SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Applica tion no. 56827/00 by Koray D Ü ZGÖ REN against Turkey

The European Court of Human Rights (Second Section), sitting on 28 September 2004 as a Chamber composed of:

Mr J.-P. Costa , President , Mr L. Loucaides , Mr R. Türmen , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs A. Mularoni, judges , and Mr T . L. E arly , Deputy Section Registrar ,

Having regard to the above application lodged on 15 October 1999 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Koray Düzgören, is a Turkish national, who was born in 1947 and lives in London . He is rep resented before the Court by Ms Anke Julia Stock of th e Kurdish Human Rights Project in London , as well as by Mr Mark Muller, Mr Tim Otty and Ms Jane Gordon, lawyer s practising in London .

A. The circumstances of the case

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

On 1 A pril 1998 the appli cant, who is a journalist, together with N. A . , distributed a leaflet concerning the conscientious objector O. M. U. , outside the Ankara State Security Court . The applicant also handed the leaflet to the public prosecutor at the Ankara State Security Court along with a petition requesting that he be prosecuted for having committed a crime. The leaflet, entitled “ Freedom to think - an initiative against the crime of thought ” contained the press release issued by O. M. U on 1 September 1995 . The latter had been previously convicted and sentenced on account of this press release. The relevant parts of the leaflet are as follows:

“ ... For the purpose of defending the free expression of every kind of thought , we who have signed as publishers, convey this ' convicted ' text to the people, regardless of its contents and the question whether or not we share its contents, even though some of us do not agree with some lines in it ... '

“Good morning , Today ' s press conference is not organised by the Izmir Association of the Opponents of War . The responsibility for this conference rests exclusively with me. As you know, the case , which was brought before the Ankara Mi litary Court of the Office of the Chief of Staff where I was allegedly accused of committing the crime of ' causing unwillingness of the people to do military service ' , was concluded on 29 August.

...

The army, unable to deal with us through judicial methods, think that they can draw the opponents of war away from the public view. First of all , I am not a deserter; I am a ' conscientious objector ' . I neither intend to d o military service nor desert . There is no reason to desert, because I defend the principle that people should exercise their right not to do military service without having to go into hiding.

As to the papers given by the Recruitment Office ... I am going to burn them right now before your eyes ...

I am not a soldier and I will never be. Of course, I am aware that I will be summoned for military service , but until I am summoned , how many more days that will be, there will be no changes to my life style. They can find me here to take me by force. But I will resist to the end in the barracks , and I am underlining that I will refuse to do military service in any shape or fashion .”

On 1 April 1998 the public prosecutor at the Ankara State Security Court took the statement of the applicant. In his statement the applicant reiterated his petition which he had previously submitted to the prosecutor. He stated that by publishing and distributing the above-mentioned leaflet he had committed the same offence of which O. M. U. had been convicted . He contended that he agreed with the contents of the leaflet. He further pointed out that there were judgments of the European Court of Human Rights which referred to conscientious objectors . He claimed that the leaflet was not intended to dissuade people from doing military service or to incite them to desert . He further stated that in the Neth erlands conscientious objectors did not do their military service , but were given other jobs. He commented that maybe in the future the sa me will also be true for Turkey . He concluded that his aim was to obtain the abolition of compulsory military service in Turkey .

On 4 June 1998 the m ilitary public prosecutor at the General Staff Court in Ankara filed a bi ll of indictment , accusing the applicant of discouraging people from performing military service. He requested that the applicant be convicted and sentenced under Article 155 of the Criminal Code and Article 58 of the Military Penal Code.

On an unspecified date, the criminal proceedings against the applicant commenced before the General Staff Military Court in Ankara . In the proceedings, the applicant reiterated his statement to the public pr osecutor at the State Security C ourt . The applicant submitted that he was a defender of freedom of expression and challenged the independence and impartiality of the court.

On 9 March 1999 the court convicted the applicant as charged and sentenced him to two months ' imprisonment and to a fine of 1,520,000 Turkish Liras ( 3 . 5 Euros) .

In its reasoning , the court contended that it had competence to deal with the case pursuant to the C onstitution and domestic law provisions. It also pointed out that there was no ruling of the European Court of Human R ights which concluded that military co urts were extraordinary courts.

As to the merits of the case, the court considered that by distributing the leaflet containing the press release which led to O. M. U ' s conviction and by presenting the leaflet to the pu blic prosecutor ' s office at the Istanbul State Security Court and asking the latter to take legal action , the applicant ' s actions were deliberate and that he had committed the offence knowingly and willingly. The court , relying on Articles 25 and 26 of the Constitution, Article 10 § 2 of the European Convention on Human Rights and Article 29 § 2 of the Universal Declaration of Human Rights , affirm ed that freedom of expression and dissemination of ideas was not absolute. Citing relevant a rticles of the Criminal Code , the court reasoned that the provisions under which the applicant was charged pursued the aim of eliminating threats to the unity of the country, national security and sovereignty . The court observed that Article 155 of the Criminal C ode was in accordance with international law and that the applicant ' s case fell within the scope of Article 155 of the Criminal Code.

On 19 April 1999 the applicant appealed to the Military Court of Cassation. In his appeal, the applicant , relying on Articles 6 and 10 of the European Convention on Human Rights , contended that he should not have been tried by a military court and that the act which he had committed could not be considered an offence .

On 25 May 1999 the Military Court of Cassation upheld the decision of the General Staff Military Court .

In respect of the applicant ' s submission that he should not have been tried by a military court , the Military Court of Cassation , referring to domestic law and to the jurisprudence of the European Court of Human Rights , ruled that the military courts had jurisdiction and competence to try th e applicant.

