SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40498/98 
by Murat KILIÇ 
against Turkey

The European Court of Human Rights (Second Section), sitting on 16 March 2000 as a Chamber composed of

Mr C.L. Rozakis, President
 Mr M. Fischbach, 
 Mr B. Conforti, 
 Mr G. Bonello, 
 Mr R. Türmen,

Mrs V. Strážnická, 
 Mrs M. Tsatsa-Nikolovska, 
 Mr E. Levits, judges

and Mr E. Fribergh, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 7 March 1998 and registered on 30 March 1998,

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 deliberated, decides as follows:

 

THE FACTS

The applicant is a Turkish national, born in 1964 and living in Ankara, Turkey. He is currently detained in Çankırı Prison, near Ankara. The applicant is represented before the Court by Mr. Selahattin Kaya, a lawyer practising in Ankara.

A. Particular circumstances of the case

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

On 18 October 1992 the applicant was arrested by the police following a search of his house. He was released on 26 October 1992 after having being questioned in custody for a period of eight days.

On 2 November 1992 the public prosecutor attached to the Ankara State Security Court laid charges against the applicant and six other persons. The public prosecutor accused them of having formed an illegal organisation (“Partiye Rizgariye Kurdistan”:hereinafter PRK”) whose aim was to undermine the territorial integrity of the State by illegal means. The applicant and his co-accused were also charged with distributing illegal leaflets and carrying identification cards and driving licences belonging to third parties.

The public prosecutor requested the court to convict the applicant and his co-accused under Article 125 of the Criminal Code with reference to Articles 171 § 1, 31, 33, 36, 40 of the same Code, section 5 of the Prevention of Terrorism Act 1991 (Law no. 3713) and Articles 350 § 2 and 536 §§ 2-3 of the Criminal Code. The public prosecutor relied on the content of the leaflets, the internal regulations of the PRK, its political programme and flag, all of which were seized during a search of the applicant’s and his co-accused’ houses. The public prosecutor relied in particular on the aim of the organisation as described in its internal regulations.

In his statements before the police and the public prosecutor the applicant accepted the allegations against him. However when brought before the substitute member of the Ankara State Security Court, he denied the charges.

On 7 November 1996 the Ankara State Security Court found the applicant and most of his co-accused guilty of the offence under section 168 § 2 of the Criminal Code and section 5 of the Prevention of Terrorism Act 1991. According to the court the applicant and his co-accused had distributed leaflets containing separatist propaganda. The search of their houses had uncovered the internal regulations of the party whose aim was to establish an independent Kurdish State on the territory of the Republic through the dissemination of propaganda. In a second stage, the aim of the party was to set up an independent socialist and united State of Kurdistan within the territory of Iran, Iraq and Syria by means of force. The houses were used by the members of the impugned party to hold meetings. The applicant controlled the keys of all the houses. Furthermore, code names were used by the applicant and his co-accused to identify themselves.

The court sentenced the applicant and four of his co-accused to terms of imprisonment of twelve years and six months and debarred them from public service indefinitely. The applicant appealed.

On 7 October 1997 the Court of Cassation dismissed the applicant’s appeal and upheld his conviction and sentence and the reasons given by the Ankara State Security Court.

B. Relevant domestic law and practice

The National Security Courts

The constitutional provisions governing judicial organisation of the National Security Courts are worded as follows:

(a) The Constitution

Article 138 §§ 1 and 2

“In the performance of their duties, judges shall be independent; they shall give judgment, according to their personal conviction, in accordance with the Constitution, statute and the law.

No organ, authority, ... or ... person may give orders or instructions to courts or judges in the exercise of their judicial powers, or send them circulars or make recommendations or suggestions to them.”

Article 139 § 1

“Judges … shall not be removed from office or compelled to retire without their consent before the age prescribed by the Constitution…”

Article 143 §§ 1-5

“National Security Courts shall be established to try offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free democratic system of government, and offences which directly affect the State’s internal or external security.

National Security Courts shall be composed of a president, two other regular members, two substitute members, a prosecutor and a sufficient number of assistant prosecutors.

The president, one of the regular members, one of the substitutes and the prosecutor, shall be appointed from among judges and public prosecutors of the first rank, according to procedures laid down in special legislation; one regular member and one substitute shall be appointed from among military judges of the first rank and the assistant prosecutors from among public prosecutors and military judges.

Presidents, regular members and substitute members ... of National Security Courts shall be appointed for a renewable period of four years.

Appeal against decisions of National Security Courts shall lie to the Court of Cassation. ...”

