CEDH · CASELAW;REPORTS;ENG — 13 janvier 1998

.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. 23536/94   Fikret BASKAYA                               against                               Turkey                                 and                      Application No. 24408/94                        Mehmet Selim OKÇUOGLU                               against   Turkey                      REPORT OF THE COMMISSION                    (adopted on 13 January 1998)                          TABLE OF CONTENTS                                                             Page   I.    INTRODUCTION      (paras. 1-19). . . . . . . . . . . . . . . . . . . . . .1        A.    The applications           (paras. 2-5). . . . . . . . . . . . . . . . . . . .1        B.    The proceedings           (paras. 6-14) . . . . . . . . . . . . . . . . . . .2        C.    The present Report           (paras. 15-19). . . . . . . . . . . . . . . . . . .3   II.   ESTABLISHMENT OF THE FACTS      (paras. 20-46) . . . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 20-33). . . . . . . . . . . . . . . . . . .4        B.    Relevant domestic law           (paras. 34-46). . . . . . . . . . . . . . . . . . .6   III. OPINION OF THE COMMISSION      (paras. 47-107). . . . . . . . . . . . . . . . . . . . 12        A.    Complaints declared admissible           (para. 47). . . . . . . . . . . . . . . . . . . . 12        B.    Points at issue           (para. 48). . . . . . . . . . . . . . . . . . . . 12        C.    As regards Articles 9 and 10 of the Convention           (paras. 49-75). . . . . . . . . . . . . . . . . . 13             CONCLUSION           (para. 76). . . . . . . . . . . . . . . . . . . . 17        D.    As regards Article 7 of the Convention           (paras. 77-80). . . . . . . . . . . . . . . . . . 18             CONCLUSIONS           (paras. 81-82). . . . . . . . . . . . . . . . . . 18        E.    As regards Article 14 of the Convention           (paras. 83-85). . . . . . . . . . . . . . . . . . 18             CONCLUSION           (para. 86). . . . . . . . . . . . . . . . . . . . 19        F.    As regards the applicants' complaint under           Article 6 para. 1 of the Convention that their           case was not heard by an independent and           impartial tribunal           (paras. 87-93). . . . . . . . . . . . . . . . . . 19             CONCLUSION           (para. 94). . . . . . . . . . . . . . . . . . . . 20        G.    As regards the first applicant's complaint under           Article 6 para. 1 of the Convention that he did           not have a fair trial           (paras. 95-96). . . . . . . . . . . . . . . . . . 20             CONCLUSION           (para. 97). . . . . . . . . . . . . . . . . . . . 21        H.    As regards the first applicant's complaint under           Article 6 para. 2 of the Convention           (paras. 98-99). . . . . . . . . . . . . . . . . . 21             CONCLUSION           (para. 100) . . . . . . . . . . . . . . . . . . . 21        I.    Recapitulation           (paras. 101-107). . . . . . . . . . . . . . . . . 21   PARTLY DISSENTING OPINION OF MR E. A. ALKEMA. . . . . . . . 23   APPENDIX No. 1:DECISION OF THE COMMISSION AS TO                THE ADMISSIBILITY OF                APPLICATION No. 23536/94 . . . . . . . . . . 24   APPENDIX No. 2:DECISION OF THE COMMISSION AS TO                THE ADMISSIBILITY OF                APPLICATION No. 24408/94 . . . . . . . . . . 32   I.    INTRODUCTION   1.    The following is an outline of the cases as submitted to the European Commission of Human Rights by the parties, and of the procedure before the Commission.   A.    The applications   2.    The first applicant is a Turkish national. He was born in 1940 and lives in Ankara. He was represented before the Commission by Mr. Tekin Akillioglu, a lawyer practising in Ankara.        The second applicant is a Turkish national. He was born in 1964 and lives in istanbul. He was represented before the Commission by Ms. Emire Eren Keskin, a lawyer practising in istanbul.   3.    Both applications are directed against Turkey.   The respondent Government were represented by Mr. Bakir Çaglar, Professor at istanbul University.   4.    The cases concern the applicants' conviction by the State Security Court for having published a book entitled "Batililasma, Çagdaslasma, Kalkinma - Paradigmanin iflasi" ("Westernisation, Modernisation, Development - Collapse of a Paradigm"). The first applicant is the author of the book. The second applicant is the owner of the publishing company where the book was published.   5.    The applicants complain under Articles 9 and 10 of the Convention that their convictions on account of the publication of this book constituted an unjustified interference with their freedom of thought and freedom of expression.        