SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 33675/02 by Aykan SEVER and YaÅŸathak ASLAN against Turkey

The European Court of Human Rights (Second Section), sitting on 12 April 2007 as a Chamber composed of:

Mr A.B. Baka , President , Mr I. Cabral Barreto , Mr R. Türmen , Mr M. Ugrekhelidze , Mr V. Zagrebelsky , Mrs A. Mularoni , Ms D. Jočienė, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 2 August 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Aykan Sever and Mr YaÅŸathak Aslan , are Turkish nationals who were born in 1968 and 1952, respectively. They live in Ankara and Artvin . They were repres ented before the Court by Ms S. CoÅŸkun, a lawyer practising in Ankara .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The first applicant is the publisher of a book entitled “ The writings of 1982 ” (“1982 Yazıları”), written by the second applicant.

On 7 November 2000, at the request of the public prosecutor, the judge at the Ankara State Security Court issued an injunction prohibiting the distribution of the book. It held that it praised and promoted the activities of illegal leftist organisations. Police officers from the Ankara Security Directorate seized copies of the book from the publishing house and submitted them to the public prosecutor ’ s office.

On 25 January 2001 the public prosecutor file d an indictment with the Ankara State Security Court , charging the applicants under Article 61 and 169 of the Criminal Code, as well as Article 5 of the Law on Prevention of Terrorism. The indictment relied on the following extracts from the book:

“It should not be forgotten that all our evaluations concerning the past years were for the purpose of our revolutionary struggle. An evaluation of the past that does not shed light on our present and future would be futile. It would be nothing but an inadequate critique of the past...

In the future, we should be thinking more seriously about establishing a political party. Our efforts concerning the establishment of the party should evolve on two different grounds which are connected to each other. First of all, this political party should be based on an armed struggle in order to take control of the government. It should be a militant and dynamic organisation that is ready to fight in different areas...

We are making a big step on our way to pursuing our revolutionary duty. For the time being, with the participation of eight groups (the Revolutionary Road (“ Devrimci Yol ”), the PKK (the Kurdistan Workers ’ Party), the Emekçi (the Labour Movement Party), the SVP (the Socialist Homeland Party), the TKEP (the Turkish Communist Labour Party), the Acilciler (the People ’ s Revolutionary Vanguards), Devrimci Savaş (Revolutionary War), and the İ şçinin Sesi (the C ommunist Part y of Turkey – Workers ’ voice) , the FKBDC (the Unified Resistance Front Against Fascism ) has been founded. In the near future, the organisation which was formed by only a few groups should be extended by assembling all socialist forces, and should be transformed into a real authority...

We are aware that the armed struggle is the only way to initiate a revolution in Turkey . Therefore, our primary duty is to create and organise this armed struggle. Accordingly , in the near future, both the political party and the front should be established in order to accomplish this armed struggle...

Despite the extremely difficult conditions in which we find ourselves, hundreds of revolutionary road militants are in an honourable fight for existence . T his struggle is worthy of our Revolutionary Road ...

As a revolutionary road militant , what you should do is to recapture the spirit of being part of a key political movement ...”

In his written petition submitted to the Ankara State Security Court , the first applicant argued that the banning of books was unacceptable in a democratic society.

The Gebze Assize Court , acting under powers delegated to it by the Ankara State Security Court , summoned the second applicant, who was serving a sentence in Gebze prison, to submit his defence. The applicant contended that he had merely collected in the book all the articles, pamphlets, indictments and defence petitions which had already been published several years earlier. Moreover, in his written submissions to the State Security Court , the second applicant maintained that the book was of a documentary nature and that he was making an evaluation of the events and political movements which had occurred 20 years earlier.

On 12 September 2001 the Ankara State Security Court acqui t t ed the applicants as it considered that the constituent elements of the offence were missing. It held that, since the book w as seized prior to distribution, the ideas therein never became public. Thus, the propaganda of the illegal organisations was never made. The court ordered the confiscation of the copies already published and banned the book from further publication.

On 20 November 2001 the applicants appealed against the decision of the State Security Court , contending that critical essays of this kind, which made an evaluation of the political past, should not be banned. Moreover, they invoked Articles 25 to 29 of the Constitution which guarantee freedom of the media, freedom of expression and the right to receive and impart information.

On 5 February 2002 the Court of Cassation upheld the decision of the State Security Court . On 5 March 2002 the decision of the Court of Cassation was deposited with the registry of the first instance court.

B. Relevant domestic law

Before 22 June 1999, section 5 of the State Security Courts Act , Law no. 2845, provided that one of the three members of the bench sitting in State Security Courts had to be a military judge. Following the entry into force of Law no. 4390, on the abovementioned date, military judges were no longer allowed to sit in such courts, which were eventually abolished by Law no. 5190 of 16 June 2004.

COMPLAINTS

The applicants complained under Article 6 § 1 of the Convention that they did not have a fair hearing on account of the presence of a military judge sitting on the bench of the Ankara State Security Court . Moreover, the second applicant complained under the same Article that he was deprived of his right to defend himself effectively as he was not requested to attend the hearing before the Ankara State Security Court which determined the merits of the case. Instead the Gebze Assize Court took his statements, under powers delegated by the State Security Court .

The applicants complained, under Article 10 of the Convention , that there had been an unjustified interference with their right to freedom of expression in that their right to impart information and ideas guaranteed by the Convention had been undermined by the confiscation of the book which had been published by the first applicant and written by the second applicant .

