CEDH · CASELAW;REPORTS;ENG — 11 décembre 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 }                    EUROPEAN COMMISSION OF HUMAN RIGHTS                      Application No. 24246/94   Ahmet Zeki OKÇUOGLU                               against                               Turkey                      REPORT OF THE COMMISSION                    (adopted on 11 December 1997)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-18). . . . . . . . . . . . . . . . . . . . . .1        A.    The application           (paras. 2-5). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 6-13) . . . . . . . . . . . . . . . . . . .1        C.    The present Report           (paras. 14-18). . . . . . . . . . . . . . . . . . .2   II.   ESTABLISHMENT OF THE FACTS      (paras. 19-35) . . . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 19-26). . . . . . . . . . . . . . . . . . .4        B.    Relevant domestic law           (paras. 27-35). . . . . . . . . . . . . . . . . . .6   III. OPINION OF THE COMMISSION      (paras. 36-71) . . . . . . . . . . . . . . . . . . . . 11        A.    Complaints declared admissible           (para. 36). . . . . . . . . . . . . . . . . . . . 11        B.    Points at issue           (para. 37). . . . . . . . . . . . . . . . . . . . 11        C.    As regards Articles 9 and 10 of the Convention           (paras. 38-56). . . . . . . . . . . . . . . . . . 11             CONCLUSION           (para. 57). . . . . . . . . . . . . . . . . . . . 14        D.    As regards Article 6 para. 1 of the Convention           (paras. 58-63). . . . . . . . . . . . . . . . . . 15             CONCLUSION           (para. 64). . . . . . . . . . . . . . . . . . . . 16        E.    As regards Article 14 of the Convention           (paras. 65-67). . . . . . . . . . . . . . . . . . 16             CONCLUSION           (para. 68). . . . . . . . . . . . . . . . . . . . 16        F.    Recapitulation           (paras. 69-71). . . . . . . . . . . . . . . . . . 16   PARTLY DISSENTING OPINION OF MR A.S. GÖZÜBÜYÜK   . . . . . . 18   PARTLY DISSENTING OPINION OF MR E.A. ALKEMA . . . . . . . . 19   APPENDIX :      DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 20   I.    INTRODUCTION   1.    The following is an outline of the case as submitted to the European Commission of Human Rights by the parties, and of the procedure before the Commission.   A.    The application   2.    The applicant is a Turkish national. He was born in 1950 and lives in istanbul.   He was represented before the Commission by Mr. Selim Okçuoglu, a lawyer practising in istanbul.   3.    The application is directed against Turkey.   The respondent Government were represented by Mr. Bakir Çaglar, Professor at istanbul University.   4.    The case concerns the applicant's conviction by the State Security Court for having given a speech when participating in a discussion on "the present and the past of the Kurdish problem" and for having had it published subsequently in a review entitled "Demokrat".   5.    The applicant complains under Articles 9 and 10 of the Convention that his conviction for giving and publishing a speech constituted an unjustified interference with his freedom of thought and freedom of expression. He also 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. Moreover, he complains under Article 14 of the Convention that his conviction for expressing his views, contrary to State policy, on the "Kurdish problem" constituted discrimination on the ground of political opinion.   B.    The proceedings   6.    The application was introduced on 15 March 1994 and registered on 1 June 1994.   7.    On 20 February 1995, the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the Turkish Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints based (under Article 10 of the Convention) on the alleged violation of his freedom of expression, (under Article 6 para. 1 of the Convention) on the alleged violation of his right to a fair trial by an independent and impartial court, and (under Article 14 in conjunction with Article 10 of the Convention) on the allegation that his conviction constituted discrimination on the ground of political opinion.   8.    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 applicant submitted comments in reply on 21 January 1996.   9.    The Government's written observations were submitted on 21 February 1996, after an extension of the time-limit fixed for that purpose. The applicant replied on 8 April 1996.   10.   On 14 October 1996 the Commission declared the application admissible.   11.   The text of the Commission's decision on admissibility was sent to the parties on 31 October 1996 and they were invited to submit such further information or observations on the merits as they wished.   12.   None of the parties submitted any observations.   13.