THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 25753/94 by Ali Özler against Turkey

The European Court of Human Rights ( Third Section) , sitting on 30 January 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr P. KÅ«ris , Mrs F. Tulkens ,

Mr W. Fuhrmann , Mr K. Jungwiert , Mr K. Traja , judges ,

Mr Ş. Alpaslan , ad hoc judge , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 2 November 1994 and registered on 22 November 1994,

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, who was born in 1952, is a Turkish national. He lives in Tunceli (Turkey) and works as an engineer. Before the Court, he is represented by Ms Aysel TuÄŸluk , a lawyer practising in Istanbul (Turkey).

A. The circumstances of the case

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

On 5 and 6 June 1992 the applicant participated in a meeting organised by the Tunceli Human Rights Association. At this meeting, he made a speech concerning the problems of Kurdish people and expressed his opinions on the possible solutions. In his speech the applicant said the following:

“I would in particular like to say a few words on the campaign speech Mr Erdal Ä°nönü delivered from his campaign bus and also the recent statement by him that was broadcast on TV two days ago. They concern a matter of vital importance for us, the Kurdish people, and I want to discuss them in a manner worthy of this night and its meaning.

You will recall, in his speech that was delivered in Izmir , Erdal İnönü said that when a country is under the rule of law, and democracy and respect for human rights exist, ethnic problems are set aside. And so are nations’ rights to determine their own future. This, he said, is also the policy accepted by the UN Conventions. We understand that he has expressed the same view in his speech broadcast on TV during a debate of the political party leaders.

Now… the people of Dersim , of Tunceli in particular, are people open to ideas of socialism and social democracy. So we are very much affected by the speeches of Mr Inönü . I would therefore like to take a look at Turkey in the context of what is expressed in them.

...

Now, it was Mr Inönü himself who once said that there was no democracy in Turkey, that there were constitutional problems, that there were problems with union rights and that, in many other respects too, Turkish democracy was a failure. Yet, the moment Kurds began asking for their rights, the moment in Botan and elsewhere this became a people’s movement, Mr Inönü stood before that movement with this new formula. And this Mr Inönü , who now suggests that Kurds in Turkey are in no need of a right to determine their own future, has become a partner in the ruling coalition. In other words, in this country where social democracy is in power, it has now become impossible for people to claim their right to determine their future. Somehow the failing democracy has recovered in minutes. This is Mr Erdal Inönü’s new point of view. We too would like there to be the rule of law in this country, that there be rights in this country, that Kurds be allowed freedom in the expression of their identity and individual rights. However only 3-4 months ago, during our election campaign, our campaign bus was held at the Police Station for 24 hours for playing a cassette in Kurdish. We were instructed not to play Kurdish cassettes. This naturally is not the only criterion by which one can evaluate the democracy in this country; there are many other things one can point to. But, one thing I want to make clear here: Let everybody know, we Kurds in particular are not after violence; we are not after creating disorder. We Kurds are after rights; we are after freedoms. If these freedoms are a right for all, why should they not be so for us?

Let me give another concrete example. Dear friends, we experienced two events here – I leave aside all the shootings in Tunceli , and all that the bearded man ( sakallı ) did… We witnessed two events. One was the funeral of Vedat Aydın . During the funeral, they shot in our direction with machine guns. They shot towards all of us. Then they said that there had been guerrillas on motorcycles at the funeral. Yet no one out of the 100,000 people who had come to the funeral had seen these guerrillas on motorcycles. That means that 100,000 people lied. On TV, in the press, those who shot at us declared all of us to be terrorists. These people were shooting at us with machine guns. The second event was the Newroz affair. They said all could participate and celebrate the way they pleased. Yet, as it was reported in the foreign press, the foreign TV stations and elsewhere in the impartial media, there occurred one-sided attacks and shootings during the celebrations.

Now, they speak of this policy of openness. They talk of democracy. And the other day in Parliament, they said, ‘We will comply absolutely with the demands of human rights.’ They say, speaking of the Kurds, ‘We will alleviate their difficulties; we have accepted the Kurds.’ Yet, so far, they have not said a word about the Kurdish reality. Not a word. With this constitution… and no amendments in the law… In the last four months, there is actually a report, prepared by [ Erdal İnönü ], the Southeast Report. In this Southeast Report, there were some simple proposals… You know, a Kurdish Institute was going to be established… They were simple demands. Some primitive democratic rights were promised. Yet even these simple proposals, they could not implement them. They could not.