The applicants also allege d under Article 1 of Protocol No. 1 to the Convention that the confiscation of copies of the book constituted an interference with their right to the peaceful enjoyment of their possessions, as they had been unable to market or sell them, and had thereby been deprived of revenue.

THE LAW

1. The applicants complained under Article 6 § 1 of the Convention that the Ankara State Security Court was not independent and impartial on account of the military judge sitting on the bench. Moreover the second applicant complained that his statements were taken by the assize court acting under delegated powers and that he had never had a chance to defend himself before the State Security Court which determined the merits of the case.

The Court notes that, at the end of the criminal proceedings, the Ankara State Security Court acquitted the applicants, holding that the constituent elements of the crime were not established since the book had not yet been distributed. However, it also decided to ban the book and ordered the confiscation of the copies already published. The Court finds that it is not necessary to de termine whether the decision of the court may be considered to be a punishment and, accordingly, whether the proceedings were “criminal” within the meaning of Article 6 § 1 because, in any event , these complaints are inadmissible for the following reason s.

As regards the applicants ’ complaint regarding the independence and impartiality of the State Security Court , the Government maintained that the applicants ’ trial had begun after the constitutional amendment which had changed the composition of the State Security Courts.

The applicants claimed that, even if there had not been any military judge sitting on the bench of the Ankara State Security Court which tried them, these courts were, in general, not independent or impartial.

The Court notes that, following the amendments made by Law no. 4390 on 22 June 1999, the military judge on the bench of the Ankara State Security Court was replaced by a civilian judge. Thus, no military judge participated in the applicants ’ tria l. Furthermore, the Court notes that, although the applicants complained that generally the State Security Courts were not independent and impartial , they did not substantiate th is claim. The Court therefore concludes that the applicants cannot be regarded as having been deprived of a fair hearing on account of the composition of the court.

As regards the second applicant ’ s complain t concerning the alleged deprivation of his defence rights , the Government argued that the delegation of powers between the courts was in accordance with the law. They maintained that the applicant had only submitted written statements to the Gebze Assize Court and these were immediately filed with the Ankara State Security Court . Moreover they noted that the applicant was represented by a lawyer throughout the proceedings.

The applicant contested these arguments.

The Court reiterates that the taking of evidence is governed primarily by the rules of domestic law and that it is , in principle , for the national courts to assess the evidence before them. The Court ’ s task under the Convention is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see, among others, Edwards v. the United Kingdom judgment of 16 Decembe r 1992, Series A no. 247-B, pp. 34-35, § 34).

All the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must n ot infringe the rights of the defence. In particular, the rights of the defence would be restricted to an extent which is incompatible with the requirements of Article 6 if the conviction is based solely, or in a decisive manner, on evidence that the accused has had no opportunity to examine or to have examined either during the investigation or at trial (see, mutatis mutandis, Van Mechelen and Others , cited above, p. 712, § 55 ; Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, pp. 56-57, §§ 43-44; Unterpertinger v. Austria, judgment of 24 November 1986, Series A no. 110, pp. 14-15, §§ 31-33).

In the instant case, the Court notes that , in its final decision of 12 September 2001 , the Ankara State Security Court relied solely on the applicant ’ s written statements and his lawyer ’ s oral, defence arguments . There w ere no witness deposition s or evidence that affected the decision of the court , but which the second applicant was unable to challenge . The Court also notes that neither the applicant nor his lawyer, who represented him throughout the proceedings, challenged the authority of the Gebze Assize Court which acted on the delegated authority of the Ankara State Security Court . Moreover, the second applicant was acquitted of any personal liability.

The Court thus finds in the instant case that, even assuming that the second applicant may be said to be able to claim to be a victim of an alleged violation of Article 6 § 1 of the Convention, there is no appearance of a violation of his defence rights, viewing the proceedings as a whole.

It follows that the applicants ’ complaints under Article 6 are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicants contended, under Article 10 of the Convention, that the banning of their book and the confiscation of copies constituted a violation of their freedom of expression and especially their right to impart information and ideas .

Article 10 of the Convention reads, insofar as relevant, 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, [or] for the protection of health or morals, ...”

The Court finds that , although the applicants were not convicted, the banning of the book and the confiscation of copies constituted an interference with their freedom of expression.

The Court observes that the applicants were accused of praising and promoting the activities of illegal leftist organisations under Article 169 of the Criminal Code. Accordingly, the interference in question could be considered to have been “prescribed by law”. It remains to be determined whether the measure was “necessary in a democratic society” .

The Court reiterates that, where published material incites others to violence against an individual, a public official or a sector of the population, the State enjoy s a wide margin of appreciation in determining the need to interfere with freedom of expression (see, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999-IV). As regards the present case, the Court considers that, the passages quoted in the indictment, to the effect, for example that, “the militants” are invited to an “armed struggle” “in order to take control of the government” amount to an incitement to violence. The interference in question was therefore compatible with Article 10 § 2 of the Convention for, at the very least, the prevention of disorder or crime. It follows that this complaint must be dismissed as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

3. The applicants further allege d under Article 1 of Protocol No. 1 to the Convention that the confiscation of copies of the book constituted an interference with their right to the peaceful enjoyment of their possessions.

However, the Court notes that the measure complained of by the applicants has already been examined by the Court under Article 10. It is therefore unnecessary to consider this complaint separately.

Having regard to the above conclusions, the application of Article 29 § 3 of the Convention to the present case should be discontinued.

For these reasons, the Court unanimously

Declares the application inadmissible .

S. Dollé A.B. Baka Registrar President