FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 32455/96 by AyÅŸenur ZARAKOLU against Turkey

The European Court of Human Rights (Fourth Section) , sitting on 5 November 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr A. Pastor Ridruejo , 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 with the European Commission of Human Rights on 8 July 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, Mrs Ayşenur Zarakolu was a Turkish national and lived in Istanbul . She was represented before the Court by Mr Özcan Kılıç, a lawyer practising in Istanbul.

On 25 April 2002 the Court was informed of Mrs Zarakolu’s death on 28 January 2002 and that Mr Ragıp Zarakolu , her widower, wanted the proceedings to continue and wished to participate in them, retaining the applicant’s lawyer as his representative.

For practical reasons, Mrs Zarakolu will continue to be called “the applicant”, although Mr Zarakolu is now to be regarded as such (see Dalban v. Romania [GC], no. 28114/95, § 1, ECHR 1999-VI and see also Ahmet Sadık v. Greece, judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1641, § 3).

A. The circumstances of the case

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

The applicant was the owner of a publishing company called “ Belge International Publishing Co.”.

In June 1994 Belge International Publishing Co. published a book entitled Birakuji-Kürtlerin İç Savaşı , written by F.D.

In an indictment dated 5 July 1994 the public prosecutor at the Istanbul State Security Court charged the applicant with disseminating PKK propaganda through publishing this book. The Public Prosecutor requested that the applicant be convicted in accordance with Article 7 § 5 of the Prevention of Terrorism Act (Law No. 3713).

In the proceedings before the Istanbul State Security Court the applicant denied the charges. She stated that the book was based on true facts. She also referred to her rights under Article 10 of the Convention.

In a judgment dated 28 September 1995, the Istanbul State Security Court found the applicant guilty of the offence under Article 7 of the Prevention of Terrorism Act. In concluding that the applicant had disseminated propaganda in support of a terrorist organisation, the court referred to the interview with Cemil Bayık, a commander of the PKK, published in pp.243-250 of the book. The court quoted the following views of Cemil Bayık in its judgment :

“[T]he war in the south has shown that the power of the PKK was not as straightforward as had been estimated. It has also shown that it is not easy to eliminate the PKK. Everybody has been able to see for themselves that it is not possible to reach a solution in Kurdistan without the PKK. The PKK did not lose the war. In fact the reality is that it has emerged from this war with significant gains. The Turkish Republic, in an attempt to hide its defeat, has been disseminating propaganda based on lies, such as that the PKK has been defeated, that it has lost thousands of its men and that it will not recover. In the press, it has also been reported that the PKK has not been crushed and that it has emerged from this war ever more powerful. It has further been reported in the press that by disseminating such propaganda, they [the State] are deceiving themselves but that they need such propaganda to maintain high spirits”.

The applicant was sentenced to five months’ imprisonment and the payment of a fine of TRL 41,666,666.

On 12 October 1995 the applicant appealed alleging, inter alia , that Article 7 § 5 of the Prevention of Terrorism Act was inapplicable in her case and that the court had convicted her solely on the basis of an interview contained in pp.243-250 of the book. She referred to her rights under Article 10 of the Convention.

In a decision of 26 December 1995, the 9 th Chamber of the Court of Cassation , upholding the cogency of the Istanbul State Security Court’s assessment of the evidence and its reasoning in rejecting the applicant’s defence, dismissed the appeal.

On 6 February 1996 the applicant was notified about her prison sentence and the fine.

On 29 August 1996 the applicant began serving her prison sentence at BayrampaÅŸa Prison in Istanbul .

B. Relevant domestic law and practice

1. Relevant criminal provisions

Article 7 of the Prevention of Terrorism Act:

Paragraph 2

“Those who assist members of organisations constituted in the manner described above or make propaganda in connection with such an organisation shall be liable to a sentence of imprisonment of              between 1 and 5 years and a fine of between 50,000,000 and 100,000,000 Turkish Liras, in addition to any other penalty to which they may be liable for the same conduct.”