Now in that sense, the right to determine one’s own future is a right for all nations. And it is a right for Kurds too. Kurds shall determine their future themselves. This is our right. No one can take it away from us. But, dear friends, we may wish to live side by side with other people. This is also our right.  We do not have any problems with any of these people. We have no problems with either the Turks or the others. The Kurd and the Turk have no issue with each other. Neither the Turk nor the Kurd has any wish to strangle each other with American and NATO weapons in their hands. Kurds and Turks should not be shooting and killing each other like this with American weapons. This is in no way desirable. This constant state of war is an imperialist imposition on our people. We, our people, want to live together in unity, in a regime where the freedom of the people is under constitutional protection.  That is the best life there is.

Yet, for whatever reason, governments have taken only one approach to Kurds: violence. At this point, their violence has become an addiction. Addiction is worse than rabies ( Alışmış kudurmuştan beterdir -Turkish Proverb ). Violence remains their sole policy. I want to say a few words on this. Our country has been dragged to the edge of war – a civil war. Mountains are being bombarded. And terrorism… This has to be brought to an end. There are two policies - two approaches - one may take. One is the way of the true democrat, the way of those who stand up for human rights. And then there is the policy in practice, the one advanced by those conformist defenders of the status quo, the one that seeks power through violence. We say here today: let the Kurd be given his rights by this government, without delay. We say, let this constitution be revised – entirely – and a democratic one be framed in its stead. In this respect, one has to mention here that there is a guerrilla force numbering at least 5-10 thousand people, saying they are fighting for the Kurds. Let the extermination policy towards this guerrilla be abandoned and let it be replaced with a policy of dialogue – conciliatory, flexible and constructive – worthy of a democratic state. Rather than annihilation, let us embrace freedom and democracy. Let’s release those in prison.   And then this constitution, this racist, restrictive…  Here, let me refer you to an Article. Under an Article of this constitution, it is an offence to claim that there exists a language other than Turkish. Today, under this constitution, it is an offence to claim that there live in Turkey anyone but Turks. Unfortunately, Article 14 of the constitution…  Now all these Articles should be amended. Those in prison should be released. If necessary, all political parties should be consulted. Let no one fear these steps. This is not disintegration. This is not separation. There is no such thing. None of us would like to undertake such a thing. You don’t want that, I know it. That’s not what we want. That’s neither our issue, nor our intention. No one disapproves of this oppressive constitution with that concern. This is injustice.

So we come back to the solution, the policy I have mentioned. I believe as we replace violence with a concept of state, a concept of government that adopts conciliation, democratic dialogue and diplomacy, which is practically oriented and equipped with a more flexible legal system, families and individuals will finally emerge out of the dire deprivations of war. War is bad, friends, war is destruction, war is unemployment. War is extinction. War is grief, war is mourning, war is starvation. War is the death of a human being at the hands of another human being. War is a bad thing. One should not kill other human beings; one should love instead. Therefore, we have to seek and find the proper solution to all these. This is our wish. For this, as all these democratic rights are put in place, Kurds too should be given their rights – their democratic and cultural rights. We trust that in the creation of such a democratic constitution, Turkey will find violence displaced by a democratic opening up. Today the recourse to policies of violence has almost become unavoidable under this constitution. This is troubling. This constitution should be revised without delay.

Like all peoples, the remarkable Kurdish people will also pursue their free future, on a legitimate basis, through justified claims; they will seek democracy without discriminating between Turk and Kurd, in union with everyone else in Turkey, and will obtain their national democratic rights. And you, who I know share my faith in all this, I thank and wish you happiness.”

On 3 May 1993 the Public Prosecutor attached to the Kayseri State Security Court instituted criminal proceedings against the applicant together with 3 other persons who had participated in the meeting held on 5-6 June 1992. In his indictment, the public prosecutor accused the applicant, under Article 8 paragraph 1 of the Prevention of Terrorism Act 1991, of disseminating propaganda against the indivisibility of the State.

