AS TO THE ADMISSIBILITY OF

                      Application No. 24762/94
                      by Kamil Tekin SÜREK
                      against Turkey

     The European Commission of Human Rights sitting in private on
2 September 1996, the following members being present:


           Mr.   S. TRECHSEL, President
           Mrs.  G.H. THUNE
           Mrs.  J. LIDDY
           MM.   E. BUSUTTIL
                 G. JÖRUNDSSON
                 A.S. GÖZÜBÜYÜK
                 A. WEITZEL
                 J.-C. SOYER
                 H. DANELIUS
                 F. MARTINEZ
                 L. LOUCAIDES
                 J.-C. GEUS
                 M.P. PELLONPÄÄ
                 G.B. REFFI
                 M.A. NOWICKI
                 I. CABRAL BARRETO
                 B. CONFORTI
                 N. BRATZA
                 I. BÉKÉS
                 J. MUCHA
                 D. SVÁBY
                 G. RESS
                 A. PERENIC
                 C. BÎRSAN
                 P. LORENZEN
                 K. HERNDL
                 E. BIELIUNAS
                 E.A. ALKEMA
                 M. VILA AMIGÓ

           Mr.   H.C. KRÜGER, Secretary to the Commission

     Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 27 July 1994 by
Mr. Kamil Tekin Sürek against Turkey and registered on 3 August 1996
under file No. 24762/94;

     Having regard to :

-    the reports provided for in Rule 47 of the Rules of Procedure of
     the Commission;

-    the Commission's decision of 20 February 1995 to communicate the
     application ;

-    the observations submitted by the respondent Government on 26
     October 1995 and the observations in reply submitted by the
     applicant on 5 December 1995;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, a Turkish citizen, born in 1957 and resident in
Istanbul, is a lawyer.

A.   Particular circumstances of the case

     Applications Nos. 23927/94, 24122/94, 24735/94 have been brought
by the same applicant, who was the owner of a periodical.

     At the material time, the applicant was the major shareholder in
the Deniz Basin Yayin Sanayi ve Ticaret Organizasyon A.S., a Turkish
company which owns a weekly review entitled "Haberde Yorumda Gerçek"
(The Truth of News and Comments) and published in Istanbul.

     On 14 March 1993 the Istanbul State Security Court ordered the
seizure of the fifty-first edition of the review which appeared on 13
March 1993, for separatist propaganda.

     In an indictment dated 22 April 1993 the Public Prosecutor at the
Istanbul State Security Court, on account of a news commentary
concerning possible events which could occur during the celebrations
of Newroz published in the fifty-first edition of the review, charged
the applicant, as the owner of the review, with making propaganda by
means of the press against the indivisibility of the State. The
applicant was also charged with publishing the declaration of an
illegal terrorist organisation, the ERNK, which is the political branch
of the PKK. Charges were brought under Articles 6 and 8 of the Anti-
Terror Law respectively.

     In the proceedings before the Istanbul State Security Court, the
applicant denied the charges. He pleaded that the news commentary for
which he was charged did not fall within the scope of Article 8 of the
Anti-Terror Law. He maintained that arguing and commenting on possible
activities in which the illegal terrorist organisation PKK might engage
during the Newroz celebrations, could not be considered as publishing
a declaration of a terrorist organisation within the meaning of Article
6 of the Anti-Terror Law. As regards his freedom of expression, he
invoked Article 10 of the Convention and referred to the case-law of
the Commission and the Court. He stated that pluralism of opinions
including those opinions which shock or offend is essential in a
democratic society. He argued that the provisions of Articles 6 and 8
of the Anti-Terror Law restrict freedom of expression in contravention
of the Turkish Constitution and the criteria laid down by the case-law
of the Commission and the Court.

     In a judgment dated 27 September 1993, the Court found the
applicant guilty. The applicant was sentenced under Article 8 of the
Anti-Terror Law to a fine of 100,000,000 Turkish lira. The Court,
considering the good conduct of the applicant during the trial, reduced
the fine to 83,333,333 Turkish lira. The Court based its judgment on
certain extracts from the news commentary. It held, inter alia, that
the news commentary in which certain part of the Turkish territory was
referred to as "Kurdistan" and a certain section of the population as
"Kurds", disseminated propaganda against the indivisibility of the
State. The Court further held that the review had published the
declaration of an illegal terrorist organisation, the ERNK, in which
the Republic of Turkey was referred to as a terrorist State. However,
it considered that the declaration constituted a part of the news
commentary at issue and, having regard to the provisions of Article 79
of the Turkish Criminal Code, did not find any grounds for a separate
conviction under Article 6 of the Anti-Terror Law.

     The applicant appealed. He, inter alia, reiterated the defence
he had made before the State Security Court.

     On 8 February 1994 the Court of Cassation dismissed the appeal.
It upheld the cogency of the State Security Court's assessment of
evidence in rejecting the applicant's defence.

     After the amendments made by Law No. 4126 of 27 October 1995 to
the Anti-Terror Law, the Istanbul State Security Court re-examined the
applicant's case. On 22 April 1996 the Court held that the mentioned
amendments could not be applied to the applicant's case as his sentence
had already been executed.

B.   Relevant Domestic Law:

     The relevant domestic law in the present case is contained in
Articles 6 and 8 of the Anti-Terror Law, Article 79 of the Criminal
Code and Article 7 of the Press Law.

     Article 6 of the Anti-Terror Law No. 3713 of 12 April 1991

     <Translation>

     "Those who announce that a crime will be committed by terrorist
     organisations against certain persons either expressly or without
     mentioning their names, or who disseminate or disclose to the
     public the identity of officials appointed to fight terrorism,
     or who render such officials targets, shall be subject to a fine
     of between 5 and 10 million Turkish lira.

     Those who print or publish the leaflets of terrorist
     organisations shall be subject to a fine of between 5 and 10
     million Turkish lira.

     Those who, contrary to Article 14 of this Law, disclose or
     publish the identity of informants shall be subject to a fine of
     between 5 and 10 million Turkish lira.

     If one of the crimes defined above is committed by means of
     periodicals, as defined in Article 3 of the Press Law, the owners
     of such periodicals shall be punished by a fine to be determined
     in accordance with the following provisions:

     -     For periodicals published at less than monthly
           intervals, the fine shall be ninety per cent of the average
           real sales of the previous month;

     -     for periodicals published monthly or at more than monthly
           intervals, the fine shall be ninety per cent of the
           average real sales of the previous issue;

     -     [for printed works that are not periodicals or for
           periodicals which have recently started business,the fine
           shall be ninety per cent of the monthly sales of the highest
           circulating daily periodical.]

           In any case, the fine may not be less than 100 million
           Turkish lira.

           Responsible editors of these periodicals shall be
           given half the sentences of the publishers."

     Article 8 of the Anti-Terror Law No. 3713 of 12 April 1991

     <Translation>

     "No one shall, by any means or with any intention or idea, make
     written and oral propaganda or hold assemblies, demonstrations
     and manifestations against the indivisible integrity of the State
     of the Turkish Republic with its land and nation. Those carrying
     out such an activity shall be sentenced to imprisonment between
     two and five years and a fine between 50 and 100 million Turkish
     lira.

     If the offence of propaganda referred to in the preceding
     paragraph is committed by means of periodicals, as defined in
     Article 3 of the Press Law No. 5680, the owners of such
     periodicals shall also be punished by a fine, to be determined
     in accordance with the following provisions:

     -     For periodicals published at less than monthly intervals,
           the fine shall be ninety per cent of the average real sales
           of the previous month;

     -     [for printed works that are not periodicals or for
           periodicals which have recently started business, the  fine
           shall be ninety per cent of the average monthly sales of
           the highest circulating daily periodical.]

           In any case,the fine may not be less than 100 million
           Turkish lira.

           Responsible editors of these periodicals shall be sentenced
           to imprisonment from six months to two years and to half of
           the fine determined in accordance with the foregoing
           provisions."

     In a judgment dated 31 March 1992, the Constitutional Court found
the clauses enclosed in brackets in the texts of Articles 6 and 8 of
the Anti-Terror Law to be contrary to the Constitution and annulled
them. The Constitutional Court held that the annulled text would cease
to have effect six months after the date of publication of the
annulment decision in the Official Gazette. The decision was published
on 27 January 1993 and therefore these clauses ceased to have effect
as of 27 July 1993.

     Article 79 of the Criminal Code

     <Translation>

     "If a single act of a person constitutes a violation of several
     provisions of the Law, such a person will be punished in
     accordance with the single provision which imposes the heaviest
     punishment."

     The Press Law (Law No. 5680)

     Under Article 7 of the Press Law, in cases where a periodical is
owned by a company, the major shareholder in that company is considered
to be the owner of the periodical.

C.   Extracts from the relevant news commentary

     The following is an translation of extracts from the relevant
news commentary constituting the grounds for the domestic court
rulings:

     "It's "Newroz" week in Kurdistan. The biggest confrontation
     between the demands of the Kurdish people and non-tolerance in
     the face of the expression of these demands occurs during these
     days. The tradition of rebelliousness is awakened. "Dehak" and
     "Kawa" are once again invested with flesh and bones. It's 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 Güres? The
     regional Governor? Or the new commander ilter? This time round,
     is Dehak represented by every counter-insurgency chief, indeed,
     every counter-insurgency operative, every special team member,
     every police commissioner superintendent officer? Is Dehak
     anonymous, too, now? Be it as it may, but Dehak and Kawa will
     settle their accounts once again.

     ...

     Last year, a revolutionary publication described the days
     receding Newroz as follows:

     "Nowadays there 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 MIT
     intelligence agency talks of the prospect of much blood being
     shed. Members of Parliament are organizing 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.
     ...

     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.

     ...

     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."


COMPLAINTS

     The applicant complains of violations of Articles 10 and 6 of the
Convention.

     As to Article 10 of the Convention, the applicant complains that
his conviction and sentence, as the owner of a periodical which
published a news commentary, constituted an unjustified interference
with his freedom of expression and in particular with his right to
receive and impart information and ideas.

     As to Article 6 para. 1 of the Convention, the applicant
complains that his case was not heard by an independent and impartial
tribunal. He asserts in this regard that one of the three members of
the State Security Court is a military judge answerable to his military
superiors whose presence prejudices the independence of the Court.

     The applicant also complains that the length of the criminal
proceedings against him exceeded the reasonable time requirement of
Article 6 para. 1.


PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 27 July 1994 and registered on
3 August 1994.

     On 20 February 1995 the Commission decided to communicate the
application, under Articles 10 (freedom of expression) and 6 para. 1
(lack of impartiality and independence) of the Convention, to the
respondent Government, pursuant to Rule 48 para. 2 (b) of the Rules of
Procedure.

     The Government's observations were submitted on 26 October 1995,
after an extension of the time-limit fixed for that purpose. The
applicant replied on 5 December 1995.

THE LAW

1.   The applicant first complains that his conviction as the owner
of a periodical constitutes an unjustified interference with his
freedom of expression, in particular his right to impart ideas and
information under Article 10 (Art. 10) of the Convention which provides
as follows:

     "1.   Everyone has the right to freedom of expression.  This
     right shall include freedom to hold opinions and to receive and
     impart information and ideas without interference by public
     authority and regardless of frontiers.  This Article shall not
     prevent States from requiring the licensing of broadcasting,
     television or cinema enterprises.

     2.    The exercise of these freedoms, since it carries with it
     duties and responsibilities, may be subject to such formalities,
     conditions, restrictions or penalties as are prescribed by law
     and are necessary in a democratic society, in the interests of
     national security, territorial integrity or public safety, for
     the prevention of disorder or crime, for the protection of health
     or morals, for the protection of the reputation or rights of
     others, for preventing the disclosure of information received in
     confidence, or for maintaining the authority and impartiality of
     the judiciary."

     The Government maintain that the interference with the
applicant's rights under Article 10 (Art. 10) of the Convention was
prescribed by law in this case, i.e. by Article 8 of the Anti-Terror
Law. They state that the applicant, in his review, published a news
commentary in which a certain part of Turkish territory had been
referred to as "Kurdistan" and a certain section of the population as
"Kurds". They also state that the review had published the declaration
of an illegal terrorist organisation, the ERNK, in which the Republic
of Turkey was referred to as a terrorist State. They assert that
according to Article 8 of the Anti-Terror Law these forms of expression
constitute propaganda against the indivisible integrity of the State.
The Government consider that the domestic courts therefore interpreted
the law reasonably.

     The Government also maintain that the purpose of the conviction
of the applicant was linked to the control of terrorism carried out by
illegal organisations and consequently served to protect territorial
integrity and national security.

     As to the necessity of the measure in a democratic society, the
respondent Government state that the threat posed to Turkey by the PKK
and its affiliations is internationally recognised, as is the need to
react firmly to it. Terrorism strikes at the heart of democracy, the
fundamental rights which enshrines that concept and the judicial and
political systems. They assert that the news commentary in question was
based on the glorification of the activities of the PKK being an
illegal terrorist organisation for the establishment of an independent
Kurdish State against the Turkish State. They submit that it is
generally accepted in comparative and international law on terrorism,
that restrictions on Convention rights will be deemed necessary in a
democratic society threatened by terrorist violence, as being
proportionate to the aim of protecting public order.
     In this respect the Government assert that the decisions of the
Istanbul State Security Court and the Court of Cassation did not exceed
the margin of appreciation conferred on States by the Convention.

     The applicant contests all these arguments. He maintains that
arguing and commenting on possible activities in which the PKK might
engage during Newroz celebrations, cannot be considered as publishing
a declaration of a terrorist organisation. He contends that, in the
circumstances of the present case, there was no social need for his
conviction.

     The applicant also maintains that his conviction cannot be
justified for any of the reasons permitted under the Convention. He
considers that it was completely out of proportion to rely on such
reasons, particularly in view of the limited circulation of the review.

     Furthermore the applicant maintains that the penal sanctions
inflicted upon him were not necessary in a democratic society. He notes
that pluralism of opinions including those which shock or offend is
essential in a democratic society.

     The Commission has conducted a preliminary examination of the
parties' arguments. It considers that the application raises complex
factual and legal issues which cannot be resolved at this stage of the
examination of the application, but require an examination of the
merits. Consequently, the application cannot be declared manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for declaring it inadmissible have been
established.

2.   The applicant further complains that his case was not heard by
an independent and impartial tribunal as required by Article 6 para.
1 (Art. 6-1) of the Convention. In so far as relevant, this provision
reads as follows:

     "1.   In the determination of his civil rights and obligations or
     of any criminal charge against him, everyone is entitled to a
     fair and public hearing within a reasonable time by an
     independent and impartial tribunal established by law..."

     The Government maintain that State Security Courts, which are
special courts set up to deal with offences against the existence and
continuity of the State, are ordinary courts, given that they have been
established in accordance with the provisions of Article 143 of the
Constitution. As they are independent judicial organs, no public
authority or agent could give instructions to such courts. State
Security Courts are composed of three members, one of whom is a
military judge. A civil judge acts as president and all the judges have
attained the first grade in the career scale. The presence of a
military judge in the court does not prejudice its independence, this
judge being a judge by career and not belonging to the military. The
judges of State Security Courts evaluate the evidence and take their
decisions in accordance with the law and their own conscientious
conviction as required by Article 138 of the Turkish Constitution. The
verdicts of such courts are subject to review by the Court of
Cassation.

     Accordingly the Government submit that the application is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.

     The applicant claims that the State Security Courts are
extraordinary courts dealing with political offences. He contends that:

- the members of the State Security Court are appointed by the High
Council of Judges and Prosecutors,

- the president of this Council is the Minister of Justice and two
other members also hold office in the Ministry of Justice,

- one of the three members of the State Security Court is a military
judge answerable to his military superiors.

     The Commission has conducted a preliminary examination of the
parties' arguments. It considers that this part of the application
raises complex factual and legal issues which cannot be resolved at
this stage of the examination of the application, but require an
examination of the merits. Consequently, this complaint cannot be
declared manifestly ill-founded within the meaning of Article 27 para.
2 (Art. 27-2) of the Convention. No other grounds for declaring it
inadmissible have been established.

3.   The applicant lastly complains that the criminal proceedings
brought against him were not dealt with within a "reasonable time" as
required by Article 6 para. 1 (Art. 6-1) of the Convention.

     The Commission notes that the total period to be considered began
on 14 March 1993 when the domestic court ordered the seizure of all
copies of the fifty-first edition of the review and ended on 8 February
1994 when the Court of Cassation delivered its judgment. It therefore
amounted to 10 months and 25 days.

     The Commission recalls that the reasonableness of the length of
proceedings must be assessed in the light of the particular
circumstances of the case and having regard to the criteria laid down
in the Court's case-law, in particular the complexity of the case and
the conduct of the applicant and of the relevant authorities (Eur.
Court HR, Yagci and Sargin v. Turkey judgment of 8 June 1995, Series
A no. 319, p. 20, para. 59).

     In the instant case, the Commission observes that the total
period at issue was not unreasonably long. Moreover, the applicant has
not shown any substantial periods of inactivity attributable to the
judicial authorities.

     It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.

     For these reasons, the Commission, unanimously,

     DECLARES ADMISSIBLE, without prejudging the merits, the
     applicant's complaints relating to the alleged interference with
     his freedom of expression and the alleged lack of impartiality
     and independence of the tribunal which convicted him;

     DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.


        H.C. KRÜGER                         S. TRECHSEL
         Secretary                           President
     to the Commission                    of the Commission