CASE OF INCAL v. TURKEY
Violation of Art. 10;Violation of Art. 6-1 (independent and impartial tribunal);Not necessary to examine other complaint under Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
John Freeland;N. Valticos
9. Mr İbrahim Incal, a Turkish national born in 1953, lives in İzmir. A lawyer by profession, he was at the material time a member of the executive committee of the İzmir section of the People’s Labour Party (“the HEP”). That party, which was represented in the National Assembly, was dissolved by the Constitutional Court on 14 July 1993. 10. On 1 July 1992 the executive committee decided to distribute in the İzmir constituency a leaflet criticising the measures taken by the local authorities, in particular against small-scale illegal trading and the sprawl of squatters’ camps around the city. The title of the leaflet, of which ten thousand copies were printed, was “To all democratic patriots!”, and the text read as follows: “In the last few days a campaign aimed at ‘DRIVING THE KURDS OUT OF THE CITIES’ has been launched in İzmir against the Kurdish population by a combination of prefecture, security police and town hall. In this campaign İzmir has been designated a pilot-city. The first stage was the operation [against] street traders, stallkeepers and mussel sellers, whom they tried to hide away on the ground that it was necessary to smarten up the city and ease traffic congestion. The purpose of this operation was to impose an ‘economic blockade’ on our, mainly Kurdish, fellow citizens who make their living through these activities, condemning them to destitution and starvation. In this way the masses were to be frightened, oppressed and compelled to return to their province of origin. Before the ‘DRIVING THE KURDS OUT’ campaign began the organisational and psychological ground had already been prepared by leaflets signed by ‘Patriotic inhabitants of İzmir’ and handed out in large numbers for weeks by ‘obscure forces’. These leaflets incited hostility against the Kurdish population in particular and stirred up anti-Kurdish feelings. This led to racist and chauvinistic anti-Kurdish attitudes through propaganda saying: ‘Don’t give employment or housing to the Kurds. Don’t speak to them, don’t let your daughters marry them and don’t marry one yourself. Smash the Kurds.’ That is how the psychological foundations were laid down, the preparations for the future offensives. Although these leaflets were handed out in broad daylight, those responsible – and nobody knows why – were never arrested. But the campaign was by no means limited to the operation against street traders, stallkeepers and mussel sellers. The second prong was ‘Operation shantytown’. The same combination of prefecture, security police and town hall launched the demolition of the squatters’ camps. It began in Yamanlar and Şemikler and continued in Gaziemir, [all] shantytown districts inhabited mainly by Kurds, who, before the elections, were regarded by the parties in favour of the status quo as a source of votes. Those who had encouraged the mushrooming of the shantytowns by dishonestly promising freedom to build in exchange for votes and those who, with the local mafia, had appropriated public land this time set about the ferocious destruction of these huts to oppress and intimidate the Kurds and force them to go back home. The Kurdish and Turkish proletarian people suddenly and without any warning saw the huts they had run into debt to build, with so many sacrifices made by cutting down on their children’s food, collapsing about their ears. That is how they are trying to oppress the Kurdish and Turkish people and drive them into distress and despair. IT’S STATE TERROR AGAINST TURKISH AND KURDISH PROLETARIANS! It is certain that these demolitions, which began in Yamanlar and are still continuing in Gaziemir, will soon spread to İzmir’s other shantytowns. The State is testing the people’s reactions and will to resist by causing various kinds of destruction. Passivity as a form of defence against this devastation has encouraged the State to commit further kinds of destruction. In conclusion: The ‘Driving-the-Kurds-Out policy’ forms part of the SPECIAL WAR being conducted in the country at present against the Kurdish people. It is one of the mechanisms of that war, the way it impinges on the cities. Because the methods used are the same, namely enslavement, violence, terror and oppression through compulsion. It is a psychological war. While, in the country, they are trying to oppress and silence the people through counter-insurgency tactics, special patrols, village guards, the SS decree and every [other] form of State terror, in İzmir they want to achieve the same aim by depriving our fellow citizens of their means of subsistence and in the end by knocking their houses down about their ears. The methods used, although different in form, are in the final analysis mechanisms serving the purposes of the special war. It is the urban form of the special war. TO ALL DEMOCRATIC PATRIOTS! The way to nullify these insults to the cities is to set up NEIGHBOURHOOD COMMITTEES BASED ON THE PEOPLE’S OWN STRENGTH. We call on all Kurdish and Turkish democratic patriots to assume their responsibilities and oppose this special war being waged against the proletarian people. LONG LIVE THE BROTHERHOOD OF NATIONS! STOP THE SPECIAL WAR BEING SPREAD INTO THE CITIES!” 