FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30514/96 by Mahmut ALINAK against Turkey

The European Court of Human Rights (First Section), sitting on 17 October 2000 as a Chamber composed of

Mrs E. Palm, President , Mr L. Ferrari Bravo, Mr Gaukur Jörundsson , Mr B. Zupančič , Mr T. Panţîru , Mr R. Maruste , judges , Mr F. Gölcüklü , ad hoc judge , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 19 February 1996 and registered on 19 March 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 is a Turkish national, born in 1952 and living in Ankara. He is represented before the Court by Ms Hülya Sarsam , a lawyer practising in Ankara.

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

A. The circumstances of the case

At the time of the events at issue the applicant was the MP for Şırnak . On an unspecified day he received a letter from Malazgirt , a district of Muş , in which a woman called R.C. alleged that some members of the security forces and the village guards had raped her. The names of these persons were stated in the letter. R.C. also alleged that in her village people were forced to be village guards and the houses of those who refused to be village guards were evacuated.

The applicant confirmed the veracity of R.C.’s allegations, relying on statements made by his friends in Muş and Mr Mehmet Emin Sever, the MP for Muş .

On 20 March 1995 the applicant was hosted on a TV programme where he read out R.C.’s letter without mentioning her name. A State minister was also hosted on the same programme with the applicant which was broadcast by a private TV channel.

The applicant later learned that the security forces had intimidated R.C. and her family.

On 13 July 1995 the State-run TV channels, TRT 1, TRT 2 and TRT GAP broadcast a TV programme which was advertised with the following subtitles: “The Nurettin villagers are furious with Alınak ...The slanders of the liar MP”. The applicant was accused of using a simple villager to slander the security forces, the state and the government. He was presented as “a liar, a traitor and an advocate of violence”. However, in the televised interview with R.C. on the same programme, she stated that the village guards had not raped her.

On 20 July 1995 on a programme which was broadcast by the same channels of the TRT the applicant was again subjected to insults as “the traitor and the enemy of the people”.

The investigation concerning the alleged rape of R.C

On 12 April 1995 R.C. was examined in the Bulanık State Hospital. According to a medical report there was no trace of bruise and no signs of rape on her body. She had no sexual intercourse in the last 12 or 24 hours. She did not suffer from miscarriage and did not lose her fertility.

On 12 April 1995 R.C. , her husband and the village guards of the Nurettin village and on 13 April 1995 the officers from the Malazgirt Konakkuran Gendarme Command gave statements. All these persons stated that the applicant’s allegation of rape had been untrue.

In a letter dated 18 April 1995 the Malazgirt Police Station informed the Malazgirt Police Headquarters that R.C.’s husband was taken into police custody on 20 January 1995 at 18.00 hours and was released on 21 January 1995 at 16.00 hours.

In a letter dated 18 April 1995 the Malazgirt Gendarme Command informed the Malazgirt Public Prosecutor that R.C. and her husband were not taken into police custody between February and March 1995.

On 20 April 1995 the Malazgirt Public Prosecutor decided that no prosecution should be brought ( takipsizlik kararı ) concerning the alleged rape of R.C. In his decision the prosecutor stated that having regard to the statements taken from R.C. , her husband and the officers from the Malazgirt Konakkuran Gendarme Command the applicant’s allegations were unfounded.

Proceedings concerning the applicant’s right to reply

On 17 July 1995 the applicant filed a petition with the TRT (Turkish Radio and Television) Legal Affairs Department concerning the programme broadcast on 13 July 1995. He stated that he was subjected to insults and was defamed on the TV programme. He requested to exercise his right to reply on a live interview.

On 18 July 1995 the TRT rejected that applicant’s request on the grounds that it was not in conformity with the requirements laid down in Article 27 of Law 2954.

On 20 July 1995 the applicant filed an application with the Ankara Magistrate’s Court ( Sulh Ceza Mahkemesi ) concerning the programme broadcast on 13 July 1995. He requested the court to order that his reply be broadcast.

On 27 July 1995 the applicant filed another petition with the TRT concerning the programme broadcast on 20 July 1995 in the same content of his petition of 17 July 1995.

On 1 August 1995 the applicant filed an application with the Ankara Magistrate’s Court concerning the programme broadcast on 20 July 1995. He requested the court to order that his reply be broadcast.

On 11 August 1995 the Ankara Magistrate’s Court rejected the application of 20 July 1995. The court stated that it seemed that the allegations raised by the applicant were discussed objectively on the TV programme and the persons involved in the event at issue were interviewed. It was unlikely that the applicant was defamed. Therefore his application to have his reply be broadcast on TRT was unfounded pursuant to Article 28 of Law 3984.

On 17 August 1995 the Ankara Magistrate’s Court rejected the application dated 1 August 1995. The court relied on the same reasoning in its decision of 11 August 1995.

On 21 August 1995 the applicant filed an objection with the Ankara Criminal Court ( Asliye Ceza Mahkemesi ) against the decision of the Ankara Magistrate’s Court of 11 August 1995.

On 23 August 1995 the Ankara Criminal Court rejected this objection.

