considered as publishing

a declaration of a terrorist organisation within the meaning of Article

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

of the Anti-Terror Law restrict 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. The applicant was sentenced under Article 8 of the

Anti-Terror Law 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 news commentary. It held, inter alia, that

the news commentary in which certain part of the Turkish territory was

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

"Kurds", disseminated propaganda against the indivisibility of the

State. The Court further held that the review had published the

declaration of an illegal terrorist organisation, the ERNK, in which

the Republic of Turkey was referred to as a terrorist State. However,

it considered that the declaration constituted a part of the news

commentary at issue and, having regard to the provisions of Article 79

of the Turkish Criminal Code, did not find any grounds for a separate

conviction under Article 6 of the Anti-Terror Law.

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

he had made before the State Security Court.

On 8 February 1994 the Court of Cassation dismissed the appeal.

It upheld the cogency of the State Security Court's assessment of

evidence 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. On 22 April 1996 the Court held that the mentioned

amendments could not be applied to the applicant's case as his sentence

had already been executed.

B. Relevant Domestic Law:

The relevant domestic law in the present case is contained in

Articles 6 and 8 of the Anti-Terror Law, Article 79 of the Criminal

Code 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."

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 texts of Articles 6 and 8 of

the Anti-Terror Law 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 79 of the Criminal Code

"If a single act of a person constitutes a violation of several

provisions of the Law, such a person will be punished in

accordance with the single provision which imposes the heaviest

punishment."

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 translation of extracts from the relevant

news commentary constituting the grounds for the domestic court

rulings:

"It's "Newroz" week in Kurdistan. The biggest confrontation

between the demands of the Kurdish people and non-tolerance in

the face of the expression of these demands occurs during these

days. The tradition of rebelliousness is awakened. "Dehak" and

"Kawa" are once again invested with flesh and bones. It's time

to settle accounts. There is nothing vague about Kawa. All the

mountains, all the cities are full of Kawa. There are millions

of them. All right, who, then, is Dehak? Who is the candidate for

representing Dehak in our day? Is it Demirel? Is it Güres? The

regional Governor? Or the new commander ilter? This time round,

is Dehak represented by every counter-insurgency chief, indeed,

every counter-insurgency operative, every special team member,

every police commissioner superintendent officer? Is Dehak

anonymous, too, now? Be it as it may, but Dehak and Kawa will

settle their accounts once again.

...

Last year, a revolutionary publication described the days

receding Newroz as follows:

"Nowadays there over 200 thousand soldiers massed into Kurdistan.

Tanks and weapons are sent over. Bombs are raining on Kurdish

villages and mountains. The Chief of the General Staff has

inspected the preparations for the offensive. Instructions are

being issued to provincial and district governors, special team

leaders, police chiefs and military officials. The Head of MIT

intelligence agency talks of the prospect of much blood being

shed. Members of Parliament are organizing information gathering

trips in order to take the pulse of the people."

...

Unlike previous years, the PKK leaning Kurdistan National

Assembly (KUM) is also expected to take on a role during Newroz

this year.

...

We wish to emphasise this finding, indeed, we feel that it ought

to be underlined. And we call on all European countries. We are

open to any humanitarian, political solution, including the

calls for an armistice. The PKK movement and its struggle are

absolutely not terrorist movements. This misapprehension must be

abandoned-it must definitely be abandoned-and a move must be made

towards co-operation and support. The real terrorist is the

Republic of Turkey. We believe that attitudes on this matter will

be much clarified this year, that very positive dialogues will

develop and that the Republic of Turkey will be gradually further

isolated.

...

On the other hand emergency measures are being implemented in

large cities outside Kurdistan where there are concentrations of

Kurdish people. It is highly likely that there will be large

demonstrations in the Kurdish quarters there."

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 27 July 1994 and registered on

3 August 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 26 October 1995,

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

applicant replied on 5 December 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 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 a news

commentary 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 review had published the declaration

of an illegal terrorist organisation, the ERNK, in which the Republic

of Turkey was referred to as a terrorist 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 enshrines that concept and the judicial and

political systems. They assert that the news commentary in question was

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

arguing and commenting on possible activities in which the PKK might

engage during Newroz celebrations, cannot be considered as publishing

a declaration of a terrorist organisation. 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 14 March 1993 when the domestic court ordered the seizure of all

copies of the fifty-first edition of the review and ended on 8 February

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

amounted to 10 months and 25 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. 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

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