CASE OF OKÇUOGLU v. TURKEY
Violation of Art. 10;Violation of Art. 6-1;No separate issue under Art. 14+10;Non-pecuniary damage - financial award;Costs and expenses partial award
John Freeland;Luzius Wildhaber;Paul Mahoney
7. Mr Ahmet Zeki Okçuoğlu is a Turk of Kurdish origin and was born in 1950. He lives in Istanbul and works as a lawyer. 8. In May 1991, a magazine, “Demokrat” (Democrat), published in its issue no. 12 an article on a round-table debate it had organised under the chairmanship of Mr M.İ.S. in which the applicant had taken part. The applicant’s comments were recorded in the article, entitled “The past and present of the Kurdish problem” (Kürt Sorununun Dünü ve Bugünü), as follows: “M.İ.S. – Leaving aside the humanitarian side to the current tragic plight of the Kurds in Iraq, there are important political aspects to the problem, the main one perhaps being the intensification, with the crisis in the Gulf, of relations at international level between the Kurdish movements. At this stage, one question needs to be asked: what did we hope to gain from the relations established with the United States and the European States and what have we in fact achieved? ... If you would allow me to, I should like to return to the question ... of the orchestrating of developments in the regional situation, mainly by the United States and the West,... Mr Okçuoğlu, could I ask you to frame your answer in the context of the unitary State? A.Z. Okçuoğlu – Your question is badly put. It involves certain ideological considerations. Before answering, I think I should explain what the Kurdish question is about. It concerns a nation of some 40,000,000 people, one which has existed in the region since history began and one which has, in company with the other nations established here, played a major role historically; but it is also a nation which has, since the beginning of this century and under the influence of the international and regional powers, been deprived of its national rights, seen its territory divided up between the States in the region and been divested of its sovereign rights so as to be subjected instead to the hegemony of other States. If we are to make progress on this question, that must be the starting point. Admittedly, that does not mean to say that a radical solution to the problem will be found from one day to the next. Coming back to your question ... the idea that the Kurdish problem has been fuelled by outside forces, by imperialist powers, is not new. For about a century some observers have seen the problem in those terms. The underlying reasons may be summarised as follows. Firstly, there are the concerns of the nations which keep the Kurds under their domination. From the beginning, those powers have attempted to assert that the problem is that the Kurds are not a national entity, have no claims of their own and are manipulated by outside forces. Their aim, then, is to prevent international powers intervening in the problem and to cast doubt on its legitimacy and to distract attention from it. There is also the international socialist movement and the doctrine of imperialism which prevails in such circles. As you know, the Soviet Union was akin to an empire in the classic sense. The Soviet Government has always been against the Kurds as it considered that, if it the Kurds were given certain rights, the nations it controlled by force would inevitably also assert claims, and discussion of such issues at the international level would render its networks less inaccessible. That is why the Soviets have since the days of Lenin consistently sided with the powers who have kept the Kurds under their domination and why the local socialist satellite powers have invariably put forward similar arguments. Given the negative attitude of these socialist powers towards the Kurds, the relationship between the sovereign power of the former and the official ideology of the latter has also played a role. That attitude was reinforced by the Soviet position. Soviet ideology is in itself an ideology of the sovereign nation. In that regard, the ideology of Soviet sovereignty and the Turkish national ideology as applied in the region were at one. However, the said doctrine of imperialism does not end there. After the seventies, the Kurds, under the influence of Soviet and Chinese socialist propaganda, whether consciously or subconconsciously, adopted the same tack. That led the Kurdish movement into a series of dead ends. The allegation that the Kurdish problem arose as a result of provocations from outside is ill-founded. If one has to speak of imperialist protectionism in the Middle East, it will be noted that it has been of no benefit to the Kurds, whereas, shielded by the imperialist powers concerned, the Turks, the Arabs and the Persians have done quite well. If the British had not intervened in favour of the Ottomans in the Crimean War, the Russian Tsar would have expurgated the Ottoman State from the history books and would have seized the Byzantine heritage. Contrary to what is suggested by some left-wing historians, the imperialists tried to save the ‘sick man’ rather than to kill him. That applies to the Arabs, too. Up till now, the only people in the Middle East – if you except the Palestinians – who have fought for their national rights are the Kurdish people. The Turks, Arabs and Persians have not fired a single bullet for their national rights. Not a shot was fired when the British invaded the Ottoman State in 1918. The so-called war of independence was merely a consequence of an historical conflict between the Greeks and the Turks. The question of who was right is a controversial one. The resistance against the French, launched at Antep and Urfa, was Kurdish. More precisely, it was Turco-Kurdish resistance that developed under the aegis of the local authorities. It was the spontaneous resistance of the people. Neither the Turkish army nor the political authorities played any part in it. The Kurds have fallen behind in obtaining their national rights not, as is suggested in certain quarters, because they are dependent on external powers, but, on the contrary, because they have failed to forge international relations and because the international powers have refused them admission. While the Kurdish problem is the problem of the Kurds, its solution is