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.    The present Report   14.   The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, 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                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           Mrs. M. HION           MM.   R. NICOLINI                A. ARABADJIEV   15.   The text of this Report was adopted by the Commission on 11 December 1997 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   16. The purpose of the Report, pursuant to Article 31 of the Convention, is:        (i)   to establish the facts, and        (ii) to state an opinion as to whether the facts found disclose           a breach by the respondent Government of their obligations           under the Convention.   17.   The Commission's decision on the admissibility of the application is appended to this Report.   18.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.    The particular circumstances of the case   19.   The applicant participated in a discussion on "the present and the past of the Kurdish problem" organised by a review entitled "Demokrat". The speech he had made during the discussion was published in Demokrat's May 1991 issue.   20.   A translation of the speech, as published, is as follows:        "DISCUSSION ABOUT THE KURDISH QUESTION      The Kurdish Question Yesterday and Today         ...        INTERVIEWER - Mr. Okçuoglu, can you answer the same question      [i.e. the question whether developments in the region take place      mostly under the control of the United States and the Western      States], having regard to the unitarian state?        Ahmet Zeki OKÇUOGLU - Your question is wrong. It bears some      ideological concerns. Before responding to your question, I need      to explain what the Kurdish question is. The Kurdish question is      the question of a population totalling up to approximately      40 million people which was dominated by other states by being      deprived of the rights of sovereignty; its land being divided      between the regional states all of its national rights were      removed by regional powers as well as   the international [super]      powers. The Kurdish nation occupies an important place in the      regional history and it has existed since the old ages. In order      to produce something on this subject we can only act from this      perspective. This, of course, does not mean that the question can      find a radical solution in a matter of days.        Going back to your question ... the thesis suggesting that the      Kurdish question is a matter forced upon by the external powers,      imperialist powers, is not a new one. The problem has been      explained in the above-portrayed manner for approximately one      century. We can count the basic reasons for this as follows:        Primarily, it is the concern of those nations who keep Kurds      under their sovereignties, because these powers try to create an      image that Kurds are not a national entity and do not demand      anything from them [from the regional powers]. It has been      suggested that various external powers provoke the Kurds. The      intention is to prevent international powers from intervening in      the problem. A secondary [reason] is to overshadow the legitimacy      and distract attention. Another one is the concept of imperialism      amongst the international socialist movement and its related      circles. As you know, the Soviet Union is equivalent to   an      Empire in the classical meaning. The Soviet administration has      always been against the Kurds by thinking that if Kurds gained      certain rights, this will inevitably lead the way to the nations      forcibly kept under its reign to voice certain demands which      would result in creating problems on the international level. For      this reason, since Lenin, the Soviet Union has always sided with      the powers which kept Kurds under their sovereignty. Local      Socialist powers under their control inevitably developed such      a thesis. In the adverse attitude towards Kurds, these socialist      powers were also influenced by their close proximity to the      regional powers and their official views. The Soviet thesis makes      this even easier. Because the Soviet ideology is a downright      sovereign state ideology. In this meaning the Soviet dominant      ideology corresponds with the regional Turkish national ideology.      However, we observe that the imperialist concept does not stop      there. Following the 1970s, certain Kurdish circles repeated the      same concept under the influence of Soviet and Chinese socialist      propaganda. Whether they are aware of this or not, they repeat      the same concept. This has dragged the Kurdish question into      great insolvencies.        