Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24246/94

by Ahmet Zeki OKÇUOGLU

against Turkey

The European Commission of Human Rights sitting in private on

14 October 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

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 15 March 1994 by

Ahmet Zeki Okçuoglu against Turkey and registered on 1 June 1994 under

file No. 24246/94;

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 21

February 1996 and the observations in reply submitted by the

applicant on 8 April 1996;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Turkish citizen born in 1950, is a lawyer and

author. Before the Commission he is represented by Mr. Selim Okçuoglu,

a lawyer practising in istanbul.

A. Particular circumstances of the case

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

be summarised as follows:

The applicant participated in a discussion on "the present and

the past of the Kurdish problem" organised by a review entitled

"Demokrat". The speech he had made during the discussion was published

in Demokrat's May 1991 issue.

On 10 June 1991 the Public Prosecutor at the istanbul State

Security Court issued an indictment charging the applicant with

disseminating propaganda against the indivisibility of the State in his

speech. The charges were brought under Article 8 paragraph 1 of the

Anti-Terror Law.

In the proceedings before the State Security Court, the applicant

denied the charges. He appears to have submitted that he had not acted

with the aim of making separatist propaganda.

In a judgment dated 11 March 1993, the Court found the applicant

guilty of an offence under Article 8 of the Anti-Terror Law. It first

sentenced the applicant to two years' imprisonment and a fine of

50,000,000 Turkish lira. Then, considering the good conduct of the

applicant during the trial, it reduced his sentence to one year and

eight months' imprisonment and a fine of 41,666,666 Turkish lira. The

Court held that to the extent that the applicant, in his speech, had

alleged that "the citizens of Kurdish race were denied their national

rights; their land was divided among the States in the region; the

Kurds were fighting for their national rights", his speech as a whole

contained elements of propaganda against the indivisibility of the

State.

The applicant appealed against this judgment. On 24 September

1993 the Court of Cassation upheld the decision of the trial court.

The applicant served his sentence in prison and paid the fine.

Therefore, the amendments made by Law No. 4126 of 27 October 1995 to

the Anti-Terror Law, were not applied to the applicant's case as his

sentence had already been executed.

B. Relevant domestic law:

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

"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."

C. Extracts from the relevant speech

The following is an English translation of extracts from the

relevant speech constituting the grounds for the domestic court

rulings:

" The Kurds were fighting for their national rights...the Kurdish

question is ... the problem .. of a nation of approximately 40

million people, who, under the aegis of the regional and

international powers, have been deprived of their national

sovereignty and rights by other countries of the region which

have divided and shared their land between them."

COMPLAINTS

The applicant complains of violations of Articles 9, 10, 14 (in

conjunction with 10) and 6 of the Convention.

As to Articles 9 and 10 of the Convention, the applicant

complains that his conviction for making a speech following publication

of the speech in a review constituted an unjustified interference with

his freedom of thought and freedom of expression.

As to Article 14 of the Convention, the applicant complains that

his conviction for expressing his opinion on the "Kurdish problem", on

the ground that this was contrary to State policy, constituted

discrimination on the ground of political opinion.

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.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 March 1994 and registered

on 1 June 1994.

On 20 February 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48 para. 2

(b) of the Rules of Procedure.

The Government's observations were submitted on 21 February 1996,

after an extension of the time-limit fixed for that purpose. The

applicant replied on 8 April 1996.

THE LAW

1. The applicant first complains that his conviction for making a

speech constitutes an unjustified interference with his freedom of

thought and freedom of expression.

Thus formulated, the applicant's complaint is in fact directed

against an alleged infringement of his freedom of expression. The

Commission has examined this complaint 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...

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 applicant also complains under Article 14 of the Convention

in conjunction with Article 10 (Art. 14+10) that his conviction for

expressing his opinion on the "Kurdish problem", on the ground that

this was contrary to State policy, constituted discrimination on the

ground of political opinion. Article 14 (Art. 14) reads as follows:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Government first argue that at no stage in the proceedings

did the applicant invoke the relevant provisions of the Convention.

The applicant contests this argument and claims that he has

raised the substance of all complaints made before the Commission in

the domestic proceedings.

The Commission refers to its established case-law to the effect

that the person who has raised in substance before the highest

competent national authority the complaint he makes before the

Commission has exhausted domestic remedies. Even where the Convention

is directly applicable in a State's domestic law (as is the case in

Turkey), the person concerned may also rely before the domestic courts

on "other arguments to the same effect"(No. 7367/76, Dec. 10.3.77, D.R.

8 pp. 185, No. 11425/85 Dec. 5.3.85, D.R. 53 pp. 76). In this respect

the Commission notes in the present case that the applicant asserted

before the domestic courts that his conviction for making a speech in

which he expressed his opinions on the Kurdish problem constitutes an

unjustified interference with his freedom of expression.

Consequently, the Commission finds that the requirement as to the

exhaustion of domestic remedies has been satisfied and that the

application cannot be rejected on the basis of Articles 26 and 27 para.

3 (Art. 26, 27-3) of the Convention.

Secondly, as to the substance of the case, the Government

maintain that the interference with the applicant's rights under

Article 10 (Art. 10) of the Convention was prescribed by the Anti-

Terror Law. They state that the comments made by the applicant in his

speech constitute a provocation of enmity and hatred between the

Kurdish and Turkish societies which serves to mobilise people to

revolt. They assert that according to 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 applicant's

conviction was linked to the prevention 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 terrorism strikes at the heart of

democracy, the fundamental rights which that concept enshrines and the

judicial and political systems. They assert that the offending speech

was based on the glorification of the activities of the PKK which is

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 observes that he was convicted of an offence for

expressing his views on the Kurdish problem in Turkey. He asserts that

he had commented on the facts concerning the Kurdish people living in

Turkey.

The applicant also maintains that his conviction cannot be

justified for any of the reasons permitted under the Convention. He

considers that the speech in question was within the limits of

permissible criticism.

With regard to the amendments made by Law No. 4126 of 27 October

1995 to Article 8 of the Anti-Terror Law, the applicant observes that

they were made after he had served his sentence and did not therefore

apply to his case.

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, the above complaints 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

them 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 ... hearing ... by an independent and impartial tribunal..."

The Government maintain that this part of the application is ill-

founded and abstract. In this context they state that the applicant did

not raise any complaint related to the fairness of his trial.

The applicant claims that the State Security Courts are

extraordinary courts dealing with political offences and that they are

not sufficiently independent. 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 one

other member also holds 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 also

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.

For these reasons, the Commission, unanimously

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits of the case.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

Menu

OKÇUOGLU v. TURKEY

OKÇUOGLU v. TURKEY

LEXI