SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40303/98 by Fethi GÜMÜŞ and OTHERS against Turkey

The European Court of Human Rights (Second Section), sitting on 2 December 2003 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr L. Loucaides , Mr R. Türmen , Mr C. Bîrsan , Mr M. Ugrekhelidze, judges , and Mr T .L. Early , Deputy Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 9 February 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 observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant, Mr Fethi Gümüş, is a Turkish citizen, born in 1947 and living in Diyarbakır. He is a lawyer practising in Diyarbakır. The second applicant, Mr Ali Öncü, is a Turkish citizen, born in 1960 and living in Diyarbakır. He is a member of the TESİŞ Workers’ Union ( TESİŞ Sendikası ). The third applicant, Ms Sevtap Yokuş, is a Turkish citizen, born in 1966 and living in Kocaeli. She is a lecturer at the Law Faculty of the Kocaeli University. The fourth applicant, Mr Sabahattin Acar, is a Turkish citizen, born in 1964 and living in Diyarbakır. He is a lawyer practising in Diyarbakır. The fifth applicant, Mr Vezir Perişan, is a Turkish citizen, born in 1951 and living in Diyarbakır. He is a member of the Municipal Workers’ Union ( Belediye-İş Sendikası ).

The applicants are all represented in the proceedings before the Court by Mr S. Tanrıkulu, a lawyer practising in Diyarbakır.

A. The circumstances of the case

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

The 24 March 1992 edition of the newspaper “ Diyarbakir Söz ” and the 25 March 1992 edition of the newspaper “ Fela k” carried a press statement drafted by a delegation which included the applicants, two former Turkish parliamentarians, Leyla Zana and Hatip Dicle, and twenty representatives of various political parties and democratic public organisations.

The press statement which appeared in the newspapers read:

“The Kurdish nation has enhanced its honourable struggle for its claim to the right to a humane existence. The State, which is a party to the problem, has suddenly carried its war mechanism to the region so as to suppress this legitimate struggle by violence.

21 March, the day of the Nevroz festival, was declared to the press as the official starting date of the large-scale operation by the President, the Chief of Staff and the Under Secretary of the National Intelligence Service. The covert war in Şırnak, Cizre and Nusaybin came to light with the images of tanks, armoured carriers and helicopters shown on television. After the mountains, which have been under bombardment since January, it is now the civilian population which is being bombed.

The civilians who celebrated Nevroz in Cizre, Nusaybin, Şırnak and other places where incidents occurred, did not attack or open fire on security forces. That no members of security forces had been killed by gunfire during the Nevroz celebrations was confirmed by official declarations.

For the time being, the consequences of the war are 53 dead, hundreds of wounded, dozens of disappeared persons, thousands of detentions, burials in collective graves reminiscent of genocide and bombed, destroyed and burnt-down houses.

The security forces lack humane and judicial values. During the incidents, the transport of the injured was hindered, the vehicles carrying injured people were fired on, the health professionals and the relatives of the wounded who tried to help were threatened. Journalists, who tried to observe the incidents, were not allowed to enter the settlement units. They were also threatened, harassed and killed.

The Government cannot control the State. Laws are not respected in the region. The Laws on War to which the State is a party do not apply to this war. The conditions for application of the 1949 Geneva Conventions exist. We invite the parties to this war to conform to the provisions of the Geneva Conventions.

We invite the public not to be onlookers to the massacre but to act in solidarity with the Kurdish People who are exposed to massacre and whose rights are violated.”

On 19 June 1992 the public prosecutor at the Diyarbakır State Security Court initiated criminal proceedings against the applicants and sixteen other individuals who had signed the press statement. Citing the text of the press statement, the public prosecutor charged them with incitement to hatred and hostility by making distinctions between persons on the basis of ethnic origin. The public prosecutor requested the Diyarbakır State Security Court to apply Articles 312 §§ 2 and 3 of the Criminal Code and section 5 of the Prevention of Terrorism Act 1991.

