FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42436/98 by Haluk Bahri GERGER against Turkey

The European Court of Human Rights ( Fourth Section) , sitting on 2 July 2002 as a Chamber composed of

Sir Nicolas Bratza , président , MM. M. Pellonpää , A. Pastor Ridruejo , R. Türmen , M me V. Strážnická , MM. R. Maruste , S. Pavlovschi , juges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 11 June 1998,

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 Section’s partial decision of 15 June 2000,

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 1948 and living in Ankara, Turkey. He is represented in the proceedings before the Court by Mr Kamil Tekin Sürek , a lawyer practising in İstanbul , Turkey.

A. The circumstances of the case

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

The applicant, a journalist, published an article entitled “State of Emergency and Provide Comfort Forces” (“OHAL ve Çekiç Güç ”) in the 30 June 1995 issue of “ Evrensel ” (“Universal”), a daily newspaper published in Turkey.

The article read:

“OHAL, TC’nin “ Ora”yı yönetmediğinin itirafının Türkçesi . OHAL, savaşın iç mevzuata göre düzenlenmesinin Özel Timcesi , adı konmamış savaşın Özel Harpçesi . OHAL, militarist çözümsüzlüğün itirafının Misak -ı Millicesi . OHAL, TC’nin hayatla , gerçeklerle , Kürtlerin en doğal haklarıyla inatlaşmasının şiddetçesi .

Evlatlarını düşman bellemesi istenen bir halkın kendisi düşman sayılır zamanla , reddederse bu dayatmayı . Böyle durumlarda olağanüstü yönetimin şiddetidir onun yazgısı ...

“ Düşman”a sempati duyduğundan şüphelenilen yaşlı kadın , “ terörist”e ekmek götürdüğü sanılan küçük çocuk , torunu ya dağdaysa diyen yaşlı dede , gerillaya yataklık yapmaktan suçlanan köy halkı , giderek , tarlalar , ormanlar , dağ , taş ve bütün bir halk namlunun ucundadır bir kez daha ...

OHAL, balığı öldürmek için denizi kurutma çabasının adı ...

OHAL, halkı canından bezdirmenin , bölgeyi insansızlaştırmanın , “ Ora”yı yakıp yıkıp Kürt’ü biata , ruhunu teslim etmeye , içindeki insanlık cevherini terketmeye zorlamanın , onu koruculaştırmanın , ihanetin içinde boğmanın umarsız çabasının yasal kılıfı ...

Yenilen düzenin gazabı , intikamı , kılıcı ...

Yolunu şaşırmış öfke , kör panik , korku ...

Çekiç Güç’ün süresinin uzatılmasıysa , şiddete tutsak olanların , emperyalizmin silahlı gücüne de sığınması . Kürde karşı uygulanan zorun da uluslararasılaşması ...

OHAL, kırk katır ; Çekiç Güç , kırk satır ...

OHAL ile Çekiç Güç’ün sürelerinin birlikte uzatılması , Kürt halkının yerli militarizm ile emperyalist karışmacılığın kıskacı içine alınmasının devam edeceğini gösteriyor . Sistemin çözüm üretmekten aciz olduğunu da . İnkar ve imha batağının , yönetememe krizinin de...

OHAL ile Çekiç Güç : İflasın itirafı ... Çaresizliğin kabulü ... Yenilginin teyidi ...

Kürt’ün kara yazgısı ...

Öyle ye , yönetilemeyen halkları da vururlar ...

Ama sorun sadece “ Ora”ya ilişkin değil ki ...

Ya burası ... Ya sizler ... Hepimiz ...

“ orası ” insansızlaştırılırken bizler içimizdeki insanı yaşatabilir miyiz ?.. Onca şiddet bizleri de vurmaz mı ?.. “ Orası ” militarizme tutsak bırakılınca bizim de ruhumuz şeytana teslim olmaz mı ?..

Biz hala dedelerimizin , babalarımızın çözümsüzlüğüne mi kurbanız ?.. Hala Dersim’de kanlı mı ellerimiz ?.. Bu duyarsızlık , bu tepkisizlik buraları çürütüyor mu ?.. Onca ölüm , onca kan bizleri de boğmuyor mu ?..

Kürt’ün acısı yüreğimizin prangası ...

Onun çığlığı Türk’ün kara yazgısı ...

Hala susuyor muyuz ?.. Susmanın suçu paylaşmak olduğunu bile bile susacak mıyız ?

Siz , siz bilmiyor musunuz ...

Susan halkları da vururlar ...”

