THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29851/96 by Mehdi ZANA against Turkey

The European Court of Human Rights (Third Section) , sitting on 19 September 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr P. Kūris, Mrs F. Tulkens, Mr K. Jungwiert, Mr K. Traja, judges , Mr F. Gölcüklü, ad hoc judge,

and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 1 September 1995 and registered on 19 January 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 1940 and living in Diyarbakır . He is represented before the Court by Mr Sezgin 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.

On 28 June 1992 the applicant participated in a meeting organised by a political party, the People’s Labour Party ( Halkın Emek Partisi , HEP ), in Bursa . At this meeting he made a speech in Kurdish language on the Kurdish question. This speech was translated to Turkish from Kurdish. The applicant alleges to have said, inter alia , the following:

“ … Ben her zaman diyorum, ÅŸimdi yine söylüyorum, biz hiç bir milletin düşmanı deÄŸiliz, hiç bir milletin kötülüğünü de istemiyoruz. Ama biz davamız için ölmesini biliriz ve ölürüz de. Onlar merak etmesinler, dünyada tüm Kürtler kurtuluÅŸun ve serbestliÄŸin deÄŸerini bilirler. Çünkü tüm Kürtler zindanı, zulmü ve yanmayı bilirler. Görüyorlar, çünkü onlar zulümleriyle, ölümleriyle, zindanlarda kalmalarıyla yine de ayakta kalmayı bilmiÅŸler. Onlar bunun hesabını yapamıyorlar, yüzyıllardır bizi öldürüyorlar Ä°ran’da, Irak’da ve Türkiye’de. Ama biz bitmiyoruz ve bitmeyiz de. Ve lakin kurtuluÅŸ günü gözükmektedir. Gün daÄŸlardan gözükmektedir. Ey Kürtler el ele verin, her gün ÅŸehit de verebilirsiniz. KardeÅŸlerim size yakında olan bir ÅŸeyi söyleyeyim. Bu hükümet 8 ay önce 12 Eylül’den bahsediyordu, diyorlardı ki, bunlar zulüm yaptı ama biz insafiyete ve demokrasiye geleceÄŸiz ve kardeÅŸliÄŸi getireceÄŸiz. Ama arkadaÅŸlarım siz onların demokrasisini görüyorsunuz onlar faÅŸizmi istiyorlar. FaÅŸizm dahi bu kurnazlığı yapmadı. FaÅŸizm yaptıklarını aleni yapıyordu. Ama bugün insanlık ve demokrasi adına gidip Kürdistan’da kan döküyorlar. Ama bizi hapsetsinler, öldürsünler biz ölürüz. Ve onlardan biri de benim. Ellerinden ne geliyorsa yapmasalar namerttirler ama biz davamızı bırakmayacağız. Kürtler davalarına kavuÅŸana kadar bu davayı sürdüreceÄŸiz. Diyarbakır’ın Silvan ilçesinde bundan 6 ay önce bizim bir arkadaşımızı zalim bir jandarma yakalıyor, diyor ki ulan biz sizi artık hapisaneye atmayacağız, artık sizleri içerde beslemeyeceÄŸiz ve birkaç kiÅŸinin ismini verip, biz bunları teker teker yakalayıp öldüreceÄŸiz, ÅŸimdi buradan git hepinizi öldüreceÄŸiz bunu bilmiÅŸ ol. Yine bizim orada hizbullah adıyla ki hizbullah örgütüyle hiç alakası yok, bunlar o adla timlerini, polislerini eÄŸitip arkadaÅŸlarımızı öldürüyorlar ki geçen akÅŸam Silvan’da 70 yaşında ihtiyarı da öldürdüler. Çünkü o ihtiyar o gün demiÅŸ ki, bunlar biz Kürtlere zulüm ediyorlar artık yeter, Allah bile zulme tahammül etmemiÅŸ, diyen bu adamı timler öldürdüler ve bunlar demokrasinin gölgesi altında köşelerde, karanlıklarda insanları katlediyorlar, Kürdistan’da bacılarımız, kardeÅŸlerimiz imdat, imdat diye haykırıyorlar ama parlementodan hiçbir ses çıkmıyor. Ama onlar merak etmesinler biz bu zulmü durduracağız, kendimiz öldürtmek pahasıyla. Ben Kürdistan adına yemin ediyorum eÄŸer onlar teÅŸhir etmezse yapanları o zaman biz başımızın çaresine bakmasını biliriz. Dünyada en kötü ÅŸey o ki milletlerin hakkında düşünüp karar vermektir. Biz ve Türkler 70 yıldır kardeÅŸtik bu mu kardeÅŸlik, bu mu arkadaÅŸlar, bunlar bizimle kardeÅŸlik yapmıyor, bizleri kabul etmiyorlar. Ben ÅŸimdiden söylüyorum ki, her konuÅŸmamda söylemiÅŸimdir, ben onların hakkında kötü düşünmüyorum. Onlar bizi istemiyorsa da biz davamızı sürdüreceÄŸiz, ta ki davamızı kazanana kadar. Ben sizlerin vaktinizi almak istemiyorum. Zaten kendim de hastayım. Fakat sizden ricam budur, hiç bir zaman milletler hakkında kin gütmeyin, ama kol kola verip bu insanlarımızı sömürgecilikten, zindanlardan, katliamlardan kurtarınız. Herkes, her tabaka kendisi kadar, kendi çapında uÄŸraÅŸsın, çaba sarfetsin, sizler Bursa†”

