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. 24919/94                       by Haluk GERGER                       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 22 June 1996 by Haluk Gerger against Turkey and registered on 17 August 1996 under file No. 24919/94;        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 4      September 1995 and the observations in reply submitted by the      applicant on 30 October 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish citizen born in 1948, is a journalist and writer. Before the Commission, he is represented by Ersen Sansal, a lawyer practising in Ankara.   A.    Particular circumstances of the case        The facts of the present case as submitted by the parties may be summarised as follows:        On 23 May 1992 a memorial meeting was held in Ankara for three prisoners who were executed in May 1972. The applicant was invited by the organisation committee to speak at the meeting. The applicant, who could not attend the meeting, sent a written message.        In an indictment dated 6 August 1993, the Public Prosecutor at the Ankara State Security Court charged the applicant, under Article 8 paragraph 1 of the Anti-Terror Law, with disseminating propaganda against the indivisibility of the State in his message.        In the proceedings before the State Security Court, the applicant denied the charges. He pleaded that in his message he had only expressed the view that the denial of the existence of the Kurdish people has given rise to a war from which both the Turkish and Kurdish people suffer. He asserted that there is consensus on the negative effects of this war. He stated that, in his opinion, the national awakening of the Kurds was a reaction against the policy which was based on the denial of their existence and their annihilation. He further stated that his sociological conclusions could in no way be considered to be propaganda against the indivisibility of the State. He added that the highest authorities of the Turkish Republic admitted that there is a "Kurdish reality". He asserted that the first condition of this admission should be to discuss the "Kurdish problem" without any restrictions.        In a judgment dated 9 December 1993, the Court found the applicant guilty under Article 8 paragraph 1 of the Anti-Terror Law. The Court first sentenced the applicant to two years' imprisonment and a fine of 50,000,000 Turkish lira. The fine was then increased to 250,000,000 Turkish lira. The Court, considering the good conduct of the applicant during the trial, reduced his sentence to one year and eight months' imprisonment and the fine to 208,333,333 Turkish lira. The Court, in its judgment, quoted certain extracts from the applicant's message. It held that such sentences as "... the Turkish Republic is founded upon the negation of the basic rights of Kurds", "... any demand for freedom, any claim for the rights of the Labourer and Kurd have always met a riposte of ruthless aggression from the rulers to annihilate and deny such claim or action...", "... those seeds of liberation of the Kurdish people sown in those days, have now turned into guerrilla warfare in the mountains of Kurdistan" amounted to propaganda against the indivisibility of the State.        The applicant appealed. In a statement to the Court of Cassation dated 20 April 1994, the applicant's lawyers first contested the interpretation of the concept of the indivisibility of the State prescribed by Article 8 of the Anti-Terror Law. Secondly, they stressed that the trial court had relied only on certain extracts from the message. They pleaded that the text of the message as a whole was within the limits of permissible criticism. They reiterated the defence which the applicant had made before the State Security Court.        In a decision of 22 April 1994 which was delivered on 27 April 1994, the Court of Cassation dismissed the appeal. It upheld the cogency of the State Security Court's assessment of evidence and its reasons in rejecting the applicant's defence.        The applicant served his twenty months in prison but did not pay the fine which amounted to 208,333,333 Turkish lira. The fine was therefore converted to a prison sentence and he was kept in prison for a further 33 days.   B.    Relevant domestic law        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."   C.    The text of the impugned message        The following is an English translation of extracts from the relevant message constituting the grounds for the domestic court rulings:        "Dear friends,        I regret being unable to be amongst you due to my illness;      nevertheless, I salute all of you with revolutionary feelings of      solidarity.        The Turkish Republic is founded upon the negation of the basic      rights of Labour and that of the Kurds. Within this geography any      human activity, any demand for freedom, any claim for the rights      of the Labourer and the Kurd have always met a riposte of      ruthless aggression from the rulers to annihilate and deny such      claim or action; for, starting right from their origins and      traditions, these rulers have always been afflicted with a cruel      militarism because of their feebleness, retardedness, lack of      capital accumulation and finally because of the nature of the      Republic that was subservient to imperialism. As the structural      crisis of the order gradually deepened, the ruling classes tried      to remedy the situation by clinging ever more strongly to      imperialism and to militarism.        The rulers who aimed at completely transforming the social and      political atmosphere of the country into a wasteland, put the      yoke of non-pluralism and dependence around the neck of the      society to suppress all resistance and revolt from the masses,      have succeeded for many decades in reducing our peoples to a dark      silence.        However, the awakening in the 60s; organised action by such      dynamic social strata as the workers, the intelligentsia, and the      youth who were until then excluded from participating in the      political life of the country; and finally, the revolutionary-      democratic resistance movement of the early 70s, have all      contributed to the transformation of the history of the nation -      the radical consequences of this transformation are deeply felt      even today.        It is the red rose of hope that grows within the barren and      wearied breast of the worker. It is a saga that is written into      the history of the oppressed which abounds with defeats.        From now on, nothing or nobody is ever the same again!        The quest for independence and freedom that was engraved those      days into the conscience of the society, into the collective      memory of the labouring masses, into the memories of the youth      and intelligentsia, into the consciousness of the working class,      has, up to this day, been the haven of the society, protecting      it from the crisis of the order. The spirit of resistance and      revolt of those heroic years has been hovering over the country      for the past two decades like a nightmare for the rulers. The      banner of socialism that was raised high in those days, is still      flying as the sole alternative for the existing capitalist      system. And, those seeds of liberation of the Kurdish people sown      in those days, now have turned into guerrilla warfare in the      mountains of Kurdistan.        And we, being the rivers, streams, brooks, waterfalls and      cascades springing from the rising seas of those years, are      flowing through our national, democratic and class courses to the      final liberation of man, to the ocean of freedom of the classless      society. Multiplying like so many Deniz Gezmis, we are heading      for the boundless seas of freedom.        