FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

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

The European Court of Human Rights (First Section) , sitting on 15 June 2000 as a Chamber composed of

Mrs E. Palm, President , Mr L. Ferrari Bravo, Mr Gaukur Jörundsson, Mr R. Türmen, Mr B. Zupančič, Mr T. Panţîru, Mr R. Maruste, judges , 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 and registered on 27 July 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 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. The applicant is represented in the proceedings before the Court by Mr Kamil Tekin Sürek , a lawyer practising in Istanbul, Turkey.

The facts of the case, as submitted by the applicant, may be summarised as follows:

A. The circumstances of the case

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 (Unofficial translation) :

“OHAL (State of Emergency) is the Turkish meaning of the Turkish Republic’s confession of its improper management of there ( ora ). It is the domestic regulation of war in the Special Forces’ language. It is the unofficial war in the language of the Special War Department. It is the confession of failure to find in the language of National Borders ( Misaki Milli ) a solution. OHAL is the entrenchment of the Turkish Republic in life, reality and the fundamental rights of Kurdish people in the language of violence.

The public which has been asked to look upon their children as an enemy will be considered as an enemy in the course of time if they reject this entrenchment. Their fate is the violence of the extraordinary government in such conditions.

The woman suspected of finding the enemy pleasant, the little child considered to have aided the terrorist, the grandfather thought to have his grandson in the mountains, the villagers accused of abetting the guerrillas, the forests, mountain, the land, the sand and the entire public will be again in front of the barrel.

The State of Emergency regime is the name of the effort to dry up the sea to hunt the fish.

OHAL (State of Emergency) is the legal cover for the relentless efforts to make the public sick of their life, to evacuate the region, to force the Kurd to pay homage by destroying there, to give up the ghost, to relinquish the essence of humanity, to be village guards and to drown them in betrayal ....

The sword, the wrath and the revenge of the unsuccessful system.

The baseless anger, blind panic, fear.....

The extension of the time limit for the posting of Provide Comfort Forces of the USA squeezes the violence into the hands of the armed forces of imperialism. It is also the internationalisation of the force carried out against the Kurds.

State of Emergency is the forty mules and the Provide Comfort Force is the forty large butcher’s knives.

The extension of the time limit of the State of Emergency in company with the Provide Comfort Force indicates to us that the domestic militarism and the imperialist will continue the restrictions on the Kurdish People. It also indicates to us the failure of the system to find a solution. It indicates the denial and the annihilating desperation, also the failure to govern.

OHAL(State of Emergency) and Provide Comfort Force ( Çekiç Güç ):  confession of bankruptcy,  acceptance of desperation.... confirmation of defeat.

The evil fate of the Kurd....

Naturally, the non- directed people would be shot. ...

However the problem is not only related to there. (ORA)

Even here ..... or you.... All of us.....

Can we keep alive our humanity while they are evacuating there? Does such kind of violence also shoot us? If the captivity of there (ORA) will be continued by militarism, will our soul capitulate to the devil, or not?

Do we still suffer from our grandfather’s and father’s failures to find a solution? Are our hands still bloodied in Dersim ?.... Does this insensitivity and our non-reaction refute there (ORA) or not? Does so much blood and dead drown us or not?

The sorrow of Kurds is the leg-irons of our hearts.

Their scream is the evil fate of the Turkish people.

Do we still be silent? Will we still keep our silence or not, even if we know that silence is an accessory to the crime?

You ... Do you know?

They also shoot the silent public ...”

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

On 3 July 1995 the public prosecutor attached to the Istanbul 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 Turkish Criminal Code. He relied on the content of the above article.

In the proceedings before the Istanbul 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 any 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 of the offence 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 Turkish Criminal Code to a term of imprisonment of one year and eight months. The applicant was fined 500,000 Turkish liras (TL) and the editor-in-chief TL 3,525,000. 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 Turkish Criminal Code had not been made out. He stated that the applicant and his co-accused should have been acquitted on the ground that the article at issue was to be considered as criticism rather than incitement.

