CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 octobre 1997

.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. 26680/95                       by Pelin Sener                       against Turkey        The European Commission of Human Rights sitting in private on 21 October 1997, 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                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, 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 7 March 1995   by Pelin Sener against Turkey and registered on 9 March 1995   under file No. 26680/95;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Turkish citizen, born in 1969 and residing in Cologne, Germany, is a journalist. Before the Commission, she is represented by Kamil Tekin Sürek, 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 owner and the responsible editor of a weekly review entitled "Haberde Yorumda Gerçek" (The Truth of News and Comments) published in istanbul.        On 5 September 1993 the istanbul State Security Court ordered the seizure of the twenty-third edition of the review, dated 4 September 1993, on the grounds that it contained separatist propaganda.        In an indictment dated 29 September 1993, the Public Prosecutor at the istanbul State Security Court, on account of an article entitled "Aydin itirafi" ("The confession of an intellectual") published in the twenty-third edition of the review dated 4 September 1993, charged the applicant, as the owner and "responsible editor", 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 istanbul State Security Court, the applicant denied the charges. She pleaded that the article did not contain elements of separatist propaganda and that the author had expressed his opinion in accordance with his freedom of expression.        In a statement to the istanbul State Security Court, the applicant's legal representative asserted that Article 8 of the Anti- Terror Law was contrary to the Constitution and Article 10 of the Convention. He further maintained that trying the applicant   before the State Security Court was contrary to Article 6 para. 1 of the Convention. He finally requested the applicant's acquittal.        In a judgment dated 5 July 1994, the court found the applicant guilty of an offence under Article 8 of the Anti-Terror Law. It sentenced her to six months' imprisonment and a fine of fifty million Turkish Lira. The Court referred in its judgment to certain extracts from the article. It held, inter alia, that by publishing the article which referred to a certain part of the Turkish territory as "Kurdistan" and claimed that a genocide was being carried out in those territories by the Turkish State, that "Kurdistan" was being bombed, that chemical weapons were being used there, that people living in those territories were "Kurdish nationals" and that the media were dishonouring "the walk towards independence", the applicant had disseminated propaganda against the indivisible integrity of the Turkish State with its land and nation.        The applicant appealed and her legal representative, inter alia, reiterated the defence which she had made before the State Security Court.        On 30 November 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.        The istanbul State Security Court, on 17 November 1995, also found the author of the article, Erhan Altun, guilty of an offence under Article 8 of the Anti-Terror Law. It sentenced him to one year and one month's imprisonment and a fine of 111,111,110 Turkish Lira. However, the court, taking into account the good conduct of the author during the trial, suspended his sentence.   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>        "Written and spoken propaganda, meetings, assemblies and      demonstrations aimed at undermining the indivisible territorial      and national unity of the State of the Turkish Republic are      prohibited irrespective of the methods used or the intention and      ideas behind them. Whosoever carries on such an activity shall      be sentenced to a term of imprisonment between two and five      years' imprisonment and to a fine of between fifty and one      hundred million Turkish Lira."        If the offence of propaganda referred to in the preceding      paragraph is committed by means of a periodical, 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 daily publication with the highest circulation.]        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 the      fine determined in accordance with the foregoing provisions."        In a judgment dated 31 March 1992, the Constitutional Court found those provisions of Article 8 of the Anti-Terror Law reproduced above in brackets 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.   COMPLAINTS        1.     The applicant complains, under Article 10 of the Convention, that her conviction and sentence for publishing an article, as the owner and "responsible editor" of a periodical, constituted an unjustified interference with her freedom of expression and in particular with her right to receive and impart information and ideas.            2.     The applicant also complains under Article 18 of the Convention that the restrictions which were applied to her freedom of expression under the provisions of the Anti-Terror Law were inconsistent with the legitimate aims prescribed in Article 10 para. 2 of the Convention.        3.     The applicant further complains under Article 6 para. 1 of the Convention that her case was not heard by an independent and impartial tribunal. In this regard she asserts that one of the three members of the State Security Court is a military judge answerable to his military superiors.        4.     The applicant lastly complains under Article 6 para. 1 of the Convention of the length of the criminal proceedings.   She asserts that a trial which lasted for 14 months cannot be considered to have satisfied the reasonable time requirement of this Convention provision.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 7 March 1995 and registered on 9 March 1995.        On 4 September 1995 the Commission decided pursuant to Rule 48 para. 2 (b)   of the Rules of Procedure to communicate the application to the respondent Government. The Government's observations were submitted on 20 March 1996. The applicant replied on 7 June 1996.   THE LAW   1.    The applicant complains, under Article 10 (Art. 10) of the Convention, that her conviction and sentence for publishing an article, as the owner and "responsible editor" of a periodical, constituted an unjustified interference with her freedom of expression and in particular with her right to receive and impart information and ideas. Article 10 (Art. 10) 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 under Article 18 (Art. 18) of the Convention that the restrictions which were applied to her freedom of expression under the provisions 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 Article 8 of the Anti-Terror Law. They state that the applicant, in her review, published an article, in which the author referred to a certain part of Turkish territory as "Kurdistan" and claimed that "Kurdistan" was being destroyed by the State Security forces, that genocide was being carried out against the Kurdish people and that the media were dishonouring "the walk towards independence" being undertaken by the Kurds.        The Government also maintain that the purpose of the applicant's conviction 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 affiliates 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 article in question called for the establishment of an independent Kurdish State against the Turkish State. They submit that it is a generally accepted tenet of 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 istanbul State Security Court and the Court of Cassation did not exceed the margin of appreciation conferred on States by the Convention.        The Government conclude that the applicant's conviction was fully justified under the second paragraph of Article 10 (Art. 10) of the Convention, for reasons of national security, territorial integrity and public safety.        Accordingly the Government submit that the applicant's above complaints were manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        The applicant contests all these arguments. She maintains that her conviction cannot be justified for any of the reasons permitted under the Convention. She considers that the article in question was within the limits of permissible criticism.        The applicant also maintains that her conviction for an offence under Article 8 of Anti-Terror Law was contrary to law. In this context she explains that the courts suspended the sentence of the author who had been charged on account of the same article and under the same provisions. She alleges that, by giving two contradictory decisions, the national authorities exceeded the margin of appreciation conferred on the Contracting States by the Convention.        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 her 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:        "      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 army for the relevant period. The judges of State Security Courts evaluate the evidence and take their decisions in accordance with the law and on their own 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 the applicants above complaints are 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. She contends that the State Security Court lacks sufficient independence as its members are appointed by the High Council of Judges and Prosecutors, the president of this Council being the Minister of Justice and two other members also holding office in the Ministry of Justice, and as 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 her 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 5 September 1993 when the domestic court ordered the seizure of all copies of the twenty-third edition of the review and ended on 30 November 1994 when the Court of Cassation delivered its judgment. It therefore lasted less than fifteen 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). Furthermore, the Convention organs also consider it   appropriate to make an overall assessment of the length of proceedings in some cases (see e.g. Eur. Court HR, Cifola v. Italy judgment of 27 February 1992, Series A no. 231, p. 9, para. 14).        In the instant case, the Commission finds that the total period at issue does not appear 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      her freedom of expression and the alleged lack of impartiality      and independence of the tribunal which convicted her;        DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.   Secretary of the Commission                  President to the Commission          (M. de SALVIA)                                (S. TRECHSEL)