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. 24735/94                       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 18 July 1994 by Mr. Kamil Tekin Sürek against Turkey and registered on 29 July 1994 under file No. 24735/94;        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      31 July 1995 and the observations in reply submitted by the      applicant on 5 September 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, 24122/94 and 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.        On 10 January 1993 the Istanbul State Security Court ordered the seizure of the forty-second edition of the review which appeared on 9 January 1993 on the grounds that it allegedly disseminated propaganda against the indivisibility of the State.        In an indictment dated 28 January 1993, the Public Prosecutor at the Istanbul State Security Court, on account of a news commentary concerning the activities of the PKK which was published in the forty- second edition of the review, charged the applicant, as the owner of the periodical, with disseminating propaganda against the indivisibility of the State. The charges were brought under Article 8 of the Anti-Terror Law.        In the proceedings before the State Security Court, the applicant denied the charges. He pleaded that the commentary on which the charges were based in fact criticised the activities of the PKK. As regards his freedom of expression, he invoked Article 10 of the Convention and referred to the case-law of the Commission and the Court. He stated that pluralism of opinions including those opinions which shock or offend is essential in a democratic society. He argued that the provisions of Article 8 of the Anti-Terror Law restrict the right to freedom of expression in contravention of the Turkish Constitution and the criteria laid down by the case-law of the Commission and the Court.        In a judgment dated 27 September 1993, the Court found the applicant guilty of making propaganda against the indivisibility of the State. The applicant was first sentenced to a fine of 100,000,000 Turkish lira. The Court, considering the good conduct of the applicant during the trial, reduced the fine to 83,333,333 Turkish lira. The Court based its judgment on certain extracts from the published news commentary. It held, inter alia, that "in the news commentary a certain part of Turkish territory had been referred to as 'Kurdistan' and the actions of the PKK had been described as part of the national independence struggle". The Court concluded that the commentary disseminated propaganda against the indivisibility of the State.        The applicant appealed. He, inter alia, reiterated the defence he had made before the State Security Court.      On 18 February 1994 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 8 of the Anti-Terror Law and Article 7 of the Press Law.        Article 8 of the Anti-Terror Law No. 3713 of 12 April 1991        <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 imprisonment from six months to two years 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 clause enclosed in brackets in the text of Article 8 of the Anti- Terror Law to be contrary to the Constitution and annulled it. 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 this clause ceased to have effect as of 27 July 1993.        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 commentary        The following is an English translation of domestic court rulings:        " According to the contents of the file, the defence submissions      and the offending article it is understood that the defendant      Kamil Tekin Sürek is the proprietor and defendant Yücel Özdemir      the managing editor, that an article on page 8 of the 42. issue      dated 9.1.1993 of the periodical "Gerçek" [Truth] titled "In      Botan the poor peasants are expropriating the landlords" contains      the following views: "The waves of the earthquake centred on      Botan have reached all Kurdistan. The national liberation      struggle, growing like the ripples caused by a stone cast into      a pool of water, has already gone past Botan in waves, currently      embracing 50 districts in 8 provinces in the active front of      armed struggle. PKK sources briefly describe the extent of the      national struggle in Kurdistan as follows: The said 8 provinces      (together with their districts) are Hakkari, Sirnak, Siirt,      Mardin, Batman, Urfa and Diyarbakir; while the provinces of Van,      Malatya, Bitlis, Mus and Gaziantep and their districts are      described as being partially involved in the war. The popular      movements in the Botan area, where approximately 4.5 to 5 million      Kurds live, which have developed with the rise of the national      liberation movement have made rapid strides in the years 1990-92.      The political point reached in the area is that the state has      almost become inoperative... The domain vacated by the state in      the political sense has since been occupied by PKK in the rural      areas and HEP organisations in the cities ... Land cannot be      redistributed before it is transferred to the free will of the      Kurdish people, because it is inconceivable to distribute land      that bears the seal of the Republic of Turkey ... Today, our      struggle is a foreign war directed against the forces of the      Republic of Turkey. We want to wage a total liberation struggle."     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 and sentence, as the owner of a periodical which published a news commentary, 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 18 July 1994 and registered on 29 July 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 31 July 1995, after an extension of the time-limit fixed for that purpose. The applicant replied on 5 September 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 8 of the Anti-Terror Law. They state that the applicant, in his review, published a news commentary in which a certain part of Turkish territory had been referred to as "Kurdistan" and the actions of the illegal organisation PKK had been described as part of the national independence struggle. They assert that according to Article 8 of the Anti-Terror Law these forms of expression constitute propaganda against the indivisible integrity of the State. The Government 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 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. 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 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 for any of the reasons permitted 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 pluralism of opinions including those which shock or offend is essential in a democratic society.        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, the application 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 have been 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 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 total period to be considered began on 10 January 1993 when the domestic court ordered the seizure of all copies of the forty-second edition of the review and ended on 18 February 1994 when the Court of Cassation delivered its judgment. It therefore amounted to 13 months and 8 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 Court's 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. 1 (Art. 27-1) 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