Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31830/96

by Hasip KAPLAN

against Turkey

The European Commission of Human Rights (Second Chamber) sitting

in private on 20 May 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 April 1996 by

Hasip Kaplan against Turkey and registered on 12 June 1996 under file

No. 31830/96;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, born in 1954, is a Turkish citizen and a lawyer

practising in istanbul. He is represented before the Commission by Mr

Bülent Utku and Mr A. Merih Acar, lawyers practising in istanbul.

The facts of the present case, as submitted by the applicant, may

be summarised as follows.

On 8 December 1994 the applicant, who at the time was acting for

seven deputies from Demokrasi Partisi (DEP), made a statement to the

daily newspaper Sabah. In his statement, concerning the trial of the

deputies by the Ankara State Security Court, he said: "We don't want

to be accomplices to a crime by participating in a formal trial...in

this situation, I will bring down the State Security Court."

On 12 December 1994, N.D., the Chief Public Prosecutor attached

to the Ankara State Security Court, filed a bill of indictment against

the applicant with the court. The Prosecutor accused the applicant of

insulting the State Security Court and himself.

On 5 January 1995 the Ankara State Security Court declined

jurisdiction ratione materiae and referred the case to the Ankara

Public Prosecutor's Office.

On 31 May 1995 the Ankara Public Prosecutor's Office declined

jurisdiction ratione loci as the newspaper was published in istanbul.

The case was referred to the Küçükçekmece Public Prosecutor's Office

in istanbul.

On 18 May 1995 the Küçükçekmece Public Prosecutor filed an

indictment against the applicant, the journalist who had written an

article about the applicant's statements and the editor of the

newspaper. He accused them of insulting the Ankara State Security Court

and the Public Prosecutor attached to the Ankara State Security Court.

On 6 March 1996 the Küçükçekmece Criminal Court acquitted the

applicant and the journalists on the ground that the applicant's

statements did not contain the elements of the alleged crime.

In the meantime, on 28 July 1995, the applicant had filed a

complaint with the Supreme Council of Judges and Prosecutors against

the Chief Public Prosecutor, N.D., attached to the Ankara State

Security Court. The applicant stated that the Prosecutor had misused

his powers as he had accused him of insulting the State Security Court.

Accordingly, he requested that the Prosecutor be removed from his

office and that a disciplinary penalty be imposed on him.

On 1 April 1996 the applicant's request for the removal of the

Prosecutor and the imposition of a disciplinary penalty on him was

refused as the Prosecutor had already retired.

COMPLAINTS

1. The applicant complains under Article 8 of the Convention that

he was prosecuted as an alleged terrorist by the Chief Public

Prosecutor attached to the Ankara State Security Court. He contends

that his personal reputation was damaged.

2. The applicant complains under Article 10 of the Convention that

he was prosecuted by the Prosecutor due to his statements to a

newspaper.

3. The applicant also complains under Articles 13 and 17 of the

Convention that the Prosecutor was not prosecuted despite the fact that

the applicant had filed criminal complaints against him on the ground

that he had misused his powers. He also claims that the Prosecutor was

protected by the national authorities.

THE LAW

1. The applicant complains under Article 8 (Art. 8) of the

Convention that he was prosecuted as an alleged terrorist and that his

personal reputation was thereby damaged.

Article 8 (Art. 8) of the Convention, in so far as relevant,

provides as follows:

"1. Everyone has the right to respect for his private and family

life, his home and his correspondence.

..."

The Commission first recalls that this Article does not, as such,

guarantee the right to honour and good reputation (e.g., No. 10733/84,

11.3.85, D.R. 41, p. 211).

It appears from the facts of the present case that the applicant

was not prosecuted on the charge of being a terrorist but was accused

of insulting the State Security Court and the public prosecutor

attached to that court. He was ultimately acquitted of these charges.

In these circumstances, the Commission considers that there is no

interference with the applicant's rights under Article 8 (Art. 8) of

the Convention. The mere fact that criminal proceedings were instituted

against him by the public prosecutor attached to the court before which

some of his clients were tried does not, in the Commission's opinion,

amount to such an interference.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant complains under Article 10 (Art. 10) of the

Convention that he was prosecuted by the prosecutor due to his

statements to a newspaper.

Article 10 (Art. 10) of the Convention, in so far as relevant,

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..."

The Commission notes, in the instant case, that the applicant was

prosecuted due to his statements to a newspaper which were considered

as an insult to the court. He was acquitted by the Küçükçekmece

Criminal Court on the ground that his statements did not contain the

elements of the alleged crime. The Commission therefore considers that,

since he was acquitted, the applicant cannot claim to be a victim,

within the meaning of Article 25 (Art. 25), of a violation of his

rights under Article 10 (Art. 10) of the Convention.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3. The applicant also complains under Articles 13 and 17

(Art. 13, 17) of the Convention that the prosecutor was not prosecuted

despite the fact that the applicant had filed criminal complaints

against him on the ground that he had misused his powers.

However, the Commission recalls that the Convention does not

guarantee a right to have criminal proceedings instituted against a

third person (e.g., mutatis mutandis, No. 33490/96 and 34055/96, Dec.

18.4.1997, D.R. 89, p. 162).

It follows that this part of the application is inadmissible as

being incompatible ratione materiae with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

Menu

KAPLAN v. TURKEY

KAPLAN v. TURKEY

LEXI