The applicants also complain that their convictions contravened Article 7 of the Convention. The first applicant explains that the text of Article 8 of the Anti-Terror Law, under which he was convicted, was so unclear and the concept of dissemination of "propaganda against the indivisibility of the State" was so vague that his conviction thereunder was not foreseeable. He also invokes Article 6 para. 2 of the Convention in this respect. The second applicant complains that his conviction contravened the principle "nullum crimen, nulla poena sine lege".        Moreover, both applicants complain under Article 6 para. 1 of the Convention that their case was not heard by an independent and impartial tribunal; they assert 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.        The first applicant also submits that he did not have a fair trial, as guaranteed by Article 6 para. 1 of the Convention, in that the domestic courts failed to consider his book as a whole and convicted him merely on the basis of an assessment of one chapter thereof.        The second applicant complains under Article 14 in conjunction with Article 10 of the Convention that his conviction for publishing a book, in which certain political views, contrary to State policy, were expressed, constitutes discrimination on the ground of political opinion.   B.    The proceedings   6.    The applications were introduced on 22 February and 9 June 1994 and registered on 25 February and 15 June 1994, respectively.   7.    On 20 February 1995, the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of both applications to the Turkish Government and to invite the parties to submit written observations on the admissibility and merits of the applicants' complaints based (under Article 10 of the Convention) on the alleged violation of their freedom of expression, (under Article 6 para. 1 of the Convention) on the alleged violation of their right to a fair trial by an independent and impartial court, and (under Article 7 of the Convention) on the alleged violation of their rights in the context of the principle "nullum crimen, nulla poena sine lege" as well as of the second applicant's complaint based (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.    As to Application No. 23536/94, the Government's written observations were submitted on 4 August 1995, after an extension of the time-limit fixed for that purpose.   The first applicant replied on 26 September 1995.   9.    As to Application No. 24408/94, the Government's written observations were submitted on 21 February 1996, after an extension of the time-limit fixed for that purpose.   The second applicant replied on 8 April 1996.   10.   Meanwhile, 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 applicants submitted comments in reply on 5 February and 11 March 1996, respectively.   11.   On 2 September and 14 October 1996, respectively, the Commission declared the applications admissible. On the latter date the Commission decided to join the two applications.   12.   The texts of the Commission's decisions on admissibility were sent to the parties on 16 September and 31 October 1996, respectively, and they were invited to submit such further information or observations on the merits as they wished.   13.   As to Application No. 24408/94, on 15 November 1996 the Government   submitted observations on the documents annexed to the Commission's decision on admissibility. The Government considered unjustified the publication by the Commission of "confidential documents which are part of the investigation file". The Government requested the Commission to desist from publishing the appendix to the decision in this application.   14.   After declaring the cases 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   15.   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           MM    J.-C. GEUS                E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER           Mrs   G.H. THUNE           MM    H. DANELIUS                F. MARTINEZ                C.L. ROZAKIS           Mrs   J. LIDDY           MM    L. LOUCAIDES                B. MARXER                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   16.   The text of this Report was adopted by the Commission on 13 January 1998 and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   17. 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.   18.   The Commission's decisions on the admissibility of the applications are appended to this Report.   19.   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 cases   20.   In April 1991 a book entitled "Batililasma, Çagdaslasma, Kalkinma - Paradigmanin iflasi / Resmi ideolojinin Elestirisine Giris" ("Westernisation, Modernisation, Development - Collapse of a Paradigm / An Introduction to the Critique of the Official Ideology"), written by the first applicant, was published by the company DOZ Basim ve Yayincilik Ltd Sti, owned by the second applicant. The first applicant is a university professor and a journalist.   