THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34685/97 by Mehmet Hatip DÄ°CLE against Turkey

The European Court of Human Rights ( Third Section) , sitting on 14 November 2002 as a Chamber composed of

Mr I. Cabral Barreto , President , Mr L. Caflisch , Mr P. Kūris , Mr B. Zupančič , Mrs H.S. Greve , Mrs K. Traja , judges , Mr F. Gölcüklü , ad hoc judge , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 12 December 1996,

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 applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mehmet Hatip Dicle , is a Turkish national, who was born in 1955 and lives in Ankara. He is represented before the Court by Mrs Bedia Buran and Mr M. Nuri Özmen , 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 31 May 1995 an article called “The International Atatürk Peace Award” (“ Uluslararası Atatürk Barış Ödülü ”) was published by the applicant in the Yeni Politika newspaper. The Public prosecutor at the Istanbul State Security Court charged the applicant under Article 312 §§ 2 and 3 of the Criminal Code on account of provoking hatred and hostility on the basis of a distinction between race and region.

The impugned article contained the following statements:

“ (...) First of all, those who cannot establish democracy in all the institutions and regulations of their country, those who ignore human rights and those who want to destroy all values of the people with racist and ravaging policies should not have the right to use a high concept like peace insincerely for their political purposes. Which country where people are tortured and killed in custody, “disappeared”, shot in the middle of a street; where villages and towns are evacuated, forests are burned down, gives a peace award? No. Nobody has the right to pollute the concept of peace and no one should.

It is known that the roots of the increasingly dirty war in Turkey today, go back to the first years of the Republic. And who is responsible for the period between 1925 and 1938 when the identity and rights of the Kurdish people were denied and experiments of brutal genocide put into practice? Who is the architect of the policies of the Republic of Turkey which aimed at denying and exterminating Kurds from history? What is it, if not hypocrisy, to pronounce the name of the person who is the godfather of today’s dirty war together with the word ‘peace’ and organise a peace prize in his name? No!...No!... No one should have the right to abuse a mighty concept like peace in such a way. In fact the reason Nelson Mandela , who became a symbol by fighting against racist discrimination in South Africa, refused to accept the International Atatürk Peace Award is this hypocrisy and the inhuman policies pursued against the Kurds. (...)”

“ (...) Öncelikle kendi ülkesinde demokrasiyi kurum ve kurallarıyla oluşturmayanların , insan haklarını hiçe sayanların , ırkçı ve talancı politikalarla bir halkın tüm değerlerini imha etmek isteyenlerin , barış gibi yüce bir kavramı , siyaset malzemesi olarak samimiyetsizce kullanmaya hakları olmamalıdır . Barış ödülü veren hangi ülkede insanlar gözaltında işkencelerde öldürülmekte , kaybedilmekte , sokak ortasında kurşunlanmakta , köyler ilçeler boşaltılmakta , ormanlar yakılmaktadır ? Hayır , barış kavramını kirletmeye kimsenin hakkı yoktur , olmamalıdır .

Türkiye’de tırmanarak devam eden , bugünkü kirli savaşın köklerinin , Cumhuriyetin kuruluş dönemine kadar uzandığı bilinmektedir . Peki , Kürt halkının kimliğinin ve haklarının yok sayıldığı , vahşice soykırım denemelerinin yapıldığı , 1025-1938 yılları arasındaki dönemin baş sorumlusu kimdir ? Türkiye Cumhuriyeti Devleti’nin , Kürtleri tarihten silmeye yönelik inkar ve imha siyasetinin mimarı kimdir ? Bugünkü kirli savaşın fikir babası olan zatın adının , barış kavramıyla yanyana kullanılması ve adına barış ödulü düzenlenmesi , iki yüzlülük değildir de nedir ? Hayır !.. Hayır ! Barış gibi yüce bir değeri , bu kadar hoyratça kullanmaya kimsenin hakkı olmamalıdır . Nitekim Güney Afrika’da ırk ayrımına karşı mücadelede sembolleşen Nelson Mandela’nın , Uluslararası Atatürk Barış Ödülü’nü reddetmesinin nedeni de kürtlere karşı sürdürülen bu ınsanlık dışı politika ve işte bu ikiyüzlülüktür . (...)”

On 3 April 1996 the Istanbul State Security Court found the applicant guilty as charged and sentenced him to a fine of 600,000 Turkish lira and to two years’ imprisonment. On 3 July 1996 the Court of Cassation dismissed the applicant’s appeal.

B. Relevant domestic law

Article 312 of the Criminal Code provides as follows:

“A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months’ and two years’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras.

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.

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in Article 311 § 2.”

COMPLAINTS

The applicant complained under Articles 9 and 10 of the Convention that his conviction and sentence for publishing an article in a newspaper constituted an unjustified interference with his freedom of expression, in particular his right to impart information and ideas.