The allegation, that the Kurdish question was brought onto the      agenda by means of external provocations, is an untrue claim. If      anyone is about to suggest imperialist protection in the Middle      East, we observe that Kurds did not make any use of it. On the      contrary, Turks, Arabs and Persians went under the protective      umbrella of such powers and made enough use of it. If the British      did not intervene in the interest of Ottomans in the Crimean war,      the Russian Tsar would have wiped out the Ottoman State and taken      over the Byzantian heritage. Contrary to what some leftist      historians suggest, imperialists did not intend to kill the 'sick      man', they tried to save him. This is also valid for the Arabs.      Up to the present day, with the exception of Palestinians, the      only nation that fought for its national rights in the Middle      East is the Kurds. Neither Turks nor Arabs or Persians fired one      bullet for their national rights. When the British occupied the      Ottoman State in 1918, not one bullet was fired. The so-called      independence war is the historical rift between Greeks and Turks.      One can argue who is right and who is wrong. The resistance      started in Urfa and Antep was a Kurdish resistance against the      French. Let me rephrase, it was a Turkish-Kurdish resistance      under the leadership of local powers. It is the peoples'      spontaneous resistance. The Turkish Army and political centres      did not have any role in this. Up to the present day, the delay      in gaining national rights on the Kurds' part is not due to their      dependency on external powers, as some circles suggest; on the      contrary, it depends on the Kurds' failure to establish      international relations and the fact that international powers      closed their doors on the Kurds."   21.   On 10 June 1991 the Public Prosecutor at the istanbul State Security Court (istanbul Devlet Güvenlik Mahkemesi) issued an indictment charging the applicant with disseminating propaganda against the indivisibility of the State in his speech. The charges were brought under Article 8 paragraph 1 of the Anti-Terror Law.   22.   In the proceedings before the State Security Court, the applicant denied the charges.   23.   In a judgment dated 11 March 1993, the Court found the applicant guilty of an offence under Article 8 of the Anti-Terror Law. It first sentenced the applicant to two years' imprisonment and a fine of 50,000,000 Turkish lira. Then, considering 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.   24.   The Court held that, to the extent that the applicant, in his speech, had alleged that "the citizens of Kurdish race were denied their national rights; their land was divided among the States in the region; the Kurds were fighting for their national rights", his speech as a whole contained elements of propaganda against the indivisibility of the State.   25.   The applicant appealed against this judgment. On 24 September 1993 the Court of Cassation upheld the decision of the trial court.   26.   On 21 February 1995 the applicant was granted conditional release, as he had paid the fine imposed and it was considered that he had served one-third of his prison sentence. Therefore, the amendments made by Law No. 4126 of 27 October 1995 to the Anti-Terror Law were not applied to the applicant's case, as his sentence had already been executed.   B.    Relevant domestic law   a)    Anti-Terror Legislation   27.   Article 8 paragraph 1 of Anti-Terror Law No. 3713 of 12 April 1991 (before the amendments of 27 October 1995)        <Original>        "Hangi yöntem, maksat ve düsünceyle olursa olsun Türkiye      Cumhuriyeti Devletinin ülkesi ve milletiyle bölünmez bütünlügünü      bozmayi hedef alan yazili ve sözlü propaganda ile toplanti,      gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda 2 yildan 5 yila      kadar agir hapis ve ellimilyon liradan yüzmilyon liraya kadar      agir para cezasi hükmolunur."        <Translation>        "No one shall, by any means or with any intention or idea, make      written or oral propaganda or hold assemblies, demonstrations or      manifestations against the indivisible integrity of the State of      the Turkish Republic, its land and nation. Those carrying out any      such activity shall be sentenced to imprisonment between two and      five years and a fine between 50 and 100 million Turkish lira."   28.   Article 8 paragraph 1 of the Anti-Terror Law as amended by Law No. 4126 of 27 October 1995        <Original>        "Türkiye Cumhuriyeti Devleti'nin ülkesi ve milletiyle bölünmez      bütünlügünü bozmayi hedef alan yazili ve sözlü propaganda ile      toplanti, gösteri ve yürüyüs yapilamaz. Yapanlar hakkinda bir      yildan üç yila kadar hapis ve yüz milyon liradan üçyüzmilyon      liraya kadar agir para cezasi hükmolunur. Bu suçun mükerreren      islenmesi halinde, verilecek cezalar paraya cevrilemez."        <Translation>        "No one shall make written or oral propaganda or hold assemblies,      demonstrations or manifestations against the indivisible      integrity of the State of the Turkish Republic, its land and      nation. Those carrying out such activity shall be sentenced to      imprisonment between one and three years and to a fine between      100 and 300 million Turkish lira. In case of re-occurrence of      this offence, sentences shall not be commuted to fines."   b)    The composition of the State Security Court   29.   Article 143 of the Turkish Constitution        <Original>        "Devletin ülkesi ve milletiyle bölünmez bütünlügü, hür demokratik      düzen ve nitelikleri Anayasada belirtilen Cumhuriyet aleyhine      islenen ve dogrudan dogruya Devletin iç ve dis güvenligini      ilgilendiren suçlara bakmakla görevli Devlet Güvenlik Mahkemeleri      kurulur.        Devlet Güvenlik Mahkemesinde bir Baskan, iki asil ve iki yedek      üye ile savci ve yeteri kadar savci yardimcisi bulunur.        Baskan, bir asil ve bir yedek üye ile savci, birinci sinifa      ayrilmis hakim ve Cumhuriyet savcilari arasindan; bir asil ve bir      yedek üye, birinci sinif askeri hakimler arasindan; savci      yardimcilari ise   Cumhuriyet savcilari ve askeri hakimler      arasindan özel kanunlarda gösterilen usule göre atanirlar.        Devlet Güvenlik Mahkemesi Baskani üye ve yedek üyeleri ile savci      ve savci yardimcilari dört yil için atanirlar, süresi bitenler      yeniden atanabilirler.      Devlet Güvenlik Mahkemeleri kararlarinin temyiz mercii      Yargitaydir.    ..."        <Translation>        "State Security Courts are to be established to deal with      offences against the indivisible integrity of the State and its      territory and nation, offences against the Republic which are      contrary to the democratic order enunciated in the Constitution,      and offences which undermine the internal or external security      of the State.        The State Security Court shall be composed of a president,      two titular members and two substitute members, a public      prosecutor and a sufficient number of substitutes.        The president, the public prosecutor, a titular member and a      substitute member shall be appointed, according to the procedures      laid down by special laws, from the Republic's first class rank      of judges and prosecutors, a titular member and a substitute      member from the first class rank of judges, and the substitutes      from the Republic's public prosecutors and military judges.        The president, titular members and substitute members, the public      prosecutor and the substitutes of the State Security Courts are      appointed for four years; they can be reappointed after the      expiry of their mandate.        There is an appeal against the decisions of the State Security      Courts to the Court of Cassation.   ..."   30.   Article 145 of the Turkish Constitution        <Original>        "... Askeri yargi organlarinin kurulusu, isleyisi, askeri      hakimlerin özlük isleri, askeri savcilik görevlerini yapan askeri      hakimlerin mahkemesinde görevli bulunduklari komutanlik ile      iliskileri, mahkemelerin bagimsizligi, hakimlik teminati,      askerlik hizmetinin gereklerine göre kanunla düzenlenir. Kanun,      ayrica askeri hakimlerin yargi hizmeti disindaki askeri hizmetler      yönünden askeri hizmetlerin gereklerine göre teskilatinda görevli      bulunduklari komutanlik ile olan iliskilerini gösterir."        <Translation>        "... The composition and functioning of military judicial organs,      matters relating to the status of military judges and relations      between military judges acting as military prosecutors and the      commanders under whom they serve shall be regulated by law in      accordance with the principles of the independence of the courts      and the security of tenure of the judiciary and requirements of      military duty. Relations between military judges and the      commanders under whom they serve with regard to military duties      other than judicial functions shall also be regulated by law."   31.   Article 16 of the Law on Military Judges        <Original>        "Askeri hakimlerin atanmalari (...) Milli Savunma Bakani ve      Basbakanin müsterek kararnamesi ile Cumhurbaskaninin onayina      sunulur.   ..."        <Translation>        "The appointment of military judges by the decree of the Minister      of Defence and the Prime Minister is subject to the approval of      the President of the Republic. ..."   32.   Article 29 of the Law on Military Judges        <Original>        "Askeri hakim subaylar hakkinda   Milli Savunma Bakani tarafindan,      savunmalari aldirilarak, asagida açiklanan disiplin cezalari      verilebilir .        