SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48083/99 by Mükremin KILINÇ against Turkey

The European Court of Human Rights (Second Section), sitting on 27 April 2004 as a Chamber composed of:

Mr J.-P. Costa , President , Mr L. Loucaides , Mr R. Türmen , Mr C. Bîrsan , Mr K. Jungwiert , Mr M. Ugrekhelidze , Mrs A. Mularoni, judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 27 March 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mükremin Kılınç, is a Turkish national, who was born in 1959 and lives 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 the Deputy Mayor of the Sincan District in Ankara at the time of the events. In his capacity as the deputy mayor, he was responsible for the activities of the Culture and Education Department of the Sincan District Council. This department was in charge of organising public activities and events during religious and national days.

In January 1997, the Culture and Education Department prepared a thirty-day programme for the month of Ramadan. The draft programme was submitted to the applicant for his approval. After consulting the mayor, the applicant authorised the organising committee to begin the necessary preparations.

One of the events foreseen for 31 January 1997 was called the “Jerusalem Night”. This event was announced months in advance and representatives of several embassies as well as several important personalities living in the district were invited. The hall was decorated with posters of martyrs who had given their lives for the liberation of Jerusalem. A five-minute play was also written for the evening. The play took the form of a conversation between a father and his son about life in Palestine and the struggle of the Palestinian people. The mayor of Sincan and the Ambassador to Iran made speeches before the play began.

On 6 February 1997 the applicant was taken into police custody. He was accused of having disseminated propaganda in support of an armed, illegal organisation.

In his statement at the police station, the applicant said that the “Jerusalem Night” had been organised as part of a thirty-day programme and was one of the activities of the Sincan Ditrict Council. He explained that the posters had been sent by Nureddin Şirin, who was one of the speakers. He stated that the posters portrayed Muslim leaders who had given their lives for the liberation of Jerusalem. The applicant denied being involved in any illegal organisation.

On 13 February 1997 the applicant was brought before the public prosecutor. During his questioning, he repeated the statements he had made at the police station.

On the same day the applicant was brought before the investigating judge attached to the Ankara State Security Court and was remanded in custody.

In an indictment dated 7 March 1997, the public prosecutor attached to the Ankara State Security Court initiated criminal proceedings against the applicant. It was alleged that he had disseminated propaganda in support of an armed, illegal organisation.

The prosecution called for the applicant to be sentenced pursuant to Article 169 of the Turkish Criminal Code and Article 5 of the Prevention of Terrorism Act.

Before the Ankara State Security Court, which was composed of three judges including a military judge, the applicant contested the charges against him.

On 2 July 1997 the applicant was released from detention on remand pending trial.

Before delivering its judgment, the Ankara State Security Court established the status of Hezbollah in Turkey. In this respect, it relied on a report prepared by the National Intelligence Organisation (MIT), dated 30 April 1997, which referred to the structure and goals of Hezbollah. The court also based itself on another report prepared by the General Directorate of Security, dated 24 October 1996. In this report, it was stated that Hezbollah had been involved in many terrorist attacks throughout Turkey. Finally, the court examined a report from a book called the “Eurasia File” ( Avrasya Dosyası ), which was published by the International Relations and Strategic Studies Centre. In the light of all the evidence before it, the court rejected the applicant's assertions that Hezbollah had no activities in Turkey and that it was solely a national movement which operated in Palestine.

On 15 October 1997 the Ankara State Security Court concluded that the applicant had aided and abetted a terrorist organisation by engaging in propaganda in support thereof. It found the applicant guilty as charged, sentenced him to three years and nine months' imprisonment and debarred him from public service for three years.

The applicant appealed to the Court of Cassation. The chief public prosecutor at the Court of Cassation submitted his opinion on the merits of the appeal. The written opinion of the chief public prosecutor was read out during the hearing before the Court of Cassation but was not served on the applicant before the hearing.

On 21 September 1998 the Court of Cassation dismissed the applicant's appeal, upholding the Ankara State Security Court's assessment of the evidence and its reasons for rejecting the applicant's defence.