On 28 August 1995 the applicant filed an objection with the Ankara Criminal Court against the decision of the Ankara Magistrate’s Court of 17 August 1995. The applicant requested the court that Mehmet Emin Sever be heard as a witness.

On 29 August 1995 the Ankara Criminal Court rejected the applicant’s objection of 28 August 1995. The court decided that the applicant has failed to comply with the time limit laid down in Article 28/4 of Law 3984. The court concluded that the applications regarding the right to reply should be filed in 10 days after the broadcast of the TV programme concerned. The TV programme on which the applicant alleged that he had been defamed was broadcast on 20 July 1995 whereas he filed his application on 1 August 1995.

B. Relevant domestic law

Article 27 of Law 2954 (The Law on the Turkish Radio and Television), as far as relevant, provides as follows:

“In case of defamation or false statements on a TV broadcast; a) after the receipt of a person’s request of reply [against defamation] ... the Turkish Radio and Television is obliged to broadcast the reply in three days. ... c) in case the reply text is not in conformity with the provisions of this law or it concerns a criminal offence ... the Turkish Radio and Television shall reject the request. ... d) the petitioner can file an objection with the Ankara Magistrate’s Court against the decision of the Turkish Radio and Television in two days after having been notified. ... e) the Ankara Magistrate’s Court shall review the reply text and decide whether it concerns a criminal offence or is in conformity with the provisions of this Law ... and whether it was filed within the time limit [provided in this Law] ... . f) the parties can file an objection against this decision with the Ankara Criminal Court in two days after having been notified ... . g) the decision of the Ankara Criminal Court is final ... .

Article 28 of Law 3984 (Law on the Radio and Television Broadcast), as far as relevant, provides as follows:

“Persons claiming to have been defamed or in case there are false statements against them on television broadcasts have the right to initiate legal proceedings. ... The complainant should lodge their application in ten days after the broadcast of the programme [they are complaining of]. The court shall decide in three days. The complainant may file an objection [against this decision] with a superior court in three days. The superior court shall decide in three days. This decision is final. ...”

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment due to the insults and untrue statements made on the various channels of the State television.

2. The applicant complains under Article 6 of the Convention that, as he did not have a fair trial he was denied to exercise his right to reply. He submits that the MP for MuÅŸ , Mehmet Emin Sever was not called as a witness so that he could proof his allegation before the domestic courts.

3. The applicant complains under Article 7 of the Convention that he was convicted in the programmes of the State television in his absence and without a trail.

THE LAW

1. The applicant complains under Article 3 of the Convention that he was subjected to insults on the programmes broadcast by the State television.

The Government submit that the TV programme was produced by the TRT staff. They maintain that the acts of individuals do not fall within the scope of Article 3 of the Convention.

The Court does not consider it necessary to examine whether or not the misconduct of the TRT staff is imputable to the State concerned, since this complaint is manifestly ill-founded on the following grounds.

The Court recalls that, to fall within the scope of Article 3 of the Convention, the alleged treatment must attain a minimum level of severity (see, the Ireland v. United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162).

The Court observes that the domestic courts held that the applicant was not defamed on the television programmes. In fact, the Court notes that the issues discussed on the television programmes concerned were part of a public discussion, as to what happened in a specific incident. The Court, therefore, is of the opinion that the alleged defamation does not attain the requisite minimum level of severity.

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

2. The applicant complains that, as he did not have a fair trial he was denied to exercise his right to reply. He alleges that the MP for MuÅŸ , Mehmet Emin Sever was not called as a witness who could prove his allegations. The applicant invokes Article 6 of the Convention.

The Government submit that under Turkish law the proceedings concerning the right to reply expose special features. The courts cannot hear witnesses in such proceedings. They rather evaluate the nature of the broadcast and decide whether or not the petitioner can exercise his right to reply.

The Government further submit that the right to reply does not fall within the scope of Article 6 since the right at issue cannot be considered as a “civil right” within the meaning of Article 6 of the Convention.

The Court does not consider it necessary to examine whether the right to reply can be considered as a civil right within the meaning of Article 6 of the Convention since this complaint is inadmissible on the following grounds.

The Court notes that the application of the rule of exhaustion of domestic remedies must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, Article 35 of the Convention must be applied with some degree of flexibility and without excessive formalism and that it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge decisions already given. It normally requires also that the complaints intended to be made subsequently at Strasbourg should have been made to those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34; the Akdivar v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1204-1205, § 65).

In the instant case the Court observes that, in the domestic proceedings, the applicant requested to call the MP for MuÅŸ , Mehmet Emin Sever as a witness only in his application of 28 August 1995. The Court notes that the Ankara Criminal Court rejected this application on 29 August 1995, as it was lodged out of time.

The Court, therefore, concludes that the applicant has failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention.

3. The applicant complains that he was convicted in the programmes of the State television in his absence and without a trial. He invokes Article 7 of the Convention

The Government make no submission on this complaint.

The applicant maintains his account of events.

The Court observes that in the instant case the applicant was neither prosecuted nor convicted.

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

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Michael O’Boyle Elisabeth Palm Registrar President