“... I always say, I say it again now. We are not the enemy of any nation. We don’t want the badness of any nation either. We know how to die for our cause and we do even die. They should not worry. The Kurds know the value of the independence and the liberty. Because, all Kurds know the prison, oppression and to be burned. They see, because they knew to remain standing despite the oppressions, deaths and the imprisonment. They are unable to calculate this. They have been killing us for centuries in Iran, Iraq and Turkey. We are not finished and we will not be finished. However, Independence Day is seen. That day can be seen from the mountains. O Kurds! Join hands, give a martyr everyday. I will tell you something which happened recently. This Government was mentioning the 12 September [1980 military take over, coup d’etat ] eight months ago. They said that they would pardon and bring the democracy and brotherhood. But, my friends! you see their democracy! they want fascism. Even the fascism was not that clever. The fascism did [everything] openly. They are shedding blood in the name of humanity and democracy. Let them imprison us, kill us! we die. And I’m one of those. If they do not do whatever they can, then they are cowards ( namert ). We will not give up our cause. We will maintain our cause until we achieve it. A cruel gendarme caught a friend of ours in the Silvan district of Diyarbakır six months ago. He said, ‘we will no longer imprison you and feed you inside.’ [The gendarme] mentioned some names and told to [our friend] that [those people whose names he had mentioned] would be killed one by one. The gendarme asked him to go away telling him that they would kill us all. They train special police teams and kill our friends using the name of the Hizbullah . Last night they killed a man at the age of 70. Because, the old man said ‘That’s enough! These are oppressing us, the Kurds. Even the God could not stand this oppression.’ They are massacring people in the shadow of democracy, at the corners, in the shades. Our sisters and brothers in Kurdistan are crying for help, but there is no voice from the parliament. [The Kurdish people] should not worry. We are going to stop this oppression. We are going to get our rights with our fists. I call them from here. If the present government does not say ‘stop’ to this oppression, we are going to stop it at the price of getting killed. I swear on behalf of Kurdistan . If they do not identify the perpetrators of [the oppression], we know how to take care of ourselves. The worst thing in the world is to take a decision about nations. We had been brothers with Turks for 70 years. Is that brotherhood friends? They do not behave as brothers; they do not accept us. I say it now and I said it in all my speeches, I still do not think badly about them (the Turks). If they do not want us, we will maintain our cause until we achieve it. I do not want to take your time. I am already ill. I request you not to bear a grudge about nations, but get arm in arm and save our people from colonialism, prisons and massacres. Everybody, [every social class] should make efforts as much as they can. Let’s [stop] this oppression by getting arm in arm with our leftist brothers in Bursa . We have taken an oath not to withdraw, even if a single warrior remains. Mountain, desert, plateau and Kurds do not want slavery. We Kurds are the greatest and we do not want anybody’s slavery. The day is ours. Kurdistan is seen on the horizon. We are in favour of a solution. There is no need to be stubborn. I call on the stone-headed administrators. I say, ‘you cannot solve this problem by killing and massacring people. Get together and solve this problem. Otherwise, more blood will be shed, not only from one side, but also from both sides. We want neither Kurdish young people nor Turkish soldiers to die. We want the shed of blood to be stopped. We called for it many times and I’m calling for it again. There cannot be a democracy in Turkey unless a democratic and political solution is found to the Kurdish problem. We suggest that a ballot box be put for a referendum and that the Kurdish people be asked what they want for a solution to their problem. [If this is done], we believe that a necessary step can be taken, Kurdish young people, Turkish soldiers and Kurdish guerrillas do not die and therefore people can live in peace and set up the democratic order with friendship...”   

