FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 27529/95 by Semra CARALAN against Turkey

The European Court of Human Rights (First Section) , sitting on 14 November 2002 as a Chamber composed of

Mrs F. Tulkens , President , Mr G. Bonello , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mrs E. Steiner , judges , Mr F. Gölcüklü , ad hoc judge , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 18 April 1995,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Turkish citizen, born in 1949 and living in Istanbul. She is represented before the Court by Mr Kamil Tekin Sürek , a lawyer practising in Istanbul.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

At the time of the events giving rise to the present application the applicant was the major shareholder and the editor in a publication company called “ Evrensel Ltd”.

In 1992 Evrensel Limited published a book entitled “Conference Documents” ( Konferans Belgeleri ) comprising documents related to a conference organised by the Turkish Revolutionary Communist Party (an illegal political party in Turkey).

On 2 September 1992 the public prosecutor at the Istanbul State Security Court charged the applicant under sections 7 and 8 of the Anti-Terror Law with disseminating propaganda against the indivisible integrity of the State and making propaganda of terrorist organisations.

In the proceedings before the Istanbul State Security Court, the applicant pleaded that the book only contained historical documents. She also referred to her freedom of expression.

In a judgment dated 1 July 1993, the Court found the applicant guilty of disseminating separatist propaganda, an offence under section 8 of the Anti-Terror Law as the publisher of the book. The applicant was sentenced to five months’ imprisonment and payment of a fine. The Court noted that the book referred to a certain part of the Turkish territories as Kurdistan . The book also claimed that Turkish citizens living in those territories were of the Kurdish nation and that they should be given the right to self-determination, including the right to form a separate State, and that the Turkish army had invaded those territories. The Court concluded the book had disseminated propaganda against the indivisible integrity of the State.

The applicant appealed. She submitted that her conviction constituted an unjustified interference with her freedom of expression guaranteed under Article 10 of the Convention.

On 2 December 1993 the Court of Cassation quashed the decision of the State Security Court. It considered that the publication of the book constituted an offence also under section 7 of the Anti-Terror Law, disseminating propaganda of terrorist organisations, and that the applicant should have been also convicted separately under section 7.

In a judgment dated 24 March 1994 the Istanbul State Security Court considered that the applicant should be sentenced to 10 months’ imprisonment and a fine under sections 7 and 8 of the Anti-Terror Law. However, having regard to the fact that no appeal had been filed by the Public Prosecutor against the judgment of 1 July 1993, the Court held that the applicant’s sentence should not exceed the sentence pronounced in that judgment . The applicant was finally sentenced to five months’ imprisonment and payment of a fine of 41,666,666 Turkish Lira (TRL).

The applicant appealed. On 22 September 1994 the Court of Cassation , upholding the cogency of the State Security Court’s reasoning and evaluation of evidence in the judgment of 24 March 1994, dismissed the appeal.

On 18 October 1994 the public prosecutor at the Istanbul State Security Court notified the prison sentence and fine to the applicant.

On 17 March 1995 the applicant began serving her sentence at the BayrampaÅŸa Prison in Istanbul. She was later transferred to the prison in Izmit . She was released after having served 112 days in prison. She also paid TRL 27,090,000 of the fine.

On 27 October 1995, after the custodial sentence imposed on the applicant was enforced, Law no. 4126 came into force amending, inter alia , section 8 of Law no. 3713. It modified the mens rea laid down by the former text of section 8 as to the commission of the act of propaganda in question. It also imposed a lighter custodial sentence for that offence, but increased the fines. In a temporary provision, Law no. 4126 also provided for an ex officio re-examination of earlier convictions imposed under section 8.

The applicant’s case was re-examined ex officio by the Istanbul State Security Court. In its judgment of 22 December 1995 the State Security Court finally sentenced Ms Caralan to five months’ imprisonment and a fine of TRL 41,666,666, which it decided to defer in accordance with section 6 of Law no. 647. The court stipulated that a new judgment had thus been delivered, and ordered that execution of the previous sentence be stopped.

The applicant appealed to the Court of Cassation .

On 27 February 1997 the Court of Cassation quashed the judgment of 22 December 1995 on the ground that the trial court had erred in not commuting the applicant’s prison sentence to a fine as required by domestic law.

On 19 June 1997 the Istanbul State Security Court commuted the applicant’s prison sentence to a fine of TRL 750,000. The sentence was suspended.

The applicant appealed again. She argued that the prison sentence imposed on her had already been served and therefore the court was wrong in suspending the sentence. In her petition to the Court of Cassation the applicant also referred to her rights under Articles 6 and 10 of the Convention.

