SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30500/96 by Mustafa YASAR against Turkey

The European Court of Human Rights ( Second Section ) sitting on 1 June 1999 as a Chamber composed of

Mr C. Rozakis, President , Mr M. Fischbach, Mr. G. Bonello,

Mr. R. Türmen,

Mr. P. Lorenzen,

Mr. A.B. Baka,

Mr E. Levits, judges ,

and Mr E. Fribergh, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 January 1996 by Mustafa Yasar against Turkey and registered on 19 March 1996 under file no. 30500/96;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Turkish citizen, born in 1942 in Konya, Turkey. He is a practising lawyer in Ä°zmir.

The applicant is represented before the Court by Mr Güney Dinç and Mr Nevzat Erdemir, both practising lawyers in İzmir.

A . Particular circumstances of the case

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

In 1991 the applicant represented five landlords in a special enforcement procedure for the eviction of tenants renting their building during which the judge agreed to stay the eviction in view of the defendant’s offer of security. The judge dismissed the applicant’s objection to his decision.

On 11 May 1992 one of the applicant’s clients (T.K.) sent the judge a personal telegram stating that his decision was “very arbitrary, unheard of and biased”. The client stated that if the judge did not change his former decision, he would, under Article 573 of the Code of Civil Procedure ( Hukuk Usulu Muhakemeleri Kanunu ), hold him personally liable for any damage which may result.

On 18 May 1992 the applicant and three of his other clients signed a warning letter which they sent to the judge through the intermediary of a public notary. The letter referred to the telegram dated 11 May 1992 as “our telegram” and alleged that the judge’s decisions were “contrary to clear and definite provisions of a Law which needed no interpretation” within the meaning of Article 573 § 2 of the Code of Civil Procedure. The warning letter also referred to Article 574 § 2 of the Code of Civil Procedure which requires that any judge who refuses to accept a petition or to commence proceedings be warned in a notarised warning letter before an action can be initiated against him.

On 22 May 1992 the judge lifted his stay of execution decision. On the same day the defendants were evicted from the building.

On 22 May 1992 the judge lodged a complaint with the Head Office of the Public Prosecutor of İzmir, accusing the applicant and his clients of insulting ( hakaret ) and threatening ( tehdit ) a judge in their telegram and notarised warning letter. The Public Prosecutor eventually brought charges against the applicant under Article 266 § 3 of the Turkish Criminal Code which makes it a criminal offence to insult or threaten a judge in the exercise of his judicial functions.

The first hearing before the 1st Assize Court of Ä°zmir was held on 28 March 1994. On that date, the judge happened to be sitting as a substitute member of the three-judge Assize Court. When it was time for the case in question to be heard, the judge took off his robe, left his seat for another substitute judge who came to replace him and sat in the place designated for complainants. During the hearing the judge was heard in his capacity of complainant. The applicant and his lawyers did not challenge the objectivity of the two other judges who were sitting with the judge prior to the hearing within the time-limit prescribed by Article 24 of the Code of Criminal Procedure. After the hearing, the judge took his seat as the substitute judge of the 1st Assize Court of Ä°zmir for the hearings in the other cases listed for that day.

At a further hearing and in reply to the closing submissions of the Public Prosecutor, the applicant’s lawyers argued that the applicant had not personally co-signed T.K.’s telegram of 11 May 1992 and could not therefore be held liable for its contents. He maintained that he had no intention to insult or threaten the judge, his only purpose being to protect the interests of his clients by requesting that the impugned decision be changed and to remind the judge of his personal liability under Article 573 § 2 of the Code of Civil Procedure if the decision remained unchanged. In their final submissions the applicant’s lawyers referred to the first hearing held on 28 March 1994. In this respect, they complained inter alia , about the fact that the complainant judge who had brought the criminal proceedings against him served as a member of the 1st Assize Court of İzmir in other cases. They argued that in the course of the proceedings the complainant wrongfully tried to influence his colleagues on the bench. Without making a motion for the disqualification of any of the judges (“ hakimin reddi talebi ”), they concluded their observations on this issue with the words “We convey this situation to the Court’s understanding of law and justice”.

