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. 24919/94                            Haluk Gerger                               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. 19-40) . . . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 19-27). . . . . . . . . . . . . . . . . . .4        B.    Relevant domestic law           (paras. 28-40). . . . . . . . . . . . . . . . . . .6   III. OPINION OF THE COMMISSION      (paras. 41-84) . . . . . . . . . . . . . . . . . . . . 12        A.    Complaints declared admissible           (para. 41). . . . . . . . . . . . . . . . . . . . 12        B.    Points at issue           (para. 42). . . . . . . . . . . . . . . . . . . . 12        C.    As regards Articles 9 and 10 of the Convention           (paras. 43-64). . . . . . . . . . . . . . . . . . 12             CONCLUSION           (para. 65). . . . . . . . . . . . . . . . . . . . 16        D.    As regards Article 6 para. 1 of the Convention           (paras. 66-72). . . . . . . . . . . . . . . . . . 16             CONCLUSION           (para. 73). . . . . . . . . . . . . . . . . . . . 17        E.    As regards Article 14 of the Convention           (paras. 74-80). . . . . . . . . . . . . . . . . . 17             CONCLUSION           (para. 81). . . . . . . . . . . . . . . . . . . . 18                          TABLE OF CONTENTS                                                             Page        F.    Recapitulation           (paras. 82-84). . . . . . . . . . . . . . . . . . 18   PARTLY DISSENTING OPINION OF MR A.S. G GÖZÜBÜYÜK. . . . . . 20   PARTLY DISSENTING OPINION OF MR E.A. ALKEMA . . . . . . . . 21   APPENDIX :      DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 22   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 1948 and lives in Ankara.   He was represented before the Commission by Mr. Ersen Sansal, a lawyer practising in Ankara.   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 sending a message to a memorial meeting.   5.    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. 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, 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. Lastly, he complains of discrimination under Article 14 in conjunction with Articles 5 and 6 of the Convention. In this respect 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.   B.    The proceedings   6.    The application was introduced on 22 June 1994 and registered on 17 August 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 (under Article 10 of the Convention) based on the alleged violation of his freedom of expression; (under Article 14 in conjunction with Article 5 para. 1 of the Convention) on the alleged discrimination against prisoners sentenced under the Anti-Terror Law and (under Article 6 para. 1 of the Convention) on the alleged violation of the principle of a fair trial by a court satisfying the conditions of independence and impartiality.   8.    The Government's written 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.   9.    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 September 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.   The parties did not submit 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 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.   On 23 May 1992 a memorial meeting was held in Ankara for three prisoners who had been 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.   20.   Extracts from the relevant message are as follows:        <Translation>        "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, and 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."   21.   In an indictment dated 6 August 1993, the Public Prosecutor at the Ankara State Security Court (Ankara Devlet Güvenlik Mahkemesi) 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.   22.   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 had 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 on 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.   23.   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 sum of the fine was then multiplied by five on account of the yearly inflation rate, thus amounting to 250,000,000 Turkish lira. Eventually the Court, considering the good conduct of the applicant during the trial, reduced the sentence to one year and eight months' imprisonment and the fine to 208,333,333 Turkish lira.   24.   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.   25.   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.   26.   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.   27.   The applicant served 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   a)    Anti-Terror Legislation   28.   Article 8 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>        "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 or      ideas behind them. Anyone who carries on such an activity shall      be sentenced to imprisonment between two and five years and a      fine of between fifty and one hundred million Turkish liras."   29.   Each year the Council of Ministers (Bakanlar Kurulu) determines, according to the yearly rate of inflation, a rate by which, inter alia, the amounts of fines, as prescribed by law, shall be multiplied. In 1993 these figures were ordered to be multiplied by five.   30.   Article 8 paragraph 1 of 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 1      yildan 3 yila kadar hapis ve yüzmilyon liradan üçyüzmilyon liraya      kadar agir para cezasi hükmolunur. Bu suçun mükerreren islenmesi      halinde verilecek cezalar paraya çevrilemez."        <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 territory and      nation. Those carrying out such an activity shall be sentenced      to imprisonment between one and three years and a fine of between      one hundred and three hundred million Turkish liras. In case of      re-occurrence of this offence, sentences shall not be commuted      to fines."   