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. 24277/94                       by Yücel ÖZDEMIR                       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 4 May 1994 by Mr. Yücel Özdemir against Turkey and registered on 6 June 1996 under file No. 24277/94;        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      17 July 1995 and the observations in reply submitted by the      applicant on 31 October 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish citizen, born in 1968 and residing in Cologne, Germany, is a journalist. Before the Commission, he is represented by Semih Mutlu, a lawyer practising in Istanbul.   A.    Particular circumstances of the case:        The facts of the present case as submitted by the parties may be summarised as follows:        At the material time, the applicant was the responsible editor of a weekly review entitled "Haberde Yorumda Gerçek" (The Truth of News and Comments) and published in Istanbul.        In the 31 May 1992 and 7 June 1992 editions of the review, an interview with a PKK leader and a joint declaration by four socialist organisations were published.        On 1 June 1992 the Istanbul State Security Court ordered the seizure of all copies of the tenth edition of the review because it allegedly contained a declaration by terrorist organisations and disseminated separatist propaganda.        In an indictment dated 16 June 1992 the Public Prosecutor at the Istanbul State Security Court, on account of an interview with a PKK leader published in the seized edition, charged the applicant as the responsible editor of the review, with disseminating propaganda in the interview against the indivisibility of the State. The applicant was also charged with publishing a declaration by four socialist organisations. The charges were brought respectively under Articles 6 and 8 of the Anti-Terror Law.        In another indictment dated 30 June 1992, the applicant was charged with disseminating propaganda against the indivisibility of the State in a further interview which was published in the eleventh issue of the review. The charges were brought under Article 8 of the Anti- Terror Law.        On 4 February 1993 the criminal proceedings were joined for being a single interview published in two parts.        In the proceedings before the Istanbul State Security Court, the applicant denied the charges. He pleaded that the interview was published with the aim of giving information to the public within the scope of journalism and the liberty of the press.        In a judgment dated 27 May 1993 the State Security Court found the applicant guilty of offences under Articles 6 and 8 of the Anti- Terror Law. The applicant was sentenced to six months' imprisonment plus a fine of 150,000,000 Turkish lira. The Court held that the interview was published in the form of a news commentary. It further held that the interviewee had referred to a certain part of the Turkish territory as "Kurdistan", he had asserted that certain Turkish citizens who are of Kurdish race form a separate society and that the Republic of Turkey expels the Kurdish people from their villages and massacres them. It further considered that the interviewee had praised Kurdish terrorist activities and had claimed that the Kurds should form a separate state. On these grounds, the Court found that the interview, as a whole, disseminated propaganda against the indivisibility of the State. The Court further held that another page of the review contained a declaration by terrorist organisations and thus constituted a separate offence under Article 6 of the Anti-Terror Law.        The applicant appealed. His legal representative stated that in a democratic society opinions must be freely expressed and argued. She maintained that there had been no prosecutions for the publication of other interviews with the leaders of the PKK in other newspapers or magazines. She reiterated the defence which the applicant had made before the State Security Court.        On 4 November 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.        After the amendments made by Law No. 4126 to the Anti-Terror Law, the Istanbul State Security Court re-examined the applicant's case and sentenced him to the same fine.   B.    Relevant domestic law:        The relevant domestic law in the present case is contained in Articles 6 and 8 of the Anti-Terror Law and Article 7 of the Press Law. The text of these Articles is set out below:        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."        Article 8 of the Anti-Terror Law No.3713 of 12 April 1991      (before the amendments of 27 October 1995)        <Translation>        "No one shall, by any means or with any intention or idea, make      written and oral propaganda or hold assemblies, demonstrations      or manifestations against the indivisible integrity of the State      of the Turkish Republic with its land and nation. Those carrying      out such an activity shall be sentenced to imprisonment between      two and five years and to a fine of between 50 and 100 million      Turkish lira.        If the offence of propaganda referred to in the preceding      paragraph is committed by means of periodicals, as defined in      Article 3 of the Press Law No. 5680, the owners of such      periodicals shall also 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 printed works that are not periodicals or for            periodicals which have recently started business, the fine            shall be ninety per cent of the average 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 sentenced to      between six months and two years' imprisonment and to half of the      fine determined in accordance with the foregoing provisions."        In a judgment dated 31 March 1992, the Constitutional Court found the clauses in brackets in the text of Articles 6 and 8 of the Anti- Terror Law above to be contrary to the Constitution and annulled them. The Constitutional Court held that the annulled text would cease to have effect six months after the date of publication of the annulment decision in the Official Gazette. The decision was published on 27 January 1993 and therefore these clauses ceased to have effect as of 27 July 1993.        