21.   The book is an academic essay of 219 pages, containing 370 references, which involves a description of the socio-economic evolution of Turkey since the 1920s and the analysis and criticism of the "official ideology" of the State. According to the table of contents, the author covers the following topics: Intelligentsia and Official Ideology; The Characteristics of the National Struggle; The Question of the National Character of the National Struggle; The Comintern and the Question whether the National Struggle was Anti- Imperialist; Mustafa Kemal and the Individual's Role in History; The Characteristics of the Kemalist Regime: an Original Form of Bonapartism; Productive Forces and Economic Policies; Bonapartist Regime and Accumulation of Capital; A Classless, Privilegeless, Populist Dictatorship; The Evolution of Socio-Economic Formation in the Neo-Colonialist Era; The Eighties: Strengthening of the Satellitisation Process; The Collapse of the Paradigm and the Science of Economics: Means to Legitimise Existing Tendencies.   22.   It appears that the prosecution authorities took cognizance of the publication of the book on 3 May 1991 (cf. below para. 39).   23.   On 2 August 1991 the Public Prosecutor at the istanbul State Security Court (istanbul Devlet Güvenlik Mahkemesi), having regard to the contents of the book in question, issued an indictment against the applicants. The first applicant was charged, under Article 8 paragraph 1 of the Anti-Terror Law, with disseminating propaganda in his book against the indivisibility of the State. The second applicant, as the owner of the publishing company, was charged with the same offence under Article 8 paragraph 2 of the Anti-Terror Law. In the bill of indictment, the Public Prosecutor quoted extracts from a single chapter of the book in which reference was made to "the Kurdish problem".   24.    In the proceedings before the State Security Court, the applicants denied the charges and requested their acquittal. In a written statement to the Court, the first applicant submitted that his book was an academic work which could not be deemed to be propaganda. He asserted that nobody had the right to try and convict someone for the expression of an opinion. He stated that a professor, whose duty was to conduct research and publish his conclusions, could not be forced to accept the "official reality". He maintained that his book might be judged by academics, but not by the Court. The second applicant submitted, inter alia, that it was not possible to reach a conclusion about the book as a whole based solely on the assessment of extracts from a single chapter. He alleged that Article 8 of the Anti- Terror Law was contrary to the Turkish Constitution and the international treaties to which Turkey is a party. He asserted that there was a "Kurdish problem" in Turkey and that commenting or expressing ideas on this problem could not constitute an offence.   25.   In a final opinion dated 18 March 1992, the Public Prosecutor requested the conviction of the first applicant under Article 8 paragraph 1 of the Anti-Terror Law and that of the second applicant under paragraph 2 of the same Article. The Public Prosecutor also requested the seizure of all copies of the book. The Public Prosecutor considered that the offence had been committed on 3 May 1991.   26.   On 14 October 1992 the Court acquitted the applicants. It held that the book as a whole was an academic work with no elements of propaganda.   27.   The Public Prosecutor appealed. He submitted that the book alleged that a certain part of Turkish territory had belonged to "Kurdistan" which the Turks had annexed and colonised. Concluding that the book thus indeed disseminated propaganda against the indivisibility of the State, he requested that the verdict be set aside.   28.   On 4 February 1993 the Court of Cassation quashed the decision of the trial court and referred the case back for retrial.   29.   In a judgment dated 5 August 1993, the istanbul State Security Court found the applicants guilty of the offences with which they had been charged. It sentenced the first applicant to two years' imprisonment and a fine of 50,000,000 Turkish lira and the second applicant to six months' imprisonment and a fine of 50,000,000 Turkish lira. Thereupon the Court, considering the applicants' good conduct during the trial, reduced the first applicant's sentence to one year and eight months' imprisonment and a fine of 41,666,666 Turkish lira and the second applicant's sentence to five months' imprisonment and a fine of 41,666,666 Turkish lira.   30.   In its reasoning, the Court relied, inter alia, on extracts taken from pages 51, 52 and 59 of the book. It concluded that the reference to a certain part of Turkish territory as "Kurdistan" and assertions about its colonisation amounted to propaganda against the indivisibility of the State.   