THIRD SECTION

CASE OF D Ü ZG Ö REN v. TURKEY

( Application no. 56827/00 )

JUDGMENT

STRASBOURG

9 November 2006

FINAL

09/02/2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Düzgö ren v. Turkey ,

The European Court of Human Rights ( Third Section ), sitting as a Chamber composed of:

Mr B.M. Zupančič , President , Mr J. Hedigan , Mr R. Türmen , Mr C. Bîrsan , Mr E. Myjer , Mr David Thór Björgvinsson , Mrs I. Ziemele, judges , and Mr V. Berger , Section Registrar ,

Having deliberated in private on 19 October 2006 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 56827/00) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Koray Düzgö ren (“the applicant”), on 15 October 1999 .

2 . The applicant was represented by Ms A. J. Stock, Mr M. Muller, Mr T. Otty and Ms J. Gordon of the Kurdish Human Rights Project in London . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

3 . On 28 September 2004 the Court (Second Section) declared the application partly inadmissible and decided to communicate the complaint concerning the alleged lack of independence and impartiality of the military court, the alleged interference with the applicant ' s right to freedom of expression and the alleged lack of an effective remedy to the Government. Und er Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1947 and lives in London .

5 . On 1 April 1998 the applicant, who is a journalist, distributed a leaflet concerning the conscientious objector Mr O.M.U, outside the Ankara State Security Court . He also handed the leaflet to the public prosecutor at the Ankara State Security Court together with a petition stating that he should be prosecuted for having committed a crime.

6 . The leaflet, entitled “ Freedom to think - an initiative against the crime of thought ” contained the press release issued by O. M. U on 1 September 1995 . The latter had been previously convicted and sentenced on account of this press release. The relevant parts of the leaflet are as follows:

Preface and Epilogue:

“ ... For the purpose of defending the free expression of every kind of thought , we who have signed as publishers, convey this ' convicted ' text to the people, regardless of its contents and the question whether or not we share its contents, even though some of us do not agree with some lines in it ... '

The p ress release of O. M. U:

“Good morning , Today ' s press conference is not organised by the Izmir Association of the Opponents of War . The responsibility for this conference rests exclusively with me. As you know, the case , which was brought before the Ankara Military Court of the Office of the Chief of Staff where I was allegedly accused of committing the crime of ' inciting others to evade military service ' , was concluded on 29 August.

...

The army, unable to deal with us through judicial methods, think that they can draw the opponents of war away from the public view. First of all , I am not a deserter; I am a ' conscientious objector ' . I neither intend to d o military service nor desert. There is no reason to desert, because I defend the principle that people should exercise their right not to do military service without having to go into hiding.

As to the papers given by the Recruitment Office ... I am going to burn them right now before your eyes ...

I am not a soldier and I never will be. Of course, I am aware that I will be summoned for military service , but until I am summoned , whenever that may be there will be no changes to my life style. They can find me here and take me by force. But I will resist to the end in the barracks , and I am underlining that I will refuse to do military service in any shape or fashion .”

7 . On 1 April 1998 the public prosecutor at the Ankara State Security Court took the applicant ' s statement in which the applicant reiterated the content of his petition. He maintained that , by publishing and distributing the above-mentioned leaflet , he had committed the same offence for which O. M. U. had been convicted . He contended that he agreed with the contents of the leaflet. He further pointed out that there were judgments of the European Court of Human Rights which referred to conscientious objectors. He claimed that the leaflet was not intended to dissuade people from doing military service or to incite them to desert . He further stated that in the Netherlands conscientious objectors did not do their military service , but were given other jobs. He commented that maybe in the future the sa me would also be true for Turkey . He concluded that his aim was to obtain the abolition of compulsory military service in Turkey .

8 . On 4 June 1998 the m ilitary public prosecutor at the General Staff Court in Ankara filed a bill of indictment, accusing the applicant of inciting others to evade military service . He requested that the applicant be convicted and sentenced under Article 155 of the Criminal Code and Article 58 of the Military Penal Code.

9 . On an unspecified date, the criminal proceedings against the applicant commenced before the General Staff Court in Ankara . During the proceedings the applicant reiterated his previous submissions. In particular, he claimed that he was a defender of freedom of expression and challenged the independence and impartiality of the court.

10 . On 9 March 1999 the court convicted the applicant as charged and sentenced him to two months ' imprisonment and to a fine of 1,520,000 Turkish Liras (TL) ( approximately 3.5 Euros (EUR) at the time of the events ) . In its reasoning, the court held that it had competence to deal with the case pursuant to the Constitution and domestic law and that there w as no ruling of the European Court of Human Rights which had concluded that military courts were extraordinary courts. As regards the merits, the court considered that, by distributing the leaflet containing the press release which led to O. M. U ' s conviction and by handing the leaflet to the pu blic prosecutor and asking the latter to take legal action, the applicant ' s actions were deliberate and that he had committed the offence knowingly and willingly. The court , relying on Articles 25 and 26 of the Constitution, Article 10 § 2 of the European Convention on Human Rights and Article 29 § 2 of the Universal Declaration of Human Rights , affirmed that freedom of expression and the free dissemination of ideas was not an absolute right. Citing relevant a rticles of the Criminal Code, it reasoned that the provisions under which the applicant was charged pursued the aim of eliminating threats to the unity of the country, national security and sovereignty . The court observed that Article 155 of the Criminal C ode was in accordance with international law and that the applicant ' s case fell within the scope of Article 155 of the Criminal Code.

