CASE OF SÜREK v. TURKEY (No. 4)
Violation of Art. 10;Preliminary objections rejected (non-exhaustion of domestic remedies, estoppel);Violation of Art. 6-1;Pecuniary damage - financial award;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
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. 10. In issue no. 51 of the review, dated 13 March 1993, a news commentary entitled “Kawa and Dehak Once Again” was published. The article analysed possible events, which could occur during the upcoming celebrations of Newroz. 11. A translation of the relevant parts of the news commentary is as follows: “... It’s Newroz week in Kurdistan. The biggest confrontation between the demands of the Kurdish people and intolerance in the face of the expression of these demands occurs during these days. The tradition of rebellion is awakened. Dehak and Kawa are once again invested with flesh and bones. It is time to settle accounts. There is nothing vague about Kawa. All the mountains, all the cities are full of Kawa. There are millions of them. All right, who, then, is Dehak? Who is the candidate for representing Dehak in our day? Is it Demirel? Is it Güreş? The regional Governor? Or the new commander İlter? This time round, is Dehak represented by every counter-insurgency chief, indeed, every counter-insurgency operative, every special team member, every police commissioner or superintendent officer? Has Dehak become anonymous too? Be it as it may, but Dehak and Kawa will settle their accounts once again. ... Last year, a revolutionary publication described the days preceding Newroz as follows: ‘Nowadays over 200 thousand soldiers massed into Kurdistan. Tanks and weapons are sent over. Bombs are raining on Kurdish villages and mountains. The Chief of the General Staff has inspected the preparations for the offensive. Instructions are being issued to provincial and district governors, special team leaders, police chiefs and military officials. The Head of MİT intelligence agency talks of the prospect of much blood being shed. Members of Parliament are organising information-gathering trips in order to take the pulse of the people.’ ... Unlike previous years, the PKK-leaning Kurdistan National Assembly (KUM) is also expected to take on a role during Newroz this year. ... On the other hand emergency measures are being implemented in large cities outside Kurdistan where there are concentrations of Kurdish people. It is highly likely that there will be large demonstrations in the Kurdish quarters there.” 12. In the same issue and within the context of the above news commentary, an interview was also published by the Kurdish News Agency with a representative of the National Liberation Front of Kurdistan (“the ERNK”), the political wing of the Kurdistan Workers’ Party (“the PKK”). Both organisations are illegal under Turkish law. 13. A translation of the relevant part of the interview is as follows: “... We wish to emphasise this finding, indeed, we feel that it ought to be underlined. And we call on all European countries. We are open to any humanitarian, political solution, including the calls for an armistice. The PKK movement and its struggle are absolutely not terrorist movements. This misapprehension must be abandoned – it must definitely be abandoned – and a move must be made towards co-operation and support. The real terrorist is the Republic of Turkey. We believe that attitudes on this matter will be much clarified this year, that very positive dialogues will develop and that the Republic of Turkey will be gradually further isolated.” 14. On 14 March 1993 the Istanbul National Security Court (İstanbul Devlet Güvenlik Mahkemesi) ordered the seizure of all copies of issue no. 51 of the review, since it allegedly disseminated separatist propaganda. 15. In an indictment dated 22 April 1993, the Public Prosecutor at the Istanbul National Security Court, on account of the publication of the above news commentary, charged the applicant in his capacity as the owner of the review with disseminating propaganda against the indivisibility of the State. He was also charged with publishing the declaration of the ERNK (see paragraph 12 above). The charges were brought under sections 8 and 6 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act”: see paragraphs 24 and 25 below), respectively. 16. In the proceedings before the Istanbul National Security Court, the applicant denied the charges. He pleaded that the incriminated news commentary did not fall within the scope of section 8 of the 1991 Act. He maintained that arguing and commenting on possible activities in which the PKK might engage during the Newroz celebrations could not be regarded as publishing a declaration of a terrorist organisation within the meaning of section 6 of the 1991 Act. As regards his freedom of expression, the applicant referred to Article 10 of the Convention and the case-law of the Commission and the Court. He stated that pluralism of opinion was essential in a democratic society including opinions which shock or offend. He argued that the provisions of sections 6 and 8 of the 1991 Act restricted freedom of expression in contravention of the Turkish Constitution and the criteria laid down in the case-law of the Commission and the Court. 17. In a judgment dated 27 September 1993, the Istanbul National Security Court found the applicant guilty of an offence under section 8 § 2 of the 1991 Act. The court first sentenced the applicant to a fine of 100,000,000 Turkish liras. However, having regard to the applicant’s good conduct during the trial, it reduced the fine to 83,333,333 Turkish liras. 18. In its reasoning, the court held that the incriminated news commentary contravened section 8 of the 1991 Act. The court concluded that it referred to a certain part of the Turkish territory as “Kurdistan” as well as a certain section of the population as “Kurds”, and amounted to propaganda against the indivisibility of the Turkish State. The court further observed that the review had also published the declaration of an illegal terrorist organisation in which the Republic of Turkey was referred to as a terrorist State. However, it considered that the declaration constituted part of the incriminated news commentary. Having regard to the provisions of Article 79 of the Turkish Criminal Code, the court found no grounds for a separate conviction under section 6 of the 1991 Act. 19. The applicant appealed against his conviction to the Court of Cassation. He relied on the defence grounds which he had invoked at his trial before the National Security Court. 20. On 8 February 1994 the Court of Cassation dismissed the applicant’s appeal, upholding the National Security Court’s reasoning and its assessment of the evidence. On 29 November 1995 the applicant paid the last instalment of the fine imposed on him. 21. Following the amendments made by Law No. 4126 of 27 October 1995 to the 1991 Act (see paragraphs 24 and 25 below), the Istanbul National Security Court ex officio re-examined the applicant’s case. On 22 April 1996 the court ruled that these amendments did not affect the applicant’s case as his sentence had already been executed. 22. The relevant provisions of the Criminal Code read as follows: “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 79 “A person who infringes various provisions of this Code by a single act, shall be punished under the provision which prescribes the heaviest punishment.” 23. The relevant provisions of the Press Act 1950 read as follows: “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.” 24. The relevant provisions of the Prevention of Terrorism Act 1991 read as follows: “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. 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.” (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. 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.” (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… …” 25. The following amendments were made to the Prevention of Terrorism Act 1991 after the enactment of Law 4126 of 27 October 1995: “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.” 26. The Code of Criminal Procedure contains the following provisions: “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; …” 27. 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), or of disseminating separatist propaganda against the indivisible unity of the State (section 8 of Law no. 3713 – see paragraph 23 above). In the majority of cases where offences had been committed by means of publications the reasons given for the prosecutor’s decisions 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. 28. 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: 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). 29. 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 scientific, historical and/or objective nature of the words used. 30. The constitutional provisions governing judicial organisation of the National Security Courts 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...” 31. 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 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 (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 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, 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…” 32. 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…” 33. 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.” 34. Under section 22, 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.