The public prosecutor submitted his observations during the proceedings and requested the court to sever the case of Mr Hüseyin Turhallı from the other cases, to acquit Mr Nazif Yüce, Mr Taner Keskin and Mr Seyfettin Kızılkan and to apply Article 312 § 2 and section 5 of the Prevention of Terrorism Act 1991 with respect to the remaining accused.

In the proceedings before the Diyarbakır State Security Court the applicants and the other co-accused did not deny that they had drafted a press statement. However, they stated that the statement was not the same in content as the one which had been published in the newspapers and which formed the basis of the charges against them. They submitted that the public prosecutor relied on another press statement drafted by the parliamentarians, Mr Hatip Dicle and Mrs Leyla Zana. They also maintained that their press declaration had not been included in the case file and, accordingly, they could not be convicted on the basis of the content of their own press statement.

On 20 February 1995 the State Security Court, composed of three judges including a military judge, accepted the applicants’ defence submissions as well as those of their co-accused. They were all acquitted of the charges.

On 21 February 1995 the public prosecutor lodged an appeal with the Court of Cassation which, on 19 May 1995, upheld the acquittal of Mr Seyfettin Kızılkan, Mr Nazif Yüce and Mr Taner Keskin but quashed the acquittal of the applicants and their co-accused. The case was remitted to the Diyarbakır State Security Court.

On 24 February 1997 the Diyarbakır State Security Court convicted the applicants and seven of their co-accused of incitement to hatred on the basis of a distinction between regions under Article 312 of the Criminal Code. The court first sentenced them to one year and eight months’ imprisonment and a fine of TRL 100,000. The court noted that the press statement in question was a summary of the declaration which the accused had drafted. However, having regard to the fact that the applicants and their co-accused had no previous convictions and to their good conduct during the trial, the court suspended their sentences.

The applicants and their co-accused appealed against their conviction. On 8 October 1997 the Court of Cassation dismissed their appeal. It upheld the Diyarbakir State Security Court’s assessment of the evidence and its reasons for dismissing the applicants’ defence.

B. Relevant domestic law and practice

A full description of the relevant domestic law may be found in İncal v. Turkey , judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, §§ 21-33.

COMPLAINTS

The applicants contend under Articles 9 and 10 of the Convention that their conviction and sentences for having drafted and made a press statement constituted an unjustified interference with their rights to freedom of thought and expression.

They complain under Article 14 of the Convention that their conviction and sentence for having expressed their political opinions constituted discrimination on the grounds of their political opinion and ethnic origin.

The applicants allege under Article 6 § 1 of the Convention that they were denied a fair hearing on account of the presence of a military judge on the bench of the Diyarbakır State Security Court, which tried and convicted them. They further complain under the same heading about the refusal of the Court of Cassation to hold a hearing. The applicants finally maintain that the opinion of the Chief Public Prosecutor at the Court of Cassation was never served on them, thus depriving them of the opportunity to put forward their counter-arguments. In this respect the applicants invoke Article 6 § 3 (b) of the Convention.

THE LAW

1. The applicants contend that their conviction and sentence for having drafted and made a press statement constituted an unjustified interference with their rights to freedom of thought and freedom of expression. They invoke Articles 9 and 10 of the Convention.

The Court considers that the essence of the applicants’ complaint concerns the alleged interference with their right to express views and opinions, and therefore it should be considered from the standpoint of Article 10 alone. Article 10 provides:

“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. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

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, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The Government submit that the applicants incited the hostility of persons of Kurdish ethnic origin towards the authorities and the military. They maintain that the press statement contained support for separatism between Kurds and Turks. They maintain in this connection that the applicants disseminated separatist propaganda supporting the PKK. The Government further contend that the restriction had been necessary in order to maintain national security and public safety. They submit that the interference with the applicants’ right to freedom of expression was proportionate to the legitimate aim pursued, as certain expressions used in the press statement were insulting to the Turkish Republic and to the security forces. The Government finally contend that Article 312 of the Criminal Code, under which the applicants were convicted, was in conformity with the Convention and that provisions equivalent to Article 312 could be found in the criminal codes of certain European countries.

