CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 8 juillet 1999

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color:#0069d6 } .s4C9C1D87 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:7.1pt; text-align:justify; font-size:10pt }       CASE OF SÜREK v. TURKEY (No. 1)   (Application no. 26682/95)                         JUDGMENT   STRASBOURG     8 July 1999               In the case of Sürek v. Turkey (no. 1), The European Court of Human Rights, sitting, in accordance with Article   27 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), as amended by Protocol   No.   11 [1] , and the relevant provisions of the Rules of Court [2] , as a Grand Chamber composed of the following judges:   Mr   L. Wildhaber , President ,   Mrs   E. Palm ,   Mr   A. Pastor Ridruejo ,   Mr   G. Bonello ,   Mr   J. Makarczyk ,   Mr   P. Kūris ,   Mr   J.-P. Costa ,   Mrs   F. Tulkens ,   Mrs   V. Strážnická ,   Mr   M. Fischbach ,   Mr   V. Butkevych ,   Mr   J. Casadevall ,   Mrs   H.S. Greve ,   Mr   A.B. Baka ,   Mr   R. Maruste ,   Mr   K. Traja,   Mr   F. Gölcüklü, ad hoc judge , and also of Mr P.J. Mahoney and Mrs M. de Boer-Buquicchio , Deputy Registrars , Having deliberated in private on 1 March and 16 June 1999, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case was referred to the Court, as established under former Article   19 of the Convention [3] , by the European Commission of Human Rights (“the Commission”) on 17 March 1998, within the three-month period laid down by former Articles 32 § 1 and 47 of the Convention. It originated in an application (no. 26682/95) against the Republic of Turkey lodged with the Commission under former Article 25 by a Turkish national, Mr Kamil Tekin Sürek, on 20 February 1995. The Commission’s request referred to former Articles 44 and 48 and to the declaration whereby Turkey recognised the compulsory jurisdiction of the Court (former Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6 § 1 and 10 of the Convention. 2.     In response to the enquiry made in accordance with Rule 33 § 3 (d) of former Rules of Court A [4] , the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (former Rule 30). The lawyer was given leave by the President of the Court at the time, Mr R. Bernhardt, to use the Turkish language in the written procedure (Rule 27 § 3). 3.     As President of the Chamber which had originally been constituted (former Article 43 of the Convention and former Rule 21) in order to deal, in particular, with procedural matters that might arise before the entry into force of Protocol No. 11, Mr Bernhardt, acting through the Registrar, consulted the Agent of the Turkish Government (“the Government”), the applicant’s lawyer and the Delegate of the Commission on the organisation of the written procedure. Pursuant to the order made in consequence, the Registrar received the applicant’s and the Government’s memorials on 10   and 17 July 1998 respectively. On 8   September 1998 the Government filed with the Registry additional information in support of their memorial and on 22 November 1998 the applicant filed details of his claims for just satisfaction. On 26 February 1999 the Government filed observations on the applicant’s claims for just satisfaction. 4.     After the entry into force of Protocol No. 11 on 1 November 1998 and in accordance with the provisions of Article 5 § 5 thereof, the case was referred to the Grand Chamber of the Court. The President of the Court, Mr   L. Wildhaber, decided that, in the interests of the proper administration of justice, a single Grand Chamber should be constituted to hear the instant case and twelve other cases against Turkey, namely: Karataş v. Turkey (application no.   23168/94); Arslan v. Turkey (no. 23462/94); Polat v. Turkey (no. 23500/94); Ceylan v. Turkey (no. 23556/94); Okçuoğlu v. Turkey (no. 24246/94); Gerger v. Turkey (no.   24919/94); Erdoğdu and İnce v. Turkey (nos. 25067/94 and 25068/94); Başkaya and Okçuoğlu v.   Turkey (nos. 23536/94 and 24408/94); Sürek and Özdemir v. Turkey (nos.   23927/94 and 24277/94); Sürek   v.   Turkey (no. 2) (no. 24122/94); Sürek v. Turkey (no. 3) (no. 24735/94); and Sürek v. Turkey (no. 4) (no.   24762/94). 5.     The Grand Chamber constituted for that purpose included ex officio Mr   R.   Türmen, the judge elected in respect of Turkey (Article 27 § 2 of the Convention and Rule 24 § 4 of the Rules of Court), Mr Wildhaber, the President of the Court, Mrs E. Palm, Vice-President of the Court, and Mr   J. ‑ P. Costa and Mr M. Fischbach, Vice-Presidents of Sections (Article   27 § 3 of the Convention and Rule 24 §§ 3 and 5 (a)). The other members appointed to complete the Grand Chamber were Mr A. Pastor Ridruejo, Mr G. Bonello, Mr   J.   