CEDH · PRESS;GENERAL;ENG — 15 octobre 2002

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s212D8584 { width:56.08pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sB99BE15B { width:332.23pt; display:inline-block } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s3964C3A3 { width:1.36pt; display:inline-block } .s901C2590 { width:56.7pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     498   15.10.2002   Press release issued by the Registrar   CHAMBER JUDGMENTS CONCERNING Turkey   The European Court of Human Rights has today notified in writing the following two Chamber judgments, neither of which is final. [1] (Both are in French only.)   Section 2   (1)     Ayşe Özturk v. Turkey (application no. 24914/94)   Violation Article 10   Ayşe Öztürk is a Turkish journalist who was born in 1961 and lives in Istanbul. At the material time she was the owner and editor-in-chief of the fortnightly review Kızıl Bayrak (“The Red Flag”), that was published in Istanbul and also circulated in Ankara, Izmir and Adana. She complains that three editions of the review were seized in June and July 1994.   The first seizure concerned an article in the 1 to 15 June 1994 edition, entitled “Kurds forced to migrate because of colonialist oppression” (“ Sömürgeci zulüm Kürtleri göçe zorluyor ”). The article criticised Government policy and alleged that villagers were being subjected to pressure and forced to emigrate and that their villages were being destroyed. It called on the working classes to react. On 4 June 1994 a single judge sitting in the National Security Court ordered the seizure of the review on the ground that the article incited hostility and hatred based on a distinction according to race and ethnic origin. The police were unable to execute the order as the thousand copies that had been printed had already been distributed. The applicant was sentenced by the National Security Court on 24   July 1995 to two-years’ imprisonment and a fine. However, by virtue of Law no. 4307 the sentences were suspended for three years, the applicant having committed the offences in her capacity as editor-in-chief.   The second seizure concerned the edition of 15 June to 1 July 1994, which contained three articles that were alleged by the public prosecutor to constitute separatist propaganda. The first was entitled “Full support for the Kurdish people!” (“ Kürt halkına tam destek ”), and denounced official policy in virulent terms, speaking of “The machine of tyranny and massacre”. The second article, entitled “Say ‘no’ to the dirty war!” (“ Kirli savaşı reddet ”) sought to encourage young people to refuse to join the army. Lastly, in the third article entitled “A revolutionary example of resistance to State terror: extended boycott of the National Security Courts” (“ Devlet terörüne karşı devrimci bir direniş örneğı: Yaygınlaşan DGM boykotu ”), the author denounced acts of torture and praised the boycott, which had been started by prisoners. An order for the seizure of that edition was made on 28 June 1994 but the National Security Court decided to reserve judgment in accordance with Law no.   4304.   The third edition to be seized was that of 1 to 15 July 1994 in which the following articles appeared: “The financial side to the dirty war – how should the working class respond?” (“ Kirli savaşın iktisadi yönü ve işçi sınıfı ne yapmalı ”) denounced the cost of the “dirty war”, which it said the working class was being forced to bear, and “The DEP [The Democracy Party, which was pro-Kurdish] has been dissolved” (“ DEP kapatıldı ”), in which it condemned the dissolution of that party. The order for the seizure of that edition was made on 3 July 1994. The applicant was convicted of separatist propaganda and was sentenced to five-months’ imprisonment and a fine. Those sentences were also suspended under Law no.   4304.   The applicant complained under Article 10 (freedom of expression) of the European Convention on Human Rights that her right to freedom to receive and impart information and ideas had been infringed by the seizure of the review. She also submitted that restraining the distribution and sale of the publications concerned while the substantive proceedings were pending had been likely to deprive them of all news value.   The Court found that the measures in issue constituted an interference with the applicant’s right to freedom of expression, prescribed by Article 28 of the Constitution and Article 86 of the Criminal Code. In view of the sensitive nature of the fight against terrorism and the need for the authorities to exercise vigilance in the face of acts that were liable to lead to increased violence, the Court considered that the purpose of the interference had been to protect national unity and security, and territorial integrity.   Seizure of the 1 – 15 June 1994 edition Without underestimating the difficulties inherent in the fight against terrorism, the Court noted that the comments in question took the form of a political speech, both as regards their content and the terms used, and did not constitute incitement to violence, armed resistance or an uprising. Furthermore, the reasons advanced by the authorities for ordering the seizure were insufficient. Accordingly, the Court held that the seizure was not necessary in a democratic society.   Seizure of the 15 June - 1 July 1994 edition The Court was conscious of the authorities’ concerns about words or acts liable to aggravate the security situation in south-east Turkey. However, it considered that the fact that the review was circulated in an area far from the conflict zone limited its potential impact on “national security”, “public order” or “territorial integrity”. Further, it considered that some of the passages in the articles were more akin to an expression of deep anxiety in the face of a difficult political situation rather than a call for an uprising. The articles did not constitute an incitement to violence. Accordingly, the Court held that the seizure of that edition was not justifiable under Article 10 § 2 of the Convention.   Seizure of the 1 - 15 July 1994 edition The Court found that the two articles published did not advocate violence and were not aimed at kindling hatred or vindicating acts of terrorism.   As regards the fact that the sentences were suspended, the Court noted that the suspension was only effective if the applicant did not intentionally commit any further offence in her capacity as editor-in-chief within the following three years. It also appeared that during that period the seizure orders remained valid. Moreover, the Government had not shown how the applicant could apply to have the measures lifted in the absence of any recognition that there had been a violation of the Convention. The Court considered that the measures were tantamount to a ban on the applicant exercising her profession, as it required her to refrain from publishing anything that might be regarded as contrary to the interests of the State. It restricted her ability to air ideas, notably regarding the Kurdish problem, that were part of a public debate. It reiterated that restricting journalists’ freedom of expression to ideas that were generally accepted, favourably received or regarded as inoffensive or as a matter of indifference was unreasonable.   Consequently, the Court held by five votes to two that there had been a violation of Article 10 and awarded the applicant 2,000 euros (EUR) for non-pecuniary damage and EUR 1,500 for costs and expenses.   Section 4   (2)     Karakoç and Others v. Turkey (nos. 27692/95, 28138/95 and 28498/95) Violation Article 10   Violation Article 6 § 1   The applicants, Bahri Zülfü Karakoç, Mehmet Alpaslan and Hamdullah Akyol, are Turkish nationals who were born in 1959, 1952 and 1964 respectively and live in Diyarbakır. At the material time Mr Karakoç was a representative of the trade union Türk Har-İş , Mr Alpaslan a trade union leader of DISK-Genel- İş and Mr Akyol a representative of the newspaper Medya Güneşi .   On 27 May 1993 the applicants and some 20 or so representatives of trade unions, associations and newspapers, issued a statement in the press criticising the policy of the Turkish authorities in south-east Turkey and condemning their complicity through inaction in “massacres and extrajudicial executions”.   At the request of the public prosecutor, a bench of the National Security Court that included a military judge, made an order for the applicants’ detention pending trial. It held that there was reliable evidence that they had committed the offence of separatist propaganda under section   8 of the Prevention of Terrorism Act. The same court, almost identically composed, subsequently heard applications by the applicants for a change of judge and for bail before proceeding to try the merits. On 13 April 1994 it convicted the applicants of separatist propaganda and sentenced them to twenty-months’ imprisonment and a fine of 208,333,000   Turkish liras (TRL). After Law no. 4126 amending the Prevention of Terrorism Act came into force, the applicants’ prison sentence was reduced to ten months and their fine to TRL 83,333,333, both sentences being suspended.   The applicants complained of an infringement of their right to freedom of expression as guaranteed by Article 10 of the Convention. They further complained of a violation of Article   6 § 1 (right to a fair trial), alleging that the court that had tried their case was not independent and impartial.   The Court found that the applicants’ conviction amounted to an interference with their right to freedom of expression, that that interference was prescribed by law and that its purpose was to protect national security and territorial integrity and to prevent disorder. Their statement to the press had been made with a view to informing public opinion through the media.   The Court said that by making a statement as actors on the Turkish political stage the applicants had played their role in alerting public opinion to concrete acts that were liable to infringe fundamental rights. It also noted the severity of the sentences imposed, which, despite being suspended, had deprived the applicants of their liberty and left them exposed to heavy penalties for the duration of the suspension.   Consequently, the Court held unanimously that there had been a violation of Article 10, as the applicants’ sentence was disproportionate to the aims pursued and not necessary in a democratic society.   As regards the complaint that the National Security Court that had convicted the applicants was not impartial, the Court noted that the applicants’ fears of a lack of independence and impartiality stemmed from two factors. Firstly, in deciding whether to order the applicants’ detention pending trial the judges were already expressing an opinion on the merits of the case. Those same judges had subsequently been called upon to decide whether the applicants were guilty of the offences. Secondly, one of the military judges on the bench was answerable to the military authorities.   The Court noted, firstly, that the members of the Diyarbakır National Security Court who tried the case at first instance had previously examined it before trial, having made an order for pre-trial detention. It noted that the reasons given by the judges for making that order were similar to those they gave given for convicting the applicants. The fact that the judges had relied on those reasons in relation to the issue of pre-trial detention before the criminal proceedings commenced was capable of giving the applicants cause for concern about the judges’ role. The same judges were also called upon to try the case on the merits, which turned on the relatively straightforward issue of whether the statement concerned was compatible with the domestic criminal legislation. The applicants may even have had legitimate cause for concern that the judges had already formed an opinion that was liable to weigh heavily in the balance when it came to deciding the merits. In addition, the Court noted that it was the same president who upheld the applicants’ convictions after the new legislation came into force. Accordingly, the applicants’ fears regarding the impartiality of the National Security Court were objectively justified.   Further, the Court reiterated that the fact that a civilian accused of terrorist offences was tried before a tribunal that included a military judge constituted a legitimate ground for his or her fearing bias on the part of the tribunal. Consequently, it held unanimously that there had been a violation of Article 6 § 1 of the Convention and awarded the applicants 7,500 euros (EUR) each for non-pecuniary damage and EUR 6,000 jointly for costs and expenses.   ***   These summaries by the Registry do not bind the Court. The full texts of the Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.