The applicants submit that the press statement did not contain any elements endangering national security or public safety. They contend that they neither incited people to hatred and hostility nor advocated separatism. They maintain that, as members of non-governmental organisations, their intention had been to condemn the killing of fifty-three persons during the Nevroz celebrations on 21 March 1992. They further contend that there was no pressing social need which could serve to justify the interference with their right to freedom of expression. The applicants finally contend that although their sentences were suspended, the interference with their right to freedom of expression was not proportionate to the aim pursued, since their conviction under Article 312 of the Criminal Code entailed further consequences for them, such as their inability to stand for election to Parliament.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants complain of a breach of Article 14 of the Convention, which provides:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court considers that the applicants’ complaint under Article 14 of the Convention relates to their right to freedom of expression and should therefore be examined in conjunction with Article 10 of the Convention.

The Government submit that the applicants have not been subjected to any form of discrimination and that there was no policy of discrimination applied to Kurds. They request the Court to declare this complaint inadmissible as being manifestly ill-founded.

The applicants maintain their allegation and submit that they were convicted as a result of their political opinions and ethnic origins.

The Court observes that the applicants did not submit any evidence in support of their allegation under Article 14 of the Convention. The Court is of the opinion that the applicants have failed to substantiate their allegation and to lay the basis of an arguable claim of a breach of Article 14.

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

3. The applicants complain under Article 6 § 1 of the Convention that their right to a fair hearing was breached as they were tried and convicted by the Diyarbakır State Security Court, which lacked independence and impartiality. They further allege under the same heading that they were denied a public hearing before the Court of Cassation. They finally complain under Article 6 § 3 (b) that no copy of the Chief Public Prosecutor’s written submission to the Court of Cassation was transmitted to them and that they were denied the right to respond to that submission. The relevant parts of Article 6 provide as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time 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;

...”

a) Complaint concerning the independence and impartiality of the State Security Court

The Government submit that, by Law no. 4388 of 18 June 1999 and Law no. 4390 of 22 June 1999, amendments were made to remove military judges from the benches of the State Security Courts. The Government contend that State Security Courts are currently composed of civilian judges alone. The Government further add that the judgments of the former State Security Courts were subject to review by the Court of Cassation, which is a civilian court. For the above reasons, the Government request the Court to declare this complaint inadmissible as being manifestly ill-founded.

The applicants submit, in response, that the presence of a military member at the hearings before the State Security Courts violated their right to a fair trial and that the review of the Diyarbakır State Security Court’s judgment by the Court of Cassation did not affect the substance of their allegations. They further maintain that the amendments made to the State Security Court system had no impact on their allegations since the criminal proceedings against them were concluded on 8 October 1997, whereas the amendments were made in June 1999.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

b) Complaint concerning the refusal to hold a hearing before the Court of Cassation

The applicants allege a violation of Article 6 § 1 of the Convention, as they did not have a public hearing before the Court of Cassation.

The Government did not make any comment on this allegation.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

c) Complaint concerning the non communication of the Public Prosecutor’s submissions

The applicants complain that they have never been given an opportunity to reply to the written opinion submitted by the Principal Public Prosecutor to the Court of Cassation on the merits of their appeal.

The Government did not address this issue in their observations.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaints concerning the alleged interference with their right to freedom of expression, the independence and impartiality of the Diyarbakır State Security Court, the refusal of the Court of Cassation to hold a hearing and the non-communication of the submissions of the Chief Public Prosecutor to the applicants ;

Declares the remainder of the application inadmissible.

T .L. Early J.-P. Costa Deputy Registrar President