Makarczyk, Mr P. Kūris, Mrs F. Tulkens, Mrs V. Strážnická, Mr V. Butkevych, Mr   J. Casadevall, Mrs H.S. Greve, Mr   A.B. Baka, Mr R. Maruste and Mrs S. Botoucharova (Rule 24 § 3 and Rule 100 § 4). On 19 November 1998 Mr Wildhaber exempted Mr Türmen from sitting after his withdrawal from the case in the light of the decision of the Grand Chamber taken in accordance with Rule 28 § 4 in the case of Oğur v. Turkey. On 16 December 1998 the Government notified the Registry that Mr   F. Gölcüklü had been appointed ad hoc judge (Rule 29 § 1). Subsequently, Mr K. Traja, substitute, replaced Mrs Botoucharova, who was unable to take part in the further consideration of the case (Rule 24 §   5   (b)). 6.     At the invitation of the Court (Rule 99), the Commission delegated one of its members, Mr H. Danelius, to take part in the proceedings before the Grand Chamber. 7.     In accordance with the decision of the President, who had also given the applicant’s lawyer leave to address the Court in Turkish (Rule 34 § 3), a hearing took place in public in the Human Rights Building, Strasbourg, on 1   March 1999, the case being heard simultaneously with those of Arslan v. Turkey and Ceylan v. Turkey.   There appeared before the Court: (a)   for the Government Mr   D. Tezcan , Mr   M. Özmen ,   Co-Agents , Mr   B. Çalışkan , Ms   G. Akyüz , Ms   A. Günyaktı , Mr   F. Polat , Ms   A. Emüler , Mrs   I. Batmaz Keremoğlu , Mr   B. Yıldız , Mr   Y. Özbek ,   Advisers ;   (b)   for the applicant Mr   H. Kaplan , of the Istanbul Bar,   Counsel ; (c)   for the Commission Mr   H. Danelius ,   Delegate .   The Court heard addresses by Mr Danelius, Mr Kaplan and Mr Tezcan. THE FACTS I.     the CIRCUMSTANCES OF THE CASE A.     The applicant 8.     The applicant is a Turkish citizen who was born in 1957 and lives in Istanbul. 9.     At the material time, the applicant was the major shareholder in Deniz Basın Yayın Sanayi ve Ticaret Organizasyon, a Turkish limited liability company which owns a weekly review entitled Haberde Yorumda Gerçek (“The Truth of News and Comments”), published in Istanbul. B.     The impugned letters 10.     In issue no. 23 dated 30 August 1992, two readers’ letters, entitled “ Silahlar Özgürlüğü Engelleyemez ” (“Weapons cannot win against freedom”) and “ Suç Bizim ” (“It is our fault”), were published. 11.     The letters read as follows (translation): (a)     “Weapons cannot win against freedom In the face of the escalating war of national liberation in Kurdistan, the fascist Turkish army continues to carry out bombings. The ‘Şırnak massacre’ which Gerçek journalists revealed at the cost of great self-sacrifice has been another concrete example this week. The brutalities in Kurdistan are in fact the worst that have been experienced there in the past few years. The massacre carried out in Halepçe in southern Kurdistan by the reactionary BAAS administration is now taking place in northern Kurdistan. Şırnak is concrete proof of it. By causing provocation in Kurdistan, the Turkish Republic was heading for a massacre. Many people were killed. In a three-day attack with tanks, shells and bombs, Şırnak was razed to the ground. And the bourgeois press, en masse , wrote about the slaughter. And as the bourgeois press has said, there are indeed scores of ‘unanswered’ questions to be asked. As to Şırnak, the attack on Şırnak is the most effective form of the campaign that is being waged throughout Turkey to eradicate the Kurds. Fascism will follow it up with many more Şırnaks. But the struggle of our people for national freedom in Kurdistan has reached a point where it can no longer be thwarted by bloodshed, tanks and shells. Every attack launched by the Turkish Republic to wipe out the Kurds intensifies the struggle for freedom. The bourgeoisie and its toadying press, which draw attention every day to the brutalities in Bosnia-Herzegovina, fail to see the brutalities committed in Kurdistan. Of course, one can hardly expect reactionary fascists who call for a halt in the brutalities in Bosnia-Herzegovina to call for a halt in the brutalities in Kurdistan. The Kurdish people, who are being torn from their homes and their fatherland, have nothing to lose. But they have much to gain.” (b)     “It is our fault The TC [ [5] ] murder gang is continuing its murders ... on the grounds of ‘protecting the Republic of Turkey’. But as people wake up to what is happening and become more aware, as they gradually learn to stand up for their rights and the idea that ‘if they won’t give, then we’ll take by force’ gradually germinates in people’s minds and grows stronger day by day – as long as this continues, the murders will obviously also continue ... Beginning of course with