On 3 November 1994 the 1st Assize Court of İzmir acquitted the applicant on the charge of threatening the judge. However, it convicted him of insulting the judge contrary to Article 266 § 3 of the Turkish Criminal Code and sentenced him to five months’ imprisonment and a fine of 100,000 Turkish liras. The prison sentence was converted to a fine and suspended. The total fine imposed on the applicant was 833,333 Turkish liras. In its reasoning, the court held that the applicant’s reference to the telegram in the text of the notarised warning letter, with the words “our telegram”, was sufficient evidence to conclude that the applicant had been involved in preparing and sending the telegram. According to the court, the legal terminology used in the telegram indicated that it had not been drafted by a layman, but by a lawyer, namely the applicant. The court furthermore held that “a telegram” was not a method prescribed by law for warning judges. With reference to Article 138 § 2 of the Constitution ( Anayasa ), the court added that a judge could not be addressed in the exercise of his judicial powers in a manner intended to give him instructions. The court concluded, inter alia , that the sending of a notarised warning letter to the judge was not appropriate in the circumstances since the judge had not refrained from accepting petitions or commencing proceedings. One of the three judges on the 1st Assize Court of İzmir dissented on the basis that the applicant could not be held responsible for a telegram which he had not co-signed and that he had not intended to insult the judge.

On 2 December 1994 the applicant’s lawyers appealed to the Court of Cassation ( Yargıtay ). They referred to the opinion of the dissenting judge. In his grounds of appeal the applicant relied on the argument that the trial court did not attach sufficient importance to the fact that immediately before his trial began the complainant judge had been sitting on the bench of that same court. They also requested a hearing before the Court of Cassation.

On 18 May 1995 the Office of the Chief Public Prosecutor of the Court of Cassation submitted in writing its closing opinion to the 4th Chamber of the Court of Cassation for Criminal Matters. The Office of the Chief Public Prosecutor submitted that the applicant’s reference in the text of the notarised warning letter to the words “our telegram” was not sufficient evidence to conclude that the applicant had in fact written the telegram which, moreover, had not been signed by him. The Chief Public Prosecutor advised the Court of Cassation that the applicant’s conviction should be quashed. This written opinion was not served on the applicant.

On 7 July 1995 the 4th Chamber of the Court of Cassation for Criminal Matters rejected the applicant’s request for a hearing and upheld the judgment of the 1st Assize Court of İzmir. It found that the applicant was able to submit and have considered at his trial all evidence in his defence to the charges. The court concluded that the reasoning in the trial court’s judgment was sufficient, consistent and based on a proper evaluation of the evidence.

B . Relevant domestic law

Chapter 3 of the Turkish Code of Criminal Procedure contains provisions governing the disqualification of a judge. Article 24 provides:

“A motion for disqualification on grounds of suspected partiality of a judge may be made at any time before the final decision to open the trial or the accusation is read, and in the event of an appeal the motion to disqualify an appellate judge may be made at any tine before the presentation of the rapporteur’s report in those cases where there is a hearing, and in cases where there is no hearing, the motion may be made at any time before the initiation of the appellate review.

Where the circumstances entitling one to move for disqualification arise subsequent to the aforementioned ones, the motion may be made at any time prior to the final disposition of the case.”

According to Article 25 of the Code:

“A motion for disqualification may be made by a petition to the court or by making a declaration to the clerk of the court having him prepare a formal petition in that respect.

The party seeking the motion is obliged to submit proof of the grounds upon which disqualification is sought and a mere statement of belief is insufficient proof.

The court may require a judge whose disqualification is sought to comment on the particulars which furnish the basis of the motion, and the judge must set forth his conclusions as to the sufficiency of these particulars.”

Article 26 of the Code states, inter alia :

The motion to disqualify a judge is decided by that court of which the challenged judge is a member. However, if the non-participation of the challenged judge results in the court lacking a sufficient quorum and the court is a court of first instance, the Aggravated Felony court in the same jurisdiction shall decide on the matter ...”.

COMPLAINTS

The applicant maintains that he had acted lawfully in the exercise of his professional duties as a lawyer working in the best interests of his clients. His acts could not therefore give rise to a criminal offence under the domestic law of the respondent State. The applicant invokes Article 7 of the Convention in this respect.

The applicant further complains under Article 6 of the Convention that the two judges who found him guilty were influenced by the fact that the complainant judge was their

colleague who had worked with them as a substitute judge in other cases before their court. He also complains with reference to the same provision that the reasoning employed in the judgment of the Assize Court of İzmir was arbitrary. The applicant complains in addition that the appeal proceedings before the Court of Cassation were unfair. He alleges in particular that the closing opinion of the Office of the Chief Public Prosecutor was not communicated to him. Having regard to the fact that the court had refused his request for a hearing, he was denied the opportunity to make submissions in support of the opinion which was favourable to his case. He relies once again on Article 6 of the Convention. The applicant furthermore complains that he was discriminated against in the enjoyment of his right to a fair trial on the ground of the complainant’s status as a judge. He invokes Article 14 of the Convention in conjunction with Article 6. The applicant also invokes Article 17 in support of his complaint.

