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. 24762/94                          Kamil Tekin Sürek                               against                               Turkey                      REPORT OF THE COMMISSION                    (adopted on 13 January 1998)                          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. 19-46) . . . . . . . . . . . . . . . . . . . . .4        A.    The particular circumstances of the case           (paras. 19-31). . . . . . . . . . . . . . . . . . .4        B.    Relevant domestic law           (paras. 32-46). . . . . . . . . . . . . . . . . . .6   III. OPINION OF THE COMMISSION      (paras. 47-77) . . . . . . . . . . . . . . . . . . . . . . . 14        A.    Complaints declared admissible           (para. 47). . . . . . . . . . . . . . . . . . . . 14        B.    Points at issue           (para. 48). . . . . . . . . . . . . . . . . . . . 14        C.    As regards Article 10 of the Convention           (paras. 49-67). . . . . . . . . . . . . . . . . . 14             CONCLUSION           (para. 68). . . . . . . . . . . . . . . . . . . . 18        D.    As regards Article 6 para. 1 of the Convention           (paras. 69-74). . . . . . . . . . . . . . . . . . 18             CONCLUSION           (para. 75). . . . . . . . . . . . . . . . . . . . 19        E.    Recapitulation           (paras. 76-77). . . . . . . . . . . . . . . . . . 20   JOINT CONCURRING OPINION OF MS J. LIDDY AND MR N. BRATZA. . . . . . . . . . . . . . . . . . . . . . 21   PARTLY DISSENTING OPINION OF MR S. TRECHSEL . . . . . . . . 22   PARTLY DISSENTING OPINION OF MR E. A. ALKEMA. . . . . . . . 23   APPENDIX   :     DECISION OF THE COMMISSION AS TO THE                ADMISSIBILITY OF THE APPLICATION . . . . . . 24   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 1957 and lives 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 on account of the publication of a news commentary and a political declaration in a weekly review. The applicant was the major shareholder in the publishing company concerned.   5.    The applicant complains under Article 10 of the Convention that his conviction constituted an unjustified interference with his freedom of expression. He also complains under Article 6 para. 1 of the Convention that his case was not dealt with by an independent and impartial tribunal.   B.    The proceedings   6.    The application was introduced on 27 July 1994 and registered on 3 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 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 26 October 1995. The applicant replied on 5 December 1995.   9.    Meanwhile, 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 18 June 1996.   10.   On 2 September 1996 the Commission declared admissible the applicant's complaints relating to the alleged interference with his freedom of expression and to the alleged lack of independence and impartiality of the tribunal which convicted him. The Commission declared inadmissible the remainder of the application which concerned an original complaint of the applicant about the length of the criminal proceedings against him. On the same date the Commission decided to join the case to Application Nos. 23927/94, 24122/94, 24277/94 and 24735/94.   11.   The text of the Commission's decision on admissibility was sent to the parties on 16 September 1996 and they were invited to submit such further information or observations on the merits as they wished. On 4 March 1997 the Government submitted supplementary observations. The applicant submitted comments in reply on 17 April 1997.   12.   On 13 January 1998 the Commission decided to disjoin the case from Application Nos. 23927/94, 24122/94, 24277/94 and 24735/94.   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           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     15.   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.   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.   At the material time, the applicant was the major shareholder in the Deniz Basin Yayin Sanayi ve Ticaret Organizasyon A.S., a Turkish company which owns a weekly review entitled Haberde Yorumda Gerçek (The Truth of News and Comments), published in istanbul.   20.   In issue No. 51 of the review, dated 13 March 1993, a news commentary entitled "Kawa and Dehak Once Again" was published. The article analysed possible events which could occur during the upcoming celebrations of Newroz.   21.   A translation of the relevant parts of the news commentary is as follows:        "... It's Newroz week in Kurdistan. The biggest confrontation      between the demands of the Kurdish people and non-tolerance in      the face of the expression of these demands occurs during these      days. The tradition of rebellion is awakened. Dehak and Kawa are      once again invested with flesh and bones. It is time to settle      accounts. There is nothing vague about Kawa. All the mountains,      all the cities are full of Kawa. There are millions of them. All      right, who, then, is Dehak? Who is the candidate for representing      Dehak in our day?   