Article 8 paragraph 1 of the Anti-Terror Law as amended by      Law No. 4126 of 27 October 1995        <Translation>        "No one shall make written and oral propaganda or hold      assemblies, demonstrations and manifestations against the      indivisible integrity of the State of the Turkish Republic with            its land and nation. Those carrying out such an activity            shall be sentenced to imprisonment between one and three            years and a fine of between 100 and 300 million Turkish            lira. In case of re-occurrence of this offence, sentences            shall not be commuted to fines."        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.   COMPLAINTS        The applicant complains of violations of Articles 10, 18 and 6 of the Convention.        As to Article 10 of the Convention, the applicant complains that his conviction as the responsible editor of a periodical in which an interview with a PKK leader was published, as well as a joint declaration by four socialist organisations, 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 18 of the Convention the applicant complains that the restrictions which were applied to his freedom of expression, under Articles 6 and 8 of the Anti-Terror Law, were inconsistent with the legitimate aims prescribed in Article 10 para. 2 of the Convention.        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 4 May 1994 and registered on 6 June 1994.        On 20 February 1995 the Commission decided to communicate the application under Articles 10 (freedom of expression), 18 (prohibition against an improper use of the restrictions),   and 6 para. 1 (a 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 17 July 1995. The applicant replied on 31 October 1995.        On 4 December 1995 the Government submitted information concerning the amendments made to the Anti-Terror Law (Law No. 3713) and the developments in the cases of persons convicted and sentenced under Article 8 of the said Law. The applicant submitted comments in reply on 13 February 1996.   THE LAW   1.    The applicant first complains that his conviction as the responsible editor of a periodical constitutes an unjustified interference with his freedom of expression, in particular his right to receive and impart ideas and information under Article 10 (Art. 10) of the Convention which reads 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...        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 applicant also complains that in his case there has been a breach of Article 18 (Art. 18) of the Convention in that the restrictions which were applied to his freedom of expression, under Articles 6 and 8 of the Anti-Terror Law, were inconsistent with the legitimate aims prescribed in Article 10 para. 2 (Art. 10-2) of the Convention. Article 18 (Art. 18) reads as follows:        "The restrictions permitted under this Convention to the said      rights and freedoms shall not be applied for any purpose other      than those for which they have been prescribed."        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 Articles 6 and 8 of the Anti-Terror Law. They state that the applicant, in his review, published an interview, in which the person being interviewed had referred to a certain part of the Turkish territory as "Kurdistan" and had asserted that certain Turkish citizens who are of Kurdish race form a separate society and that the Republic of Turkey expels the Kurdish people from their villages and massacres them. The respondent Government assert that according to Articles 6 and 8 of the Anti-Terror Law these forms of expression constitute a propaganda against the indivisible integrity of the State. They consider that therefore the domestic courts interpreted the law reasonably.        The Government also maintain that the purpose of the conviction of the applicant was linked to the control of the terrorism carried out by illegal organisations and consequently served to protect the 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. Terrorism strikes at the heart of democracy, the fundamental rights which that concept enshrines and the judicial and political systems. They assert that the interview in question is based on the glorification of the activities of the PKK being an illegal terrorist organisation, for the establishment of an independent Kurdish State against the Turkish State. They submit that it is generally accepted in the comparative and international law on terrorism, that restrictions on Convention rights will be deemed necessary in a democratic society threatened by terrorist violence, as being proportionate to the aim of protecting public order.        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 there had been no prosecution for the publication of interviews with the leaders of the PKK in other newspapers or magazines.        With regard to the amendments made by Law No. 4126 to the Article 8 of the Anti-Terror Law, the applicant states the sentence remains enforceable against him. He emphasises that in these circumstances his status has not changed following the amendments to the said Law.        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.   2.    The applicant further 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 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 on 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 claims 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 1 June 1992 when the domestic court ordered the seizure of all copies of the tenth edition of the review and ended on 4 November 1993 when the Court of Cassation delivered its judgment. It therefore amounted to about one year and five months.        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 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 this 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