While the proceedings were still pending, Law no. 4304 was promulgated on 14 August 1997. That Law provided for the deferment of judgment and of execution of sentence in respect of offences committed by editors before 12 July 1997.

In a judgment of 12 September 1997 the State Security Court decided, pursuant to section 1(3) of Law no. 4304, to defer judgment against the applicant, but to proceed to delivery if, within three years from the date of deferment, the applicant was convicted of an intentional offence in her capacity as editor, and, lastly, that the criminal proceedings against her would be discontinued if no similar conviction was made before the expiry of that three-year period.

B. Relevant domestic law

A. The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) [1]

Before Law no. 4126 of 27 October 1995 came into force, section 8 of Law no. 3713 provided:

Section 8 [2]

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.

Where the act of propaganda, deemed to be an offence for the purposes of the above paragraph, is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.”

Since being amended by Law no. 4126, that section reads as follows:

Section 8

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a re-offender may not be commuted to a fine.

Where the act of propaganda, deemed to be an offence for the purposes of the first paragraph, is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.

Where the act of propaganda, deemed to be an offence for the purposes of the first paragraph, is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras ...

...”

B. Law no. 4126 of 27 October 1995

The following amendment was made to Law no. 3713 following the enactment of Law no. 4126:

Transitional provision relating to section 2

“ In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment ... to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections ... and 6 of Law no. 647 of 13 July 1965.”

C. Law no. 4304 of 14 August 1997 on the deferment of judgment and of execution of sentences in respect of offences committed by editors before 12 July 1997

The following provisions are applicable to sentences in respect of offences under the Press Act:

Section 1

“The execution of sentences passed on those who were convicted under section 16 of the Press Act (Law no. 5680) or other laws as editors for offences committed before 12 July 1997 shall be deferred.

The provision in the first paragraph shall also apply to editors who are already serving their sentences.

The institution of criminal proceedings or delivery of final judgments shall be deferred where no proceedings against the editor have yet been brought, or where a preliminary investigation has been commenced but criminal proceedings have not been instituted, or where the final judicial investigation has been commenced but judgment has not yet been delivered, or where the judgment has still not become final.”

Section 2

“If an editor who has benefited under the provisions of the first paragraph of section 1 is convicted as an editor for committing an intentional offence within three years of the date of deferment, he must serve the entirety of the suspended sentence.

...

Where there has been a deferment, criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within three years of the date of deferment.

Any conviction as an editor for an offence committed before 12 July 1997 shall be deemed a nullity if the aforesaid period of three years expires without any further conviction for an intentional offence. Similarly, if no criminal proceedings have been instituted, it shall no longer be possible to bring any, and, if any have been instituted, they shall be discontinued.”

D. The Execution of Sentences Act (Law no. 647 of 13 July 1965)

The relevant parts of section 6 of the Execution of Sentences Act 1965 provide:

Section 6(1)

“Where a person is ... sentenced to a fine ... and/or up to one year’s imprisonment ... for an offence which he has committed, execution of the sentence shall be deferred if the court considers that, having regard to his criminal record and [his] tendency to break the law, such deferment will suffice to deter him from re-offending.”

E. Provisions on State Security Courts

Before the Constitution was amended on 18 June 1999, Article 143 provided that State Security Courts were composed of a president, two other regular members and two substitute members. The President of the State Security Court, one of the regular members and one of the substitute members were appointed from among civilian judges, and the other regular member and substitute member were appointed from among military judges.

As amended by Law no. 4388 of 18 June 1999, Article 143 of the Constitution provides:

“...

State Security Courts shall be composed of a president, two other regular members, a substitute member, a Principal Public Prosecutor and a sufficient number of Public Prosecutors.

The president, two regular members, a substitute member and the Principal Public Prosecutor shall be appointed from among judges and Public Prosecutors of the first rank, according to procedures laid down in special legislation, and the Public Prosecutors from among other Public Prosecutors by the National Legal Service Council, for four years. Their term of office shall be renewable...”

The necessary amendments concerning the appointment of the judges and prosecutors were made to Law no. 2845 on the State Security Courts by means of Law no. 4390 of 22 June 1999. By the terms of provisional section 1 of Law no. 4390, the terms of office of the military judges and military prosecutors in service in the State Security Courts were to end on the date of publication of that Law (22 June 1999). By provisional section 3 of the same Law, proceedings pending in the State Security Courts on the date of publication of the Law were to continue from the stage they had reached by that date.

COMPLAINTS

Invoking Article 10 of the Convention the applicant submits that her conviction and sentence for publishing a book constituted an unjustified interference with her freedom of expression, and in particular, her right to impart information and ideas.

