CONCURRING OPINION OF JUDGE BONELLO

I voted with the majority to find a violation of Article 10, but I do not endorse the primary test applied by the Court to determine whether the interference by the domestic authorities with the applicant’s freedom of expression was justifiable in a democratic society.

Throughout these, and previous Turkish freedom-of-expression cases in which incitement to violence was an issue, the common test employed by the Court seems to have been this: if the writings published by the applicant supported or instigated the use of violence, then his conviction by the national courts was justifiable in a democratic society.  I discard this yardstick as insufficient.

I believe that punishment by the national authorities of those encouraging violence would be justifiable in a democratic society only if the incitement were such as to create “a clear and present danger”.  When the invitation to the use of force is intellectualised, abstract, and removed in time and space from the foci of actual or impending violence, then the fundamental right to freedom of expression should generally prevail.

I borrow what one of the mightiest constitutional jurists of all time had to say about words which tend to destabilise law and order: “We should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country” [2] .

The guarantee of freedom of expression does not permit a state to forbid or proscribe advocacy of the use of force except when such advocacy is directed to inciting or producing imminent lawlessness and is likely to incite or produce such action [3] .  It is a question of proximity and degree [4] .

In order to support a finding of clear and present danger which justifies restricting freedom of expression, it must be shown either that immediate serious violence was expected or was advocated, or that the past conduct of the applicant furnished reason to believe that his advocacy of violence would produce immediate and grievous action [5] .

It is not manifest to me that any of the words with which the applicant was charged, however pregnant with mortality they may appear to some, had the potential of imminently threatening dire effects on the national order.  Nor is it manifest to me that instant suppression of those expressions was indispensable for the salvation of Turkey.  They created no peril, let alone a clear and present one.  Short of that, the Court would be subsidising the subversion of freedom of expression were it to condone the conviction of the applicant by the criminal courts.

In summary “no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.  If there be time to expose, through discussion, the falsehood and the fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence”. [6]

DISSENTING OPINION OF JUDGE GÖLCÜKLÜ

( Provisional translation )

To my great regret, I cannot agree with the majority of the Court that there has been a violation of Article 10 of the Convention. In my opinion, there is no valid reason to find that the interference in this case was not necessary in a democratic society and, in particular, not proportionate to the aim of preserving national security and public order.

Nor do I share the majority’s view that there has been a violation of Article 6 § 1 in that the National Security Courts are not “independent and impartial tribunals” within the meaning of that provision owing to the presence of a military judge on the bench.

The general principles which emerge from the judgment of 25 November 1995 in the case of Zana v. Turkey and which I recall in my dissenting opinion annexed to the Gerger v. Turkey judgment (of 8 July 1999) are relevant to, and hold good in, the instant case. To avoid repetition, I refer the reader to paragraphs 1-9 of that dissenting opinion.

The case of Sürek v. Turkey (no. 2) is indistinguishable, if not in form, at least in content, from the Zana and Gerger cases or from the cases of Sürek (no. 4) and Sürek and Özdemir . Indeed, the European Commission of Human Rights concluded by 23 votes to 9 that there had been no violation of Article 10 of the Convention . The Commission also noted: “the State Security Court's finding that the disclosure of the identities of the officials concerned made them possible targets of terrorist attack. Having regard to the general tension and to the level of terrorism and violence occurring in south-east Turkey, the Commission accepts that officials engaged in State action against terrorist groups in that area are frequently exposed to serious risks and therefore require a high degree of protection. Moreover, the Commission notes that the incriminated news report, which in itself may have contained information of public interest, could well have been published without disclosure of the identities of the two officials concerned.” In conclusion, the Commission said “the interference with the applicant's freedom of expression was proportionate and could reasonably be regarded as necessary for the purpose of protecting the rights of the two officials concerned.”

As regards the Court’s finding of a violation of Article 6 § 1, I refer to the dissenting opinion which I expressed jointly with those eminent judges Mr Thor Vilhjálmsson , Mr Matscher , Mr Foighel , Sir John Freeland , Mr Lopes Rocha , Mr Wildhaber and Mr Gotchev in the case of Incal v. Turkey of 9 June 1998 and to my individual dissenting opinion in the case of Çiraklar v. Turkey of 28 October 1998. I remain convinced that the presence of a military judge in a court composed of three judges, two of whom are civil judges, in no way affects the independence and impartiality of the National Security Courts, which are courts of the non-military (ordinary) judicial order whose decisions are subject to review by the Court of Cassation .

I wish to stress that: (1) the conclusion of the majority results from an unjustified extension to the theory of outward appearances; (2) it does not suffice to say, as the majority do in paragraph 79 of the judgment, that it is “understandable that the applicants ... should be apprehensive about being tried by a bench which included a regular army officer, who was a member of the Military Legal Service”, and then simply to rely on the Incal precedent ( Çiraklar being a mere repetition of what was said in the Incal judgment); and (3) the majority’s opinion is in the abstract and ought therefore, if it was to be justifiable, to have been better supported both factually and legally.

[1] Notes by the Registry

1 .-2. Protocol No. 11 and the Rules of Court entered into force on 1 November 1998.

[3] . Since the entry into force of Protocol No. 11, which amended Article 19, the Court has functioned on a permanent basis.

[1] . Note by the Registry . Rules of Court A applied to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and from then until 31 October 1998 only to cases concerning States not bound by that Protocol.

[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 purpose of terrorism” (sections 3 and 4) and to which it applies.

[2] . The phrase in italics was deleted by a judgment of the Constitutional Court on 31 March 1992 and went out of force on 27 July 1993.

[1] Note by the Registry . For practical reasons this annex will appear only with the final printed version of the judgment (in the official reports of selected judgments and decisions of the Court), but a copy of the Commission’s reports is obtainable from the Registry.

[2] . Justice Oliver Wendell Holmes in Abrahams v. United States, 250 U.S. 616 (1919) at 630.

[3] . Brandenburg v. Ohio , 395 U.S. 444 (1969) at 447.

[4] . Schenck v. United States 294 U.S. 47 (1919) at 52.

[5] . Whitney v. California 274 U.S. 357 (1927) at 376.

[6] . Justice Louis D. Brandeis , in Whitney v. California , 274 U.S. 357 (1927) at 377.