A. Uyarma ...        B. Kinama..."        <Translation>        "The Defence Minister may apply the following disciplinary      sanctions to military judges, after hearing their defence:        A. Written warning ...        B. Rebuke ..."   33.   Article 7 annexed to the Law on Military Judges        <Original>        "Devlet Güvenlik Mahkemesi üyeligi, yedek üyeligi ve Cumhuriyet      savci yardimciligi görevlerine atanan askeri hakim subaylarin      rütbe terfii, rütbe kidemliligi, kademe ilerlemesi yapmalarini      saglayacak yeterlilikleri, bu Kanunun ve Türk Silahli Kuvvetleri      Personel Kanununun hükümleri sakli kalmak sarti ile, asagida      belirtilen sekilde düzenlenecek sicillerle saptanir.        a) Birinci sinifa ayrilmis üye ve yedek üye askeri hakimlere      subay sicil belgesi düzenlemeye   ve sicil vermeye yetkili birinci      sicil amiri Milli Savunma Bakanligi Müstesari, ikinci sicil amiri      Milli Savunma Bakanidir.        b) Cumhuriyet savci yardimciligi kadrolarina atanan askeri      subaylar hakkinda;        1. Mesleki sicil belgesi, Yargitayda incelem yapan dairece ve      adalet müfettislerince, bu Kanundaki esaslar gözönünde tutularak      verilecek sicil notlarina göre düzenlenir ve bu sicil belgesi      süresi içinde Milli Savunma Bakanligina gönderilir.        2. Subay sicil belgesi, sirasiyla; Milli Savunma Bakanligi ilgili      müstesar yardimcisi, Müstesari ve   Milli Savunma Bakani      tarafindan düzenlenir.        Cumhuriyet savci yardimcisi askeri hakim subaylar hakkinda Devlet      Güvenlik Mahkemesi Cumhuriyet savcisi tarafindan, subay sicil      formu esaslarina göre kanaat notu verilir".        <Translation>        "The eligibility for promotion, seniority in grade and salary      increments of officers acting as judges in the capacity of      assistant public prosecutors and State Security Court members,      is subject both to the said Law and the Law on Military Personnel      and assessed in accordance with the following procedure:        a) The first hierarchical superior competent to issue an      assessment certificate for military judges who are to be      appointed is the Secretary to the Ministry of Defence, the second      superior is the Minister of Defence.        b) In respect of judges acting as military prosecutors:        1. The professional assessment certificate is issued, according      to the procedure laid down in the said Law, by the competent      chamber of the Court of Cassation and the Inspector of Legal      Affairs. This certificate has to be sent to the Minister of      Defence within the prescribed time-limit.        2. The assessment certificate for officers is established by the      Under-Secretary and the Secretary of State to the Minister of      Defence, and the Minister of Defence.        The judges acting as military prosecutors are evaluated according      to the assessment formula. This evaluation is carried out by the      Public Prosecutor attached to the State Security Court."   34.   Article 8 annexed to the Law on Military Judges        <Original>        "Devlet Güvenlik Mahkemelerinin askeri yargiya mensup mahkeme      üyeleri ile Cumhuriyet savci yardimcilari, Genelkurmay Personel      Baskani, Adli Müsaviri ile atanacaklarin mensup oldugu Kuvvet      Komutanliginin personel baskani ile adli müsaviri ve Milli      Savunma Bakanligi Askeri Adalet isleri Baskanindan olusan Kurul      tarafindan seçilir ve usulüne uygun olarak atanirlar."        <Translation>        "The military members of the State Security Court and assistant      public prosecutors are appointed by a committee consisting of the      personnel director, the legal adviser of the General Military      Staff, the personnel director, the legal adviser of the regiment      to which the candidate belongs and the director of military      judicial affairs attached to the Ministry of Defence."   35.   Article 307 of the Code of Criminal Procedure provides that cassation appeals only lie in respect of alleged illegality and non-compliance of the first instance judgment with the relevant procedure.   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   36.   The Commission has declared admissible:   -     the applicant's complaint that his conviction for giving a speech, followed by the publication of the speech in a review, constituted an unjustified interference with his freedom of thought and freedom of expression;   -     the applicant's complaint that his case was not heard by an independent and impartial tribunal in 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's complaint that his conviction for expressing his views, contrary to State policy, on the "Kurdish problem" constituted discrimination on the ground of political opinion.   B.    Points at issue   37.   