The Chief Public Prosecutor at the Istanbul State Security Court instituted criminal proceedings against the applicant charging him with disseminating separatist propaganda against the indivisibility of the State on account of the above speech. The charges were brought under section 8 § 1 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act”).

In the proceedings before the Istanbul State Security Court, the applicant denied the charges and requested his acquittal. He asserted that he had made this speech because he felt responsible for the Kurdish problem.

In a judgment dated 14 April 1994, the Istanbul State Security Court found the applicant guilty of an offence under section 8 § 1 of the 1991 Act. It sentenced the applicant to 2 years’ imprisonment and a fine of 100,000,000 Turkish Liras (TRL). The court held that the following phrases in the applicant’s speech contravened section 8 of the 1991 Act:

“.... We know how to die for our cause and we do even die...O Kurds! join hands, give a martyr every day... we will maintain our cause until we achieve it... we are going to stop this oppression and we are going to get our rights with our fists...if the present Government does not say ‘stop’ to this oppression, we are going to stop it... we have taken an oath not to withdraw, even if only a single warrior remains... Kurdistan is seen on the horizon...”

The Istanbul State Security Court considered that the incriminated speech, taken as a whole, amounted to propaganda, including violence, against the indivisible integrity of the State. The court found that the applicant had alleged that the State was guilty of oppression and had inflicted torture. It held that this allegation constituted a clear and present danger since the applicant had given incorrect information about the incidents and the practices in the south-east. The applicant appealed against his conviction.

On 31 January 1995 the Court of Cassation upheld the Istanbul State Security Court’s judgment. The applicant learned of this decision in July 1995 while he was in prison.

Following the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act, the Istanbul State Security Court ex officio re-examined the applicant’s case. On 16 February 1996 the court confirmed the applicant’s conviction, but reduced the sentence imposed on the applicant. It finally sentenced the applicant to 1 year’s imprisonment and a fine of 100,000,000 TRL. The applicant appealed.

On 12 January 1998 the Court of Cassation dismissed the applicant’s appeal, upholding the State Security Court’s reasoning and its assessment of the evidence.

B. Relevant domestic law and practice

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

COMPLAINTS

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

In particular, 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.

The applicant alleged that the authorities had unjustifiably interfered with his rights to freedom of thought and expression guaranteed by Articles 9 and 10 of the Convention, in so far as he had been convicted for his speech concerning the Kurdish problem in Turkey.

TH E LAW

A. Government’s preliminary objection

The Government submitted that the final ruling in respect of the applicant’s conviction had been given by the Court of Cassation on 31 January 1995 and that the application had been introduced with the Commission on 15 September 1995. They contended that the applicant should have learned of the Court of Cassation’s decision immediately and lodged his application within the six months’ time limit since he had been represented by a lawyer in the criminal proceedings against him. In this regard, the Government alleged that the applicant had failed to comply with the six-month rule as required under Article 35 § 1 of the Convention and, on that account, his application should be declared inadmissible.

The applicant highlighted the footnote in the Court of Cassation’s judgment of 31 January 1995 which stated that the decision had been read out in the absence of the accused and their representative. He contended that the judgment concerned had become final on 9 March 1995 and that it had never been served on him. He submitted therefore that he must be considered to have complied with the six-month rule since he had lodged his application on 1 September 1995 and, on that account, the Government’s preliminary objection should be dismissed.

The Court notes that the Istanbul State Security Court convicted the applicant, under section 8 § 1 of the 1991 Act, of separatist propaganda and this judgment was upheld by the Court of Cassation on 31 January 1995. Following the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act, the Istanbul State Security Court ex officio re-examined the applicant’s case on the merits and on 16 February 1996 confirmed its previous judgment convicting the applicant. The Court of Cassation upheld this judgment on 12 January 1998, long after the applicant had lodged his application with the Commission.

In the Court’s opinion, the Court of Cassation’s judgment of 12 January 1998 constitutes the final decision in domestic law within the meaning of Article 35 § 1 of the Convention. The Court concludes therefore that the Government’s preliminary objection must be dismissed.

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 applicant referred to the findings of the Court in its Incal v. Turkey judgment of 9 June 1998 ( Reports of Judgments and Decisions 1998-IV, p. 1547) and alleged that he had not been tried by an independent and impartial tribunal, in violation of Article 6 § 1 of the Convention.

