FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62619/00 by Ömer Bilal KARAKAYA against Turkey

The European Court of Human Rights (Fourth Section), sitting on 4 May 2004 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr R. Türmen , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki, judges , and Mr M. O'Boyle , Section Registrar ,

Having regard to the above application lodged on 12 April 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ömer Bilal Karakaya, is a Turkish national, who was born in 1966 and lives in Bursa. He is represented before the Court by Mr M. Ali Bulut and Mr Yusuf Akmaz, lawyers practising in Ankara.

A. The circumstances of the case

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

The applicant was a teacher at the Sorgun Anadolu High School at the time of the events.

On an unspecified date a newspaper article contained an allegation that the applicant was making inappropriate remarks in the class.

On 29 November 1995 the Sorgun District Governors' Office authorised the start of criminal proceedings against the applicant.

The case was brought before the Sorgun Criminal Court of First Instance which decided on 30 May 1996 that it lacked jurisdiction to try the case.

On 27 December 1996 the public prosecutor at the Yozgat Assize Court charged the applicant with insulting the Turkish Republic. He requested that the applicant be sentenced and convicted under Article 159 § 1 of the Criminal Code. The public prosecutor relied on the following statements of the applicant which were allegedly made in the class to the students.

“There is no Turkish Nation; there is a Muslim Turkish Nation.”

“It is not 'Happy is whoever says I am a Turk' but 'Happy is whoever says I am a Muslim'.”

“Those who die in the southeast are not martyrs; those who die for Allah and Muslimism are martyrs”

On 14 March 1997 the applicant submitted his written defence statement to the Yozgat Assize Court. In his submission the applicant denied having made the above-mentioned statements. He claimed that once in the school canteen he had discussed with a friend how an author had interpreted the proverb: “Happy is whoever says I am a Turk” as “Happy is whoever says I am a Muslim” and that these were not his own words.  He further alleged that once when he was in the teacher's room a colleague had asked him what the status of the PKK militants who died was and that he had replied that none of the PKK militants who died were martyrs.

On 20 October 1997 the Yozgat Assize Court considered that the offence in question fell under Article 312 of the Criminal Code, namely inciting the people to hatred and hostility on the basis of a distinction between religions and decided that it lacked jurisdiction to try the case.

On 19 November 1997 the Ankara State Security Court decided that it lacked jurisdiction to try the case since the offence in question fell under Article 159 § 1 of the Criminal Code.

On 26 December 1997 the Court of Cassation considered that the offence in question fell under the jurisdiction of the State Security Court.

On 18 June 1998 the public prosecutor, in his observations on the merits, requested that the applicant be sentenced and convicted under Article 159 § 1 of the Criminal Code.

On 7 July 1998 the public prosecutor sitting at the Ankara State Security Court changed. The new public prosecutor submitted his observations on the merits and requested that the applicant be sentenced and convicted under Article 312 § 2 of the Criminal Code.

In the proceedings before the Ankara State Security Court, the applicant denied having made the above-cited remarks. He claimed that once during the class they were discussing martyrdom and that he had said that in Turkey there were Turks and that their belief was Islam. He also refuted the evidence given by the witnesses.  The applicant also complained of the re ‑ qualification of the charges against him.

On 23 July 1998 the Ankara State Security Court, after having examined the testimonies of seventy-seven witnesses, many of whom were students, convicted the applicant under Article 312 § 2 of the Criminal Code and sentenced him to one year imprisonment and to a fine of 220.000 Turkish liras. The court reasoned that in considering the population living in Turkey as an element of a Muslim State, the applicant had discriminated against those who were not Muslims. In determining the sentence, the Court took into account the applicant's personality, status and the way the offence was committed.

On an unspecified date the applicant appealed to the Court of Cassation against the judgment of the State Security Court. The applicant contended that he had never made the impugned statements. He also challenged the veracity of the evidence given by the witnesses. He asserted that the students were 10-11 years old and that they were at an age where they could be very easily manipulated. The applicant also complained that the last minute change of the charges against him infringed his defence rights.

On 2 December 1998 the Court of Cassation held a hearing and upheld the judgment of the Ankara State Security Court.

On 19 February 1999 the principal public prosecutor at the Court of Cassation dismissed the applicant's request for the rectification of the judgment of 2 December 1998 of the Court of Cassation.

B. Relevant domestic law and practice

The relevant provisions of the Criminal Code read as follows:

Article 159 § 1

“Whoever overtly insults or vilifies the Turkish nation, the Republic, the Grand National Assembly, or the moral personality of the Government, the ministries or the military or security forces of the State or the moral personality of the judicial authorities shall be punished by a term of imprisonment of one to six years.”

Article 312 § 2

“...

A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall, on conviction, be liable to between one and three years' imprisonment and a fine of from nine thousand to thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half

...”

COMPLAINTS

The applicant contends under Article 6 of the Convention that he was not heard within a reasonable time by an independent and impartial tribunal. He asserts in this regard that one of the three members of the State Security Court was a military judge. He alleges that the criminal proceedings against him were not concluded within a reasonable time. Finally, he complains that he was convicted of an offence different from the one charged.

The applicant submits under Articles 9 and 10 of the Convention that his conviction and sentence constituted an unjustified interference with his freedom of thought and freedom of expression.

THE LAW

1. The applicant contends under Article 6 of the Convention that he was not heard within a reasonable time by an independent and impartial tribunal. He asserts in this regard that one of the three members of the State Security Court was a military judge. He alleges that the criminal proceedings against him were not concluded within a reasonable time. Finally, he complains that he was convicted of an offence different from the one charged.

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

2. The applicant submits under Articles 9 and 10 of the Convention that his conviction and sentence constituted an unjustified interference with his freedom of thought and freedom of expression.

The Court considers that this complaint should be examined under Article 10 of the Convention.

The Court reiterates that under the terms of Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised, at least in substance, during the proceedings in question (see, among others, Çakar v. Turkey , no. 42741/98, § 30, 23 October 2003).

In the instance case, the Court observes that at no time, however, did the applicant allege, rely on or raise any arguments in respect of his right to freedom of expression. The Court notes that throughout the criminal proceedings, the applicant only denied the allegations against him claiming that he had never pronounced the words against which he was charged with and put forward arguments which were based solely on domestic law and did not raise the matter of freedom of expression.

Even assuming that the national courts were able, or even obliged, to examine the case of their own motion under the Convention, this could not dispense the applicant from relying on the Convention in those courts or from advancing arguments to the same or like effect before them, thus drawing their attention to the problem he intended to submit subsequently, if need be, before the Court (see Van Oosterwijck v. Belgium , judgment of 6 November 1980, Series A no. 40, p. 19, § 39, and Ahmet Sadık v. Greece , judgment of 15 November 1996, Reports of Judgments and Decisions 1996 -V, § 33).

In view of the considerations above, the Court holds that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaint concerning the applicant's right to a fair hearing within a reasonable time by an independent and impartial tribunal;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas bratza Registrar President