As to the merits , the court , after having assessed the contents of the leaflet , concluded that the judgment given by the General Staff Military Court was in accordance with the law.

On 17 July 1999 the applicant left Turkey in order to avoid imprisonment. He claims that he lost his job at a television station, Channel 8 , because of pressure from the army. The applicant continues to write as a columnist for a Turkish newspaper. H e submits that his earnings as a columnist are significantly less tha n what he had earned previously with Channel 8. The applicant received compensation from Channel 8 and did not bring any civil proceedings in resp ect of his loss of employment.

The applicant alleges that due to his conviction he cannot return to Turkey without risking imprisonment and that his family relations have suffered as a result.

1. The Criminal Code

Article 155

“ Whoever, in circumstances other than those indicated in the foregoing Articles, publishes  editorials to incite people to violate the laws of Turkey or endangers the security of the country, or issues publication s or makes suggestions in order to dissuade pe rsons from performing military service or gives speeches to this effect at public meetings or in places where people have gathered, shall be liable to imprisonment for a period of two months up to two years and to a heavy fine of 4,500 to 36,000 liras .”

2. The Military Penal Code

Article 58

“Whoever commits the offences described in Articles 153 to 161 or the offence described in Article 155 of the Criminal C ode dissuading persons from performing military service by issuing publications or making suggestions or giving speech es to that effect shall be liable to be punished in accordance with the aforementioned A rticles for the crime of threatening national security.”

COMPLAINT S

The applicant contends under Article 6 § 1 of the Convention that he was not heard by an independent and impartial tribunal since he was tried in a military court.

The applicant alleges under Article 8 of the Convention that there has been an unjustified interference with his righ t to respect for his private and family life since he had to leave Turkey in order to avoid imprisonment.

The applicant submits under Article s 9, 10 and 11 of the Convention that his prosecution and conviction for producing and distributing a leaflet infringed his rights under these Articles.

The applicant claims under Article 1 of Protocol No. 1 that his conviction deprived him of his r ight to exercise his profession since his contrac t with Channel 8 was terminated as a result of pressure exerted by the authorities. In this connection, the applicant complains that he is now earning less tha n what he was earning with Channel 8.

The applicant complains under Article 13 of the Convention that he did not have an effective domestic remedy in respect of his above-mentioned grievances.

THE LAW

1. The applicant contends under Article 6 § 1 of the Convention that he was not heard by an independent and impartial tribunal since he was tried in a military court.

The Court considers that it cannot on the basis of the case file, determine the admissibility of th is complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of it to the respondent Government.

2 . The applicant alleges under Article 8 of the Convention that there has been an unjustified interference with his right to respect for his private and family life since he had to leave Turkey in order to avoid imprisonment.

The Court observes that the applicant left Turkey in 1999 in order to avoid imprisonment and that he still continues to live in London . It considers that even assuming that there were compelling reasons in the mind of the applicant to leave Turkey and thus to be separated from his family, it cannot be said that this was on account of a direct interference by the respondent Government with the private and family life of the applicant within the meaning of Article 8 of the Convention. Consequently, the Court considers that this part of the application should be rejected as manifestly ill ‑ founded within the meaning of Article 35 § 3 and 4 of the Convention.

3. The applicant submits under Articles 9, 10 and 11 of the Convention that his prosecution and conviction for producing and distributing a leaflet infringed his rights to freedom of thought, freedom of expression and right to a peaceful assembly.

The Court considers that the applicant ' s complaint s fall most naturally within the scope of Article 10 of the Convention. Accordingly, it will consider them under that provision only.

The Court considers that it cannot on the basis of the case file, determine the admissibility of th is complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of it to the respondent Government.

4 . The applicant claims under Article 1 of Protocol No. 1 that his conviction deprived him of his right to exercise his profession since his contract wi th Channel 8 was terminated as a result of pressure exerted by the authorit i es. In this connection, the applicant complains that he is now earning less tha n what he was making with Channel 8.

Without prejudice to the applicability of Article 1 of Protocol No. 1 to the circumstances relied on, the Court finds in any event that the applicant ' s submissions concerning the alleged pressure exerted by the military on his employers to dismiss him are unsubstantiated. In any event, it appears that the applicant was given compensation for the termination of his contract and did not seek to bring civil proceedings against the company for the loss of his employment. Furthermore, given his decision to leave Turkey , he made it impossible for himself to continue his employment with Channel 8.

It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5. The applicant complains under Article 13 of the Convention that he did not have an effective domestic remedy in respect of his afore mentioned grievances.

In this regard the Court recalls that Article 13 of the Convention has been interpreted as requiring a remedy in domestic law only in respect of grievances which can be regarded as “arguable” in terms of the Convention (see, for example, the Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52 ). It has found the applicant ' s complaints under Article 8 and Article 1 of Protocol N o. 1 to be manifestly ill-founded. Accordingly, his complaint under Article 13, in so far as it relates to these two grievances, is also manifestly ill-founded and therefore inadmissible in application of Article 35 §§ 3 and 4 of the Convention.

In s o far as the applicant complain s that he has been denied an effective remedy in respect of his complaints under Articles 6 and 10 of the Convention, the Court considers that it canno t on the basis of the case file determine the admissibility of th is complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of it to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ' s complaints concerning the independence and the impartiality of the military court and the alleged interference with his right to freedom of expression , as well as the alleged lack of an effective remedy in respect of these complaints ;

Declares the remainder of the application inadmissible.

T . L. E ar l y J.-P. Costa Deputy Registrar President