In the proceedings before the Kayseri State Security Court, which sat as a chamber of 3 judges including a military judge, the applicant denied the charges against him. He did not dispute having made the speech, but maintained that he never intended to promote separatism. He further stated that in his speech he had criticised the press declaration of Erdal Ä°nönü , who at the material time was the president of the Social Democrat Populist Party ( Sosyal Demokrat Halkçı Parti , the SHP ). The applicant contended that he had commented on the cultural and democratic rights of the Kurds and that he had argued that such rights needed to be recognised by the State. He further stated that he had neither encouraged war nor called for rebellion but, on the contrary, he had emphasised the importance of peace and democracy. The applicant finally alleged that the public prosecutor had prepared the indictment without reading the full text of his speech.

On 26 August 1993 the Kayseri State Security Court found the applicant guilty of an offence under Article 8 paragraph 1 of the Prevention of Terrorism Act and sentenced him to two years’ imprisonment and a fine of 50,000,000 Turkish Liras (TRL). In its decision the court did not provide reasons for its judgment on an individual basis. It held that the four accused persons had put forward the idea of a separate people contrary to the concept of nation adopted in the constitution. The court further held that the accused, in their speeches and poems, had claimed that the Kurdish people were fighting against the Turkish Republic for their independence and that their struggle should be supported. Referring to all the speeches made by the accused, the court held that sentences such as “the Kurdish people are exercising a right of rebellion in their fight for emancipation from captivity”, “the Kurds should be given the right to determine their future”; “the Kurdish people are engaged in a great struggle, fighting for socialism and national independence” amounted to propaganda against the indivisibility of the State. The court further referred to the slogans shouted by the audience during the speeches such as “Let Kurdistan walk” and “ Deho Apo (the PKK leader)” and to the presence of the symbolic colours of the meeting hall’s decoration in red, green and yellow. Finally the Court found that the accused had carried out the proscribed propaganda at a time and place where the threat to the unity of the State and the Nation was particularly acute.

The applicant appealed against this decision. In his petition to the Court of Cassation , he stated that the court had violated the principle of the universality of law when referring to the “time and place” in its judgment on sentence, alleging in this connection that the applicant’s geographic and ethnic origin had been a factor in the judgment. The applicant then challenged the collective consideration of the four speeches by the court of first instance. He stated that in not distinguishing between the speakers when assessing their words, the court had sentenced him on the basis of expressions and opinions that were not his own. The applicant stated that his speech taken on its own was against war and that he had not encouraged separatism. The applicant finally stated that the SHP leader, Erdal Ä°nönü , had interpreted the UN understanding of cultural rights in the Kurdish context and that his speech was a response to this interpretation. The applicant submitted that democracy demands the equal treatment under the law of these two interpretations, regardless of the office or identity of the proponents.

In his oral submissions to the Court of Cassation , the applicant’s lawyer first submitted that the court of first instance had erred in sentencing the applicant on the basis of a collective consideration of the speeches of the four defendants. The applicant’s lawyer further stated that there was no determination that all the speeches in their entirety had violated the pertinent Act. It was thus argued that the court had first erred in failing to rule on the applicant’s sentence on an individual basis and then had violated the principle that requires the resolution of factual ambiguities in favour of the accused. He further reiterated that the applicant’s speech had not encouraged war and had not constituted propaganda against the indivisibility of the State under Article 8 of the Act. Finally the applicant’s lawyer submitted that Article 8 of the Prevention of Terrorism Act and the applicant’s conviction thereunder for the expression of opinions on ethnic discrimination in Turkey was in contravention of both the Constitution and internationally recognised principles of law.

On 6 May 1994 the Court of Cassation , finding the Kayseri State Security Court’s assessment of evidence and reasoning in line with the domestic law, upheld the judgment of the first-instance court. The applicant learnt of this decision on 27 June 1994.

Following the amendments made by Law no. 4126 of 27 October 1995 to the Prevention of Terrorism Act, the Kayseri State Security Court ex officio re-examined the applicant’s case. On 28 November 1998 the court confirmed the applicant’s conviction, and ultimately reduced the sentence to 1 year’s imprisonment and a fine of 50,000,000 TRL.             

