DISSENTING OPINION OF JUDGE gölcüklü

( 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.

1. The considerations set out in paragraphs 1 to 9 of my dissenting opinion in Gerger v. Turkey ([GC], no. 24919/94, 8 July 1999) are equally valid and relevant in the instant case. I therefore refer the reader to them.

2. I also entirely agree with the joint partly dissenting opinion of Judges Wildhaber, Pastor Ridruejo, Costa and Baka.

3. Furthermore, I think that it would assist in the understanding of the present judgment if I were to refer to the opinion of the majority of the European Commission of Human Rights who, by twenty-six votes to six, concluded that there had been no breach of Article 10 in this case . The following is to be found in paragraphs 58 to 60 of the Commission’s report:

“In the present case … the Commission, even taking into account the prerogatives of a poet, finds that parts of the applicant’s poems glorify armed rebellion against the Turkish State and martyrdom in that fight. The poems contain, in particular, the following passages: ‘let us go! children of those who do not yield, we have heard, there is a rebellion in the mountains, would one stay behind upon hearing this?’; ‘let the guns speak freely’; ‘the whelps of the Ottoman whore’; ‘I invite you to die, in these mountains, freedom is blessed with death’; ‘the Kurdish youth will take revenge’. In the Commission’s opinion, those expressions, read in the context of the poems as a whole, were capable of creating among readers the impression that the applicant was encouraging, or even calling for, an armed struggle against the Turkish State and was supporting violence for separatist purposes.

Consequently, the Commission considers that the Turkish authorities were entitled to consider that the poems were harmful to national security and public safety. In these circumstances, the applicant’s conviction and the penalty imposed on him on account of the publication of these poems could reasonably be regarded as answering a pressing social need.

In the light of these considerations, the Commission, having regard to the State’s margin of appreciation in this area, is of the opinion that the restriction placed on the applicant’s freedom of expression was proportionate to the legitimate aims pursued and that, therefore, it could reasonably be regarded as necessary in a democratic society to achieve those aims.”

4. As regards the Court’s finding of a violation of Article 6 § 1, I refer to the partly dissenting opinion which I expressed jointly with those eminent judges, Mr Thór Vilhjálmsson, Mr Matscher, Mr Foighel, Sir John Freeland, Mr Lopes Rocha, Mr Wildhaber and Mr Gotchev in the case of Incal v. Turkey (judgment of 9 June 1998, Reports of judgments and Decisions 1998-IV) and my individual dissenting opinion in the case of Çıraklar v. Turkey (judgment of 28 October 1998, Reports 1998-VII). I remain convinced that the presence of a military judge in a court composed of three judges, two of whom are civilian 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.

5. 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 62 of the judgment, that it is “understandable that the applicant ... should have been 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 (Çıraklar 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 came into force on 1 November 1998.

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

[2] 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.

[3] . Former name of a region, now covering the department of Tunceli, where there were fifteen violent riots involving clashes between Kurdish clans and government forces between 1847 and 1938.

[4] . Name of a river in south-east Turkey.

[5] . Anatolian divinity.

[6] . Name of a Kurdish clan.

[7] . Figures believed to have been at the origin of the PKK (Workers’ Party of Kurdistan).

[8] . 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 report is obtainable from the Registry.

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

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

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

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

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