CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 octobre 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. 23168/94                       by Hüseyin KARATAS                       against Turkey          The European Commission of Human Rights sitting in private on 14 October 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                  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 August 1993 by Hüseyin Karatas against Turkey and registered on 4 January 1994 under file No. 23168/94;        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 1      August 1995 and the observations in reply submitted by the      applicant on 30 May 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish national of Kurdish origin, born in 1963 and residing in istanbul, is a poet. Before the Commission, he is represented by Gulizar Tuncer, 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:        In November 1991 the applicant had an anthology of his poems entitled "Dersim - Bir isyanin Türküsü" (Dersim - Folk Song of a Rebellion) published in istanbul.        In an indictment dated 8 January 1992 the Public Prosecutor at the istanbul State Security Court charged the applicant with disseminating propaganda in his poetry against the indivisibility of the State. In his indictment the Public Prosecutor quoted certain extracts from the applicant's poems. The charges were brought under Article 8 paragraph 1 of the Anti-Terror Law.        In the proceedings before the istanbul State Security Court, the applicant denied the charges. He stated that the extracts from his anthology, relied on by the Public Prosecutor in his indictment, were merely quotations that the applicant had taken from other sources.        In a judgment dated 22 February 1993 the court found the applicant guilty of an offence under Article 8 of the Anti-Terror Law. It originally sentenced the applicant to two years' imprisonment and a fine of 50,000,000 Turkish lira. Then, taking into consideration the good conduct of the applicant during the trial, it reduced his sentence to one year and eight months' imprisonment and a fine of 41,666,666 Turkish lira. The Court relied on certain extracts from applicant's published poems. It held, inter alia, that the following passages amounted to propaganda against the indivisibility of the State: "...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"..."Kurds and Kurdistan will live"..."the Kurdish youth will take revenge".        The applicant appealed.        On 1 July 1993 the Court of Cassation, after a hearing, 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 of 27 October 1995 to the Anti-Terror Law, the istanbul State Security Court re-examined the applicant's case and sentenced him to one year and one month's imprisonment and a fine of 133,333,333 Turkish lira under Article 8 paragraph 1 of the Anti-Terror Law as amended.       B.    Relevant domestic law:        Article 8 of 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.        Article 8 paragraph 1 of 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."     COMPLAINTS        The applicant complains of violations of Articles 9, 10 and 6 of the Convention.        As to Articles 9 and 10 of the Convention, the applicant complains that his conviction on account of the publication of his poems constituted an unjustified interference with his freedom of thought and freedom of expression.        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.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 27 August 1993 and registered on 4 January 1994.        On 20 February 1995 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2 (b)   of the Rules of Procedure. The Government's observations were submitted on 29 July 1995, after an extension of the time-limit fixed for that purpose. 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 developments in the cases of persons convicted and sentenced under Article 8 of the said Law. The applicant submitted comments in reply on 30 May 1996.     THE LAW   1.    The applicant first complains that his conviction for publishing his poems constituted an unjustified interference with his freedom of thought and freedom of expression. The Commission has examined this complaint 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..."        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 i.e. by Article 8 of the Anti-Terror Law. They state that in the impugned poems the applicant made a reference to a certain region of Turkish territory as "Kurdistan", and supported the terrorist activities of the PKK by referring to it as an "independence struggle of the Kurds". The Government assert that according to Article 8 of the Anti-Terror Law these forms of expression constitute propaganda against the indivisible integrity of the State. They consider that the domestic courts therefore interpreted the law reasonably.        The Government also maintain that the applicant's conviction was part of the campaign to prevent terrorism 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 affiliated organisations is internationally recognised, as is the need to react firmly to it. They state that freedom of expression constitutes one of the essential foundations of a democratic society. However, in a situation where politically-motivated violence poses a constant threat to the lives and security of the population and where advocates of this violence seek access to the mass media for publicity purposes, it is particularly difficult to strike a fair balance between the requirements of protecting freedom of information and the imperatives of protecting the State and the public against armed conspirators seeking to overthrow the democratic order which guarantees this freedom and other human rights. They assert that the poems in question are based on propaganda against the indivisible integrity of the 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 claim that the decisions of the domestic courts did not exceed the margin of appreciation conferred on States by the Convention.        The applicant contests all these arguments. He maintains that the extracts from his poems relied on by the domestic courts in their decisions were merely quotations from other sources.        The applicant also alleges that his conviction was not for any legitimate purpose under the Convention. He states that he was convicted because he had written poems about the facts concerning the Kurdish people in Turkey.        He alleges that freedom of expression should also protect opinions which carry a risk of damaging, or which actually damage the interests of others, or opinions which are contrary to the official line unless there exists a pressing social need for restraining them. He contends that, in the circumstances of the present case, there was no pressing social need for his conviction.        With regard to the amendments made by Law No. 4126 of 27 October 1995 to Article 8 of the Anti-Terror Law, the applicant states that following the re-examination of the case, 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.        