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. 24762/94                       by Kamil Tekin SÜREK                       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 27 July 1994 by Mr. Kamil Tekin Sürek against Turkey and registered on 3 August 1996 under file No. 24762/94;        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 26      October 1995 and the observations in reply submitted by the      applicant on 5 December 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, 24735/94 have been brought by the same applicant, who was the owner of a periodical.        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 14 March 1993 the Istanbul State Security Court ordered the seizure of the fifty-first edition of the review which appeared on 13 March 1993, for separatist propaganda.        In an indictment dated 22 April 1993 the Public Prosecutor at the Istanbul State Security Court, on account of a news commentary concerning possible events which could occur during the celebrations of Newroz published in the fifty-first edition of the review, charged the applicant, as the owner of the review, with making propaganda by means of the press against the indivisibility of the State. The applicant was also charged with publishing the declaration of an illegal terrorist organisation, the ERNK, which is the political branch of the PKK. Charges were brought under Articles 6 and 8 of the Anti- Terror Law respectively.        In the proceedings before the Istanbul State Security Court, the applicant denied the charges. He pleaded that the news commentary for which he was charged did not fall within the scope of Article 8 of the Anti-Terror Law. He maintained that arguing and commenting on possible activities in which the illegal terrorist organisation PKK might engage during the Newroz celebrations, could not be considered as publishing a declaration of a terrorist organisation within the meaning of Article 6 of the Anti-Terror Law. 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 Articles 6 and 8 of the Anti-Terror Law restrict 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. The applicant was sentenced under Article 8 of the Anti-Terror Law 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 news commentary. It held, inter alia, that the news commentary in which certain part of the Turkish territory was referred to as "Kurdistan" and a certain section of the population as "Kurds", disseminated propaganda against the indivisibility of the State. The Court further held that the review had published the declaration of an illegal terrorist organisation, the ERNK, in which the Republic of Turkey was referred to as a terrorist State. However, it considered that the declaration constituted a part of the news commentary at issue and, having regard to the provisions of Article 79 of the Turkish Criminal Code, did not find any grounds for a separate conviction under Article 6 of the Anti-Terror Law.        The applicant appealed. He, inter alia, reiterated the defence he had made before the State Security Court.        On 8 February 1994 the Court of Cassation dismissed the appeal. It upheld the cogency of the State Security Court's assessment of evidence in rejecting the applicant's defence.        After the amendments made by Law No. 4126 of 27 October 1995 to the Anti-Terror Law, the Istanbul State Security Court re-examined the applicant's case. On 22 April 1996 the Court held that the mentioned amendments could not be applied to the applicant's case as his sentence had already been executed.   B.    Relevant Domestic Law:        The relevant domestic law in the present case is contained in Articles 6 and 8 of the Anti-Terror Law, Article 79 of the Criminal Code 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."        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      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      two and five years and a fine 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 clauses enclosed in brackets in the texts of Articles 6 and 8 of the Anti-Terror Law 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 79 of the Criminal Code        <Translation>        "If a single act of a person constitutes a violation of several      provisions of the Law, such a person will be punished in      accordance with the single provision which imposes the heaviest      punishment."        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 translation of extracts from the relevant news commentary constituting the grounds for the domestic court rulings:        "It's "Newroz" week in Kurdistan. The biggest confrontation      between the demands of the Kurdish people and non-tolerance in      the face of the expression of these demands occurs during these      days. The tradition of rebelliousness is awakened. "Dehak" and      "Kawa" are once again invested with flesh and bones. It's time      to settle accounts. There is nothing vague about Kawa. All the      mountains, all the cities are full of Kawa. There are millions      of them. All right, who, then, is Dehak? Who is the candidate for      representing Dehak in our day?   Is it Demirel? Is it Güres? The      regional Governor? Or the new commander ilter? This time round,      is Dehak represented by every counter-insurgency chief, indeed,      every counter-insurgency operative, every special team member,      every police commissioner superintendent officer? Is Dehak      anonymous, too, now? Be it as it may, but Dehak and Kawa will      settle their accounts once again.        ...        Last year, a revolutionary publication described the days      receding Newroz as follows:        "Nowadays there over 200 thousand soldiers massed into Kurdistan.      Tanks and weapons are sent over. Bombs are raining on Kurdish      villages and mountains. The Chief of the General Staff has      inspected the preparations for the offensive. Instructions are      being issued to provincial and district governors, special team      leaders, police chiefs and military officials. The Head of MIT      intelligence agency talks of the prospect of much blood being      shed. Members of Parliament are organizing information gathering      trips in   order to take the pulse of the people."        ...        Unlike previous years, the PKK leaning Kurdistan National      Assembly (KUM) is also expected to take on a role during Newroz      this year.      ...        We wish to emphasise this finding, indeed, we feel that it ought      to be underlined. And we call on all European countries. We are      open to any humanitarian, political   solution, including the      calls for an armistice. The PKK movement and its struggle are      absolutely not terrorist movements. This misapprehension must be      abandoned-it must definitely be abandoned-and a move must be made      towards co-operation and support. The real terrorist is the      Republic of Turkey. We believe that attitudes on this matter will      be much clarified this year, that very positive dialogues will      develop and that the Republic of Turkey will be gradually further      isolated.        ...        On the other hand emergency measures are being implemented in      large cities outside Kurdistan where there are concentrations of      Kurdish people. It is highly likely that there will be large      demonstrations in the Kurdish quarters there."     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 27 July 1994 and registered on 3 August 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 26 October 1995, after an extension of the time-limit fixed for that purpose. The applicant replied on 5 December 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 the interference with the applicant's rights under Article 10 (Art. 10) of the Convention was prescribed by law in this case, 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 a certain section of the population as "Kurds". They also state that the review had published the declaration of an illegal terrorist organisation, the ERNK, in which the Republic of Turkey was referred to as a terrorist State. 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 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. Terrorism strikes at the heart of democracy, the fundamental rights which enshrines that concept and the judicial and political systems. They assert that the news commentary in question was 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 arguing and commenting on possible activities in which the PKK might engage during Newroz celebrations, cannot be considered as publishing a declaration of a terrorist organisation. 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 14 March 1993 when the domestic court ordered the seizure of all copies of the fifty-first edition of the review and ended on 8 February 1994 when the Court of Cassation delivered its judgment. It therefore amounted to 10 months and 25 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. 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