11. By a letter of 2 July 1992, accompanied by a copy of the leaflet in question, the president of the HEP informed the İzmir prefecture of the executive committee’s decision (see paragraph 10 above) and asked for permission to implement it. 12. The İzmir security police, to whom this request had been referred, considered that the leaflet contained separatist propaganda capable of inciting the people to resist the government and commit criminal offences. On 3 July 1992 they asked the Principal Public Prosecutor attached to the İzmir National Security Court (“the public prosecutor”, “the National Security Court”) to state his opinion as to whether the contents of the leaflet contravened the law. 13. On the same day, at the request of the public prosecutor’s office, a substitute judge of the National Security Court issued an injunction ordering the seizure of the leaflets and prohibiting their distribution. The police searched the HEP’s premises in İzmir, first at the headquarters, where the party leaders handed over, without demur, nine thousand copies of the leaflet which were still parcelled up, and then at the Buca district office, where the thousand remaining copies were seized. 14. Still on 3 July 1992 the public prosecutor’s office opened a criminal investigation against the HEP’s local leaders and the members of its executive committee, including the applicant. 15. On 27 July 1992 the public prosecutor instituted criminal proceedings in the National Security Court against the applicant and the other eight members of the HEP committee who had taken part in the decision of 1 July 1992 (see paragraph 10 above). Citing the text of the leaflet, he accused them of attempting to incite hatred and hostility through racist words and asked the court to apply Articles 312 §§ 2 and 3 of the Criminal Code, section 5 of the Prevention of Terrorism Act (Law no. 3713) and additional section 4 of the Press Act (Law no. 5680) (see paragraphs 21, 23 and 24 below). He also asked the court to order confiscation of the leaflets. 16. On 9 February 1993 the National Security Court, composed of three judges, one of whom was a member of the Military Legal Service, found the applicant guilty of the offences charged and sentenced him to six months and twenty days’ imprisonment and a fine of 55,555 Turkish liras. It also ordered the confiscation of the leaflets and disqualified him from driving for fifteen days. In its interpretation of the wording of the leaflet, the National Security Court accepted the public prosecutor’s oral submissions entirely, except for that part which related to the applicability of the Prevention of Terrorism Act (Law no. 3713). It noted in particular that the leaflet suggested recourse to resistance against the police and the establishment of “neighbourhood committees”, which it held to be illegal forms of protest. It further held that the offence had been intentionally committed, since the accused had not contested either the existence or wording of the text on which the charge was based. With regard to the severity of the sentence, it observed that although commission of the offence through the medium of print was an aggravating circumstance, it was necessary to take into account the accused’s good faith and the fact that the authorities had been able to lay hands on the leaflets before they had been distributed. 17. On 9 March 1993 the applicant and the other convicted persons appealed to the Court of Cassation. In their notice of appeal they asked for a public hearing to be held and challenged the National Security Court’s interpretation of the leaflet and its refusal to commute the prison sentence to a fine. 18. On 20 May the Principal Public Prosecutor attached to the Court of Cassation forwarded the case file together with an opinion couched in a standard form of words – which was not communicated to Mr Incal – asking the court to uphold the judgment. 19. In a judgment of 6 July 1993 the Court of Cassation upheld all the operative provisions of the impugned judgment, after observing that, regard being had to the nature and length of the sentence imposed at first instance, it was not necessary to hold a hearing. 20. On 23 August 1993 the prosecuting authorities decided, at the applicant’s request, to stay execution of the prison sentence for four months. 21. The relevant provisions of the Criminal Code read as follows: “Public incitement to commit an offence Where the incitement [to commit an offence] is done by means of mass communication, of whatever type, 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…” “Non-public incitement to commit an offence Whosoever expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall be sentenced to between six months’ and two years’ imprisonment and a … fine of between six thousand and thirty thousand liras. Whosoever expressly arouses hatred and hostility in society on the basis of a distinction between social classes, races or religions, or one based on allegiance to a particular denomination or region, shall be sentenced to between one and three years’ imprisonment and a fine of between nine thousand and thirty-six thousand liras. If this incitement is done in a manner likely to endanger public safety, the sentence shall be increased [by one third to one half]. The penalties to be imposed on those who have committed the above-mentioned offences by the means listed in Article 311 § 2 shall be doubled.” 22. A conviction under Article 312 § 2 entails further consequences, particularly with regard to the exercise of certain activities governed by special legislation. For example, persons convicted of an offence under that section may not found associations (Law no. 2908, section 4(2)(b)) or trade unions, nor may they be members of the executive committee of a trade union (Law no. 2929, section 5). They are also forbidden to found or join political parties (Law no. 2820, section 11(5)) and may not stand for election to Parliament (Law no. 2839, section 11(f3)). In addition, if the sentence imposed exceeds six months’ imprisonment, the convicted person is debarred from entering the civil service, provided that the offence has been committed intentionally (Law no. 657, section 48(5)). 