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 the above complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of their 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 submitted that his conviction pursuant to section 8 § 1 of the 1991 Act had breached Articles 9 and 10 of the Convention.

The Court considers however that this complaint should be considered from the standpoint of Article 10 alone (see, among other authorities, the above-mentioned Incal v. Turkey judgment, p. 1569, § 60), which provides, so far as relevant, 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. …

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 applicant alleged that his conviction and sentence unjust ifiably interfered with his right to freedom of expression. He submitted that h e had been an activist since the 1960s and had struggled for the social, political and cultural rights of the Kurds and, on that account, he had been imprisoned for years. He had always spoken out against violence throughout his life. Had the incriminated speech been examined as a whole, it would be understood that he had neither incited to hatred nor to enmity. He had given peaceful messages in his speech and suggested that a democratic and political solution be found to the Kurdish problem.

The Government contested the applicant’s submissions. They submitted that the interference with the applicant’s freedom of expression had been prescribed by section 8 § 1 of the 1991 Act and aimed at maintaining national security, public safety and the territorial integrity of the State.

In the Government’s opinion, the interference was necessary in a democratic society. Since the 1980s the PKK has been carrying out terrorist activities with a view to securing a part of the Turkish territory for a proclaimed Kurdish State. The applicant, a very well-known person throughout the country, made a speech at a time when the PKK had been escalating its terrorist activities. His speech exceeded the limits of permissible criticism and amounted to propaganda aimed at destroying the territorial integrity of the State. His speech was of an inflammatory nature and might exacerbate an already explosive situation in south-east Turkey. In the Government’s view, separatist propaganda inevitably incites people to violence and provokes them to take action against the State, thus endangering public order and the territorial integrity of Turkey. The me asures taken against the applicant were therefore within the authorities’ margin of appreciation in relation to the type of activity which endangers the vital interests of the State and were justified under paragraph 2 of Article 10 of the Convention.

The Court notes that it has not been disputed that there has been an interference with the applicant’s right to freedom of expression and that the interference at issue was prescribed by law, namely section 8 § 1 of the 1991 Act. Nor is it in dispute that the aim of the interference fell within certain of the legitimate aims set out in Article 10 § 2 of the Convention, namely the maintenance of  “national security” and “public safety”. The Court sees no reason to reach contrary conclusions on these points. It will accordingly confine itself to examining whether the interference complied with the requirement of necessity.

The Court recalls in this latter connection the basic principles derived from its case law under Article 10 (in respect of which see, among many other authorities, the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 25, § 52, and more recently the  above-mentioned Sürek (No.1) v. Turkey judgment, § 58).

The Court notes that the applicant, a political personality, made the impugned remarks in a speech to members of a pro-Kurdish political party. At the material time serious disturbances were taking place in south-east Turkey between the security forces and the PKK. In his address to the gathering the applicant made the following statements:

“.... We know how to die for our cause and we do even die...O Kurds! join hands, give a martyr every day... we will maintain our cause until we achieve it... we are going to stop this oppression and we are going to get our rights with our fists...if the present Government does not say ‘stop’ to this oppression, we are going to stop it... we have taken an oath not to withdraw, even if only a single warrior remains... Kurdistan is seen on the horizon...”

In the Court’s opinion,  these particular remarks can be reasonably construed as an incitement to violence or hatred or an encouragement to armed resistance. The applicant maintains that the overall speech was balanced in tone and contained an appeal to bring an end to the conflict in south-east Turkey by peaceful means. The Court does not accept that submission. Having regard to its own assessment of the speech, the Court considers that the dominant theme is the justification of violence in the face of the alleged oppressive policies being pursued in the region by the respondent State. In any event, the Court considers that an ambiguous or contradictory speech by an influential politician carries with it its own dangers in view of the sensitivity of the security situation in south-east Turkey and the particularly bloody stage reached in the conflict at the material time.

It is in this perspective that the Court finds that the reasons adduced by the authorities of the respondent State for the applicant’s conviction are both relevant and sufficient to justify an interference with his right to freedom of expression. The Court reiterates that the mere fact that information or ideas offend, shock or disturb does not suffice to justify an interference with that right. However, what is in issue in the instant case is incitement to violence.

In view of the above considerations, the Court concludes that the penalty imposed on the applicant could reasonably be regarded as answering a “pressing social need”.

For these reasons and having regard to the margin of appreciation which national authorities have in such a case, the Court considers that the interference at issue was proportionate to the legitimate aims pursued.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant ’s complaint under Article 6 § 1 of the Convention [Note1] that he was denied a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa Registrar President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.