11 . On 19 April 1999 the applicant appealed to the Military Court of Cassation. In his appeal, the applicant , relying on Articles 6 and 10 of the European Convention on Human Rights , contended that he should not have been tried by a military court and that the act which he had committed could not be considered to be an offence.

12 . On 25 May 1999 the Military Court of Cassation upheld the decision of the General Staff Court . In its decision the court, referring to domestic law and the jurisprudence of the Court, held that the military courts had jurisdiction and competence to try the applicant and, after having assessed the contents of the leaflet , concluded that the judgment given by the General Staff Court was in accordance with the law.

13 . On 17 July 1999 the applicant left Turkey in order to avoid imprisonment.

II. THE RELEVANT DOMESTIC LAW

14 . The relevant domestic law and practice in force at the material time are outlined in the following judgment: Ergin v. Turkey (no. 6) , no. 47533/99, §§ 15-18, 4 May 2006 .

15 . Following the amendment introduced on 30 July 2003 by section 6 of Law no. 4963, section 11 of the Constitution of Military Courts Act now reads:

“ ... Military courts shall not try civilians charged with committing the crimes and lesser offences referred to in Article 58 of the Military Penal Code in time of peace.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

16 . The applicant complained that the General Staff Court which tried him could not be regarded as an independent and impartial tribunal, given that it was composed of two military judges and an officer, all of whom were bound by the orders and instructions of the Military o f Defence and the general staff which appointed them. In that connection he submitted that , as a civilian , he should not have been tried in a military court. The applicant relied on Article 6 § 1 of the Convention, which in so fa r as relevant reads as follows:

“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.”

A. Admissibility

17 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

18 . The Government submitted that only in exceptional circumstances was a civilian tried in a military court in Turkey . On that point, they maintained that the applicant was only tried before a military court because he was charged with an offence co ncerning the military service. The Government further maintained that the domestic law provided necessary safeguards to guarantee the independence and impartiality of military courts. Finally, the Government pointed out that with the adoption of Law no. 4963 Turkish legislation ha d been amended to bring it into line with the Convention.

19 . The applicant maintained his allegations.

20 . The Court notes that it has already examined the same grievance in the past and has found a violation of Article 6 § 1 of the Convention in its Ergin (no. 6) judgment (cited above, § 54 ). In tha t judgment, the Court held that it was understandable that the applicant, a civilian standing trial before a court composed exclusively of military officers, charged with offences relating to propaganda against military service, should have been apprehensive about appearing before judges belonging to the army, which could be identified with a party to the proceedings. On that account the applicant could legitimately fear that the General Staff Court might allow itself to be unduly influenced by partial considerations. Consequently, the applicant ' s doubts about that court ' s independence and impartiality may be regarded as objectively justified ( ibid ).

21 . The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned case.

22 . There has therefore been a violation of A rticle 6 § 1 of the Convention.

II . ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

23 . The applicant complained that his criminal conviction and sentence for producing and distributing a leaflet had infringed his right to freedom of expression as guaranteed by 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.”

A. Admissibility

24 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

25 . The Court notes that it is clear and undisputed between the parties that there has been an interference with the applicant ' s right to freedom of expression on account of his conviction and sentence under Article 155 of the Criminal Code. It further considers that the interference was prescribed by law and pursued a legitimate aim, namely the prevention of disorder (see Ergin (no. 6) , cited above, § 28). The Court will therefore confine its examination of the case to the question whether the interference was “necessary in a democratic society”.

26 . The Government maintained that compulsory military service in Turkey was necessary in order to protect national and public security. They stated that any action taken against this obligation prescribed by law would amount to a provocation to disobey the law. In this connection, they noted that the applicant , by distributing the leaflet concerning the conscientious objector O.M .U in a public area , committed the offence of inciting others to evade military service.

27 . The applicant refuted the Government ' s arguments. In particular, he asserted that the dissemination of information by way of a leaflet was a peaceful and democratic way to disseminate information and opinions.

28 . The Court reiterates the basic principles laid down in its judgments concerning Article 10 (see , in particular, Åžener v. Turkey , no. 26680/95, §§ 39-42, 18 July 2000 ; Öztürk v. Turkey [GC], no. 22479/93, § 64, ECHR 1999-VI ; and Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 199 9 ‑ I ). It will examine the present case in the light of these principles.