B. Relevant domestic law and practice

The Prevention of Terrorism Act (Law no. 3713)

The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), has been amended by Law no 4126 of 27 October 1995, which came into force on 30 October 1995. Article 8 reads as follows:

Former Article 8 § 1

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited, irrespective of the methods used and the intention. Any person who engages in such an activity shall be sentenced to not less than two and not more than five years’ imprisonment and a fine of from fifty million to one hundred million Turkish liras.”

New Article 8 § 1

“Written and spoken propaganda, meetings, assemblies and demonstrations aimed at undermining the territorial integrity of the Republic of Turkey or the indivisible unity of the nation are prohibited. Any person who engages in such an activity shall be sentenced to not less than one and not more than three years’ imprisonment and a fine of from one hundred million to three hundred million Turkish liras. The penalty imposed on a re-offender may not be commuted to a fine.”

Law no. 4126 of 27 October 1995 amending Law no. 3713

The Law of 27 October 1995 contains a “transitional provision relating to Article 2” that applies to the amendments which that law makes to the sentencing provisions of Article 8 of Law no. 3713. That transitional provision provides:

“In the month following the entry into force of the present Law, the court which has given judgment shall re-examine the case of a person convicted pursuant to Article 8 of the Prevention of Terrorism Act (Law no. 3713) and, in accordance with the amendment ... to Article 8 of Law no. 3713, shall reconsider the term of imprisonment imposed on that person and decide whether he should be allowed the benefit of Articles 4 and 6 of Law no. 647 of 13 July 1965.”

A full description of the relevant domestic law on the composition of State Security Courts may be found in the Sürek (no.1) v. Turkey, judgment ([GC], no. 26682/95, §§ 23-36, ECHR 1999-IV).

COMPLAINTS

The applicant complains of violations of his rights guaranteed by Articles 6, 7, 9, 10 and 14 of the Convention.

In particular, the applicant maintains that he was denied a fair hearing in breach of Article 6 § 1 of the Convention on account of the presence of a military judge on the bench of the Kayseri State Security Court, which tried and convicted him.

The applicant further submits that Article 8 of the Anti-Terrorism Act was in breach of Article 7 of the Convention in that the former was in contradiction with general principles of international law and the Convention.

The applicant also alleges that the authorities unjustifiably interfered with his freedom of thought and expression guaranteed by Articles 9 and 10 of the Convention, insofar as he was convicted for his speech.

The applicant further maintains under Article 14 of the Convention that he was convicted for his political opinions which were critical of the State’s ideology.

THE LAW

A. Exhaustion of domestic remedies

The Government argue that in the proceedings before the domestic courts, the applicant did not invoke the relevant provisions of the Convention and therefore failed to exhaust the domestic remedies. The applicant contests this argument and claims that he has raised in the domestic proceedings the substance of the complaints he puts before the Court.

In this connection, the Court recalls its established case-law to the effect that the person who has raised in substance before the national courts the complaint he makes before the Convention organs has exhausted domestic remedies. Even where the Convention is directly applicable in a State’s domestic law (as is the case in Turkey), the person concerned may also rely before the domestic courts on “other arguments to the same effect” (see in this respect Arslan v. Turkey judgment of 8 July 1999, § 33; No. 7367/76, Dec. 10.3.77, D.R. 8, p. 185; No. 11425/85, Dec. 5.3.85, D.R. 53, p. 76).

The Court observes that the applicant asserted before the Kayseri State Security Court and the Court of Cassation that his conviction for making a speech in which he expressed his opinions on the Kurdish problem constituted an unjustified interference with his freedom of expression. Furthermore in his petition to the Court of Cassation , the applicant’s representative stated that Article 8 of the Prevention of Terrorism Act, and the applicant’s conviction thereunder for the expression of opinions on ethnic discrimination in Turkey, was in contravention of the internationally recognised principles of law. The Court therefore considers that the applicant raised in substance in the domestic proceedings the complaints he now raises under Article 10.

Consequently, the Court finds that the requirement as to the exhaustion of domestic remedies has been satisfied and that the application cannot be rejected on the basis of Article 35 §§ 1 and 4 of the Convention. Accordingly, it rejects the Government’s preliminary objection.