The points at issue in the present case are as follows:   -     whether the applicant's conviction for giving a speech, followed by the publication of the speech in a review, infringed his freedom of thought and of expression as guaranteed by Articles 9 and 10 (Art. 9, 10) of the Convention;   -     whether the fact that the applicant was convicted by the State Security Court constituted a violation of his right to a fair hearing within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention;   -     whether the applicant's conviction for expressing his views, contrary to State policy, on the "Kurdish problem" constituted discrimination on the ground of political opinion, in breach of Article 14 (Art. 14) of the Convention.   C.    As regards Articles 9 and 10 (Art. 9, 10) of the Convention   38.   The applicant complains that his freedom of thought and expression   has been infringed, contrary to Articles 9 and 10 (Art. 9, 10) of the Convention, in that he was convicted for having given a speech which was subsequently published.   39.   The Commission considers that the applicant's complaint essentially concerns an alleged violation of his freedom of expression. The Commission will therefore examine this complaint under Article 10 (Art. 10) of the Convention, which states:        "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."   40.   The applicant submits that he was convicted for having expressed his views on the "Kurdish problem" in Turkey. He asserts that he commented on the facts concerning the Kurdish people living in Turkey. He maintains that his conviction cannot be justified by any of the reasons permitted under the Convention. He considers that the speech in question was within the limits of permissible criticism. With regard to the amendments made by Law No. 4126 of 27 October 1995 to Article 8 of the Anti-Terror Law, he observes that they were made after he had served his sentence and, therefore, did not apply to his case.   41.   The respondent Government maintain that the interference with the applicant's rights under Article 10 (     Art. 10) of the Convention was prescribed by the Anti-Terror Law. They state that the comments made by the applicant in his speech constitute a provocation of enmity and hatred between the Kurdish and Turkish societies which serves to mobilise people to revolt. They assert that, according to 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.   42.   The Government also maintain that the purpose of the applicant's conviction was linked to the prevention of terrorism carried out by illegal organisations and, consequently, served to protect territorial integrity and national security.   43.   As to the necessity of the measure in a democratic society, the respondent Government state that terrorism strikes at the heart of democracy, the fundamental rights which that concept enshrines and the judicial and political systems. They assert that the offending speech was based on the glorification of the activities of the P.K.K. which is an illegal terrorist organisation with the objective of establishing an independent Kurdish 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.   44.   The Commission is of the opinion that the penalty imposed on the applicant constituted an "interference" in the exercise of his freedom of expression as guaranteed by Article 10 para. 1 (Art. 10-1) of the Convention.   This point has not been in dispute between the parties.   45.   Therefore, the question is whether this interference was prescribed by law, pursued a legitimate aim under Article 10 para. 2 (Art. 10-2) and was "necessary in a democratic society" in order to realise that legitimate aim.   46.   The Commission notes that the applicant's conviction was based on Article 8 of the Anti-Terror Law and therefore considers that the interference was prescribed by law.   47.   As regards the aims of the interference, the Commission notes that the applicant's conviction was part of the efforts of the authorities to combat illegal terrorist activities and to maintain national security and public safety, which are legitimate aims under Article 10 para. 2 (Art. 10-2) of the Convention.   48.   The remaining issue is whether the interference was "necessary in a democratic society". In this respect the Commission recalls the following principles adopted by the Court (see, as the latest authority, Eur. Court HR, Zana v. Turkey judgment of 25 November 1997, Judgments and Decisions 1997 ...., para. 51):        (i) Freedom of expression, as enshrined in paragraph 1 of Article 10 (Art. 10) constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress. It is applicable not only to "information" or "ideas" that are favourably received or are regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broad-mindedness without which there is no "democratic society".        (ii) The adjective "necessary", within the meaning of Article 10 para. 2 (Art. 10-2), implies the existence of a "pressing social need". The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court.        (iii) In exercising its supervisory jurisdiction, the organs of the Convention must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them. In particular, they must determine whether the interference in issue was "proportionate to the legitimate aims pursued" and whether the reasons adduced by the national authorities to justify it are "relevant and sufficient".   49. The Commission further notes that, while freedom of political debate is at the very core of the concept of a democratic society (Eur. Court HR, Lingens v. Austria judgment of 8 July 1986, Series A no. 103, p. 26, para. 42), that freedom is not absolute.   A Contracting State is entitled to subject it to certain "restrictions" or "penalties", but the Convention organs are empowered to give the final ruling on whether they are reconcilable with freedom of expression as protected by Article 10   (Art. 10) (Eur. Court HR, the Observer and Guardian v. the United Kingdom judgment of 26 November 1991, Series A no. 216, p. 30, para. 59(c)). In doing so, the Convention organs must satisfy themselves that the national authorities did apply standards which were in conformity with the principles embodied in Article 10 (Art. 10) and, moreover, that they based themselves on an acceptable assessment of the relevant facts (Eur. Court HR, Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 24, para. 31).   50.   Even where, as in the present case, an interference with freedom of expression is based on considerations of national security and public safety and is part of a State's fight against terrorism, the interference can be regarded as necessary only if it is proportionate to the aims pursued. Consequently, the Commission must, with due regard to the circumstances of each case and the State's margin of appreciation, ascertain whether a fair balance has been struck between the individual's fundamental right to freedom of expression and a democratic society's legitimate right to protect itself against the activities of terrorist organisations (cf. above-mentioned Zana judgment, para. 55).   51.   The Commission observes in this connection that Article 10 para. 2 (Art. 10-2) also refers to "duties and responsibilities" which the exercise of the freedom of expression carries with it. Thus, it is important for persons addressing the public on sensitive political issues to take care that they do not support unlawful political violence. On the other hand, freedom of expression must be considered to include the right openly to discuss difficult problems such as those facing Turkey in connection with the prevailing unrest in part of its territory in order, for instance, to analyse the background causes of the situation or to express opinions on the solutions to those problems.   52.   The Commission notes that the applicant's speech, as published, attempts to give an explanation of what the Kurdish question represents historically. In particular, the applicant points out what alleged role some external political powers have played in creating the situation of the Kurdish people as it stands nowadays. As one of his conclusions, the applicant considers that "the [Kurdish] question can [not] find a radical solution in a matter of days". As to the reasons for which there is a "delay in gaining national rights on the Kurds' part", the applicant finds that this is a problem depending "on the Kurds' failure to establish international relations and the fact that international powers closed their doors on the Kurds".   53.   The Turkish courts held that, to the extent that the applicant, in his speech, had alleged that "the citizens of Kurdish race were denied their national rights; their land was divided among the States in the region; the Kurds were fighting for their national rights", his speech as a whole contained elements of propaganda against the indivisibility of the State.   54.   However, in the Commission's view the applicant expressed his views on the Kurdish question in relatively moderate terms, and did not associate himself with the use of violence in the context of the Kurdish separatist struggle.   55.   The Commission finds that the applicant's conviction amounted to a kind of censure, which was likely to discourage him or others from expressing or publishing ideas of a similar kind again in the future. In the context of political debate such a sentence is likely to deter citizens from contributing to public discussion of important political issues (cf. Eur. Court HR, Lingens judgment, op. cit., p. 27, para. 44).   56.   Consequently, the Commission, even taking into account the margin of appreciation of the national authori