29 . The Court must look at the impugned interference in the light of the case as a whole, including the content of the leaflet and the context in which it was diffused. In particular, it must determine whether the interference in question was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Koç and Tambaş v. Turkey , no. 50934/99, § 36 , 21 March 2006 ) . Furthermore, the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the interference (see Skałka v. Poland , no. 43425/98, § 42, 27 May 2003 ).

30 . The Court observes that, in the instant case, the applicant was convicted for having distributed a leaflet which contained , in particular , the press statem ent of O.M. U , a conscientious objector, giving the reasons why the latter refused to do his compulsory military service. The General Staff Court considered that , by distributing this leaflet , the applicant had incited others to evade military service .

31 . The Court has examined the cont ents of the leaflet in question. It considers that, although the words used in the impugned article give it a connotation hostile to military service, they do not encourage violence, armed resistance or insurrection and do not constitute hate speech (see Ergin (no. 6) , cited above, § 34; contrast Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999-IV ; and Gerger v. Turkey [GC], no. 24919/94, § 50, 8 July 1999). In addition, the context in which the opinions were expressed can be distinguished, as regards their potential impact, from that of the Arrowsmith case, in which the applicant, a pacifist activist, had distributed a leaflet inciting servicemen to desert at a military camp occupied by troops who were shortly to be posted to Northern Ireland ( see Arrowsmith v. the United Kingdom , no. 7050/75, Commission ' s report of 12 October 1978, Decisions and Reports (DR) 19, p. 5 ). In the present case the offending leaflet was distributed in a public place in Istanbul . It did not seek, either in its form or in its content, to p recipitate immediate desertion. In the Court ' s view, these are the essential factors in the assessment of the necessity of the measure.

32 . Finally, the Court considers the applicant ' s sentencing, in particular the two months ' imprisonment , a harsh penalty.

33 . Against this background, the Court considers that the reasons given by the General Staff Court , although relevant, cannot be considered sufficient to justify the interference with his right to freedom of expression.

34 . Having regard to the above considerat ions, the Court concludes that the applicant ' s conviction and sentence was disproportionate to the aims pursued and therefore not “necessary in a democratic society”. Accordingly, there has been a violation o f Article 10 of the Convention.

III . ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

35 . The applicant complained that he had been denied an effective remedy in respect of his grievances within the meaning of Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

36 . The Court reiterates that a remedy under Article 13 of the Convention does not mean a remedy bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of the complaint (see the Islamic Republic of Iran Shipping Lines v. Turkey (dec.), no. 40998/98, 10 April 2003 ) . In the instant case, the Court is satisfied that the domestic courts reviewed the admissibility of the applicant ' s complaints to a sufficient degree to provide him an effective remedy for the purposes of Article 13 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION

37 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

38 . The applicant claim ed 60,000 U nited States dollars (USD) (approximately EUR 46,207 ) in respect of pecuniary damage. He submitted that this amount represented his yearly wage at Channel 8 before he was dismissed following his conviction. He further claimed EUR 5,000 in re spect of non ‑ pecuniary damages.

39 . The Go vernment contested the amounts.

40 . The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 2,000 in respect of non ‑ pecuniary damage.

41 . The Court considers that where an individual, as in the instant case, has been convicted by a court which did not meet the Convention requirements of independence and impartiality, a retrial or a reopening of the case, if requested, represents, in principle an appropriate way of redressing the violation (see Öcalan v. Turkey , no. 46221/99 [GC], § 210, in fine , ECHR 2005 - ...).

B. Costs and expenses

42 . The applicant also claimed 7,520 pounds sterling (GBP) (approximately EUR 10,750 ) for fees and costs incurred by his lawyers and the Kurdish Human Rights Project (KHRP) in assisting with the application.

43 . The G overnment contested the amount.

44 . The Court may make an award in respect of costs and expenses in so far as these were actually and necessarily incurred and were reasonable as to quantum (see, for example, Sawicka v. Poland , no. 37645/97, § 54, 1 October 2002). Making its own estimate based on the information available, and having regard to the criteria laid down in its case-law (see, in particular , Ergin (no. 6) , cited above, § 64 ), the Court awards the applicant EUR 1,500 for the costs and expenses claimed .

C. Default interest

45 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint regarding the lack of independence and imp artiality of the military court and the alleged interference with the applicant ' s right to freedom of expression admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3 . Holds that there has been a violation of Article 10 of the Convention;

4 . Holds

(a) that the respondent State is to pay the applicant , within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention the following sums to be converted into pounds sterling at the rate applicable at the date of settlement and to be paid into the bank account identified by the applicant in the United Kingdom:

i . EUR 2,000 ( two thousand euros) in respect of non-pecuniary damage ;

ii. EUR 1,500 (one thousand and five hundred euros) for costs and expenses ;

iii. any tax that may be chargeable on the above amounts ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall b e payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5 . Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 9 November 2006 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Vincent Berger Boštjan M. Zupančič Registrar President