CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 septembre 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 24122/94                       by Kamil Tekin SUREK                       against Turkey        The European Commission of Human Rights sitting in private on 2 September 1996, the following members being present:                Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  G.B. REFFI                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ              Mr.    H.C. KRÜGER, Secretary to the Commission        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 9 March 1994 by Mr. Kamil Tekin Sürek against Turkey and registered on 11 May 1994 under file No. 24122/94;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the Commission's decision of 20 February 1995 to communicate the      application ;   -     the observations submitted by the respondent Government on 25      September 1995 and the observations in reply submitted by the      applicant on 6 November 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish citizen, born in 1957 and resident in Istanbul, is a lawyer.   A.    Particular circumstances of the case        Applications Nos. 23927/94, 24735/94, 24762/94 have been brought by the same applicant, who was the owner of a periodical.        The facts of the present case, as submitted by the parties, may be summarised as follows:        At the material time, the applicant was the major shareholder in the Deniz Basin Yayin Sanayi ve Ticaret Organizasyon A.S., a Turkish company which owns a weekly review entitled "Haberde Yorumda Gerçek" (The Truth of News and Comments) and published in Istanbul.        In an indictment dated 29 May 1992, the Public Prosecutor at the Istanbul Security Court, on account of a news report concerning a press declaration by former deputies Leyla Zana and Orhan Dogan and an English Committee which was published on 26 April 1992, charged the applicant as the owner of the review, with disseminating the identities of the officials mandated to fight terrorism and rendering them targets. The charges were brought under Article 6 of the Anti-Terror Law.        In the proceedings before the Istanbul State Security Court, the applicant denied the charges. He pleaded that the news report was published with the aim of informing the public of the events which had occurred during the 1992 Newroz celebrations. He further pleaded that the reports were based on a joint press declaration by former deputies Leyla Zana and Orhan Dogan and an English Committee after their visit to the south-east region of Turkey. He maintained that as Article 6 of the Anti-Terror Law prohibits in all circumstances the disclosure and dissemination of the identity of the officials appointed to fight terrorism, it enables officials to misuse their authority, violate the law and subject citizens to ill-treatment. He stated that the right to receive and impart information, including information concerning the acts of officials, is one of the fundemental rights in a democratic society. He alleged that Article 6 of the Anti-Terror Law contravened the Turkish Constitution. He invoked Article 10 of the Convention and referred to the case-law of the Commission and the Court in this respect. He stated that pluralism of opinions including those which shock or offend is essential in a democratic society.        In a judgment dated 2 September 1993, the Court sentenced the applicant to a fine of 54,000,000 Turkish lira under Article 6 of the Anti-Terror Law. The Court held that in the news report it was alleged that the Governor of Sirnak had told the visiting Committee that the order to open fire on the people had been given by the Sirnak Chief Police Officer. The Court further held that, according to the news reports, a gendarme commander had allegedly told Leyla Zana, "your death gives us pleasure; drinking all your blood would not quench my thirst". The Court noted that the identities of these officials were disclosed in the news reports. It concluded that the reports contained declarations rendering these officials targets for terrorist attack.      The applicant appealed. He asserted that the press declaration at issue had already been reported in other newspapers and magazines and that the present news report added nothing to them. He, inter alia, reiterated the defence he had made before the State Security Court.        On 10 December 1993 the Court of Cassation dismissed the appeal. It upheld the cogency of the State Security Court's assessment of evidence and its reasoning in rejecting the applicant's defence.   B.    Relevant domestic law:        The relevant domestic law in the present case is contained in Article 6 of the Anti-Terror Law and Article 7 of the Press Law.        Article 6 of the Anti-Terror Law No. 3713 of 12 April 1991        <Translation>        "Those who announce that a crime will be committed by terrorist      organisations against certain persons either expressly or without      mentioning their names, or who disseminate or disclose to the      public the identity of officials appointed to fight terrorism,      or who render such officials targets, shall be subject to a fine      of between 5 and 10 million Turkish lira.        Those who print or publish the leaflets of terrorist      organisations shall be subject to a fine of between 5 and 10      million Turkish lira.        Those who, contrary to Article 14 of this Law, disclose or      publish the identity of informants shall be subject to a fine of      between 5 and 10 million Turkish lira.        