Paragraph 5

“If the offence of propaganda in connection with an organisation referred to in paragraph 2 is committed by means of a periodical as defined in Article 3 of the Press Law No. 5680, its publishers shall in addition be liable to a fine calculated as follows:

-In the case of periodicals published at less than monthly intervals, the fine shall be ninety per cent of the average income generated by real sales over the previous month,

- in the case of printed works that are not periodicals or of periodicals which have started to be published recently, the fine shall be ninety per cent of the income generated by sales of the highest circulating daily periodical over the previous month.

In any case, the fine may not be less than 100,000,000 Turkish Lira. Responsible editors of these periodicals shall be sentenced to imprisonment from six months to two years and to half of the fine determined in accordance with the foregoing provisions.”

In a judgment dated 31 March 1992, the Constitutional Court found the clause underlined in the text of Article 7 § 5 of the Prevention of Terrorism Act above to be contrary to the Constitution and annulled it. The Constitutional Court held that the annulled text would cease to have effect six months after the date of publication of the annulment decision in the Official Gazette. The decision was published on 27 January 1993 and therefore this clause ceased to have effect as of 27 July 1993.

2. Provisions on State Security Courts

Before the Constitution was amended on 18 June 1999, Article 143 provided that State Security Courts were composed of a president, two other regular members and two substitute members. The President of the State Security Court, one of the regular members and one of the substitute members were appointed from among civilian judges, and the other regular member and substitute member were appointed from among military judges.

As amended by Law no. 4388 of 18 June 1999, Article 143 of the Constitution provides:

“...

State Security Courts shall be composed of a president, two other regular members, a substitute member, a Principal Public Prosecutor and a sufficient number of Public Prosecutors.

The president, two regular members, a substitute member and the Principal Public Prosecutor shall be appointed from among judges and Public Prosecutors of the first rank, according to procedures laid down in special legislation, and the Public Prosecutors from among other Public Prosecutors by the National Legal Service Council, for four years. Their term of office shall be renewable...”

The necessary amendments concerning the appointment of the judges and prosecutors were made to Law no. 2845 on the State Security Courts by means of Law no. 4390 of 22 June 1999. By the terms of provisional section 1 of Law no. 4390, the terms of office of the military judges and military prosecutors in service in the State Security Courts were to end on the date of publication of that Law (22 June 1999). By provisional section 3 of the same Law, proceedings pending in the State Security Courts on the date of publication of the Law were to continue from the stage they had reached by that date.

COMPLAINTS

The applicant submits under Article 6 § 1 of the Convention that she did not have a fair trial as she was tried and convicted by the Istanbul State Security Court which cannot be considered to be an independent and impartial tribunal.

She further complains under Article 10 of the Convention that her conviction and sentence constituted an unjustified interference with her freedom of expression, in particular, her right to receive and impart ideas and information.

She finally submits that there is a difference in treatment between State Security Court proceedings and ordinary criminal court proceedings. She points out in this respect that sentences imposed under the Prevention of Terrorism Act cannot be converted to a fine or suspended. She also claims that a person convicted pursuant to the Prevention of Terrorism Act may be conditionally released only after serving three-quarters of his sentence whereas a person convicted by an ordinary criminal court may be conditionally released after serving two-fifth of his sentence. In this regard, she invokes Article 14 of the Convention.

THE LAW

The applicant complains of violations of Articles 6, 10 and 14 of the Convention in connection with the criminal proceedings introduced against her following the publication of the book.

A. The Government’s objections to the admissibility

1. Observance of the six month rule

The Government argue that the application is inadmissible as the applicant failed to comply with the six-month rule in Article 35 § 1 of the Convention because she did not introduce her application within six months of the Court of Cassation’s decision of 26 December 1995.

The applicant submits in reply that she only became aware of the Court of Cassation’s decision of 26 December 1995 when the public prosecutor notified her on 6 February 1996 of the prison sentence and the fine.

The Court reiterates the Commission’s practice to take as the date of the final decision, the day on which the judgment was rendered orally in public, or, where judgment was not publicly pronounced, the day on which the applicant or his representative were informed of it, whichever took place earlier (see, for example, K.C.M. v. the Netherlands, no. 21034/92, decision of 9 January 1995, Decisions and Reports (DR) 80-A, p. 87).

