CASE OF GERGER v. TURKEY
Violation of Art. 10;Preliminary objections rejected (non-exhaustion of domestic remedies, lack of jurisdiction);Violation of Art. 6-1 (independent and impartial tribunal);Not necessary to examine other complaint under Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
John Freeland;Luzius Wildhaber;Paul Mahoney
9. Mr Haluk Gerger is a Turkish national and was born in 1950. He lives in Ankara and works as a journalist. 10. On 23 May 1993 a memorial ceremony was held in Ankara for Denis Gezmiş and two of his friends, Yusuf Aslan and Hüseyin İnan. Together, they had started an extreme left-wing movement among university students at the end of the 1960s. They were sentenced to death for seeking to destroy the constitutional order by violence and executed in May 1972. The applicant was invited to speak at the ceremony, but was unable to attend and sent the organising committee the following message to be read out in public: “Dear friends, Though ill health has prevented me from being with you, I did not want to miss this opportunity to salute you and to express my solidarity with the revolutionary cause. The Turkish Republic is based on negation of the rights of workers and Kurds. Within the geographical boundaries of this country, any hint of human action, any aspiration for freedom, any claim to assert the rights of the workers and the Kurds has always met with a reaction on the part of the rulers that has been ruthless in its denial and destruction. It has to be said that, because of their origins and historic traditions, the rulers have always distinguished themselves through a cruel militarism that is the product of their mediocrity, backwardness, and thirst for ever more money and, lastly, of the fundamental nature of the Republic and its subservience to imperialism. The more the structural crisis of the established order deepened, the more the ruling classes resorted to imperialism and militarism in their desire to bring it to an end. The rulers, who had condemned the political and social lands of the country to sterile aridity and, in order to break any resistance and stifle any revolt by the masses, had put a chain of dependence around society’s neck and imposed oppressive uniformity upon it, succeeded for many long years in keeping our people in the deep gloom of silence. However, the 1960s revival, the action organised by dynamic social strata previously excluded from the political life of the country such as the workers, the intelligentsia and young people and, lastly, the revolutionary democratic resistance movement of the early 1970s have helped to transform the history of the nation, and their profound influence can still be felt today. A red hope is nascent in the tired barren hearts of the workers. A legend is born in the long history of defeat of the oppressed. From now on, nothing and no-one will be the same! In the face of the longstanding crisis of the established order, the quest for independence and freedom which at that time became ingrained in society’s conscience, in the collective memory of the toiling masses, in the memory of the young and the intelligentsia and in the conscience of the workers henceforth constitutes a refuge for society. The spirit of resistance and revolt of those heroic years, a nightmare for the rulers, has been with the country for more than twenty years. The socialist flag, which was borne aloft at the time and is representative of the only system capable of replacing the incumbent capitalist system, is still flying. From the seeds of liberation of the Kurdish people sown in those days the guerrilla campaign in the mountains of Kurdistan was born. As for us, the rivers, streams, torrents and waterfalls that emerged from the sweeping waters of those years, we are now flowing on toward the final release of mankind, across the plains formed by our class, our people and democracy into the ocean of liberty of a classless society. Like many Denizes [a reference to Deniz Gezmiş, whose first name means “the sea” in Turkish], we head towards the seas of freedom. Today, before the Ocean of Liberation, on these fertile alluvia formed of our solidarity and unity in the struggle, we hail those who have been invited to the heavenly feast. Hail, friends! Hail to those who are marching ‘Towards Future Times, Like many Denizes’! Hail to you, the rose Deniz, the rose Yusuf, the rose Hüseyin... the three roses of Karşıkaya planted on the branch of my heart the three roses of Karşıkaya planted in the spring of my tears with all their flowers of blood.” 11. On 6 August 1993 the Public Prosecutor at the Ankara National Security Court (“National Security Court”) accused the applicant of disseminating propaganda against the unity of the Turkish nation and the territorial integrity of the State. In order to request the application of section 8(1) of the Prevention of Terrorism Act (Law no. 3713 – see paragraph 19 above), he relied on passages from Mr Gerger’s message, which had been recorded when read out at the memorial ceremony (these are the passages that appear in italics in paragraph 10 above). 12. Mr Gerger pleaded not guilty before the National Security Court, which sat as a chamber of three judges, including a military judge. He did not dispute having drafted the message, but maintained that he had never intended to promote separatism. 13. On 9 December 1993 the National Security Court found the applicant guilty of the offence under section 8(1) of Law no. 3713 and sentenced him to one year, eight months’ imprisonment and a fine of 208,333,333 Turkish liras (TRL). The judgment was delivered by a majority of two to one, the military judge dissenting. The latter explained in his dissenting opinion that, in his view, the offence of disseminating separatist propaganda under section 8(1) of Law no. 3713 had not been made out, but that there had been non-public incitement to commit a crime and, consequently, Article 312 § 2 of the Criminal Code (see paragraph 18 below) should have been applied. The other two members of the chamber found that passages such as: “... From the seeds of liberation of the Kurdish people sown in those days the guerrilla in the mountains of Kurdistan was born... As for us, the rivers, streams, torrents and waterfalls that emerged from the sweeping waters of those years, we are now flowing on ... across the plains formed by our class, our people and democracy...” (see paragraph 10 above), amounted to separatist propaganda against the unity of the Turkish nation and the territorial integrity of the State. In their view, the applicant’s conviction was justified by the message – whose wording was not in issue – taken as a whole. 14. In a judgment of 22 April 1994, the Court of Cassation dismissed an appeal by the applicant. 15. On 23 September 1995 the applicant completed his prison sentence. However, as he had not paid the fine that had been imposed, he was kept in detention pursuant to section 5 of the Execution of Sentences Act (Law no. 647), being required to serve an additional day’s imprisonment for every TRL 10,000 due (see paragraph 21 below). On 26 October 1995 Mr Gerger paid the balance of the fine and was released. 