“OHAL (State of Emergency) is the Turkish Republic’s confession of its improper management of  the unnameable “there” ( ora ). It is the regulation of war in the language of the Special Forces; the pseudonym given by the Special War Department to an unnamed war. It is the confession of failure of militaristic solutions in the language of National Borders ( Misak -ı Milli ). OHAL is, in the language of violence, the obstinate stand of the Turkish Republic against life, reality and the most fundamental rights of the Kurdish people.

A people expected to look upon its children as the enemy, will, if they refuse to do so, themselves come to be considered an enemy. Their fate will be subjugation to the violence of the state of emergency government.

The woman suspected of sympathising with the enemy, the little child suspected of   aiding terrorists, the grandfather fearing that his grandson may have joined those in the mountains, the villagers accused of abetting the guerrillas, the forests, the mountains, the land, the sand and the entire public are once again targetted .

The State of Emergency regime is the name of the effort to dry up the sea in order to kill the fish.

OHAL is the legal cover for the relentless efforts to make the public sick of their life, to evacuate the region, to force the Kurds to subservience by destroying their homeland, to relinquish their souls and their essence of humanity, to force them into serving as village guards and to drown them in betrayal...

The sword, the wrath and the revenge of a failing system.

The baseless anger, blind panic, fear...

The extension of the time limit for the posting of Provide Comfort Forces [of the USA] means protection of those who have become slaves to violence by the armed forces of imperialism. It is the internationalisation of the use of force carried out against the Kurds.

OHAL is the frying pan and the Provide Comfort Force the fire.

The simultaneous extension of the State of Emergency and the Provide Comfort Forces’ presence is a sign that domestic militarism and imperialist interventionism  will continue their assault on the Kurdish People as well as of the failure of the system to find solutions. It is an indication of denial, of destruction, of the failure to govern.

OHAL and the Provide Comfort Forces are a confession of failure, acceptance of desperation, confirmation of defeat.

The dark destiny of the Kurds....

They shoot [not only horses but also ] people who cannot govern themselves...

But the problem is not only related to that unnameable “there”.

What about here ..... What about you.... What about us.....

Can we remain human while they are de-populating the region “there”? Won’t this violence touch us? If we let militarism lay hands on them “there”, won’t we have sold our souls to the devil?

Must we suffer from our forefathers’ failure to find a solution? Must our hands carry the blood of Dersim ?.... Is this place becoming rotten with insensitivity and passivity? Won’t so much blood and death drown us?

The suffering of the Kurds shackles our hearts. Their scream is the evil fate of the Turks.

Shall we be silent? Even though we know that silence means consent?

Don’t you know?

They shoot [not only horses but also] people who keep silent ...”

On 30 June 1995, at the request of the public prosecutor, a single judge of the Ä°stanbul State Security Court made an interim order for the seizure of copies of the issue of Evrensel newspaper published on 30 June 1995. According to the applicant, the copies were seized.

On 3 July 1995 the public prosecutor attached to the İstanbul State Security Court charged the applicant and the editor-in-chief of the newspaper with incitement to hatred and hostility by making distinctions on the basis of races and regions, contrary to Article 312 §§ 2 and 3 of the Criminal Code.

In the proceedings before the İstanbul State Security Court the applicant did not dispute that he had drafted the article. At the applicant’s request, the court granted him leave to extend the time-limit for the submission of his defence. However, the applicant did not submit the particulars of his defence to the court.

On 15 May 1996 the State Security Court, composed of three judges including a military judge, found the applicant guilty as charged. The court accepted the public prosecutor’s submissions. It ruled that the impugned article, taken as a whole, amounted to incitement to hatred and hostility on the basis of distinctions between races and regions. The court sentenced the applicant and the editor-in-chief under Article 312 §§ 2 and 3 of the Criminal Code to one year and eight months’ imprisonment. The applicant was fined 500,000 (five hundred thousand) Turkish liras (TRL) and the editor-in-chief TRL 3,525,000 (three million five hundred and twenty five thousand). The applicant was sentenced in absentia.

The judgment was delivered by a majority of two to one, the President of the court dissenting. The President explained in his dissenting opinion that the offence under Article 312 § 2 of the Criminal Code had not been established. He stated that the applicant and his co-accused should have been acquitted on the ground that the article at issue ought to be considered  criticism rather than incitement.

On 5 July 1996 the applicant and his co-accused appealed against the judgment of the İstanbul State Security Court. The applicant submitted that the court failed to grant him adequate time for the preparation of his defence since he was abroad at the time on account of academic research work. He also pleaded that the lower court’s judgment amounted to a violation of his right to a fair trial on the ground that the court decided the case in the absence of his defence.