On 7 December 1998 the chief public prosecutor attached to the Court of Cassation rejected the applicant's request for rectification.

B. Relevant domestic law

A full description of the relevant domestic law may be found in Kılıç v. Turkey (no. 40498/98, decision dated 8 July 2003), and in the Incal v. Turkey judgment of 9 June 1998 ( Reports of Judgments and Decisions 1998-IV, §§ 21-33).

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that he was kept in police custody for seven days without being brought before a judge. He further maintains that his detention on remand exceeded a reasonable time.

2. The applicant alleges under Article 6 § 1 of the Convention that he was tried and convicted by a court which did not meet the requirements of independence and impartiality on account of the presence of a military judge on the bench.

The applicant further maintains under Article 6 §§ 1 and 3 of the Convention that he was denied a fair hearing. He alleges in this connection that the principle of equality of arms was violated since he was not notified of the public prosecutor's observations at the appeal stage. He also states that the national court had erred in its interpretation of domestic law.

3. The applicant next complains of a violation of Article 7 in that he was convicted of an act that did not constitute a criminal offence at the relevant time.

4. The applicant further invokes Articles 10 and 11 of the Convention and alleges that his rights to freedom of expression and assembly were breached as a result of the State Security Court's judgment.

THE LAW

1. The applicant complains that the length of his police custody and detention on remand exceeded the reasonable time requirement foreseen in Article 5 § 3 of the Convention, which provides as relevant:

“Everyone arrested or detained ... shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial...”

The Court observes that the applicant was released from police custody on 13 February 1997 and from detention on remand on 2 July 1997. However, the applicant introduced his application with the Court on 15 March 1999, which is more than six months from the date of the facts giving rise to the alleged violation. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant further states that he was denied a fair trial before an independent and impartial tribunal, having regard to the presence of a military judge on the bench of the Ankara State Security Court. He also states that the national court erred in its interpretation of domestic law. Finally, he maintains that the fairness of the appeal proceedings was undermined by reason of the failure to notify him of the public prosecutor's observations on his appeal. The applicant invokes Article 6 §§ 1 and 3 of the Convention, which provide:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law.

3. Everyone charged with a criminal offence has the following minimum rights:

... (b) to have adequate time and facilities for the preparation of his defence; ...”

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 Court, to give notice of this part of the application to the respondent Government.

3. The applicant further alleges that, prior to his conviction, there was no offence recognised in Turkish law of producing propaganda in respect of organisations that did not operate in Turkey. He therefore claims that his conviction for such an offence constituted a breach of Article 7 § 1 of the Convention, which reads as follows:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed.”

The Court observes that in its judgment the Ankara State Security Court gave a detailed explanation about the activities of Hezbollah. Basing itself on the reports of the Directorate General of Security and National Intelligence Organisation, the court concluded that Hezbollah had been involved in many terrorist attacks in Turkey. The applicant was convicted of aiding and abetting this illegal organisation by engaging in propaganda for it. That offence was clearly defined in domestic law at the time of the organisation of the “Jerusalem night.”

In the light of the foregoing, the Court finds that there is no appearance of a violation of Article 7 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

5. The applicant further alleges under Articles 10 and 11 of the Convention that his conviction resulted in a violation of his rights to freedom of expression and freedom of assembly.

The Court notes that the applicant was not convicted on account of having expressed opinions or of having organised a cultural event. He was tried and convicted on account of aiding and abetting an armed terrorist organisation by disseminating propaganda on its behalf, in contravention of Article 169 of the Turkish Criminal Code.

There is nothing in the case file that could support the applicant's claims concerning his complaints under Articles 10 and 11 of the Convention (see in this respect, Aksaç v. Turkey (dec.), no. 41956/98, dated 15 January 2004; Koçak, Yavaş, and Özyurda (dec.), nos. 23720/02, 23735/02, 23736/02, dated 3 July 2003).

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints concerning his right to a fair hearing by an independent and impartial tribunal, and the failure to notify him in advance of the public prosecutor's submissions on his appeal ;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President