On 5 July 1996 the applicant and his co-accused appealed against conviction to the Court of Cassation . The applicant submitted that the lower court failed to grant him adequate time for the preparation of his defence since he was abroad at that 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 European Convention for the Protection of Human Rights and Fundamental Freedoms and that these Articles, along with Article 6, had to be applied by the domestic courts given that Turkey was a Contracting State to the Convention. The applicant further stated that his case was not 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 Istanbul State Security Court.

On 18 November 1996 the Court of Cassation quashed the jugment of the Istanbul 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 Istanbul State Security Court.

The public prosecutor attached to the Istanbul 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 Istanbul State Security Court the applicant did not dispute that he had drafted the article. However, he 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 Turkish Criminal Code to a term of imprisonment of one year and eight months and a fine of TL 500,000 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, with reference to his previous grounds of appeal, appealed against his conviction 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

A. The criminal law

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.”

B. The National Security Courts [1]

The constitutional provisions governing judicial organisation of the National Security Courts are worded as follows:

(a) The Constitution

Article 138 §§ 1 and 2

“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.

No organ, authority, ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.”

Article 139 § 1

“Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution…”

Article 143 §§ 1-5

“National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.

National Security Courts shall be composed of a president, two other regular members, two substitute members, a prosecutor and a sufficient number of assistant prosecutors.

The president, one of the regular members, one of the substitutes and the prosecutor, shall be appointed from among judges and public prosecutors of the first rank, according to procedures laid down in special legislation; one regular member and one substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges.

Presidents, regular members and substitute members ... of National Security Courts shall be appointed for a renewable period of four years.

Appeal against decisions of National Security Courts shall lie to the Court of Cassation .

...”

Article 145 § 4

“Military legal proceedings

The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve in the performance of their non-judicial duties shall also be regulated by law...”

(b) Law no. 2845 on the creation and rules of procedure of the National Security Courts [2]

Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide as follows:

Section 1

“In the capitals of the provinces of … National Security Courts shall be established to try persons accused of offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free, democratic system of government and offences directly affecting the State’s internal or external security.”

Section 3

“The National Security Courts shall be composed of a president, two other regular members and two substitute members.”

Section 5

“The president of a National Security Court, one of the [two] regular members and one of the [two] substitutes ... shall be civilian … judges, the other members, whether regular or substitute, military judges of the first rank…”

Section 6(2) and (6)

“The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the Military Legal Service Act.

Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years…

…

If, after an investigation concerning the president or a regular or substitute member of a National Security Court conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of the person concerned, the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation.”

Section 9(1)(a)

“National Security Courts shall have jurisdiction to try persons charged with

(a) the offences contemplated in Article 312 § 2 … of the Turkish Criminal Code,

…

(d) offences having a connection with the events which made it necessary to declare a state of emergency, in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution,

(e) offences committed against the Republic, whose constituent qualities are enunciated in the Constitution, against the indivisible unity of the State – meaning both the national territory and its people – or against the free, democratic system of government and offences directly affecting the State’s internal or external security.

…”

Section 27(1)

“The Court of Cassation shall hear appeals against the judgments of the National Security Courts.”

Section 34(1) and (2)

“The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession…

The observations of the Court of Cassation on military judges, the assessment reports on them drawn up by Ministry of Justice assessors … and the files on any investigations conducted in respect of them … shall be transmitted to the Ministry of Justice.”

Section 38

“A National Security Court may be transformed into a Martial Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court…”

(c) The Military Legal Service Act (Law no. 357)

The relevant provisions of the Military Legal Service Act are worded as follows:

Additional section 7

“The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Law and the Turkish Armed Forces Personnel Act (Law no. 926).

(a) The first superior competent to carry out assessment and draw up assessment reports for military judges, whether regular or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence.

…”

Additional section 8

“Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence…”

Section 16(1) and (3)

“Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces…

…

The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation , the reports by Ministry of Justice assessors and the assessment reports drawn up by the superiors…”

Section 18(1)

“The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.”

Section 29

“The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions:

A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties.

…

B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy.