31.   The applicants appealed. The first applicant maintained that he could not be tried and convicted under Article 8 of the Anti-Terror Law which contravened the Turkish Constitution and the Convention. In their statement of 15 December 1993 to the Court of Cassation, the applicants' legal representatives, also reiterating the defence made before the State Security Court, emphasised that the State Security Court had not considered the book as a whole and had erroneously based its decision on an assessment of one chapter thereof. They maintained that, in a democratic society, it was required that opinions could be expressed without any restriction. As to the second applicant's sentence, they asserted that the imprisonment imposed upon him was unlawful in that the second applicant, the publisher of a book rather than that of a periodical, could have been punished only by a fine. At the hearing before the Court of Cassation on 15 December 1993, the first applicant also referred to the lack of clarity of the relevant provisions of the Anti-Terror Law.   32.   In its decision of 16 December 1993, delivered on 22 December 1993, the Court of Cassation upheld the cogency of the State Security Court's assessment of the evidence and its reasoning in rejecting the applicants' defence and dismissed the appeals.   33.   The first applicant served his sentence in prison and paid the fine. After the amendments made by Law No. 4126 of 27 October 1995 to the Anti-Terror Law, the istanbul State Security Court re-examined the second applicant's case. On 19 April 1996 the Court held that these amendments could not be applied to his case as he had already served his sentence.   B.    Relevant domestic law   a)    Anti-Terror Legislation   34.   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 territories and the 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."   35.   Article 8 paragraph 2 of Anti-Terror Law        <Original>        "Yukaridaki fikrada belirtilen propaganda suçunun 5680 sayili      Basin Kanunun 3 üncü maddesinde belirtilen mevkuteler vasitasi      ile islenmesi halinde, ayrica sahiplerine de mevkute bir aydan      az süreli ise, bir önceki ay ortalama satis miktarinin: [mevkute      niteliginde bulunmayan basili eserler ile yeni yayina giren      mevkuteler hakkinda ise, en yükek tirajli günlük mevkutenin bir      önceki ay ortalama satis tutarinin]; yüzde dosani kadar agir para      cezasi verilir. Ancak, bu para cezalari yüzmilyon liradan az      olamaz. Bu mevkutelerin sorumlu müdürlerine, sahiplerine      verilecek para cezasinin yarisi uygulanir ve alti aydan iki yila      kadar hapis cezasi hükmolunur."        <Translation>        "If the offence of propaganda, referred to in paragraph 1 above,      is committed by means of periodicals, as defined in Article 3 of      Press Law No. 5680, the owners of such periodicals shall 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 revenue of the previous month; [for printed      works that are not periodicals or for periodicals which have      recently started business, the fine shall be the average monthly      sales revenue of the highest circulating daily periodical]. In      any case, the fine may not be less than 100 million Turkish lira.      Responsible editors of these periodicals shall be sentenced to      imprisonment of between six months and two years and to half of      the fine determined in accordance with the provisions concerning      the owners."   36.   In its judgment No. 1991-18/20, dated 31 March 1992, the Constitutional Court found the above clause in square brackets to be contrary to the Constitution and annulled it. The decision was published in the Official Gazette on 27 January 1993. The annulled clause ceased to have effect on 27 July 1993.   37.   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 territories      and the nation. Those carrying out any 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 of imprisonment shall not      be commuted to fines."   b)    Press and Printing Legislation   38.   Article 3 of Press Law No. 5680 (of 24 July 1950)        <Original>        "Gazetelere, haber ajanslari nesriyatina ve belli araliklarla      yayinlanan diger bütün basilmis eserlere bu kanunda "mevkute"      denir.        Basilmis eserlerin herkesin görebilecegi veya girebilecegi      yerlerde gösterilmesi veya asilmasi veya dagitilmasi veya      dinletilmesi veya satilmasi veya satisa arzi "nesir"      sayilir. ... "        <Translation>        "Newspapers, publications of news agencies and all other      published matter, published at specific intervals, are referred      to as 'periodicals' in this Law.        