SECOND SECTION

DECISION

Application no. 44665/98 
by Hıdır GÖKTAŞ and Others 
against Turkey

The European Court of Human Rights (Second Section), sitting on 7 March 2006 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr I. Cabral Barreto
 Mr R. Türmen
 Mr V. Butkevych
 Ms D. Jočienė, 
 Mr D. Popović, judges
and Mr S. Naismith, Deputy Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 28 September 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 regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having regard to the formal declarations accepting a friendly settlement of the case.

Having deliberated, decides as follows:

THE FACTS

The applicants, MM. Hıdır Göktaş, Rıza Metin Gülbay and Hasan Basri Çıplak, are Turkish nationals, who were born in 1960, 1956 and 1956. They are represented before the Court by Mr H. İnanıcı and Ms R. Tekcan, lawyers practising in Istanbul.

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

The third applicant, who is the owner of a publishing company, published a book named “From cold war to warm peace” (“Soğuk savaştan sıcak barışa”) written by the two journalists, the first and second applicants. The book consisted of a collection of interviews with nineteen people about the economic and political changes in the world and in Turkey.

On 8 May 1994 the Istanbul State Security Court ordered the seizure of the book on the ground that one of the interviews in the book with Hatip Dicle, the president of the Democracy Party (DEP), contained separatist propaganda against the integrity of the State.

On 9 June 1994 the public prosecutor at the Istanbul State Security Court filed an indictment with the court, charging the applicants with disseminating separatist propaganda against the territorial integrity of the State and the indivisible unity of the Turkish nation, contrary to section 8 §§ 1 and 2 of the Prevention of the Terrorism Act 1991.

In a judgment dated 16 May 1995, the Istanbul State Security Court found the applicants guilty of offences under section 8 of the 1991 Act. The first and the second applicants were sentenced under the first paragraph of section 8 to one year and eight months’ imprisonment and a fine of 41,666,666 Turkish liras (TRL). The third applicant was sentenced under the second paragraph of section 8 to five months’ imprisonment and a fine of TRL 41,666,666.

On 8 January 1996 the Court of Cassation quashed the first instance court’s decision due to the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act. The case was remitted to the Istanbul State Security Court for an ex officio re-examination.

On 11 July 1996 the State Security Court sentenced the third applicant to five months’ imprisonment and a fine of TRL 41,666,666, and the first and second applicants to one year, one month and ten days’ imprisonment and a fine of TRL 111,111,110. The court decided to convert the prison sentence imposed on the third applicant into a fine of TRL 42,416,666.

On 30 March 1998 the Court of Cassation upheld the convictions of the first and the second applicants whilst quashing that of the third applicant, having regard to the provisions of Law no. 4304 which had entered into force on 14 August 1997.

In its hearing of 22 April 1998, the Istanbul State Security Court decided to defer the imposition of the third applicant’s final sentence pursuant to section 1 of Law no. 4304. The court held, under section 2 of the same law that the criminal proceedings against this applicant would be suspended and a final sentence imposed should the applicant be convicted of a further intentional offence in his capacity as an editor within three years of the decision.

COMPLAINTS

1.  The applicants originally complained that they 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 them.

2.  The applicants complained under Article 7 of the Convention that they had been convicted of an act which had not constituted a criminal offence under national or international law at the time it had been committed, given that the relevant provisions of the Prevention of Terrorism Act 1991 were so imprecise that they had not enabled the applicants to distinguish between permissible and prohibited behaviour.

3.  The applicants alleged that in convicting and sentencing them the authorities had unjustifiably interfered with their right to freedom of thought and their right to freedom of expression under Articles 9 and 10 of the Convention.

4.  The applicants complained under Article 14 of the Convention, in conjunction with Article 10, that the seizure of the book on account of the use of certain words such as “Kurds” and “Kurdistan” constituted discrimination on the ground of political opinion.

5.  The applicants alleged under Articles 17 and 18 of the Convention that the restrictions on their right to freedom of expression, applied pursuant to section 8 of the Prevention of Terrorism Act, were inconsistent with the legitimate aims set out in Article 10 § 2 of the Convention.

THE LAW

The Court received the following declaration from the Government:

“1.  I declare that the Government of Turkey offer to pay ex gratia EUR 5,000 (five thousand euros) to each applicant, i.e. a total of EUR 15,000 (fifteen thousand euros), with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

2.  This sum, which is to cover any damages as well as costs and expenses connected with the case, shall be free of any tax that may be applicable and be paid in euros, to be converted into New Turkish liras at the rate applicable at the date of the payment, to a bank account named by the applicants and/or their duly authorised representative. This sum shall be payable within three months from the date of notification of the Court’s decision delivered pursuant to Article 37 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

The Court received the following declaration signed by one of the applicants’ representatives:

“1.  In my capacity as the representative of the applicants, I note that the Government of Turkey are prepared to pay ex gratia EUR 5,000 (five thousand euros) to each applicant, i.e. a total of EUR 15,000 (fifteen thousand euros), with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. This sum, which is to cover any damages as well as costs and expenses connected with the case, shall be free of any tax that may be applicable and will be paid in euros, to be converted into New Turkish liras at the date of payment, to a bank account named by us. The sum shall be payable within three months from the date of notification of the Court’s decision delivered pursuant to Article 37 of the European Convention on Human Rights.

2.  Having duly consulted the applicants, I accept the proposal and waive any further claims against Turkey in respect of the facts of this application. I declare that this constitutes a final resolution of the case.

3.  This declaration is made in the context of a friendly settlement which the Government and the applicants have reached.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). Accordingly, Article 29 § 3 of the Convention should no longer apply to the case, which should be struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

S. Naismith J.-P. Costa 
 Deputy Registrar President

HİDİR GÖKTAŞ AND OTHERS v. TURKEY DECISION


HİDİR GÖKTAŞ AND OTHERS v. TURKEY DECISION