Under Article 6 § 1 of the Convention she complains that her right to a fair hearing was breached because the criminal proceedings brought against her were not concluded within a reasonable time and that she was tried and convicted by the Istanbul State Security Court which lacked independence and impartiality.

The applicant finally complains under Article 18 of the Convention that the restrictions which were applied to her freedom of expression under the Anti-Terror Law, were inconsistent with the legitimate aims prescribed in Article 10 § 2 of the Convention.

THE LAW

The applicant complains of violations of Articles 6, 10 and 18 of the Convention in connection with criminal proceedings introduced against her following the publication of the book and her conviction.

A. The Government’s objections to the admissibility

1. Observance of the six month rule

The Government argue that the application is inadmissible as the applicant failed to comply with the six-month rule in Article 35 § 1 of the Convention because she did not introduce her application within six months of the Court of Cassation’s decision of 22 September 1994. They argue that according to the former Commission’s case law the six-month period begins to run when a judgment is given in public and in the presence of the applicant’s lawyer.

The applicant submits in reply that she only became aware of the Court of Cassation’s decision of 22 September 1994 when the public prosecutor notified her on 18 October 1994 of the prison sentence and the fine. She further submits that decisions of Court of Cassation are not served on defendants.

The Court reiterates the Commission’s practice to take as the date of the final decision, the day on which the judgment was rendered orally in public, or, where judgment was not publicly pronounced, the day on which the applicant or his representative were informed of it, whichever took place earlier (see, for example, K.C.M. v. the Netherlands, no. 21034/92, decision of 9 January 1995, Decisions and Reports (DR) 80-A, p. 87).

The Court refers to its case-law according to which the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment in cases where the applicant is entitled, pursuant to domestic law, to be served ex officio with a written copy of the final domestic decision, irrespective of whether that judgment was previously delivered orally (see the Worm v. Austria judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, p. 1547, § 33; Venkadajalasarma v. The Netherlands (dec.), no. 58510/00, 9.7.2002, unreported).

In this connection the Court notes that the Court of Cassation did not pronounce its decision of 22 September 1994 in open court. Furthermore, despite the wording of Article 33 of the Turkish Code of Criminal Procedure which stipulates that judgments and decisions of courts are to be served on the parties to the case, it is not the practice of the Criminal Divisions of the Court of Cassation in Turkey to serve their decisions on defendants (see Seher Karataş v. Turkey , no. 33179/96, § 28, 9 July 2002, unreported).

The Court finds that the applicant became aware of the decision of the Court of Cassation of 22 September 1994 on 18 October 1994, the date on which she was notified of her prison sentence and served the order to pay the fine.

In these circumstances the six-month period started to run on 18 October 1994. Accordingly, the application was introduced in time.

For these reasons, the Court dismisses the Government’s objection.

2. Exhaustion of domestic remedies

The Government maintain that the applicant’s complaint under Article 10 of the Convention is inadmissible as she has failed to exhaust domestic remedies within the meaning of Article 35 § 1 the Convention. In this regard, they submit that pursuant to Law no. 4126 which came into force on 27 October 1995, the applicant’s case was reviewed ex officio by the Istanbul State Security Court which rendered its judgment on 22 December 1995. Since the applicant’s appeal against this judgment was still pending before the Court of Cassation , the complaint must be rejected as premature.

The Government further submit that the documents submitted to the Court by the applicant concerning the execution of her prison sentence, i.e. the formal notification sent to the applicant on 18 October 1994 to inform her about the prison sentence and the fine, was susceptible of misleading the Court as these had later been annulled by the State Security Court which ex officio reviewed the judgment .

The applicant submits that Law no. 4126 came into force after she had already served her prison sentence and after she had paid some of the fine. Furthermore, the proceedings under the new Law did not give her a right to claim compensation for her imprisonment.

The Court observes at the outset that the Government’s and the applicant’s above-mentioned arguments were made in their observations submitted to the former Commission in March 1997 and September 1997, respectively and the proceedings under Law no. 4126 referred to by the Government have since been concluded.

When the applicant introduced her application with the former Commission, the Court of Cassation had already upheld the judgment convicting the applicant and the applicant had already begun serving her prison sentence. In other words, domestic remedies were already exhausted by the applicant at the time of the introduction of the present application. It is irrelevant, therefore, for the purposes of the present application that the applicant went on to use this new remedy despite the fact that Law no. 4126 came into force some months after she had already served her prison sentence and introduced her application with the former Commission.

