FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41956/98 by Yavuz AKSAÇ against Turkey

The European Court of Human Rights (First Section), sitting on 15 January 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mr R. Türmen , Mrs F. Tulkens , Mrs N. Vajić , Mr E. Levits , judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 6 January 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Court’s partial decision of 19 October 2000,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Yavuz Aksaç , is a Turkish national who was born in 1971 and lives in Ankara. He is represented before the Court by Mr Hasan Erdoğan and Mr Levent Kanat , lawyers practising in Ankara.

A. The circumstances of the case

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

On 23 March 1995 the applicant was taken into custody by police officers from the Anti-Terror branch of the Ankara Security Department on suspicion of aiding and abetting a terrorist organisation.

On 6 April 1995 the public prosecutor attached to the Ankara State Security Court charged the applicant and other co-accused under Article 168 § 2 and Article 169 of the Criminal Code and Article 5 of the Prevention of Terrorism Act of membership of a terrorist organisation, the aim of which was to undermine the territorial integrity of the State. In his indictment, the public prosecutor stated that the applicant had rented an office for a left-wing newspaper and incited those who frequented the office to put up political propaganda posters.

On 10 April 1996 the Ankara State Security Court concluded that the applicant had aided and abetted a terrorist organisation, both individually and in collaboration with others, by putting up posters and painting slogans on walls in support of the organisation. 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.

On 28 May 1997 the applicant appealed against this judgment. The Chief Public Prosecutor at the Court of Cassation submitted his opinion on the merits of the appeal. In his written opinion ( tebliÄŸname ) to the Court of Cassation, the Chief Public Prosecutor advised that the appeal should be rejected and the first instance judgment upheld, being in compliance with procedural rules and law. The written opinion of the Chief Public Prosecutor was read out during the hearing before the Court of Cassation.

On 10 July 1997 the Court of Cassation upheld the judgment of the Ankara State Security Court, finding that the applicant’s grounds for appeal were unfounded.

B. Relevant domestic law

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

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the Ankara State Security Court, which tried and convicted him, was not an independent and impartial tribunal on account of the presence of a military judge on the bench.

He alleged under Article 6 § 3 (b) of the Convention that the written opinion of the Chief Public Prosecutor at the Court of Cassation had never been served on him, thus depriving him of the opportunity to put forward his counter-arguments.

The applicant also complained under Articles 9 and 10 of the Convention that the court had considered his employment with a left-wing newspaper an activity connected to an illegal organisation and convicted him of membership thereof.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that his right to a fair hearing was breached on account of the presence of a military judge on the bench of the Ankara State Security Court which tried and convicted him. Article 6 § 1 of the Convention provides, in so far as relevant:

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

The Government contend that the rules governing the appointment of military judges to the State Security Courts and the guarantees which they enjoy in the performance of their judicial functions on the bench are such as to ensure that these courts fully comply with the requirements of independence and impartiality within the meaning of Article 6 § 1. Moreover, they note that the relevant provision of the Constitution on the establishment of the State Security Courts has been amended and the participation of military judges in these courts has been abolished.

The Court considers in the light of the parties’ submissions that these complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of their merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant complains under Article 6 § 3 (b) of the Convention that the written opinion of the Chief Public Prosecutor at the Court of Cassation was never served on him, thus depriving him of the opportunity to put forward his counter-arguments. Article 6 § 3 (b) of the Convention provides:

“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 Government submit that the written opinion of the Chief Public Prosecutor at the Court of Cassation generally took the form of a one ‑ page document, which only contained practical information concerning the case and which stated briefly whether the judgment of the first instance court should be upheld or quashed.

The Government maintain that the written opinion of the Chief Public Prosecutor was submitted to the Court of Cassation on 25 March 1997 and that the latter gave its decision on 1 July 1997. Between these dates, the applicant had three months in which to find out, at least by telephone, about the submissions made by the Chief Public Prosecutor and to submit additional grounds of appeal. They further contend that the written opinion of the Chief Public Prosecutor was read out during the hearing and that the applicant was given the opportunity to submit his counter-arguments later.

The applicant disputes the Government’s contention that it would have been possible for him to find out about the written submissions of the Chief Public Prosecutor prior to the hearing. He alleges that, having heard the Chief Public Prosecutor’s submissions for the first time during the hearing, he did not have sufficient time to prepare his defence.

The Court considers in the light of the parties’ submissions that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. It concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

3. The applicant complains under Articles 9 and 10 of the Convention that he was convicted merely on account of having worked for a left-wing newspaper; given that the court considered that this employment was an activity connected to an illegal organisation.

The Government submit that the applicant was convicted and sentenced under Article 169 of the Criminal Code, which penalises association with terrorist organisations. They contend that the applicant’s conviction was not related to his employment with a left-wing newspaper as alleged by the applicant, but was due to his affiliations with a terrorist organisation.

The Court notes that the applicant was charged with membership of an illegal organisation and was convicted of this offence by the Ankara State Security Court. It would point out in this connection that the public prosecutor based his indictment on the applicant’s association with a terrorist organisation, as proved by the applicant’s renting an office for a left-wing newspaper and inciting those who frequented the office to put up political posters. Furthermore, the State Security Court noted in its judgment that the applicant had been found guilty on account of having been caught in the act of putting up posters in support of a terrorist organisation. It also held that the applicant’s association with the organisation had been confirmed by his involvement, both individually and in collaboration with other accused, in putting up posters.

In the light of the foregoing, the Court observes that the applicant was not convicted of having held or expressed an opinion, but rather of having been involved in an illegal organisation. It considers, therefore, that the conviction of the applicant cannot be viewed in terms of an interference with his rights under Articles 9 and 10 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 under Article 35 § 4 thereof.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the independence and impartiality of the Ankara State Security Court and the non-communication of the written opinion of the Chief Public Prosecutor to the applicant;

Declares the remainder of the application inadmissible.

Soren Nielsen Christos Rozakis              Deputy Registrar President