Article 145 § 4

“Military legal proceedings

The personal rights and obligations of military judges … shall be regulated by law in accordance with the principles of the independence of the courts, the safeguards enjoyed by the judiciary and the requirements of military service. Relations between military judges and the commanders under whom they serve in the performance of their non-judicial duties shall also be regulated by law...”

(b) Law no. 2845 on the creation and rules of procedure of the National Security Courts1

Based on Article 143 of the Constitution, the relevant provisions of Law no. 2845 on the National Security Courts, provide as follows:

Section 1

“In the capitals of the provinces of … National Security Courts shall be established to try persons accused of offences against the Republic, whose constituent qualities are enunciated in the Constitution, against the territorial integrity of the State or the indivisible unity of the nation or against the free, democratic system of government and offences directly affecting the State’s internal or external security.”

Section 3

“The National Security Courts shall be composed of a president, two other regular members and two substitute members.”

Section 5

“The president of a National Security Court, one of the [two] regular members and one of the [two] substitutes ... shall be civilian … judges, the other members, whether regular or substitute, military judges of the first rank…”

Section 6(2) and (6)

“The appointment of military judges to sit as regular members and substitutes shall be carried out according to the procedure laid down for that purpose in the Military Legal Service Act.

Except as provided in the present Law or other legislation, the president and the regular or substitute members of the National Security Courts … may not be appointed to another post or place, without their consent, within four years…

If, after an investigation concerning the president or a regular or substitute member of a National Security Court conducted according to the legislation concerning them, competent committees or authorities decide to change the duty station of the person concerned, the duty station of that judge or the duties themselves … may be changed in accordance with the procedure laid down in that legislation.”

Section 9(1)(a)

“National Security Courts shall have jurisdiction to try persons charged with

(a)  the offences contemplated in Article 312 § 2 … of the Turkish Criminal Code,

(d)  offences having a connection with the events which made it necessary to declare a state of emergency, in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution,

(e)  offences committed against the Republic, whose constituent qualities are enunciated in the Constitution, against the indivisible unity of the State – meaning both the national territory and its people – or against the free, democratic system of government and offences directly affecting the State’s internal or external security.

…”

Section 27(1)

“The Court of Cassation shall hear appeals against the judgments of the National Security Courts.”

Section 34(1) and (2)

“The rules governing the rights and obligations of … military judges appointed to the National Security Courts and their supervision …, the institution of disciplinary proceedings against them, the imposition of disciplinary penalties on them and the investigation and prosecution of any offences they may commit in the performance of their duties ... shall be as laid down in the relevant provisions of the laws governing their profession…

The observations of the Court of Cassation on military judges, the assessment reports on them drawn up by Ministry of Justice assessors … and the files on any investigations conducted in respect of them … shall be transmitted to the Ministry of Justice.”

Section 38

“A National Security Court may be transformed into a Martial Law Court, under the conditions set forth below, where a state of emergency has been declared in all or part of the territory in respect of which the National Security Court concerned has jurisdiction, provided that within that territory there is more than one National Security Court…”

(c) The Military Legal Service Act (Law no. 357)

The relevant provisions of the Military Legal Service Act are worded as follows:

Additional section 7

“The aptitude of military judges … appointed as regular or substitute members of the National Security Courts that is required for promotion or advancement in salary step, rank or seniority shall be determined on the basis of assessment reports drawn up according to the procedure laid down below, subject to the provisions of the present Law and the Turkish Armed Forces Personnel Act (Law no. 926).

(a)  The first superior competent to carry out assessment and draw up assessment reports for military judges, whether regular or substitute members … shall be the Minister of State in the Ministry of Defence, followed by the Minister of Defence.

…”

Additional section 8

“Members … of the National Security Courts belonging to the Military Legal Service … shall be appointed by a committee composed of the personnel director and the legal adviser of the General Staff, the personnel director and the legal adviser attached to the staff of the arm in which the person concerned is serving and the Director of Military Judicial Affairs at the Ministry of Defence…”

Section 16(1) and (3)

“Military judges … shall be appointed by a decree issued jointly by the Minister of Defence and the Prime Minister and submitted to the President of the Republic for approval, in accordance with the provisions on the appointment and transfer of members of the armed forces…

The procedure for appointment as a military judge shall take into account the opinion of the Court of Cassation, the reports by Ministry of Justice assessors and the assessment reports drawn up by the superiors…”

Section 18(1)

“The rules governing the salary scales, salary increases and various personal rights of military judges … shall be as laid down in the provisions relating to officers.”