The display, distribution, broadcast, sale and supply of      published matter in locations accessible to the public shall be      regarded as 'publication'. ... "   39.   Article 4 of Law No. 5681 (of 24 July 1950) on Printing        <original>        "Tâbiler, bastiklari eserlerden ikiser nüshasini basmanin sona      erdigi günün çalisma saati içinde, bulunduklari yerin Cumhuriyet      Savcisi ile en büyük mülkiye âmirine vermeye mecburdurlar. ..."        <Translation>        "Owners of printing houses shall, within the office hours, submit      to the competent Public Prosecutor's Office and to the District      Governor two sample copies of all printed matter, the printing      of which has been completed during the day. ... "   c)    Legislation on the State Security Court   40.   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. ..."   41.   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."   42.   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. ..."   43.   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 ... ."   44.   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."   45.   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."   46.   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   47.   The Commission has declared admissible:   -     the applicants' complaints that their convictions on account of the publication of an academic book constituted unjustified interferences with their freedom of thought and freedom of expression;   -     the first applicant's complaint that, due to the lack of sufficient clarity of the relevant law, his conviction was not foreseeable;   -     the second applicant's complaint that, due to the lack of sufficient clarity of the relevant law, his conviction was not foreseeable and that he was convicted in contravention of the principle "nullum crimen, nulla poena sine lege";   -     the second applicant's complaint that his conviction constituted discrimination on the ground of political opinion;   -     the applicants' complaints that their case was not heard by an independent and impartial tribunal;   -     the first applicant's complaint that he did not have a fair trial;   -     the first applicant's complaint that his conviction involved a breach of the principle of presumption of innocence.   B.    Points at issue   48.   The points at issue in the present case are as follows:   -     whether there has been a violation of Articles 9 and 10 (Art. 9, 10) of the Convention;   -     whether the first applicant's conviction violated Article 7 (Art. 7) of the Convention;   -     whether the second applicant's conviction violated Article 7 (Art. 7) of the Convention;   -     whether, as regards the second applicant, there has been a violation of Article 14 in conjunction with Article 10 (Art. 14+10) of the Convention;   -     whether, as regards the independence and impartiality of the court, there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention;   -     whether the first applicant's trial was in conformity with Article 6 para. 1 (Art. 6-1) of the Convention;   -     whether, as regards the first applicant, there has been a violation of Article 6 para. 2 (Art. 6-2) of the Convention.   C.    As regards Articles 9 and 10 (Art. 9, 10) of the Convention   49.   The applicants complain under Articles 9 and 10 (Art. 9, 10) of the Convention that their convictions on account of the publication of an academic book constituted unjustified interferences with their freedom of thought and freedom of expression.   50.   The Commission considers that the applicants' complaints essentially concern alleged violations of their freedom of expression. The Commission will therefore examine these complaints 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."   51.   The applicants submit that their convictions were not for any legitimate purpose under the Convention. They maintain that they were convicted because the incriminated book contained certain expressions, such as "Kurdistan", and raised questions as to the "official reality". They consider that the views expressed in the book were within the limits of permissible criticism. The sanctions inflicted upon them were not necessary in a democratic society. They explain in this context that the book as a whole was an academic work with no elements of propaganda.   52.   The respondent Government submit that the interferences with the applicants' rights under Article 10 (Art. 10) of the Convention were prescribed by law, i.e. by Article 8 of the Anti-Terror Law. They maintain that the incriminated book referred to a certain region of Turkish territory as "Kurdistan" and alleged that "the Republic of Turkey had colonised these territories". According to Article 8 of the Anti-Terror Law, these forms of expression constituted propaganda against the indivisible integrity of the State. Moreover, certain comments made by the author in his book constituted a provocatio