Is it Demirel? Is it Güres? The regional      Governor? Or the new commander ilter? This time round, is Dehak      represented by every counter-insurgency chief, indeed, every      counter-insurgency operative, every special team member, every      police commissioner or superintendent officer? Has Dehak become      anonymous too? Be it as it may, but Dehak and Kawa will settle      their accounts once again.   ...        Last year, a revolutionary publication described the days      preceding Newroz as follows:             «Nowadays over 200 thousand soldiers massed into Kurdistan.           Tanks and weapons are sent over. Bombs are raining on           Kurdish villages and mountains. The Chief of the General           Staff has inspected the preparations for the offensive.           Instructions are being issued to provincial and district           governors, special team leaders, police chiefs and military           officials. The Head of MiT intelligence agency talks of the           prospect of much blood being shed. Members of Parliament           are organising information gathering trips in   order to           take the pulse of the people.» ...        Unlike previous years, the P.K.K.-leaning Kurdistan National      Assembly (KUM) is also expected to take on a role during Newroz      this year. ...        On the other hand emergency measures are being implemented in      large cities outside Kurdistan where there are concentrations of      Kurdish people. It is highly likely that there will be large      demonstrations in the Kurdish quarters there."   22.   In the same issue and within the context of the above news commentary, an interview by the Kurdish News Agency (KURD-HA) with a representative of the E.R.N.K. was also published.   23.   A translation of the relevant part of the interview is as follows:        "... We wish to emphasise this finding, indeed, we feel that it      ought to be underlined. And we call on all European countries.      We are open to any humanitarian, political   solution, including      the calls for an armistice. The P.K.K. movement and its struggle      are absolutely not terrorist movements. This misapprehension must      be abandoned - it must definitely be abandoned - and a move must      be made towards co-operation and support. The real terrorist is      the Republic of Turkey. We believe that attitudes on this matter      will be much clarified this year, that very positive dialogues      will develop and that the Republic of Turkey will be gradually      further isolated."   24.   On 14 March 1993 the istanbul State Security Court (istanbul Devlet Güvenlik Mahkemesi) ordered the seizure of the issue, holding that it contained separatist propaganda.   25.   In an indictment dated 22 April 1993 the Public Prosecutor at the istanbul State Security Court, on account of the publication of the above news commentary, charged the applicant, as the owner of the review, with making propaganda by means of the press against the indivisibility of the State. The applicant was also charged with publishing the declaration of the E.R.N.K, an illegal terrorist organisation being the political wing of the P.K.K. (Kurdistan Workers Party - a terrorist organisation). The charges were brought under Articles 8 and 6 of the Anti-Terror Law, respectively.   26.   In the proceedings before the istanbul State Security Court, the applicant denied the charges. He pleaded that the news commentary for which he was charged did not fall within the scope of Article 8 of the Anti-Terror Law. He maintained that arguing and commenting on possible activities in which the illegal terrorist organisation P.K.K. might engage during the Newroz celebrations, could not be considered as publishing a declaration of a terrorist organisation within the meaning of Article 6 of the Anti-Terror Law. As regards his freedom of expression, he invoked Article 10 of the Convention and referred to the case-law of the Commission and the Court. He stated that pluralism of opinions including those opinions which shock or offend is essential in a democratic society. He argued that the provisions of Articles 6 and 8 of the Anti-Terror Law restrict freedom of expression in contravention of the Turkish Constitution and the criteria laid down by the case-law of the Commission and the Court.   27.   In a judgment dated 27 September 1993, the Court found the applicant guilty. The applicant was sentenced under Article 8 para. 2 of the Anti-Terror Law to a fine of 100,000,000 Turkish lira. The Court, considering the good conduct of the applicant during the trial, reduced the fine to 83,333,333 Turkish lira.   28.   