those who planted the seed in people’s minds – according to the generals, imperialism’s hired killers, and according to the double-chinned, pot-bellied, stiff-necked Turguts, Süleymans and Bülents ... Hence the events of 12 March, hence the events of 12 September ... Hence the gallows, hence the prisons, hence the people sentenced to 300 or 400 years. Hence the people murdered in the torture rooms ‘in order to protect the Republic of Turkey’. Hence the Mazlum Doğans exterminated in Diyarbakır Prison ... Hence the Revolutionaries recently officially assassinated ... The TC murder gang is continuing – and will continue – to commit its murders. Because the awakening of the people is like a flood of enthusiasm ... Hence Zonguldak, hence the municipal workers, hence the public service employees ... Hence Kurdistan. Can the ‘murder gangs’ stop that flood? There may be some who see the title of this letter and wonder what on earth it has to do with the text. The ‘hired killers’ of imperialism, i.e. the authors of the 12 September coup d’état , and their successors of yesterday and today, those who are still looking for ‘democracy’, who in the past participated in one way or another in the struggle for democracy and freedom, who now covertly or openly criticise their past actions, who confuse the masses and present the parliamentary system and the rule of law as the means of salvation, give the green light to the killings of the TC murder gang.       I am addressing the ‘faithful servants’ of imperialism and its hardened spokesman ( ‑ men), the one(s) who said some time ago ‘You won’t get me to say that the nationalists commit crimes’ [ [6] ] , who say(s) today ‘Those are not what we call journalists’, who say(s) ‘Who’s against demonstrations? Who’s against claiming one’s rights? Of course they can hold a march ... They’re my workers, my peasants, my public employees’, but then has (have) the public employees who march to Ankara beaten up in the very heart of the city and say(s) afterwards ‘The police did the right thing’, and who postpone(s) strikes for months on end. I am addressing the blabbers, the deserters and the charlatans who are stirring up the reactionary consciousness of the masses, who try to judge these people by their attitude towards Kurdistan and try to work out how ‘democratic’ they are. The guilt of the murder gang is proven. It is through flesh-and-blood experience that people are beginning to see it and realise it. But what about the guilt of the charlatans, the ones who are thwarting the struggle for democracy and freedom ... Yes, what about their guilt ... They have their share in the killings by the murder gang ... May their ‘union’ be a happy one!” C.     The charges against the applicant 12.     In an indictment dated 21 September 1992, the public prosecutor at the Istanbul National Security Court ( İstanbul Devlet Güvenlik Mahkemesi ) charged the applicant in his capacity as the owner of the review, as well as the review’s editor, with disseminating propaganda against the indivisibility of the State and provoking enmity and hatred among the people. The charges were brought under Article 312 of the Criminal Code and section 8 of the Prevention of Terrorism Act 1991 (“the 1991 Act” – see paragraphs 22 and 24 below). D.     The applicant’s conviction 13.     In the proceedings before the Istanbul National Security Court, the applicant denied the charges. He asserted that the expression of an opinion could not constitute an offence. He further stated that the letters in issue had been written by the readers of the review and for that reason could not engage his responsibility. 14.     In a judgment dated 12 April 1993, the court found the applicant guilty of an offence under the first paragraph of section 8 of the 1991 Act. It found no grounds for convicting him under Article 312 of the Criminal Code. The court initially sentenced the applicant to a fine of 200,000,000 Turkish liras (TRL). However, having regard to the applicant’s good conduct during the trial, it reduced the fine to TRL 166,666,666. The editor of the review was for his part sentenced to five months’ imprisonment and to a fine of TRL 83,333,333. 15.     In its judgment, the court held that the incriminated letters contravened section 8 of the 1991 Act. The court concluded that the letters referred to eight districts in the south-east of Turkey as an independent State, “Kurdistan”, described the PKK (Workers’ party of Kurdistan) as a national liberation movement involved in a “national independence war” against the Turkish State and amounted to propaganda aimed at the destruction of the territorial integrity of the Turkish State. In addition the court found that the letters contained discriminatory statements on grounds of race. E.     The applicant’s appeal against conviction and subsequent proceedings 16.     The applicant appealed against his conviction to the Court of Cassation, contending that his trial and conviction contravened Articles 6 and 10 of the Convention. He asserted that section 8 of the 1991 Act was contrary to the Constitution and denied that the letters in question disseminated separatist propaganda. He also maintained that he had not been able to be present at the hearing at which the decision on his conviction had been given. He pleaded that the decision given in his absence and without his final statement having been taken was contrary to law. 17.     On 26 November 1993 the Court of Cassation ruled that the amount of the fine imposed by the National Security Court was excessive and set aside the applicant’s conviction and sentence on that account. The court remitted the case to the Istanbul National Security Court. 18.     In its judgment of 12 April 1994, the Istanbul National Security Court sentenced the applicant to a fine of TRL 100,000,000 but subsequently reduced the fine to TRL 83,333,333. As to the grounds for conviction, the court, inter alia , reiterated the reasoning used in its judgment of 12 April 1993. 19.     The applicant appealed. He relied on the defence grounds which he had invoked at his first trial. He also maintained that the National Security Court had convicted him without having duly heard his defence. 20.     On 30 September 1994 the Court of Cassation dismissed his appeal, upholding the National Security Court’s reasoning and its assessment of the evidence. F.     The impact of the legislative amendments to the 1991 Act 21.     Following the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act (see paragraph 25 below), the Istanbul National Security Court ex officio re-examined the applicant’s case. On 8   March 1996 the court confirmed the sentence which it had initially imposed on him. II.     relevant domestic law and practice A.     Criminal law 1.     The Criminal Code 22.     The relevant provisions of the Criminal Code read as follows: Article 2 § 2 “Where the legislative provisions in force at the time when a crime is committed are different from those of a later law, the provisions most favourable to the offender shall be applied.” Article 19 “The term ‘heavy fine’ shall mean payment to the Treasury of from twenty thousand to one hundred million Turkish liras, as the judge shall decide ...” Article 36 § 1 “In the event of conviction, the court shall order the seizure and confiscation of any object which has been used for the commission or preparation of the crime or offence …” Article 142 (repealed by Law no. 3713 of 12 April 1991 on the Prevention of Terrorism) “Harmful propaganda 1.     A person who by any means whatsoever spreads propaganda with a view to establishing the domination of one social class over the others, annihilating a social class, overturning the fundamental social or economic order established in Turkey or the political or legal order of the State shall, on conviction, be liable to a term of imprisonment of from five to ten years. 2.     A person who by any means whatsoever spreads propaganda in favour of the State’s being governed by a single person or social group to the detriment of the underlying principles of the Republic and democracy shall, on conviction, be liable to a term of imprisonment of from five to ten years. 3.     A person who, prompted by racial considerations, by any means whatsoever spreads propaganda aimed at abolishing in whole or in part public-law rights guaranteed by the Constitution or undermining or destroying patriotic sentiment shall, on conviction, be liable to a term of imprisonment of from five to ten years. …” Article 311 § 2 “Public incitement to commit an offence … Where incitement to commit an offence is done by means of mass communication, of whatever type – whether by tape recordings, gramophone records, newspapers, press publications or other published material – by the circulation or distribution of printed papers or by the placing of placards or posters in public places, the terms of imprisonment to which convicted persons are liable shall be doubled …” Article 312 [7] “Non-public incitement to commit an offence A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras. A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years’ imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half. The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.” 2.     The Press Act (Law no. 5680 of 15 July 1950) 23.     