Today, on the brink of the Ocean of Liberation, on this fertile      alluvial soil composed of our unity and solidarity in the      struggle, we fire a great salute for the ones who took their      places in the banquet of the sun.        Salutations to the friends!        Salutations to those who march on "to the future, multiplying      like so many Deniz Gezmis!"        Here's to you,      The three red roses of Deniz, Yusuf, Hüseyin...      The three red roses of eternity      Buried in my heart of hearts      The three red roses of eternity      Buried together with all the flowers      That were watered with blood      In the apple of my eye."   COMPLAINTS   1.    The applicant complains under Articles 9 and 10 of the Convention that his conviction for sending a message to a memorial meeting constituted an unjustified interference with his freedom of thought and freedom of expression, and in particular with his right to receive and impart information and ideas.   2.    The applicant complains under Article 6 para. 1 of the Convention 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.   3.    The applicant who complains under Article 6 para. 1 that he did not have a fair trial, asserts that the domestic court failed to give any reasons for its judgment.   4.    The applicant lastly complains of discrimination under Article 14 in conjunction with Articles 5 and 6 of the Convention. He alleges that people who are convicted and sentenced to imprisonment under the provisions of the Anti-Terror Law have no possibility of conditional release until they have served three quarters of their sentence, whereas generally prisoners may be conditionally released after having served half of their sentence.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 22 June 1994 and registered on 17 August 1994.        On 20 February 1995 the Commission decided to communicate the application under Articles 10, 14 (in conjunction with Article 5) and 6 para. 1 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 4 September 1995, after an extension of the time-limit fixed for that purpose. The applicant replied on 30 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 LAW   1.    The applicant complains that his conviction for sending a message to a memorial meeting constituted an unjustified interference with his freedom of thought and freedom of expression, and in particular with his right to receive and impart information and ideas. In this context he invokes Articles 9 and 10 (Art. 9, 10) of the Convention.        Thus formulated, the applicant's complaint is in fact directed against an alleged infringement of his 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 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 refer to the message in question in which the applicant used some expressions such as "...the Turkish Republic is founded upon the negation of the basic rights of Kurds", "...any demand for freedom, any claim for the rights of the Labourer and Kurd have always met a riposte of ruthless aggression from the rulers to annihilate and deny such claim or action...". They also refer to the conclusion which the applicant made, such as "...those seeds of liberation of the Kurdish people sown in those days, have now turned into guerrilla warfare in the mountains of Kurdistan". 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 purpose of the applicant's conviction was linked to the prevention of the 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 affiliated groups 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 at the judicial and political systems. They assert that the message in question is 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 assert that the decisions of the domestic courts did not exceed the margin of appreciation conferred on States by the Convention.        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 contests all these arguments. He maintains that the concept of the indivisibility of the State prescribed by Article 8 of the Anti-Terror Law is so vague that his conviction thereunder was not foreseeable.        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 used certain expressions   such as "Kurdish people" and had asserted the questionability of the "official reality" in his message. The applicant considers that the views expressed by him were within the limits of permissible criticism.        Furthermore the applicant maintains that the criminal sanctions imposed upon him were not necessary in a democratic society. He explains in this connection that the message as a whole was a sociological conclusion with no elements of propaganda.        With regard to the amendments made by Law No. 4126 to Article 8 of the Anti-Terror Law, the applicant observes that they were made after he had served his sentence and did not therefore apply in his case.        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 complains under Article 6 para. 1 (Art. 6-1) of the Convention that he did not enjoy a fair hearing before 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 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 can 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 career judge, 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 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 states 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 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 finally complains of discrimination under Article 14 in conjunction with Articles 5 and 6 (Art. 14+5+6) of the Convention. He alleges that people who are convicted and sentenced to imprisonment under the provisions of the Anti-Terror Law have no possibility of conditional release until they have served three quarters of their sentence, whereas generally prisoners may be conditionally released after having served half of their sentence.        The Commission considers the present matter concerns "the lawful detention of a person after conviction by a competent court" and therefore is to be examined under Article 14 in conjunction with Article 5 para. 1 (a) (Art. 14+5-1-a) of the Convention, not Article 6 (Art. 6).        The Commission first observes that Article 5 para. 1 (a) (Art. 5-1-a) of the Convention does not guarantee the right to a conditional release (No. 7648/76, Dec. 6.12.77, D.R. 11 pp. 175, 190). However, the Commission also recalls, where a settled sentencing policy appears to affect individuals in a discriminatory fashion, this may arise issues under Article 5 in conjuction with Article 14 (Art. 5+14) of the Convention (No. 11077/84, Dec. 13.10.86, D.R. 49 pp. 170, 174).        The Commission further recalls that treatment is not discriminatory if it pursues a legitimate aim or if there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised (Eur Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985, Series A no. 94, p. 35, para. 72).        The Commission considers that the aim of the Anti-Terror Law, in principle, is to punish persons who commit terrorist crimes. However, in the Commission's opinion, Article 8 of that Law, under which prohibits any kind of separatist propaganda against the indivisible integrity of the State, irrespective of the method used. Moreover, in the present case, the applicant was convicted for merely having sent a message to a memorial meeting. In these circumstances, the more restrictive possibilities for conditional release imposed on the applicant do not appear to be clearly reasonable or proportionate to the aim was pursued. 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,   by a majority        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits of the case.               H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission