CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 18 juillet 2000

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s85016119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:11pt } .s7F64397A { width:26.83pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s76CF415B { page-break-before:always; clear:both } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s5E15F1C8 { width:0.33pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sE0D34C67 { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     532   18.7.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF ŞENER v. TURKEY     In a judgment delivered at Strasbourg on 18 July 2000 in the case of Şener v. Turkey, the European Court of Human Rights held by 6 votes to one that there had been a violation of Articles 6 § 1 (right to a fair trial) and 10 (freedom of expression) of the European Convention on Human Rights and no violation of Article 18 (limitation on use of restrictions on rights). Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 40,000 French francs (FRF) for non-pecuniary damage and for legal costs and expenses.   1.   Principal facts   The applicant, Pelin Şener, a Turkish national, was born in 1969 and lives in Cologne, Germany.   At the material time, she was the owner and responsible editor of a weekly review entitled Haberde Yorumda Gerçek (The Truth of News and Comments), published in Istanbul. The 23rd issue of the review, dated 4 September 1993, included an article entitled Aydın İtirafı (Confessions of an Intellectual) written by a Turkish intellectual, Erhan   Altun.   The Istanbul State Security Court held that, by publishing the article, the applicant had committed the offence of disseminating separatist propaganda against the indivisibility of the State contrary to section 8 of the Prevention of Terrorism Act 1991 (Law   no. 3713).   In a judgment of 5 July 1994, she was sentenced to six months’ imprisonment and a fine of 50,000,000 Turkish liras.   After Law no. 4126 of 27 October 1995 and Law no. 4304 of 14 August 1997 came into force, the Istanbul State Security Court decided to defer the imposition of a final sentence on the applicant.   2.   Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 7   March   1995. Having declared the application partly admissible, the Commission adopted a report in which it expressed the unanimous opinion that Articles 6 § 1 and 10 of the Convention had been violated, but that Article 18 had not. It referred the case to the Court on 11 September 1999.   Judgment was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , Willi Fuhrmann (Austrian), Pranas Kūris (Lithuanian), Françoise Tulkens (Belgian), Hanne Sophie Greve (Norwegian), Kristaq Traja (Albanian), judges Feyyaz Gölcüklü (Turkish), ad hoc Judge ,   and also Sally Dollé , Section Registrar .   3.   Summary of the judgment [1]   Complaints   The applicant complained that her conviction amounted to an infringement of her right to freedom of expression, as guaranteed by Article 10. She also complained under Articles 6 and 18.   Article 10   The Court found that the conviction amounted to an “interference” in the applicant’s right to freedom of expression. Accepting that the interference was “prescribed by law” within the meaning of the second paragraph of Article 10 and pursued at least one of the “legitimate aims” set out in that provision, the Court went on to examine whether the interference was “necessary in a democratic society” for those aims to be achieved. It concluded that there had been a violation of Article 10.   The Court referred in particular to the essential role of the press in ensuring the proper functioning of political democracy. While the press had not to overstep the bounds set, among other things, for the protection of vital interests of the State such as national security or territorial integrity against the threat of violence or the prevention of disorder or crime, it was nevertheless incumbent on it to impart information and ideas on political issues, including divisive ones. Not only had the press the task of imparting such information and ideas; the public had a right to receive them. Freedom of the press afforded the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders.   The Court went to say in its judgment that, in line with its case-law, there was little scope under Article 10 § 2 for restrictions on political speech or on debate on matters of public interest. Furthermore, the limits of permissible criticism were wider with regard to the government than in relation to a private citizen, or even a politician. In a democratic system the actions or omissions of the government had to be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion. Moreover, the dominant position which the government occupied made it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means were available for replying to the unjustified attacks and criticisms of its adversaries. Nevertheless, it certainly remained open to the competent State authorities to adopt, in their capacity as guarantors of public order, measures, even of a criminal-law nature, intended to react appropriately and without excess to such remarks. Finally, where such remarks constituted an incitement to violence against an individual or a public official or a sector of the population, the State authorities enjoyed a wider margin of appreciation when examining the need for an interference with freedom of expression.   The Court reached its decision in the light of the foregoing principles and having regard to the offending phrases – the Court verifying whether the message to be given in the impugned article constituted an incitement to violence, armed resistance or an uprising –, the context in which they were expressed and the type and severity of the sentence imposed.   Article 6 § 1   The Court held that the applicant had been denied the right to have her case heard by an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention, as she had been tried by the State Security Court, in which three judges sat, one of whom was a military judge.   The Court pointed out in that connection that in its Incal v. Turkey judgment of 9 June 1998 and its Çıraklar v. Turkey judgment of 28 October 1998 it had noted that, although the status of military judges sitting as members of State Security Courts did provide some guarantees of independence and impartiality, certain aspects of these judges’ status made their independence and impartiality questionable: for example, the fact that they were servicemen who still belonged to the army, which in turn took its orders from the executive; the fact that they remained subject to military discipline; and the fact that decisions pertaining to their appointment were to a great extent taken by the administrative authorities and the army. The Court saw no reason to reach a conclusion different from its decision in those cases and held that there had also been a breach of Article 6 § 1 in the case before it.   Article 18   The Court held that there had been no violation of Article 18 since the restrictions which were applied to the applicant’s right to freedom of expression were consistent with the legitimate aims contained in Article 10 § 2.   Article 41   Considering that the applicant must have suffered a certain amount of distress, having regard to the circumstances of her prosecution, trial and conviction, the Court awarded the applicant FRF 30,000 and FRF 10,000 for costs and expenses.   Judge Gölcüklü expressed a dissenting opinion, which is annexed to the judgment.   ***   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: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (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] This summary by the Registry does not bind the Court.