The relevant provisions of the Press Act 1950 read as follows: Section 3 “For the purposes of the present Law, the term ‘periodicals’ shall mean newspapers, press agency dispatches and any other printed matter published at regular intervals. ‘Publication’ shall mean the exposure, display, distribution, emission, sale or offer for sale of printed matter on premises to which the public have access where anyone may see it. An offence shall not be deemed to have been committed through the medium of the press unless publication has taken place, except where the material in itself is unlawful.” Additional section 4(1) “Where distribution of the printed matter whose distribution constitutes the offence is prevented … by a court injunction or, in an emergency, by order of the Principal Public Prosecutor … the penalty imposed shall be reduced to one-third of that laid down by law for the offence concerned.” 3.     The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) [8] 24.     The relevant provisions of the Prevention of Terrorism Act 1991 read as follows: Section 6 “It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to announce, orally or in the form of a publication, that terrorist organisations will commit an offence against a specific person, whether or not that person’s ... identity is divulged provided that it is done in such a manner that he or she may be identified, or to reveal the identity of civil servants who have participated in anti-terrorist operations or to designate any person as a target. It shall be an offence, punishable by a fine of from five million to ten million Turkish liras, to print or publish declarations or leaflets emanating from terrorist organisations. … Where the offences contemplated in the above paragraphs are committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law   no.   5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the sales of the previous issue if the periodical appears monthly or less frequently, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched [ [9] ] . However, the fine may not be less than fifty million Turkish liras. The editor of the periodical shall be ordered to pay a sum equal to half the fine imposed on the publisher.” Section 8 (before amendment by Law no. 4126 of 27 October 1995) “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras. Where the crime of propaganda contemplated in the above paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly, or from the average sales for the previous month of the daily newspaper with the largest circulation if the offence involves printed matter other than periodicals or if the periodical has just been launched [2] . However the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment.” Section 8 (as amended by Law no. 4126 of 27 October 1995) “Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a reoffender may not be commuted to a fine. Where the crime of propaganda contemplated in the first paragraph is committed through the medium of periodicals within the meaning of section 3 of the Press Act (Law no. 5680), the publisher shall also be liable to a fine equal to ninety per cent of the income from the average sales for the previous month if the periodical appears more frequently than monthly. However, the fine may not be less than one hundred million Turkish liras. The editor of the periodical concerned shall be ordered to pay a sum equal to half the fine imposed on the publisher and sentenced to not less than six months’ and not more than two years’ imprisonment. Where the crime of propaganda contemplated in the first paragraph is committed through the medium of printed matter or by means of mass communication other than periodicals within the meaning of the second paragraph, those responsible and the owners of the means of mass communication shall be sentenced to not less than six months’ and not more than two years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras … …” Section 13 (before amendment by Law no. 4126 of 27 October 1995) “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.” Section 13 (as amended by Law no. 4126 of 27 October 1995) “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve. However, the provisions of this section shall not apply to convictions pursuant to section 8 [ [10] ] .” Section 17 “Persons convicted of the offences contemplated in the present Law who ... have been punished with a custodial sentence shall be granted automatic parole when they have served three-quarters of their sentence, provided they have been of good conduct. … The first and second paragraphs of section 19 [ [11] ] … of the Execution of Sentence Act (Law no. 647) shall not apply to the convicted persons mentioned above.” 4.     Law no. 4126 of 27 October 1995 amending sections 8 and 13 of Law no.   3713 25.     