The applicant also complained that he was not tried by an independent and impartial tribunal as required by Article 6 § 1 of the Convention.

Furthermore, he alleged under Article 14, in conjunction with Articles 6, 9 and 10 of the Convention, that his conviction and sentence for expressing his opinions constituted discrimination on the ground of race and ethnic origin.

The applicant maintained with reference to Article 18 of the Convention that the interference with his above-mentioned rights does not pursue aims that are legitimate under the Convention.

THE LAW

A. Exhaustion of domestic remedies

The Government submitted in their observations that the applicant failed to exhaust domestic remedies as he did not ask for the rectification of the Istanbul State Security Court’s decision as provided by Article 322 of the Code on Criminal Procedure.

The applicant asserted that rectification of decision cannot be regarded as an effective remedy for the purposes of the Convention.

The Court notes that the rectification of decision is not considered an appeal in the strict sense of the term. An appellant cannot himself lodge such an application with the Court of Cassation ; he must submit an application for that purpose to the Principal Public Prosecutor at the Court of Cassation , who decides in his discretion whether or not to bring the case before that court (see Çıraklar v. Turkey , no. 19601/92, § 32, ECHR 1998          -VII). Therefore, it is not a remedy which an applicant has to exhaust for the purposes of Article 35 § 1 of the Convention.

B. Merits

1. The applicant submitted that his conviction and sentence for writing an article had breached Articles 9 and 10 of the Convention.

The Government submitted that the freedom of expression and the right to impart ideas is guaranteed by the Articles 14, 25, 26, 28 and 29 of the Constitution.

In their opinion, certain expressions in the article written by the applicant discriminate between Kurds and Turks and aim at provoking people against the State by alleging that its policy is a “dirty and hypocritical war”. The article exalts the fight against the State and aims at intensifying an already explosive situation in the south-eastern part of Turkey.

The Government further maintain that the consequences of the article should be evaluated in the light of the information available to the applicant and of his influence on people of Kurdish origin. They submitted that the applicant was elected a Member of Parliament on 20 October 1991 and was in office until his party, DEP ( Demokrasi Partisi - the Party of Democracy), was dissolved by a decision of the Constitutional Court. The applicant was the president of the party and was elected from the Diyarbakır region, which is one of the key regions of the south-eastern part of Turkey. The Government further alleged that, before and during his term of office in the Parliament, the applicant participated in meetings supporting the PKK terrorist organisation and was provoking separatism, hatred and enmity in every way possible. Considering that the PKK’s terrorist attacks had increased noticeably in the south-eastern region of Turkey during the past ten years in order to secure a part of the Turkish territory for a future Kurdish State, the effects of such an article should not be underestimated.

The applicant alleged that his conviction and sentence unjust ifiably interfered with his right to freedom of expression, as his article did not create the Kurdish problem. On the contrary, the article was concerned with the policies which were at the root of this problem. There was no statement in the article which incited to hatred and enmity.

The applicant made reference to the Incal v. Turkey judgment where the Court had held that, considering that opponents of official ideas and positions must be able to find a place in the political arena, Mr Incal’s conviction had not been necessary in a democratic society (see Incal v. Turkey, judgment of 9 June 1998, ECHR 1998-IV, § 45). Furthermore he maintained that the Court had said in the same judgment that while precious to all, freedom of expression is particularly important for political parties and their active members (see Incal , cited above, § 46). The applicant alleged therefore that his right to freedom of expression was violated on account of his political status.

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. The Court 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 complained that his right to a fair hearing guaranteed by Article 6 § 1 of the Convention was breached on account of the presence of a military judge on the bench of the Istanbul State Security Court which tried and convicted him.

The Government replied 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 were such as to ensure that these courts fully complied with the requirements of independence and impartiality within the meaning of Article 6 § 1.

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 complained under Article 18 of the Convention that the interference with his above-mentioned rights did not pursue aims that are legitimate under the Convention.

The Government maintained that the applicant’s conviction was part of the efforts of the authorities to maintain national security, public safety and territorial integrity of the State, which are legitimate aims under Article 10 § 2 of the Convention.

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.

4. The applicant alleged under Article 14, in conjunction with Articles 6, 9 and 10 of the Convention, that his conviction and sentence for having expressed his opinions amounted to discrimination on the grounds of race and ethnic origin.

The Government maintained that the provisions of the criminal law are applied to all individuals within the Turkish jurisdiction, without distinctions on the basis of race, colour, sex, political opinion, religion, “sect” or philosophical belief.

The Court has examined the applicant’s allegations in the light of the evidence submitted to it, but considers them unsubstantiated.

It follows that this part of the application must also be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning his right to freedom of expression and his right to a fair trial by an independent and impartial tribunal;

and by a majority

Declares the remainder of the application inadmissible.

Vincent Berger Ireneu Cabral Barreto Registrar President