also of concern to the regional and international powers as it directly affects their interests. The question cannot be dealt with using concepts, such as imperialism, anti-imperialism, socialism and anti-socialism, that bear scant resemblance to the true position. You cannot say: ‘It’s our problem. You, the United States, England, the Soviets, the Turks, don’t interfere; you, the Arabs, the Persians, stay out of this’. We must solve the problem with all those whose interests are at stake. With or without their help. There, too, it has to be said that of all the parties involved in the Kurdish problem, it is the Kurds who have taken the least initiative. So, the Kurds must be realistic. As the question concerns their existence and is posed at a time when their efforts have been minimal, it would be foolhardy to attempt to solve the problems by denying that initiatives have been taken or opposing them. In practice, the Kurds must on this point work out how and to what extent they can play a bigger role in finding a solution to the problem. That would be the practical approach. ... M.İ.S. – I wouldn’t want you to take what I said the wrong way. I do not suggest that the Kurdish revolt is dependent on imperialist factors. All I say is that the countries in the region do not have the resources to solve the problems that exist here by themselves. Accordingly, the continued presence of the international powers seems likely. Under those circumstances, how can the Kurds play a greater role? A.Z. Okçuoğlu – Firstly, when considering the Kurdish problem the international powers are mindful of their own interests. We have to be aware of that and determine where our common interest lies. There are a number of nations like the Kurds in the world. Although the United Nations Charter and the fundamental treaties refer to peoples’ right to self-determination, it is not in practice accepted that that right applies to the Kurds, any more than it is accepted that it applies to a series of other nations. Such nations only manage to obtain certain humanitarian and cultural rights that do not extend beyond the boundaries of the countries in which they live. None of them have been able to achieve more than that. The problems of peoples confined to minority status cannot readily be referred to and resolved without taking this factor into account. All the boundaries need changing, but that is very difficult to achieve. For that reason, I believe that the Kurds have committed an error of judgement. By that I do not mean that they must accept their present status right to the bitter end. If they wish to enter the history books, they have to be aware of the international implications their presence entails. I would add that I attach no credit to the idea that the Kurds have been ‘deceived or sold’. Recently, the United States cautioned them to act with restraint; they broke off their relations with Talabani and turned down all his requests for arms. In my view, the Kurds have committed an error of judgement. They have adopted a quite radical approach, one for which the organisations of Iraqi Kurdistan cannot be held responsible. The Kurds, believing Saddam to be finished, attempted to rise up spontaneously in reaction to the oppression to which they have been subjected for years. Barzani and Talabani, in company with the other Kurdish leaders, were forced to accept that process. We are not strong enough to face the likes of America, France, the Soviets or a Saddam exhausted to the point where he is no longer able to stay on his feet. We have to examine the problem in the light of these realities. The urgent need is to ensure the democratic unity of the Kurds. We must abandon the notion of hostility. No side is strong enough to destroy the other and in any event there is no reason to come to that. Our relations should be friendly, not hostile. Similarly, when we forge relations with the western powers, it is necessary and even essential to afford preference to national values. ... For my part, I am opposed to the definition of primitive nationalism that has often been asserted in recent times. The use of such terminology sometimes reveals a lack of discernment. Nationalism takes two known forms. The first is that of the oppressor nation, the second that of the nation that is oppressed. Beyond that, scientific research into nationalism has not come up with any other definition. It is difficult to know what the notion of ‘primitive nationalism’ covers: does it dismiss nationalism wholesale or does it suggest another form of nationalism? It is unclear. Besides, this terminology is unscientific, of no value and merely serves to reflect certain absurd political preoccupations. I do not subscribe to the theory that the Kurds’ lack of success is due to primitive nationalism. In fact, it is not the Kurds who are responsible for their lack of success. The reasons for it are to be found in the international status of the Kurds. A number of nations in the world are in the same position as the Kurds. None of them has had, up till now, an opportunity to draw its own frontiers, whether by force of arms or otherwise. How can we expect the Kurds to be given an opportunity that has been offered to no other nation? Let us take the example of Lithuania. The Lithuanians had organised a referendum on the question of their independence and had subsequently declared themselves independent by an overwhelming majority. Yet when the United States gave their approval, the Soviets invaded with tanks. Lithuania was isolated. We have to speak therefore with the benefit of hindsight. Since the beginning of the century the struggle has continued in Iraqi Kurdistan. The only people engaged in combat in the Middle East are the Kurdish people. Despite that, their position has not improved at all. The Kurds will certainly find a solution to their problem, but one must be aware that the factors coming into play do not depend solely on the Kurds. I should now like to clarify the notion of nationalism about which so much has been said. As you know, nationalist movements began in the west with the French Revolution and subsequently spread to Asia and Africa. The colonies were freed as a result of nationalism. However, the issue of nationality remains alive. There continue to be peoples who have been deprived of their national rights. If they are to be freed they must show nationalist sentiment. The fact that nationalist movements attract an imprecatory reaction from those whom they cause to suffer is understandable. Conversely, it is impossible to comprehend why people who claim to be on the side of the oppressed, who call themselves revolutionaries or innovators, should react in a similar fashion. The nationalism of the oppressed nation cannot be considered to be a usurpation of the rights of another nation. On the contrary, I believe that internationalism in the modern sense is inherent in nationalism. I do not approve of lumping together all kinds of nationalism, without being aware of the difference between the nationalism of the oppressor nation and the nationalism of the nation that is oppressed. If you ignore that difference, then you are serving the cause of the oppressor nation. Why do Turkish socialists, who outlaw Kurdish nationalism, not take a look at themselves? They defend the staunchest nationalism of all time, namely Kemalism, yet they ban Kurdish nationalism. Prohibiting an oppressed nation from being nationalistic is to condemn it to slavery. My friend S. consistently holds the same line. His politics are always reactionary. The Kurds may react, but building a policy on the back of that reaction will not achieve much. In politics, one doesn’t have friends or enemies, one has interests. Furthermore, politics is the art of seeking the feasible. Is the position of people who criticise advocates of autonomy and of Kurdish independence any different from that reached by the Kurdish national movement in Iraq? Not at all. In Turkey, too, some benefit has been gained, but not from policies geared towards independence. Those in favour of independence may on occasion agree voluntarily to limit their demands saying: ‘Decree a general amnesty, allow us to get organised’. They even add: ‘We don’t want a separation’. Such policies cannot be brought to fruition with plays on words. Today, the Kurds must come up with medium-term policies that are adapted to the international context.” 9. On 10 June 1991 the Public Prosecutor of the Istanbul National Security Court no. 2 (“National Security Court”) accused the applicant of disseminating propaganda against the “indivisibility of the State”. Relying on the comments set out above (see paragraph 8 above), he requested the application of section 8(1) of the Prevention of Terrorism Act (Law no. 3713 – see paragraph 17 below) and confiscation of the copies of the relevant issue of the aforementioned magazine (see paragraph 16 below). 10. The applicant denied the charges before the National Security Court, arguing, in particular, that he had never intended to promote separatism. 11. On 11 March 1993 the National Security Court, composed of three judges, including a military judge, found the applicant guilty of the offence charged and sentenced him under section 8(1) of Law no. 3713 to one year, eight months’ imprisonment and a fine of 41,666,666 Turkish liras (“TRL”), to be paid in twenty monthly instalments. It also ordered confiscation of the publications concerned. After verifying that the document in issue was an accurate transcription of what had been said at the round-table debate in which the applicant had taken part, the National Security Court found, inter alia, that in his comments, the applicant had asserted that some Turkish nationals had been deprived of their “national rights” as a result of their Kurdish origin and that their territory had been divided up between the States in the region concerned. According to the applicant, the Kurdish population – dominated by these States – was fighting to acquire its national rights. The National Security Court held that those comments, taken as a whole, amounted to separatist propaganda that was detrimental to the unity of the Turkish nation and the territorial integrity of the Turkish State and justified Mr Okçuoğlu’s conviction. 12. In a judgment of 24 September 1993, the Court of Cassation dismissed an appeal by the applicant. 13. On 20 February 1995, at the applicant’s request, the National Security Court agreed to deduct from the applicant’s sentence the period from 28 October to 18 November 1990 which he had spent in pre-trial detention in connection with earlier criminal proceedings. Consequently, he was granted automatic parole. The applicant paid the fine that had been imposed on him that same day. 14. 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 imosed under section 8 of Law no. 3713 while increasing the level of fines (see paragraph 17 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 18 below). 15. Consequently, the National Security Court reviewed the applicant’s case on the merits. In its judgment of 8 March 1996 it reduced Mr Okçuoğlu’s prison sentence to one year, one month and ten days but increased the fine to TRL 111,111,110. 16. Article 36 § 1 of the Criminal Code reads 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...” 17. 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 (see paragraph 18 below). 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. ... 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... ...” “The penalties for the offences contemplated in the present law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve.” “The penalties for the offences contemplated in the present Law may not be commuted to a fine or any other measure, nor may they be accompanied by a reprieve. However, the provisions of this section shall not apply to convictions pursuant to section 8.” 18. 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.” 19. 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; ...” 20. 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 17 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. 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. 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, or on account of the objective nature of the words used. 21. 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. 22. 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...” 23. 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” 24. 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...” 25. 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.” 26. 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.