16. On 30 October 1995 Law no. 4126 of 27 October 1995 came into force. Inter alia, it reduced the length of prison sentences that could be imposed under section 8 of Law no. 3713 while increasing the level of fines (see paragraph 19 below). In a transitional provision relating to section 2, Law no. 4126 provided that sentences imposed pursuant to section 8 of Law no. 3713 would be automatically reviewed (see paragraph 20 below). 17. Consequently, the National Security Court reviewed the applicant’s case on the merits. On 17 November 1995 it imposed an additional fine of TRL 84,833,333, with payment suspended. That decision became final on 15 March 1996. 18. Article 312 of the Criminal Code reads as follows: “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 ... 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.” 19. The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), has been amended by Law no 4126 of 27 October 1995, which came into force on 30 October 1995. Sections 8 and 13 read as follows: “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.” “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.” "“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 … of the Execution of Sentence Act (Law no. 647) shall not apply to the convicted persons mentioned above.” 20. The Law of 27 October 1995 contains a “transitional provision relating to section 2” that applies to the amendments which that law makes to the sentencing provisions of section 8 of Law no. 3713. That transitional provision provides: “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 and 6 of Law no. 647 of 13 July 1965.” 21. Law no. 647 prescribes rules through, inter alia, the following provisions, regarding the collection of fines and automatic parole. “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…” “… 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...” 22. The relevant provisions of the Code of Criminal Procedure concerning the grounds on which defendants may appeal on points of law against judgments of courts of first instance read as follows: “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.” “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; ...” 23. The Government supplied copies of several decisions given by the prosecutor attached to the Istanbul 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 – see paragraph 18 above), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 19 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. 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 judgments of 19 November (no. 1996/428) and 27 December 1996 (no. 1996/519); 6 March (no. 1997/33), 3 June (no. 1997/102), 17 October (no. 1997/527), 24 October (no. 1997/541) and 23 December 1997 (no. 1997/606); 21 January (no. 1998/8), 3 February (no. 1998/14), 19 March (no. 1998/56), 21 April 1998 (no. 1998/ 87) and 17 June 1998 (no. 1998/133). 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. 24. The National Security Courts were created by Law no. 1773 of 11 July 1973, in accordance with Article 136 of the 1961 Constitution. That law was annulled by the Constitutional Court on 15 June 1976. The courts in question were later reintroduced into the Turkish judicial system by the 1982 Constitution. The relevant part of the statement of reasons contains the following passage: “There may be acts affecting the existence and stability of a State such that when they are committed special jurisdiction is required in order to give judgment expeditiously and appropriately. For such cases it is necessary to set up National Security Courts. According to a principle inherent in our Constitution, it is forbidden to create a special court to give judgment on a specific act after it has been committed. For that reason the National Security Courts have been provided for in our Constitution to try cases involving the above-mentioned offences. Given that the special provisions laying down their powers have been enacted in advance and that the courts have been created before the commission of any offence , they may not be described as courts set up to deal with this or that offence after the commission of such an offence.” The composition and functioning of the National Security Courts are subject to the following rules. 25. The constitutional provisions governing judicial organisation are worded as follows: “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.” “Judges shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution” “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. Appeal against decisions of National Security Courts shall lie to the Court of Cassation. ...” “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...” 26. Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide: “In the capitals of the provinces of … National Security Courts shall be established to try persons accused of 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 directly affecting the State’s internal or external security.” “The National Security Courts shall be composed of a president, two other regular members and two substitute members.” “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…” “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.” “National Security Courts shall have jurisdiction to try persons charged with … (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 directly affecting the State’s internal or external security. …” “The Court of Cassation shall hear appeals against the judgments of the National Security Courts.” “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.” “A National Security Court may be transformed into a Martial Law Court, under the conditions set forth below, when 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” 27. The relevant provisions of the Military Legal Service Act are worded as follows: “The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Law and the Turkish Armed Forces Personnel Act (Law no. 926). (a) The first superior competent to carry out assessment and draw up assessment reports for military judges, whether regular or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence. …” “Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence…” “Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces… … The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the superiors…” “The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.” “The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions: A. A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties. … B. A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy. … The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file…” “When military judges … sit in court they shall wear the special dress of their civilian counterparts…” 28. Article 112 of the Military Criminal Code of 22 May 1930 provides: “It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a civil servant in order to influence the military courts.” 29. Under section 22 of Law no. 1602 the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their professional advancement.