THE LAW

1. The applicant complains that he was unlawfully convicted of an act which did not constitute a criminal offence under domestic law. He relies on Article 7 of the Convention, which provides as relevant:

“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 ... law at the time when it was committed. ...”

In the applicant’s submission the notarised warning letter which he sent to the judge was a proper exercise of his professional duties and fully compatible with the procedures laid down in the Code of Civil Procedure for putting a judge on notice that legal proceedings may be brought against him on account of decisions which he had taken. An act of this nature could not be construed as a criminal offence since it was a lawful initiative taken in the interests of his clients.

The Court observes that the applicant was charged with threatening and insulting the judge, both offences being clearly defined in the Criminal Code of the respondent State. He was convicted of insulting the judge. The issue before the Assize Court of İzmir was whether the applicant had acted within the framework of the correct procedures in pursuit of a lawful motive. Those were questions to be decided on the basis of the evidence and in the light of the constituent elements of the offences with which the applicant was charged. The Assize Court of İzmir found the offence of insult proved with reference, inter alia, to the highly critical content of the telegram which the applicant’s client, T.K., despatched to the judge on 11 May 1992. The Court is not concerned with the correctness of that decision or the merits of his defence that he had not been associated with that telegram. In the context of a complaint under Article 7 its sole concern is to ascertain whether the offence of which the applicant was convicted was based in law and that he was able to appreciate what acts would make him criminally liable. Having regard to the above considerations, it concludes that the applicant’s grievance discloses no appearance of a violation of Article 7 and on that account it is to be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant alleges that he was denied a fair hearing before the Assize Court of Ä°zmir. He relies on Article 6 of the Convention which provides as relevant:

“1. 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 maintains in the first place that he was convicted by a court which did not comply with the requirements of an impartial tribunal within the meaning of Article 6 § 1. He avers in this connection that the complainant judge was sitting on the bench as a substitute judge immediately before his trial opened and that his presence and acquaintance with the judges who tried him called into question the fairness of the proceedings.

The Court recalls that there are two tests for assessing whether a tribunal is impartial within the meaning of Article 6 § 1: the first consists in seeking to determine the personal conviction of a particular judge in a given case and the second in ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect. The applicant has not maintained that there was any subjective bias on the part of any of the judges sitting on the İzmir Assize Court. Accordingly only the second of those tests is relevant in the instant case. When applied to a court, it means determining whether, quite apart from the personal conduct of any of the members of that court, there are ascertainable facts which may raise doubts as to its impartiality. In this respect even appearances may be of some importance. It follows that when it is being decided whether in a given case there is a legitimate reason to fear that a particular court lacks impartiality, the standpoint of those claiming that it is not impartial is important but not decisive. What is decisive is whether the fear can be held to be objectively justified (see, mutatis mutandis , the Gautrin v. France judgment of 20 May 1998, Reports 1998-III, pp. 1030-31 § 58; the Incal v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1572-73, §§ 71 and 73).

The Court observes that the applicant did not raise any specific objection to the impartiality of the 1st Assize Court of Ä°zmir in the course of the trial. Under Article 24 of the Code of Criminal Procedure (see domestic law above) it was open to the applicant to challenge the impartiality of the bench as constituted to try his case, in particular by putting in issue the fairness of allowing the case to be tried before the judges who had been sitting with the complainant judge before the start of the proceedings. In that event the merits of the challenge would have been determined by another court in accordance with Article 26 of the Code. It would appear that the applicant towards the end of the proceedings when replying to the closing submissions of the Public Prosecutor limited himself to stating that the complainant judge had wrongly tried to influence his colleagues on the bench. However this must be considered an attempt to discredit the conduct of the complainant judge at the trial rather than a direct attack on the impartiality of the judges on the bench.

Having regard to the above, the Court considers that the applicant cannot be said to have exhausted domestic remedies when he had the right under domestic law to challenge the trial court as constituted but refrained from doing so (see, mutatis mutandis , the Bulut v. Austria judgment of 22 February 1996, Reports 1996-II, p. 357, § 34). This conclusion is not affected by the fact that the applicant raised the issue of the court’s impartiality in his grounds of appeal to the Court of Cassation.