Furthermore, the Court cannot agree with the Government’s submission that the documents submitted by the applicant are susceptible of misleading the Court, as it notes that the applicant’s conviction was not annulled, as claimed by the Government, but suspended two years after she had already served her prison sentence.

In the light of the foregoing, the Court concludes that the application cannot be rejected for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.

B. Merits

1. Alleged violations of 6 § 1 of the Convention

Independence and impartiality of the State Security Court

The applicant maintains that her right to a fair hearing guaranteed by Article 6 § 1 of the Convention was breached on account of the presence of a military judge on the bench of the Istanbul State Security Court which tried and convicted her. Article 6 § 1 provides as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Government replied that the rules governing the appointment of military judges to the State Security Courts and the guarantees which they enjoy in the performance of their judicial functions on the bench were such as to ensure that these courts fully complied with the requirements of independence and impartiality within the meaning of Article 6 § 1.

The Court considers, in the light of the parties’ submissions that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

Length of criminal proceedings

The applicant further maintains that the criminal proceedings against her were not concluded within a “reasonable time” within the meaning of Article 6 § 1 of the Convention.

The Court notes that the criminal proceedings against the applicant began on 2 September 1992 when the public prosecutor at the Istanbul State Security Court charged the applicant. The proceedings ended on 22 September 1994 when the Court of Cassation upheld the applicant’s conviction. They therefore lasted two years and twenty days.

The Court 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 its established case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities ( Yağcı and Sargın v. Turkey , judgment of 8 June 1995, Series A no. 319, p. 20, § 59).

The Court notes that, in the present case, domestic courts examined the case at four instances, two of which were at appeal level. Moreover, the applicant has not shown any substantial periods of inactivity attributable to the judicial authorities. The Court therefore considers that the total period at issue does not appear unreasonably long. It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.

2. Alleged violations of Articles 10 and 18 of the Convention

The applicant submits that her conviction and sentence for publishing a book constituted an unjustified interference with her freedom of expression and that the restrictions which were applied to her freedom of expression under the Anti-Terror Law were inconsistent with the legitimate aims prescribed in Article 10 § 2 of the Convention. She invokes Articles 10 and 18 of the Convention.

The Court considers that the essence of the applicant’s complaints concerns the alleged interference with her right to express views and opinions, and therefore it should be considered from the standpoint of Article 10 which provide 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 submit that the interference with the applicant’s rights under Article 10 of the Convention was prescribed by section 8 of the Anti-Terror Law which prohibited the publication of propaganda against the indivisibility of the State. It was stated, inter alia , in the book published by the applicant that the Turkish Revolutionary Communist Party had always supported the Kurdish nation and their right to create their own State. The activities of the PKK was regarded as positive activities directed against the fascist invasion of Kurdistan . The book ended with a number of proposals which, if adopted, would resolve the problems of Kurdistan . These proposals included unconditional withdrawal of the Turkish army and the police, dissolution of the state of emergency and disarmament of the village guards thereby effectively disarming the ‘feudal Kurdish lords’.

The 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 therefore that 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 and it was, therefore, proportionate to the legitimate aim pursued.

As to the necessity of the measure in a democratic society, the respondent Government state that these separatist words are unacceptable in any democratic society since these words are capable of provoking the people against the State which was described as “the fascist dictatorship”. The declarations published in the book openly and unconditionally supported terrorists which jeopardise the national security and territorial integrity of Turkey.

In this respect the Government assert that the judgments and 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. She maintains that the book published contains the views of the Turkish Revolutionary Communist Party. The Government have not offered any proof that the Turkish Revolutionary Communist Party was a terrorist organisation. Furthermore, advocating self-determination cannot be interpreted as a threat against the national security and territorial integrity of Turkey. The Government’s criticism of the description of the State as a ‘fascist dictatorship’ itself proved that the respondent Government do not respect freedom of speech. Finally, States or Governments, which are not democratic and which terrorise their own citizens, are described as fascist dictatorships. ‘Fascist dictatorships’ is a political description which may or may not be a correct description for a particular country. This does not alter the fact that individuals have the right to make such descriptions.

The Court considers, in the light of the parties’ submissions that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints relating to the alleged interference with her freedom of expression and the alleged lack of impartiality and independence of the tribunal which convicted her;

Declares inadmissible the remainder of the application.

Søren Nielsen Françoise Tulkens Deputy Registrar President

[1] . This Law, promulgated with a view to preventing acts of terrorism, refers to a number of offences defined in the Criminal Code which it describes as acts “of terrorism” or acts “perpetrated for the purposes of terrorism” and to which it applies.

[2] . As modified by a judgment of the Constitutional Court on 31 March 1992.