The following amendments were made to the Prevention of Terrorism Act 1991 following the enactment of Law no. 4126 of 27 October 1995:   Transitional provision relating to section 2 “In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to section 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment ... to section 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of sections 4 [ [12] ] and 6 [ [13] ] of Law no. 647 of 13 July 1965.” 5.     Law no. 4304 of 14 August 1997 on the deferment of judgment and of executions of sentences in respect of offences committed by editors before 12 July 1997 26.     The following provisions are relevant to sentences in respect of offences under the Press Act: Section 1 “The execution of sentences passed on those who were convicted under the Press Act (Law no. 5680) or other laws as editors for offences committed before 12 July 1997 shall be deferred. The provision in the first paragraph shall also apply to editors who are already serving their sentences. The institution of criminal proceedings or delivery of final judgments shall be deferred where proceedings against the editor have not yet been brought, or where a preliminary investigation has been commenced but criminal proceedings have not been instituted, or where the final judicial investigation has been commenced but judgment has not yet been delivered, or where the judgment has still not become final.” Section 2 “If an editor who has benefited under the provisions of the first paragraph of section   1 is convicted as an editor for committing an intentional offence within three years of the date of deferment, he must serve the entirety of the suspended sentence. … Where there has been a deferment, criminal proceedings shall be instituted or judgment delivered if an editor is convicted as such for committing an intentional offence within three years of the date of deferment. Any conviction as an editor for an offence committed before 12 July 1997 shall be deemed a nullity if the aforesaid period of three years expires without any further conviction for an intentional offence. Similarly, if no criminal proceedings have been instituted, it shall no longer be possible to bring any, and, if any have been instituted, they shall be discontinued.”   6.     The Execution of Sentences Act (Law no. 647 of 13 July 1965) 27.     The Execution of Sentences Act 1965 provides, inter alia : Section 5 “The term ‘fine’ shall mean payment to the Treasury of a sum fixed within the statutory limits. … If, after service of the order to pay, the convicted person does not pay the fine within the time-limit, he shall be committed to prison for a term of one day for every ten thousand Turkish liras owed, by a decision of the public prosecutor. … The sentence of imprisonment thus substituted for the fine may not exceed three years …” Section 19(1) “… persons who ... have been ordered to serve a custodial sentence shall be granted automatic parole when they have served half of their sentence, provided they have been of good conduct ...” 7.     The Code of Criminal Procedure (Law no. 1412) 28.     The Code of Criminal Procedure contains the following provisions: Article 307 “An appeal on points of law may not concern any issue other than the lawfulness of the impugned judgment. Non-application or erroneous application of a legal rule shall constitute unlawfulness [ [14] ] .” Article 308 “Unlawfulness is deemed to be manifest in the following cases: 1-     where the court is not established in accordance with the law; 2-     where one of the judges who have taken the decision was barred by statute from participating; …” B.     Criminal case-law submitted by the Government 29.     The Government supplied copies of several decisions given by the prosecutor attached to the Ankara National Security Court withdrawing charges against persons suspected of inciting people to hatred or hostility, especially on religious grounds (Article 312 of the Criminal Code), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 24 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decision included such considerations as the fact that the proceedings were time-barred, that some of the constituent elements of the offence could not be made out or that there was insufficient evidence. Other grounds included the fact that the publications in issue had not been distributed, that there had been no unlawful intent, that no offence had been committed or that those responsible could not be identified. 30.     