The Court refers to its case-law according to which the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment in cases where the applicant is entitled, pursuant to domestic law, to be served ex officio with a written copy of the final domestic decision, irrespective of whether that judgment was previously delivered orally (see the Worm v. Austria judgment of 29 August 1997, Reports of Judgments and Decisions 1997-V, p. 1547, § 33; Venkadajalasarma v. The Netherlands (dec.), no. 58510/00, 9.7.2002, unreported).

In this connection the Court notes that the Court of Cassation did not pronounce its decision of 26 December 1995 in open court. Furthermore, despite the wording of Article 33 of the Turkish Code of Criminal Procedure which stipulates that judgments and decisions of courts are to be served on the parties to the case, it is not the practice of the Criminal Divisions of the Court of Cassation in Turkey to serve their decisions on defendants (see Seher Karataş v. Turkey , no. 33179/96, § 28, 9 July 2002, unreported).

The Court finds that the applicant became aware of the decision of the Court of Cassation of 26 December 1995 on 6 February 1996, the date on which she was notified of her prison sentence and the fine.

In these circumstances the six-month period started to run on 6 February 1996. Accordingly, the application was introduced in time.

For these reasons, the Court dismisses the Government’s objection.

2. Exhaustion of domestic remedies

The Government submit that the application is inadmissible as the applicant has failed to exhaust domestic remedies within the meaning of Article 35 § 1 the Convention. In this regard, they submit that according to Article 322 of the Code of Criminal Procedure the applicant could have requested that the decision of the Court of Cassation be rectified.

The applicant maintains that this particular appeal referred to by the Government could only be lodged by a public prosecutor and it is therefore an extraordinary remedy which she did not have to exhaust.

The Court recalls that according to the Criminal Procedure, an application for rectification of a decision is not a legal remedy directly available to the applicant. Parties cannot themselves lodge such an application with the Court of Cassation ; they must submit an application for that purpose to the chief 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, judgment of 28 October 1998, Reports of Judgments and Decisions 1998 - VII, § 32; see also Takak v. Turkey (dec.), no.30452/96, 18.5.1999, unreported).

In the light of the foregoing, the Court concludes that the application cannot be rejected for non-exhaustion of domestic remedies under Article 35 §§ 1 and 4 of the Convention.

B. Merits

1. Alleged violation of 6 § 1 of the Convention

Independence and impartiality of the State Security Court

The applicant maintains that her 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 her. Article 6 § 1 provides as relevant:

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

The Government maintain 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. 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. Alleged violation of Article 10 of the Convention

The applicant submits that her conviction and sentence for publishing a book constituted an unjustified interference with her freedom of expression in violation of Article 10 of the Convention which provides as follows:

“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 applicant was convicted for disseminating propaganda of a terrorist organisation which carries out activities against national security, territorial integrity and public safety. Her conviction was therefore justified under Article 10 § 2 of the Convention.

The applicant contests all these arguments. She maintains that the views expressed in the book cannot be interpreted as inciting to commit violence or disseminating terrorist propaganda.

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.

3. Alleged violation of Article 14 of the Convention

The applicant further alleges that the application of special rules under the Prevention of Terrorism Act and her trial before a state security court constituted discriminatory treatment contrary to Article 14 of the Convention which provides as follows:

“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 Government deny this allegation. They submit that the applicant was sentenced for violating Article 7 of the Prevention of Terrorism Act, which is a general and abstract law. They submit that States are entitled to make distinctions between different type of offences.

The applicant maintains her account of the facts and complaints.

The Court reiterates that Article 14 is not concerned with all differences of treatment but only with differences having as their basis or reason a personal characteristic by which persons or group of persons are distinguishable from each other (see the Kjeldsen , Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976, Series A no. 23, p. 29, § 56).

The Court notes that in principle the aim of Law no. 3713 is to prevent terrorism and that anyone arrested and charged with an offence falling within the scope of that law will be treated less favourably than persons arrested and charged with an offence under the ordinary law. In this regard, the Court considers that the distinction is made not between different groups of people, but between different types of offences, according to the legislature’s view of their gravity (see Gerger v. Turkey , no. 24919/94 , § 69 , ECHR 1999-II ). It therefore concludes that that practice does not amount to a form of “discrimination” that is contrary to the Convention.

The Court concludes that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaints concerning the alleged interference with her freedom of expression and the alleged lack of impartiality and independence of the tribunal which convicted her;

Declares the remainder of the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President