The applicant argued in particular that the passages in the published article were to be regarded as a criticism of the policy of the State at the time and that it was the right of every citizen to offer such criticism. The applicant submitted that his conviction contravened Articles 9 and 10 of the Convention and that these Articles, along with Article 6, had to be applied by the domestic courts given that Turkey was a Contracting Party to the Convention. The applicant further stated that his case had not been heard by an independent and impartial tribunal, in breach of Article 6 of the Convention, having regard to the presence of a military judge on the bench of the Ä°stanbul State Security Court.

On 18 November 1996 the Court of Cassation quashed the judgment of the Ä°stanbul State Security Court. The Court of Cassation pointed out that the lower court convicted the applicant without having heard his defence.

The case was remitted to the Ä°stanbul State Security Court.

The public prosecutor attached to the İstanbul State Security Court submitted his principal observations on the case and requested the court to convict the applicant under Article 312 §§ 2 and 3 of the Turkish Criminal Code and to suspend the criminal proceedings against the editor-in-chief of the newspaper under Article 1 § 3 of Law no. 4304.

In the proceedings before the Ä°stanbul State Security Court the applicant argued that his aim was merely to criticise State policy.

On 29 December 1997, the State Security Court, composed of three judges including a military judge, found the applicant guilty as charged. The court accepted the public prosecutor’s submissions. It ruled that the impugned article, taken as a whole, amounted to incitement to hatred and hostility on the basis of distinctions between races and regions. The court sentenced the applicant under Article 312 §§ 2 and 3 of Criminal Code to one year and eight months’ imprisonment and a fine of TRL 500,000 (five hundred thousand Turkish liras). The court also suspended the criminal proceedings against the editor-in-chief for three years under Article 1 § 3 of Law no. 4304.

On 12 January 1998 the applicant appealed to the Court of Cassation .

On 16 March 1998 the Court of Cassation dismissed the applicant’s appeal, upholding the State Security Court’s assessment of the evidence and its reasons for rejecting the applicant’s defence. The Court of Cassation also rejected the applicant’s request to hold a hearing.

B. Relevant domestic law and practice

1. The Criminal Code

Article 311 and 312 provide respectively:

Article 311 § 2

“Public incitement to commit an offence

Where incitement to commit an offence is done by means of mass communication, of whatever type – whether by tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled...”

Article 312

“Non-public incitement to commit an offence

A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras.

A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years’ imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one third to one half.

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.”

2. 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

The applicant complains that his case was not heard by an independent and impartial tribunal, in breach of Article 6 § 1 of the Convention.

The applicant further argues that the Court of Cassation did not respect the principle of “equality of arms” and the rights of the defence since it refused his request to hold an oral hearing on his appeal against conviction. The applicant invokes Article 6 of the Convention in this connection.

The applicant maintains that his conviction and sentence by the İstanbul State Security Court on account of his article is in violation of his right to impart ideas and information, guaranteed by Article 10 § 1 of the Convention.

THE LAW

1. The applicant states that his conviction and sentence for having published the impugned article violated his right to freedom of expression guaranteed by Article 10 of the Convention, which provides:

“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 312 § 2 of the Criminal Code. They also maintain that, in the instant case, the national courts were acting within their margin of appreciation since the applicant’s article, which called for breaking the “silence”, was an obvious example of incitement to violence and hatred between social classes. The sanction imposed had a legitimate aim, as the act in dispute was a threat to public order, national security and the territorial integrity of the State. Moreover, it was proportionate to the legitimate aim pursued.

The applicant maintains his account of the facts and complaints.

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.

2. The applicant maintains that his 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 İstanbul State Security Court which tried and convicted him. Article 6 § 1 provides as relevant:

“1. In the determination 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 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 Government further submitted that, by Laws nos. 4388 of 18 June 1999 and 4390 of 22 June 1999, amendments had been made to remove military judges from the bench of the State Security Courts with a view to complying with the requirements of the Convention. The Government stated that State Security Courts are currently composed of civilian judges only.

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.

3. The applicant, with reference to Article 6 of the Convention, further complains that the refusal of the Court of Cassation to grant him an oral hearing on appeal breached his right to a fair procedure guaranteed by that Article.

The Government did not make any submissions on this complaint.

The Court considers, in the light of the parties’ submissions that this complaint raises complex issues of law and fact under 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 the application admissible.

Michael O’Boyle Nicolas Bratza Registrar President