Having regard to the above considerations the Court finds that this complaint is inadmissible under Article 35 § 1 of the Convention on account of the applicant’s failure to exhaust domestic remedies.

3. The applicant further complains that the reasons given for his conviction by the 1st Assize Court of Ä°zmir were arbitrary and insufficient to ground his conviction.

The Court observes that the trial court’s decision was reached after an adversarial procedure. That decision addressed the arguments adduced by the applicant in his defence and the adequacy of the reasons given in support thereof was confirmed on appeal by the Court of Cassation. It is not the function of the Court to review the weight attached by the trial court to the evidence submitted to it or to assess whether that court misdirected itself in either fact or law unless errors have been made which might have involved a possible violation of any of the rights and freedoms contained in the Convention or one of its Protocols, for instance in that a judgment has no legal justification and thereby violates a party’s right to receive a fair trial (see, among many other authorities, the De Moor v. Belgium judgment of 23 June 1994, Series A no. 292-A, p. 18, § 5). In the instant case the Court finds that neither of these latter considerations apply.

For these reasons it considers that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

4. The applicant further complains that his right to a fair trial was breached on account of the fact that the Court of Cassation did not make available to him the opinion submitted by the Office of the Public Prosecutor on the merits of his appeal. In his submission the content of that opinion should have led the Court of Cassation to uphold his request for an oral hearing on his grounds of appeal.

The Court recalls that the right to an adversarial procedure is an inherent feature of the right to a fair trial guaranteed by Article 6 § 1 of the Convention. That right means in principle the opportunity for the parties to a criminal or civil trial to have knowledge of and comment on all evidence adduced or observations filed, even by an independent member of the national legal service, with a view to influencing the court’s decision (see, among many other authorities, the Vermeulen v. Belgium judgment of 20 February 1996, Reports of Judgments and Decisions 1996-I, p. 234, § 33). In making its assessment of whether that right has been breached in the circumstances of a particular case, the Court must have regard to the nature of the evidence or observations filed as well as to what is at stake for the applicant. It is to be noted in this respect that the opinion submitted by the Office of the Public Prosecutor was favourable to his appeal. It reinforced the applicant’s own arguments and hence his prospects of success before the Court of Cassation. The fact that the Court of Cassation rejected the appeal does not persuade the Court that the applicant’s right to adversarial proceedings was prejudiced in the circumstances. As to the applicant’s contention that the Court of Cassation should have acceded to his request for an oral hearing in view of the nature of the opinion submitted by the Office of the Public Prosecutor, the Court considers that the Court of Cassation could dispose of the appeal on the basis of the case file alone. The applicant had a full oral hearing before the first instance court and the Court of Cassation could properly evaluate without the need for further argument whether the decision of that court was correct in law. The Court recalls in this respect that provided that there has been a public hearing at first instance, the absence of “public hearings” before a second or third instance may be justified by the special features of the proceedings at issue. Thus, proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, although the appellant was not given an opportunity of being heard in person by the appeal or cassation court (see, mutatis mutandis , the Ekbatani v. Sweden judgment of 26 May 1988, Series A no. 134, p. 14, § 31). In the instant case the applicant’s main contention before the Court of Cassation was that his conduct could not be construed as giving rise to an offence of insult. The Court of Cassation, whose jurisdiction is confined to questions concerning the lawfulness and procedural irregularity of first-instance judgments (see the above-mentioned Incal judgment, p. 1557, § 25), could properly determine that issue on basis of the case-file alone.

For these reasons the Court finds that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

5. The applicant also complains that he was discriminated against in the enjoyment of his right to a fair trial. He invokes Article 14 of the Convention in conjunction with Article 6. Article 14 provides:

“The enjoyment of the rights and freedoms set forth in this 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.”

In the applicant’s submission the status of the complainant, a judge and a member of the bench which tried and convicted him, placed him at a disadvantage in the proceedings. He maintains that on that account he was the victim of discriminatory treatment.

The Court recalls that it has found the applicant’s complaint with respect to the impartiality of the trial court manifestly ill-founded. It considers that the reasoning supporting that conclusion also serves to rebut this allegation. This complaint is accordingly also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

6. The applicant finally complains under Article 17 of the Convention without specifying the nature of the allegation. The Court considers that there is nothing in the case file which discloses an appearance of a violation of this provision. The complaint is therefore also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court by a majority as regards the complaint examined under 2) and unanimously as to the remainder ,

DECLARES THE APPLICATION INADMISSIBLE

Erik Fribergh Christos Rozakis Registrar President