23. Additional section 4(1) of the Press Act (Law no. 5680) provides: “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, to be confirmed by a court, … the penalty imposed shall be one-third of that laid down by law for the offence concerned.” 24. Law no. 3713 of 12 April 1991, promulgated with a view to preventing acts of terrorism, refers to a number of offences defined in the Criminal Code which it describes as “acts of terrorism” or “acts perpetrated for the purposes of terrorism” (sections 3 and 4) and to which it applies. However, the act punishable pursuant to Article 312 of the Criminal Code (see paragraph 21 above) is not among them. 25. Article 318 of the Code of Criminal Procedure provides for the holding of a public hearing in proceedings before the Court of Cassation only where the impugned judgment concerns offences classified as “serious”, such as those punishable by the death penalty or a term of imprisonment of more than ten years. The Court of Cassation’s jurisdiction, according to Article 307 of the Code, is limited to questions concerning the lawfulness and procedural regularity of the first-instance judgment. 26. 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 [thus] 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. 27. 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, officer or other 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…” “Presidents, regular members and substitute judges of the National Security Courts shall be appointed for a renewable period of four years.” “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 as regards their non-judicial duties shall also be regulated by law...” 28. Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide as follows: “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 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 National Security Courts shall be composed of a president and two other regular members. In addition, there shall sit at each National Security Court two substitute members.” “The president of a National Security Court, one of the other regular members and one of the substitutes shall be civilian … judges, the other members, whether full 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 special legislation [concerning those posts]. 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 presidents and regular or substitute members of the National Security Courts conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of a military judge, the duty station of that judge or his duties [themselves] … may be changed in accordance with the procedure laid down in that legislation.” “The National Security Courts shall try persons accused of the offences defined in (a) [Article] 312 § 2 … of the Turkish Criminal Code…” “The Court of Cassation shall hear appeals from 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 professions… The observations of the Court of Cassation and the assessment reports drawn up by Ministry of Justice assessors on judges of the Military Legal Service … and the files on any investigations conducted against 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, 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…” 29. 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 Act and the Turkish Armed Forces Personnel Act (Law no. 926). (a) The immediate superior competent to carry out assessment and draw up assessment reports for military judges, whether full 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 legal advisor of the General Staff, the personnel director and 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 immediate 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…” 30. 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 [public] official in order to influence the military courts.” 31. 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 promotion and professional advancement. 32. The Government produced several judgments of the First Division of the Supreme Military Administrative Court setting aside decisions concerning the appointment and promotion of military judges or disciplinary sanctions applied to them. These were the judgments of 31 May 1988 (no. 1988/185), 14 December 1993 (no. 1993/1116), 22 December 1993 (no. 1993/1119), 19 November 1996 (no. 1996/950), 1 April 1997 (no. 1997/262), 27 May 1997 (no. 1997/405) and 3 July 1997 (no. 1997/62). It appears from these judgments that in setting aside the transfer decisions concerned, the First Division gave as its grounds either lack of consent on the part of the person concerned or abuse of the military authorities’ discretionary power. In connection with assessment reports, failure to state reasons or a lack of objectivity on the part of the immediate superior was taken into account. Lastly, in connection with a disciplinary sanction, against which in principle no appeal lies, the First Division held that the acts of which the person concerned stood accused had been incorrectly established and that the sanction was accordingly null and void. 33. The Government also submitted a number of judgments rendered by National Security Courts relevant to the impartiality of military judges sitting as members of such courts. These were the judgments of 12 September 1995 (no. 1995/171), 27 February 1996 (no. 1996/38), 7 March 1996 (no. 1996/55), 21 March 1996 (no. 1996/70), 2 April 1996 (no. 1996/102), 9 April 1996 (no. 1996/112), 2 May 1996 (no. 1996/141), 9 May 1996 (no. 1996/150), 19 August 1996 (no. 1996/250), 12 September 1996 (no. 1996/258), 19 September 1996 (no. 1996/263), 1 October 1996 (no. 1996/270), 3 October 1996 (no. 1996/273), 8 October 1996 (no. 1996/278), 12 June 1997 (no. 1997/128) and 15 July 1997 (no. 1997/393). Most of these decisions declared the accused guilty but also contained separate opinions by military judges adopting a dissenting opinion with regard to the establishment and classification of the facts, the way sentence was determined or the finding of guilt itself.