The Court based its judgment on certain extracts from the news commentary. It held that the news commentary - in which a certain part of the Turkish territory was referred to as "Kurdistan" and a certain section of the population as "Kurds" - disseminated propaganda against the indivisibility of the State. The Court further held that the review had published the declaration of an illegal terrorist organisation in which the Republic of Turkey was referred to as a terrorist State. However, it considered that the declaration constituted a part of the news commentary at issue and, having regard to the provisions of Article 79 of the Turkish Criminal Code, did not find any grounds for a separate conviction under Article 6 of the Anti-Terror Law.   29.   The applicant appealed. He, inter alia, reiterated the defence he had made before the State Security Court.   30.   On 8 February 1994 the Court of Cassation dismissed the appeal. It upheld the cogency of the State Security Court's assessment of evidence in rejecting the applicant's defence.   31.   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 applicant's case. On 22 April 1996 the Court held that these amendments could not be applied to the applicant's case as his sentence had already been executed.   B.    Relevant domestic law   a)    Anti-Terror Legislation   32.   Article 6 of the Anti-Terror Law No. 3713 of 12 April 1991        <Original>        "isim ve kimlik belirterek veya belirtmeyerek kime yönelik      oldugunun anlasilmasini saglayacak surette kisilere karsi terör      örgütleri tarafindan suç islenecegini veya terörle mücadelede      görev almis kamu görevlilerinin hüviyetlerini açiklayanlar veya      yayinlayanlar veya bu yolla kisileri hedef gösterenler besmilyon      liradan onmilyon liraya kadar agir para cezasi ile      cezalandirilir.        Terör örgütlerinin bildiri veya açiklamalarini basanlara veya      yayinlayanlara besmilyon liradan onmilyon liraya kadar agir para      cezasi verilir.        Bu Kanunun 14 üncü maddesine aykiri olarak muhbirlerin      hüviyetlerini açiklayanlar veya yayinlayanlar besmilyon liradan      onmilyon liraya kadar agir para cezasi ile cezalandirilir.        Yukaridaki fikralarda belirtilen fiillerin 5680 sayili Basin      Kanununun 3 üncü maddesindeki mevkuteler vasitasiyle islenmesi      halinde, ayrica sahiplerine de; mevkute bir aydan az süreli ise      bir önceki ay ortalama fiili satis miktarinin, aylik veya bir      aydan fazla süreli ise bir önceki fiili satis miktarinin,[mevkute      niteliginde bulunmayan basili eserler ile yeni yayina giren      mevkuteler hakkinda ise, en yüksek tirajli günlük mevkutenin bir      önceki ay ortalama satis tutarinin] yüzde doksani kadar agir para      cezasi verilir. Ancak, bu ceza ellimilyon liradan az olamaz. Bu      mevkutelerin sorumlu müdürlerine, sahiplerine verilecek cezanin      yarisi uygulanir."        <Translation>        "Those who announce that a crime will be committed by terrorist      organisations against certain persons either expressly or without      mentioning their names, or who disseminate or disclose to the      public the identity of officials appointed to fight terrorism,      or who render such officials targets, shall be subject to a fine      of between 5 and 10 million Turkish lira.        Those who print or publish the leaflets of terrorist      organisations shall be subject to a fine of between 5 and      10 million Turkish lira.        Those who, contrary to Article 14 of this Law, disclose or      publish the identity of informants shall be subject to a fine of      between 5 and 10 million Turkish lira.        If one of the crimes defined 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 periodicals published monthly or at more than      monthly intervals, the fine shall be ninety per cent of the      average real sales revenue of the previous issue [; for printed      works that are not periodicals or for periodicals which have      recently started business, the fine shall be ninety per cent of      the monthly sales revenue of the highest circulating daily      periodical]. In any case, the fine may not be less than      50 million Turkish lira. Responsible editors of these periodicals      shall be sentenced to half of the sentences to be imposed upon      the publishers."   33.   Article 8 paragraph 1 of Anti-Terror Law (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."   34.   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 doksani 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."   35.   