Furthermore, the Government submitted a number of decisions of the National Security Courts as examples of cases in which defendants accused of the above-mentioned offences had been found not guilty. These were the following judgments: 1991/23–75–132–177–100; 1992/33–62–73–89–143; 1993/29–30–38–39–82–94–114; 1994/3–6–12–14–68–108–131–141–155–171–172; 1995/1–25–29–37–48–64–67–84–88–92–96–101–120–124–134–135; 1996/2–8–18–21–34–38–42–43–49–54–73–86–91–103–119–353; 1997/11–19–32–33–82–89–113–118–130–140–148–152–153–154–187–191–200–606; 1998/6–8–50–51–56–85–162. 31.     As regards more particularly proceedings against authors of works dealing with the Kurdish problem, the National Security Courts in these cases reached their decisions on the ground that there had been no dissemination of “propaganda”, one of the constituent elements of the offence, or on account of the objective nature of the words used. C.     The National Security Courts [15] 1.     The Constitution 32.     The constitutional provisions governing judicial organisation of the National Security Courts are worded as follows: Article 138 §§ 1 and 2 “In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law. No organ, authority, ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.” Article 139 § 1 “Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution …” Article 143 §§ 1-5 “National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security. National Security Courts shall be composed of a president, two other regular members, two substitute members, a prosecutor and a sufficient number of assistant prosecutors. The president, one of the regular members, one of the substitutes and the prosecutor shall be appointed from among judges and public prosecutors of the first rank, according to procedures laid down in special legislation; one regular member and one substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges. Presidents, regular members and substitute members ... of National Security Courts shall be appointed for a renewable period of four years. Appeals against decisions of National Security Courts shall lie to the Court of Cassation. ...” Article 145 § 4 “Military legal proceedings The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve in the performance of their non-judicial duties shall also be regulated by law ...” 2.     Law no. 2845 on the creation and rules of procedure of the National Security Courts 33.     Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide as follows: Section 1 “In the capitals of the provinces of … National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.” Section 3 “The National Security Courts shall be composed of a president, two other regular members and two substitute members.” Section 5 “The president of a National Security Court, one of the [two] regular members and one of the [two] substitutes ... shall be civilian … judges, the other members, whether regular or substitute, military judges of the first rank …” Section 6(2), (3) and (6) “The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the Military Legal Service Act. Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years … … If, after an investigation concerning the president or a regular or substitute member of a National Security Court conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of the person concerned, the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation.” Section 9(1) “National Security Courts shall have jurisdiction to try persons charged with (a)     the offences contemplated in Article 312 § 2 … of the Turkish Criminal Code, … (d)     offences having a connection with the events which made it necessary to declare a state of emergency, in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution, (e)     offences committed against the Republic, whose constituent qualities are enunciated in the Constitution, against the indivisible unity of the State – meaning both the national territory and its people – or against the free democratic system of government, and offences which directly affect the State’s internal or external security. …” Section 27(1) “The Court of Cassation shall hear appeals against the judgments of the National Security Courts.” Section 34(1) and (2) “The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession … The observations of the Court of Cassation on military judges, the assessment reports on them drawn up by Ministry of Justice assessors … and the files on any investigations conducted in respect of them … shall be transmitted to the Ministry of Justice.” Section 38 “A National Security Court may be transformed into a Martial-Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court …” 3.     The Military Legal Service Act (Law no. 357) 34.     The relevant provisions of the Military Legal Service Act are worded as follows: Additional section 7 “The aptitude of military judges … appointed as regular or substitute memb