If one of the crimes defined above is committed by means of      periodicals, as defined in Article 3 of the Press Law, the owners      of such periodicals shall be punished by a fine to be determined      in accordance with the following provisions:        -      For periodicals published at less than monthly            intervals, the fine shall be ninety per cent of the            average real sales of the previous month;        -      for periodicals published monthly or at more than monthly            intervals, the fine shall be ninety per cent of the average            real sales of the previous issue;        -      [for printed works that are not periodicals or for            periodicals which have recently started business, the fine            shall be ninety per cent of the monthly sales of the highest            circulating daily periodical.]        In any case, the fine may not be less than 100 million      Turkish lira.        Responsible editors of these periodicals shall be given half the      sentences of the publishers."   The Press Law (Law No. 5680)        Under Article 7 of the Press Law, in cases where a periodical is owned by a company, the major shareholder in that company is considered to be the owner of the periodical.   C.    Extracts from the relevant news report        The following is an English translation of extracts from the relevant news report constituting the grounds for the domestic court rulings:        "Gendarmerie Regiment Commander ismet Yediyildiz:        'Your blood wouldn't quench my thirst...'        While the British delegation and Diyarbakir MP Leyla Zana, Sirnak      MP Orhan Dogan and Bismil District Governor Mehmet Kurdoglu      managed to persuade the people of Tepe village, which was      blockaded by the security forces, after talking to them for a      while and told them that permission had been obtained for them      to get the bodies of their dead, an interesting conversation took      place between Diyarbakir Police Department Head Ramazan Er and      Gendarmerie Regiment Commander ismet Yediyildiz.        The conversation between the MP's Leyla Zana and Sirnak, on the      one hand, and Colonel ismet Yediyildiz, on the other, was      recounted by Leyla Zana as follows:        Colonel Yediyildiz: What business do you have here? There was      nobody here until you arrived. You have come and stirred it up      again.        Leyla Zana: No, Sir. The situation was extremely tense before we      arrived. We have come with the district government and are trying      to calm down the tension here. Here is the district governor [you      can ask him].        Colonel Yediyildiz: No, that's not true. We saw it when we were      flying in the helicopter, there was nobody here before. People      gathered when you arrived.        Orhan Dogan: No, you can ask the District Governor if you like.      (Meanwhile, the District Governor Mehmet Kurdoglu is also being      censured).        Colonel Yediyildiz: Do you know who these dead people are?        Orhan Dogan: Yes, they are our children, the children of all of      us.        Colonel Yediyildiz: No, these are not our children, they are your      children.Orhan Dogan: But my*) Colonel...        Colonel Yediyildiz: Do not call me your colonel. I am not your      colonel. Your blood wouldn't quench my thirst. You should also      be honest and freely admit that my blood wouldn't quench your      thirst. Right now I could kill you like a rat. Your death would      give us pleasure. Your blood wouldn't quench my thirst.        Leyla Zana: If the problem can be solved by killing us, then here      are our people; let's go among them and you kill us so that this      problem gets solved.        Colonel Yediyildiz: No, I wouldn't kill you now. I'd kill you      after I'll have you disgraced in the eyes of the people."     COMPLAINTS        The applicant complains of violations of Articles 10 and 6 of the Convention.        As to Article 10 of the Convention the applicant complains that his conviction as the owner of a periodical for publishing a news report constituted an unjustified interference with his freedom of expression, and in particular with his right to receive and impart information and ideas.        As to Article 6 para. 1 of the Convention the applicant complains that his case was not heard by an independent and impartial tribunal. He asserts in this regard that one of the three members of the State Security Court is a military judge answerable to his military superiors whose presence prejudices the independence of the Court.        The applicant also complains that the length of the criminal proceedings against him exceeded the reasonable time requirement of Article 6 para. 1.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 9 March 1994 and registered on 11 May 1994.        On 20 February 1995 the Commission decided to communicate the application, under Articles 10 (freedom of expression) and 6 para. 1 (lack of impartiality and independence) of the Convention, to the respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.        The Government's observations were submitted on 25 September 1995. The applicant replied on 6 November 1995.   THE LAW   1.    The applicant first complains that his conviction as the owner of a periodical constitutes an unjustified interference with his freedom of expression, in particular his right to impart ideas and information under Article 10 (Art. 10) of the Convention which provides 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 maintain that in this case the interference with the applicant's rights under Article 10 (Art. 10) of the Convention was prescribed by law   i.e. by Article 6 of the Anti-Terror Law. They state that the applicant, in his review, published a news report concerning a press declaration which was disclosing to the public the identity of officials appointed to fight terrorism and rendering them targets for terrorist attack. They assert that Article 6 of the Anti-Terror Law clearly prohibits the action of revealing the identity of officials mandated to fight terrorism. The Government consider that the domestic courts therefore interpreted the law reasonably.        