B. Merits

1. The applicant complained that he had been denied a fair hearing in breach of Article 6 § 1 of the Convention on account of the presence of a military judge on the bench of the Istanbul State Security Court which tried and convicted him. 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 replied that the rules governing the appointment of military judges to the State Security Courts and the guarantees which they enjoyed 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. The applicant next complains that he was convicted on account of an act which did not constitute a criminal offence under international law. In this respect he invokes Article 7 of the Convention, which reads as follows.

“1. 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.              Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence              was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which,              at the time when it  was  committed, was criminal according to the general principles of law recognised              by civilised nations.”

The Government maintain that the applicant was sentenced for disseminating separatist propaganda under Article 8 of the Prevention of Terrorism Act which also regulates the sentences for this offence. They state that as the applicant’s act constituted a criminal offence under national law, the complaint raised under Article 7 of the Convention is manifestly ill-founded. The applicant contends that he was convicted for expressing his opinions, which does not constitute an offence under international law.

The Court recalls that, according to its case-law, Article 7 embodies, inter alia , the principle that only the law can define a crime and prescribe a penalty, as well as the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy (cf. the Başkaya and Okçuoğlu v. Turkey judgment [GC] Nos. 23536/94 and 24408/94, ECHR 1999-IV, 8.7.99, § 36). From these principles it follows that an offence and its sanction must be clearly defined by the law. This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable.

The Court observes that the applicant was charged with disseminating separatist propaganda on account of a speech he had delivered at a meeting and was consequently sentenced pursuant to Article 8 of the Prevention of Terrorism Act which regulates the sentence for this offence. Accordingly, it is clear from the case-file that the applicant’s conviction was based on the domestic law. Moreover, in its Başkaya and Okçuoğlu v. Turkey judgment (cited above, §§ 38 and 39), the Court found that Article 8 of the Prevention of Terrorism Act did not confer an over broad discretion on State Security Courts in interpreting the scope of the offence.

Having regard to the above considerations, the Court concludes that the applicant’s complaint discloses no appearance of a violation of Article 7 of the Convention. On that account it is to be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and  4 of the Convention.

3. The applicant submitted that his conviction pursuant to Article 8 of the Prevention of Terrorism Act breached Articles 9 and 10 of the Convention.

The Court considers that the essence of the applicant’s complaints concerns the alleged interference with his right to express views and opinions, and therefore it should be considered from the standpoint of Article 10 alone (see, among other authorities, the Incal v. Turkey judgment, dated 9 June 1998, Reports of Judgments and Decisions 1998-IV, p.1569, § 60).

Article 10 of the Convention, so far as relevant, 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 …

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 … .”

The Government submit in the first place that the interference with the applicant’s rights under Article 10 of the Convention was prescribed by Article 8 of the Prevention of Terrorism Act. They further maintain that the applicant made his speech in Tunceli , a city where terrorist activities frequently occur. The Government contend that, although the applicant had stated that he was against war, by using the term “war” he had meant the murderous attacks of the PKK and the defensive acts of the security forces. He thus elevated universally condemned acts of terrorism to the level of war and thus implicitly sought to give an international status to the PKK. The Government further contended that the applicant had called for the alleged right to self-determination of the Kurds. In the Government’s view, in the instant case the national courts used their margin of appreciation rightly, as there was a pressing social need in the face of life-threatening terrorism to take such a restrictive measure. The sanction imposed therefore had a legitimate aim, as the act in dispute was a threat to the territorial integrity and the unity of the nation.

The applicant maintains his account of the facts and complaints.

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.

4. Finally, the applicant alleges that he is a victim of discrimination contrary to Article 14 of the Convention read in conjunction with Article 10. Article 14 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 Government refute the allegation that the applicant was discriminated against on account of his political opinions. They submit that the applicant was punished for violating Article 8 of the Prevention of Terrorism Act because of his speech which had a separatist content. The applicant maintains his account of the facts and complaints.

The Court considers, in the light of the parties’ submissions, that this complaint also 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.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant ’s complaints under Articles 6, 10 and 14 of the Convention;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa Registrar President