In a judgment dated 31 March 1992, the Constitutional Court found the clauses in square brackets in the text of Articles 6 and 8 of the Anti-Terror Law to be contrary to the Constitution and annulled them. The decision was published in the Official Gazette on 27 January 1993. The annulled clauses ceased to have effect on 27 July 1993.   36.   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 Law No. 5680 of 24 July 1950   37.   Article 3        <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'.... "   38.   Under Article 7 of the Press Law, in cases where a periodical is owned by a company, the major shareholder in that company is considered to be the owner of the periodical.   c)    Criminal Code   39.   Article 79 of the Criminal Code provides that if someone's single act constitutes a violation of several provisions of the Law, he shall be punished in accordance with the single provision which imposes the heaviest punishment.   d)    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 applicant's complaint that his conviction on account of the publication of the news commentary and the interview in question constituted an unjustified interference with his freedom of expression;   -     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.   B.    Points at issue   48.   The points at issue in the present case are as follows:   -     whether the applicant's conviction constituted a violation of Article 10 (Art. 10) of the Convention;   -     whether the applicant's conviction constituted a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.    As regards Article 10 (Art. 10) of the Convention   49.   The applicant complains that his freedom of expression has been infringed, contrary to Article 10 (Art. 10) of the Convention, in that he was convicted on account of the publication of a news commentary and an interview.   50.   Article 10 (Art. 10-1) of the Convention provides as follows:        "1.   Everyone has the right to freedom of expression.   This right      shall include freedom to hold opinions and to receive and impart      information and ideas without interference by public authority      and regardless of frontiers.   This Article shall not prevent      States from requiring the licensing of broadcasting, television      or cinema enterprises.        2.   (Art. 10-2) 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 applicant submits that describing and commenting on possible activities in which the P.K.K. might engage during Newroz celebrations, cannot be considered as publishing a declaration by a terrorist organisation.   In fact, the weekly review concerned has never displayed any support for terrorism. The penal sanction inflicted upon him was not necessary in a democratic society and cannot be justified by any reasons permitted under the Convention. He recalls that pluralism of opinions, including those which shock or offend, is essential in a democratic society. He asserts that various limitations of freedom of expression have existed in Turkey for decades and their existence cannot be considered justified by the upheaval of terrorism during the recent years. In any event, his sentence was disproportionate, in particular, in the light of the limited circulation of the review.   52.   The respondent Government maintain that the interference with the applicant's rights under Article 10 (Art. 10) of the Convention was prescribed by law, i.e. by Article 8 of the Anti-Terror Law. They state that the applicant, in his review, published a news commentary in which a certain part of Turkish territory had been referred to as "Kurdistan" and a certain section of the population as "Kurds". Moreover, the review had published a declaration by the E.R.N.K., an illegal terrorist organisation, in which the Republic of Turkey was referred to as a terrorist State. According to Article 8 of the Anti-Terror Law, such publication constitutes propaganda against the indivisible integrity of the State. The domestic courts, therefore, interpreted the law reasonably.   53.   The Government also maintain that the purpose of the applicant's conviction was linked to the control of terrorism carried out by illegal organisations and, consequently, served to protect territorial integrity and national security. As to the necessity of the measure in a democratic society, the Government submit that the threat posed to Turkey by the P.K.K. and its affiliations is internationally recognised, as is the need to react firmly to it. Terrorism strikes at the heart of democracy, the fundamental rights which that concept enshrines and the judicial and political systems. They assert that the news commentary in question was based on the glorification of the activities of the P.K.K., the P.K.K. being an illegal terrorist organisation aiming at the establishment of an independent Kurdish State. They submit that it is generally accepted in comparative and international law on terrorism that restrictions on Convention right