The Government maintain that State Security Courts, which are special courts set up to deal with offences against the existence and survival 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 profession and not being a member of the military. The judges of State Security Courts evaluate the evidence and take their decisions in accordance with the law and the dictates of their conscience 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 this part of 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 and that they are not sufficiently independent. He contends that one of the three members of the State Security Court is a military judge answerable to his military superiors; the members of the State Security Court are appointed by the High Council of Judges and Prosecutors and the president of this Council is the Minister of Justice and one other member also holds office in the Ministry of Justice.        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.        For these reasons, the Commission, unanimously        DECLARES THE APPLICATION ADMISSIBLE,   without prejudging the      merits of the case.             H.C. KRÜGER                          S. TRECHSEL          Secretary                             President      to the Commission                     of the Commission                                  ANNEX     T.R. ISTANBUL STATE SECURITY COURT ATTORNEY GENERAL     NUMBER Prel.        : 1991/1126 Case         : 1992/13 Indictment   : 1992/9   I N D I C T E M E N T   STATE SECURITY COURT NO ( )   Plaintiff         : Order of Law   Defendants:       1-HUSEYIN KARATAS, son of Ibis and Elif, DOB. 1963,                  registered at Pinaronu village, Erzincan Central                  province. Resident at Resitpasa caddesi 25/11,                  Avcilar/ Istanbul.                    2-SEVKI OMEROGLU, son of Huseyin and Hidayet, DOB.                  1958, registered at Hocadede mah. Fatih [Istanbul],                  resident at Fatih cad. 166/8 of the same district.   Offence           :DISSEMINATING PROPAGANDA AGAINST INDIVISIBILITY OF                  THE STATE.   Date of offence   : December 1991   A.A.L. [Applicable Articles of the Law]:                  Article 8/1 of the Act no: 3713 for Huseyin KARATAS,                  Article 8/2 of the Act no: 3713 for Sevki OMEROGLU                  Article 36 of the TPC for the confiscated book.        Preliminary investigation documents were examined.        Defendant Huseyin KARATAS is the author of the poetry book titled A SONG OF REBELLION,   DERSIM. Other defendant Sevki OMEROGLU is the proprietor of Donem Publications, which released the aforementioned book.   Page 5   ... a great passion gaining significance in our sacred hands - the spark of ancient Kurdistan   unless and until Munzursuyu(1) turns crimson with our scarlet blood we will not be tramped upon by the whelps of the Ottoman whore   after all millenniums were spent under these customs freedom becomes the tradition of the tribe ...   Page 6   Dersim(2)'s heart is torn apart roads forcing in like serpents dynamites exploding noise of excavators military boots ...   bottle of medicine in one hand poison in the other Towers of Babylon in their hands Turks are coming with their schools and tongue do not think   we are unaware each sentence is cruelty ...   Page 7   in the corridors of power on the platforms in the barracks genocide has no time to lose neither do those who commit them.   Page 8   I call the head of Hizir(3) a ram we neither saw nor heard anything like this let me ask you brother, what book can justify such cruelty?   Page 11;   And now cruelty is riding full speed more blood will flow Resistance and betrayal, freedom and surrender side by side.   Page 12   Has it not been the custom for millennia that blood washes blood   Page 13   For millennia we have become immune against disasters we are drunk on rebellion's fire for our Kurdistan, for Dersim (2).   Page 18   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? let the festivities begin let the flames reach the sky(4) let the guns speak freely sacred Kurdistan!... friendly Kurdistan!... beautiful Kurdistan!...   Page 20   O my friend, for millennia, we have lived with the most barbaric cruelty. let me ask you, in the name of these modern times for how long will we put up with the burden of such cruelty?   Page 21   to these majestic mountains which will set us free...   Page 22   the whelps of the Ottoman whore strikes at the mountains at our rapid waters at our springs   Page 23   genocide has no time to lose neither do those who commit them. ... millennia of tribal life besieged in our besieged country.   Page 24   an unbounded anger in my heart a speechless revenge   Page 26   Customs will not settle down rebellion comes from the mountains from the millennia of history some died for it, walked to death...   Page 27   A handful of heroes they were, hope and resistance baptised their bodies   Page 28   Those who walked to death before us, contributed to freedom ounce by ounce.   Page 29   Hail to thee Kurdish youth At seventy-five I am a martyr, joining the Kurdish martyrs. Dersim (2) is defeated but the Kurdish culture ...   Page 30   and Kurdistan will survive the Kurdish youth will take revenge whilst my life leaves my skin, my heart will not be in sorrow it is a magnificent happiness to have lived this day, joining the Kurdish martyrs...   Page 32   We survived for centuries without a state, in exiles, in massacres through ages, through roads, We were followed by swords on our trail but not defeated by swords   Page 33   Sheik Alisar efendi of Hasanan (5) was brave enough to know how to die for his honour, country and freedom.   How to describe all these things courageous and heroic that turns my body into pure bravery to the next generation.   Page 35   I invite you to freedom to death In these mountains In this sacred spring one walks with death freedom is blessed with death I invite you to die Time Is injured like heartbeat.   Page 46   Barracks, barrack schools, children, women handsome youngsters, mothers, songs of revenge, arm in arm side by side, surrender and resistance, pride and honour, the   Kurd's honour In the oaths of Delil Dogan, Mazlum Dogan, Ali   Haydar Yildiz, Hayri Durmus (6) Becomes a secret rebellion, inch by inch, drop by drop.        Being of the opinion that the use of such expressions amount to dissemination of propaganda against the indivisibility of the state,        Your court are requested, in the name of the law,   to hold a hearing whereby the defendants may be judged and sentenced for their actions in accordance with article 39 of the Act No. 5680 and article 20 of the Act No. 2845.     P.Prosecutor 19015 Cevat Ozel (Stamp)       Notes   (1)Munzursuyu     :     A river (2)Dersim         :     A Kurdish town where in 1930's a rebellion was                       suppressed by the government forces. (3)Hizir          :     Mythical god of land, his annual meeting with                       the   marine god is publicly celebrated with                       fire. (4)Flames,   setting fire    :     Symbolic sign of starting the Newroz fire of                       rebellion. (5)Hasanan             : Name of a tribe. (6)Various individuals who lost their lives in the conflict with the government forces.