The Government also maintain that the purpose of the conviction of the applicant was linked to the control of terrorism carried out by illegal organisations and consequently served to protect territorial integrity and national security.        As to the necessity of the measure in a democratic society, the respondent Government state that the threat posed to Turkey by the PKK and its affiliations is internationally recognised, as is the need to react firmly to it. The Government maintain that turning the public officials of strategic importance into targets by means of revealing their identity is prohibited and penalised by legislation in many countries. They submit that the incriminated news report was disclosing the identity of the officials appointed to fight terrorism and rendering them targets for terrorist attack.        In this respect the Government assert that 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. He maintains that the interview was published with the aim of giving information to the public within the scope of journalism. He contends that, in the circumstances of the present case, there was no social need for his conviction.        The applicant also maintains that his conviction cannot be justified under the Convention. He considers that it was completely out of proportion to rely on such reasons, particularly in view of the limited circulation of the review.        Furthermore the applicant maintains that the penal sanctions inflicted upon him were not necessary in a democratic society. He notes that the press declaration at issue had already been reported in other newspapers and the present news report added nothing to them.        The Commission has conducted a preliminary examination of the parties' arguments. It considers that the application raises complex factual and legal issues which cannot be resolved at this stage of the examination of the application, but require an examination of the merits. Consequently, this complaint cannot be declared manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.   2.    The applicant also complains that his case was not heard by an independent and impartial tribunal as required by Article 6 para. 1 (Art. 6-1) of the Convention. In so far as relevant, this provision reads as follows:        "1.    In the determination of his civil rights and obligations or      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 maintain that State Security Courts, which are special courts set up to deal with offences against the existence and continuity of the State, are ordinary courts, given that they were established in accordance with the provisions of Article 143 of the Constitution. As they are independent judicial organs, no public authority or agent could give instructions to such courts. State Security Courts are composed of three members, one of whom is a military judge. A civil judge acts as president and all the judges have attained the first grade in the career scale. The presence of a military judge in the court does not prejudice its independence, this judge being a judge by career and not belonging to the military. The judges of State Security Courts evaluate the evidence and take their decisions in accordance with the law and their own conscientious conviction as required by Article 138 of the Turkish Constitution. The verdicts of such courts are subject to review by the Court of Cassation.        Accordingly the Government submit that the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        The applicant states that the State Security Courts are extraordinary courts dealing with political offences. He contends that: - the members of the State Security Court are appointed by the High Council of Judges and Prosecutors,      - the president of this Council is the Minister of Justice and      two other members also hold office in the Ministry of Justice,   - one of the three members of the State Security Court is a military judge answerable to his military superiors.        The Commission has conducted a preliminary examination of the parties' arguments. It considers that this part of the application raises complex factual and legal issues which cannot be resolved at this stage of the examination of the application, but require an examination of the merits. Consequently, this complaint cannot be declared manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.   3.    The applicant lastly complains that the criminal proceedings brought against him were not dealt with within a "reasonable time" as required by Article 6 para. 1 (Art. 6-1) of the Convention.        The Commission notes that the period to be considered began on 29 May 1992 when the Public Prosecutor charged the applicant with an offence committed as the owner of the review   and ended on 10 December 1993 when the Court of Cassation delivered its judgment. It therefore amounted to 18 months and 11 days.        The Commission 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 the established case-law, in particular the complexity of the case and the conduct of the applicant and of the relevant authorities (Eur. Court HR, Yagci and Sargin v. Turkey judgment of 8 June 1995, Series A no. 319, p. 20, para. 59).        In the instant case, the Commission observes that the total period at issue was not unreasonably long. Moreover, the applicant has not shown any substantial periods of inactivity attributable to the judicial authorities.        It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaints relating to the alleged interference with      his freedom of expression and the alleged lack of impartiality      and independence of the tribunal which convicted him;        DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.             H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission