Turkish Criminal Code article 312 of article 7, 9, 10 and 11 of Europeen Convention on Human Rights his section vvili try to explain the violatıons of the Convention and the reasons behind them.

1-). The elements of the offence prescribed in Art. 312/2 of TCK (Turkish Criminal Code) have not been vvorded unambiguously and may not therefore clearly conceivable to ali. This 2nd Paragraph of the Article is öpen to subjective interpretations due to its abstract vvording based upon disputed terms.

People are left vvith uncertainty över vvhat constitute the offence when they express their opinions. in many instances vvhere Art. 312/2 is applied, each judge of a court may have dissenting opinions as to vvhether ör not the offence has been completed, and they often reach the decision by majority to convict the defendant.

Even the 5 judges of the 8th Criminal Chamber of the Court of Cassation may not be able to reach a unanimous decision and thus they hand dovvn either approval ör reversal verdict by a majority of three to two. The jurists also complain about the ambiguous and arguable prescription of Art. 312/2, and there therefore appears to be a generally accepted complaint vvhich often take place in the media and the public opinion.

We may, upon request, submit to the Honourable Court numerous precedents and various other documents to prove this point. We predict that even the Turkish Government vvill not dispute vvith this point.

2-) Having set forth the principal of legality of offences, Art. 7 of the Convention prescribed the necessity of explicitness and ease of understanding of the legal definition of offences, thus no person may be sentenced for an offence vvhich is not explicitly prescribed by the relevant statute. The judge will legally define the act deemed as an offence, and then will along with the trial come to a firm decision vvhether ör not the elements of the offence in guestion have been completed.

The judge cannot be conferred upon, based on the elements of the offence, the discretionary povver över vvhether ör not the act in question constitute an offence. The legality of offences means in what circumstances the offence vvill come into existence should be determined by the "lavvmaker". 2:ıa Paragraph of 312 of TCK causes judges to, through the subjective interpretation due to its abstract and ambiguous vvording, reach subjective verdicts; therefore the condition of the "legality of offences" decreed by the Convention has not been fulfiiled. From the vievvpoint of the offender, the absence of an explicit definition denies him ör her the chance to knovv in advance vvhat actions of his/hers vvould be constituting an offence. This possibility to knovv includes, if needed, the ease of understanding through the assistance of a lavvyer ör a legal expert. The definition oî offences should also be explicit for the sake of the "prohibition of analogy'' m criminal law. There is no "explicitness" should the accused hesitates, vvhile acting, över the possibility of committing an offence. Finally, it is a shame on a democratic society if such hesitation has the potential to prevent the use of freedom of expression.

3-)The respected Court (ECHR) has in some cases made it clear that the expression "prescribed by law" ought to be deemed as explicit, objective and vvritten rules for, and accessible by, ali. The term "accessible" should be conceived as the ease of understanding of the legal definitions, and not the ease of acguisition of the copies of iaw texts. Again, due to the prohibition of analogy, the ECHR stated in a number . of decisions the reguirement to clearly determıne the offence vvhile fixing the degree of punishment (Silver v. United Kingdom 25.3.1983 A 61 S.33 Müller v. Svvitzerland 24.5.1988 A 133 S.20 VVelch v. United Kingdom 9.2.1995 A 307 S.27 KSW v. United Kingdom 22.11.1995 A.335 S.34).

4-)According to Art. 7 of the Convention, the offence must also be accepted as such under International Law. in International Law, the iimits to the expression of thought have so broadened that the tendency tovvards prohibition is almost extinct. The expression of thought has been recognized as an inalienable human right in fundamental Biliş of Human Rights, and it is emphasized that States are obliged to facilitate its use, let alone place difficulties.

As firmly asserted in numerous judgements of the Court, freedom of expression of thought "... is öne of the cornerstones of a dernocratic society and öne of the fundamental conditions of the development and advancement of the persons. Having 2nd Paragraph [of Art. 9 of the Convention] been placed aside, this freedom has been recognized not only for the nevvs ör thoughts that are respectable ör harmless ör insignificant. but also for those sorts of opposing, extraordinary, confusing ör causing concem ror the State ör certain sections of the society. ... this is essential for pluralism, îoierance, and open-mindedness that a dernocratic society cannot abandon".

This view, first stated in Handyside v. United Kingdom in 1976, was repeated in Lingensm v. Austria in 1986, in Oberschlick v. Austria in 1991, and in Gubi v. Austrıa in 1994. in its judgement concerning United Communist Party of Turkey, and dated 1998 (30.1.1998 133/1996/752/951) p.43, similar vievvs vvere expressed by the Court; and in that concerning Socialist Party (25.5.1998-20/1997/804/1007) p.41 referral was made to this settled precedent. The respected Courî opined in a judgement that in order for formal conditions to be added as law. it is not sufficient to be added as lavv in its meaning embedded in the contract, it should therefore be of the nature that do not at the same time contradict the values o! dernocratic societies (Leander v. Svvitzerland 26.3.1987 A. 116 S.26,24).

5-) As knovvn, the right to freedom of thought is affirmed in Art. 9. and the right to freedom of expression is stated in Art. 10 of the Convention. The act, vvhich is prescribeci as an offence in TCK 312/2, is an act concerning both freedom of thought and of expression. Therefore TCK 312/2 make the use of rights, conferred upon by Art. 9 and 10 of the Convention. an offence. Thoughts that are expressed in a meeting and distributed by the means of the media are punished. As will be explained in detail below, TCK 312/2 itself, not jusî the misuse of it. prevents the use of, and thus violates, the rights recognized by Arts. 9 and 10 of the Convention.

6-) As the relevant Statutes, those who have been convicted from Art. 312/2 ör TCK are prohibited from being members ör founders of associations and political parties. If they had already been a member ör a manager of an association ör a political party, they should resign, othervvise they shall be punished in accordance vvith the same relevant Statutes (Arts. 4/2-c, 17 and 75 of Association Act; Arts. 11/b-4 and 101/d-1.2 of Political Parties Act). This provision is explicıtly in violation of Art. 11/1 of the

Convention. since it pronibits those vvhc had been convicted from Art. 312/2 from becominy members of an associaticn ör a political party, even after having served their terms of imprisonment. VVhereas, it is a necessity for the freedom nf assembly and associaticn for people to be able to becorrıe members of an association ör a political party. Violating the freedom of assembly and association üfelong vvithout any judgemont of a court is too heavy a sanctıon. VVhile having nothing to do vvith the offencc prescribed in Art. 312/2, it is impossible to explain this sanction vvhich is even heavier and more grave than the original punishment of one-year prison sentence

7-) CONCLUSION: As the above account suggests, the definition depicted in Art. 312/2 of TCK is not "explicit", against the principle of "legality". "not an offence agreeable vvith International Lavv", To determine. by means of abstract revievv of lavvs, that Art. 312/2 of TCK, the Statute numbered 2845 as a vvhole, Art. 9/a of the Statute numbered 2845, Art. 318 and 322/9, 6th para. of CMUK, Art. 11/b-4 of the Statute numbered 2820, Art. 4/2-c of the Statute numbered 2908, Art. 11/f-3 of the Statute numbered 2839, Art. 9 of the State numbered 2972 are in violation of Arts. 7/1, 9/1, 10/1. 11/1, 13, 6/1, 6/3-a,b of tno Convention and Art. 3 of ProtocoL No. 1.and does contradict the Arts. 7/1, 9/1, and 10/1 of the Convention as stated in various judgements of the Court.

Haci Ali Özhan............................................................................ hacialiozhan@hotmail.com