Section 29

“The Minister of Defence may apply to military judges, after considering their defence submissions, the following disciplinary sanctions:

A.  A warning, which consists in giving the person concerned notice in writing that he must exercise more care in the performance of his duties.

B.  A reprimand, which consists in giving the person concerned notice in writing that a particular act or a particular attitude has been found to be blameworthy.

The said sanctions shall be final, mentioned in the assessment record of the person concerned and entered in his personal file…”

Section 38

“When military judges … sit in court they shall wear the special dress of their civilian counterparts…”

(d) Article 112 of the Military Criminal Code (of 22 May 1930)

Article 112 of the Military Criminal Code of 22 May 1930 provides:

“It shall be an offence, punishable by up to five years’ imprisonment, to abuse one’s authority as a civil servant in order to influence the military courts.”

(e) Law no. 1602 of 4 July 1972 on the Supreme Military Administrative Court

Under section 22 the First Division of the Supreme Military Administrative Court has jurisdiction to hear applications for judicial review and claims for damages based on disputes relating to the personal status of officers, particularly those concerning their professional advancement.

COMPLAINTS

The applicant complains that he did not receive a fair hearing before an independent and impartial tribunal due to the presence of a military judge on the bench. He invokes Article 6 § 1 of the Convention.

The applicant also complains under Article 5 § 3 of the Convention that he was held in police custody for eight days without being brought before a judge.

Without specifying any particular Article of the Convention, the applicant alleges that he was convicted on the basis of a statement which he made under duress.

The applicant further alleges that the Court of Cassation and the Ankara State Security Court examined his case on the wrong legal basis. He contends that prior to his conviction, a judgment of the Court of Cassation delivered on 22 June 1996 concluded that the PRK was an organisation which had to be considered from the standpoint of section 7 § 1 of the Prevention of Terrorism Act which foresees a maximum period of five years’ imprisonment for members of illegal organisations. In light of this, the applicant complains that he received a heavier sentence, in breach of Article 7 of the Convention.

Finally, the applicant complains under Article 9 in conjunction with Article 10 of the Convention. He relies on an observation of a public prosecutor in another case in which the latter evaluated the PRK not as an armed organisation but a political group the aim of which was to promote its opinions by means of publications. In view of this consideration the applicant states that he was convicted merely on account of having expressed his opinions in leaflets.

THE LAW

1The applicant states that he was tried and convicted before a State Security Court which comprised among its members a military judge. He submits that the presence of the military judge on the bench prevented the court from being an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention, which 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 Court considers that it cannot, on the basis of the case file, determine the admissibility of the above complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b)Note of the Rules of Court, to give notice of this complaint to the respondent Government.

2. The applicant further maintains that he was convicted by the Ankara State Security Court for having, inter alia, distributed leaflets concerning the political party “Partiye Rizgariye Kurdistan” (“PRK”). He states that his conviction on that account violated his rights to freedom of thought and expression guaranteed under Articles 9 and 10 of the Convention, which provide:

Article 9

“1.  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2.  Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

Article 10

“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.”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the above complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b)Note of the Rules of Court, to give notice of this complaint to the respondent Government.

3. The applicant further states that he was detained in custody for a period of eight days before being brought before a judge, contrary to the promptness requirements of Article 5 § 3 of the Convention, which provides:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court observes that the applicant was detained between 18 and 26 October 1992. It is clear that the complaint under this head relates to an event which occurred more that six months from the date of introduction of the application, namely 7 March 1998.

The Court concludes accordingly that the applicant’s complaint is time-barred and must be rejected under Articles 35 §§ 1 and 4 of the Convention.

4. Without specifying the Convention Article relied on, the applicant also complains that he was convicted on the basis of a statement which was obtained from him under duress. With reference to Article 7 § 1 of the Convention he further maintains that he received a heavier sentenced compared to another accused who had been convicted of a similar offence in an earlier trial under a different legal provision.

The Court observes that at no stage of the proceedings did the applicant raise the substance of these complaints before the domestic courts. For that reason the applicant cannot be considered to have exhausted domestic remedies in respect of the complaints.

In these circumstances, the Court concludes that these complaints are inadmissible under Article 35 § 1 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaints concerning the independence and impartiality of the Ankara State Security Court and the alleged interference with his rights to freedom of thought and expression.

DECLARES INADMISSIBLE the remainder of the application.

Erik Fribergh Christos Rozakis 
 Registrar President

1.  These provisions are based on Article 143 of the Constitution, to the application of which they refer.


Change as necessary.


Change as necessary.


40498/98 - -


- - 40498/98