31.   Article 13 of Anti-Terror Law        <Original>        "... Bu kanun kapsamina giren suçlardan dolayi verilen cezalar      para cezasina veya tedbirlerden birine çevrilemez, ertelenemez."        <Translation>        "... The penalties for the crimes under this Law cannot be      converted to a fine or to another sanction and cannot be      deferred."   32.   Article 17 of Anti-Terror Law        <Original>        "Bu kanun kapsamina giren suçlardan mahkum olanlardan,... diger      sahsi hürriyeti baglayici cezalara mahkum edilmis olanlar,      hükumlülük süresinin 3/4 ünü çekmis olup da iyi halli hükümlü      niteliginde bulunduklari takdirde talepleri olmaksizin sartla      saliverilirler." ...        "Bu hükümlüler hakkinda 647 sayili cezalarin infazi hakkinda      kanunun 19 maddesinin 1 ve 2. fikralari ile Ek 2 maddesi      uygulanmaz."        <Translation>        "Convicts sentenced for crimes under this Law shall, without      their application to that effect, be granted a conditional      release, after they have completed three-quarters of their term      of imprisonment in good conduct." ...        "Article 19 paragraphs 1 and 2 and the supplementary Article 2      of Law No. 647 on the Execution of Penalties shall not be applied      to these prisoners."   b)    The composition of the State Security Court   33.   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. ..."   34.   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."   35.   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. ..."   36.   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 ..."   37.   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."   38.   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."   39.   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.   40.   Article 19 paragraph 1 of the Code on the Execution of Penalties (Law No. 647)        <Original>        "... diger sahsi hürriyeti baglayici cezalara mahkum edilmis      olanlar hükümlülük süresinin 1/2 sini çekmis olup da tüzüge göre      iyi halli hükümlü niteliginde bulunduklari takdirde talepleri      olmazsa dahi sartla saliverilirler."        <Translation>        "... Convicts, sentenced to penalties constituting a deprivation      of individual freedom, shall, without their application to that      effect, be granted a conditional release, if they have served      half of their term of imprisonment in good conduct, i.e. in      accordance with the regulation."   III. OPINION OF THE COMMISSION   A.    Complaints declared admissible   41.   The Commission has declared admissible:   -     the applicant's complaint that his conviction for sending a message to the memorial meeting in question 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;   -     the applicant's complaint that his case was not dealt with by an independent and impartial tribunal, given 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 and that he did not have a fair trial in that the domestic court failed to give any reasons for its judgment;   -     the applicant's complaint that the provisions of the Anti-Terror Law, which envisaged fewer possibilities for his conditional release compared to prisoners sentenced under other laws, constituted discrimination.   B.    Points at issue   42.   The points at issue in the present case are as follows:   -     whether the applicant's conviction for sending the impugned message to the memorial meeting in question infringed his freedom of thought and 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 provisions of the Anti-Terror Law, which envisaged fewer possibilities for the applicant's conditional release compared to prisoners sentenced under other laws, constituted discrimination contrary to Article 14 in conjunction with Article 5 para. 1 (Art. 14+5-1) of the Convention.   C.    As regards Articles 9 and 10 (Art. 9, 10) of the Convention   43.   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 sending a message to a memorial meeting.   44.   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."   45.   The applicant submits at the outset that the concept of the indivisibility of the State, as prescribed by Article 8 of the Anti- Terror Law, is so vague that his conviction thereunder was not foreseeable.   46.   Moreover, he asserts that his conviction was not for any legitimate purpose under the Convention. He submits that he was convicted on account of having used expressions like "Kurdish people" and of having asserted the questionability of the "official reality" in his message. He considers that the views expressed by him were within the limits of permissible criticism.   47.   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.   48.   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.   49.   The respondent 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 expressions like "... the Turkish Republic is founded upon the negation of the basic rights of Kurds" or "... 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: "...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.   50.   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.   51.   As to the necessity of the measure in a democratic society, the respondent Government state that the threat posed to Turkey by the P.K.K. 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.   52.   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.   53.   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.   54.   Therefore, the question is whether this interference was prescribed by law, pursued a legitimate aim under Article 10 para. 2 55.(Art. 10-2) and was "necessary in a democratic society" in order to realise that legitimate aim.   56.   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.   57.   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.   58.   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 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 offe