…

The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file…”

Section 38

“When military judges … sit in court they shall wear the special dress of their civilian counterparts…”

(d) Article 112 of the Military Criminal Code (of 22 May 1930)

Article 112 of the Military Criminal Code of 22 May 1930 provides:

“It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a civil servant in order to influence the military courts.”

(e) Law no. 1602 of 4 July 1972 on the Supreme Military Administrative Court

Under section 22 the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their professional advancement.

COMPLAINTS

1. 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 also maintains with reference to Article 6 that he was not notified of the making of the interim seizure order and that the single judge who made the order did not consider it necessary to hear either his objections or his co- accused’s to the making of the order.

The applicant further argues that the Court of Cassation did not respect the principles 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 further alleges that the criminal charges against him were not determined within a reasonable time, in breach of Article 6 of the Convention.

2. The applicant finally complains that his conviction and sentence violated Article 10 of the Convention.

THE LAW

1 . 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 Istanbul 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 Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) [Note1] of the Rules of Court, to give notice of this complaint to the respondent Government.

2. 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 Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) [Note2] of the Rules of Court, to give notice of this complaint to the respondent Government.

3. The applicant states that the criminal charges brought against him were not determined within a reasonable time, in violation of Article 6 § 1 of the Convention.

The Court observes that the applicant was formally charged on 30 June 1995. The proceedings against him were eventually concluded on 16 March 1998 when the Court of Cassation upheld his conviction. The proceedings thus lasted approximately two years and nine months. Having regard to its established criteria in this area (see, among many other authorities, the Portington v. Greece judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2630, § 21), the Court considers that the length of the proceedings cannot be said to be unreasonable. It observes in particular that the applicant was tried twice by the Istanbul State Security Court and twice went on appeal to the Court of Cassation .

For these reasons, the Court concludes that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 35 § 4.

4. The applicant further contends that he was denied a fair procedure in respect of the seizure order which was made by the single judge on 30 June 1995, being neither notified that the public prosecutor had requested such an order nor given the opportunity to contest the making the order. The applicant invokes Article 6 § 1 of the Convention.

The Court observes that the decision of the singe judge to order the seizure of copies of the edition of Evrensel ” did not involve the determination of a “criminal charge” within the meaning of Article 6 § 1 of the Convention. The decision to seize copies of the newspaper was a prelude to the laying of criminal charges against the applicant and his prosecution before the State Security Court. The guarantees of Article 6 of the Convention only attach to the determination of his guilt or innocence at his trial and on appeal, and not to the stage when evidence of the alleged offence was seized.

The Court concludes accordingly that this complaint must be considered ratione materiae as being incompatible with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected under Article 34 § 4 thereof.

5. 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. Article 10 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 Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) [Note3] of the Rules of Court, to give notice of this complaint to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant ’s complaints concerning the lack of independence and impartiality of the Istanbul State Security Court, the refusal of the Court of Cassation to grant him an oral hearing on appeal and the interference with his right to freedom of expression.

DECLARES INADMISSIBLE the remainder of the application.

Michael O’Boyle Elisabeth Palm Registrar President

[1] . The National Security Courts were created by Law no. 1773 of 11 July 1973, in accordance with Article 136 of the 1961 Constitution. That law was annulled by the Constitutional Court on 15 June 1976. The courts in question were later reintroduced into the Turkish judicial system by the 1982 Constitution. The relevant part of the statement of reasons contains the following passage:

“There may be acts affecting the existence and stability of a State such that when they are committed, special jurisdiction is required in order to give judgment expeditiously and appropriately. For such cases it is necessary to set up National Security Courts. According to a principle inherent in our Constitution, it is forbidden to create a special court to give judgment on a specific act after it has been committed. For that reason the National Security Courts have been provided for in our Constitution to try cases involving the above-mentioned offences. Given that the special provisions laying down their powers have been enacted in advance and that the courts have been created before the commission of any offence …, they may not be described as courts set up to deal with this or that offence after the commission of such an offence.”

[2] . These provisions are based on Article 143 of the Constitution, to the application of which they refer.

[Note1] Change as necessary.

[Note2] Change as necessary.

[Note3] Change as necessary.