SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50997/99 
by Tahir HAN 
against Turkey

The European Court of Human Rights (Second Section), sitting on 30 November 2004 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr R. Türmen
 Mr K. Jungwiert
 Mr M. Ugrekhelidze
 Mrs A. Mularoni, 
 Mrs E. Fura-Sandström, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 2 August 1999,

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, Mr Tahir Han, who was born in 1960, is a Turkish national and lives in Adana. He was represented before the Court by Mr S. Kaya, a lawyer practising in Ankara.

A.  The circumstances of the case

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

At the time of the events, the applicant was a member of the Peoples' Democracy Party (Halkın Demokrasi Partisi, hereinafter “HADEP”).

On 26 June 1994 the applicant made a speech during HADEP's first annual congress. According to the text of the speech, transcribed by three police officers on 30 June 1994, he stated the following:

“Dear Chairman, dear delegates and dear guests, I welcome you all. We are holding this first congress of our party at a time when extraordinary circumstances are affecting the Kurdish nation and the Turkish proletariat. Our historical duties and obligations are ever more important at this time. At around this time last year most of us present had gathered at DEP's first congress. The attacks against us and against our people were at their peak. The imperialist savagery aimed at our nation and our country had been continuing before the eyes of the world. When we were talking that day we underlined what policies our democracy should follow in the light of the developments which were taking place. Important social and political developments have taken place since then. It was happening so fast that before we had a chance to think and analyse what was going on, new developments were taking place. These developments have proved us right. Without repeating what we said one year ago, I would like to remind you of the following: the biggest hurdle for the democratisation of Turkey is the existence of the problem of Kurdistan. The reality is that Kurdistan is a colony. It is not possible for Turkey to be a democracy without solving the status of Kurdistan. The precondition for democracy to be established is to defend and to support the Kurdish nation's right to self-determination. Therefore, any means employed by the Kurdish nation in order to exercise this right in a free atmosphere is legal and justified.

As we have said before, it is impossible not to collide with all the legal constraints and formalities imposed by the Republic of Turkey. This is because the existing legal system of the Republic of Turkey is formulated in such a way as to make the colonisation of Kurdistan lawful. For us, on the other hand, it is not what is lawful that should be the starting point in our struggle, but what is legal.

What Kurds mean to the [Turkish] Parliament has been evident in the practice of the last seventy years. To the world at large, the presence of the Kurdish parliamentarians in Parliament has always been interpreted as evidence that Parliament represents the political will of both the Turkish nation and the Kurdish nation. When, therefore, Parliament is presented as a legal entity, the imperialist terror imposed on Kurdistan has become lawful. The fact is, however, that for the Kurds this Parliament has done nothing other than legislating laws sending Kurds into exile, sentencing them to death, assimilating them, adopting the Takriri Sükun Act1 and creating emergency regions and declaring martial law. Unfortunately, these realities have not been adequately dealt with during the time of DEP. This last year has shown us just how right we were in our conclusions. The imperialist violence has increased day by day and a large number of settlements has been evacuated and destroyed and hundreds of thousands of people have been forced to flee. Hundreds of people have become martyrs. Thousands have been injured. Tens of thousands of our people have been detained and tortured. On the one hand, the poor people have been made to bear the cost of this unjustified imperialist war and, on the other hand, masses in the metropolitan areas have been indoctrinated by chauvinistic propaganda. But, despite all this, people have not been made to take action. No resistance was created. Backward steps have been taken instead of resisting the embargoes and seizures created by the imperialist terror. The people were not shown a target. People have been isolated. But even all of this did not help anyone. Parliamentarians, party members and chairmen have been killed. The Parliament of the Turkish Republic, which was called upon to help, has kicked six parliamentarians out. They were arrested. Subsequently, DEP was closed down and its remaining parliamentarians were kicked out of Parliament. Despite these failures of the politicians in the legal arena, the Kurdish nation continued its struggle for freedom with decisiveness and self-sacrifice. Unfortunately, the Kurdish nation has been deprived of any active support it expected from us. No doubt, our friends' understanding of the legal struggle has played a big role in this. This has resulted in the disintegration of different struggles. Different struggling parties were then alienated from each other. As a result, and as planned by the Turkish Republic, these different struggling parties became inactive. Unfortunately, this social resistance did not fit into our party colleagues' understanding of legality. In order to make it fit we have to make the Kurdish nation a nation of slaves. Members of the Kurdish nation have never accepted and will never accept slavery. What is expected from us is very obvious. Firstly, the rights of these oppressed people who want to govern themselves must be recognised without any question. Secondly, and as part of our democratic characteristics, we have to carry out our duties. We cannot escape from this historical obligation. Running away and taking backward steps will not result in anything other than our surrender. The prevailing circumstances have shown us once again that making attempts at reconciliation and doing nothing else will not help us to overcome our existing problems. We will not get anywhere by repeating our mistakes. Therefore HADEP should, in accordance with its historical mission, put into action policies which would direct the peoples' anger at heightened resistance. A party programme which does not correspond to our problems, which does not contain solutions and which is confined to legal boundaries is bound to be unsuccessful. ...”

At this point the applicant was stopped by the chairman of the congress from continuing his speech. He was rebuked for criticising the Party's constitution.

On 31 January 1996 the public prosecutor at the Ankara State Security Court filed an indictment in which he accused the applicant of disseminating propaganda against the indivisible integrity of the State, an offence under Article 8 of the Prevention of Terrorism Act.

At a hearing which took place on 16 December 1996 before the Ankara State Security Court, the applicant's lawyer stated that his client had used words such as “Kurdish” and “Kurdistan” during his speech. However, taken as a whole, the speech had not disseminated propaganda against the integrity of the State. The lawyer referred to his client's right to freedom of speech guaranteed by Article 10 of the Convention. He requested the court to acquit his client.

On 22 January 1997 the Ankara State Security Court, which was composed of three judges including a military judge, found the applicant guilty of an offence under Article 8 § 1 of the Prevention of Terrorism Act and sentenced him to one year's imprisonment and a fine. It concluded, in particular, that the applicant, by stating that any means employed by the Kurdish nation in order to exercise its right to self determination were justified, had disseminated propaganda against the indivisible integrity of the State.

The applicant appealed against the judgment. In his appeal, the applicant stated that he had made his speech during a party political meeting and that he had merely conveyed opinions about the economic and social improvement of the country and had done so in the exercise of his right to freedom of expression.

The Chief Public Prosecutor at the Court of Cassation submitted his written opinion on the merits of the applicant's appeal. The opinion was not notified to the applicant.

On 1 March 1999 the Court of Cassation upheld the judgment of the Ankara State Security Court, finding that the applicant's grounds of appeal were unfounded.

On 21 December 2000 Law No. 4616 on Conditional Release, Deferral of Procedure and Punishments was promulgated. Accordingly, on 12 February 2001 the Ankara State Security Court decided to defer the applicant's sentence.

B.  Relevant domestic law

A full description of the relevant domestic law may be found in Erdoğdu v. Turkey (no. 25723/94, §§ 21-26, ECHR 2000-VI) and Incal v. Turkey (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, §§ 21-33).

COMPLAINTS

The applicant alleges that the authorities unjustifiably interfered with his right to freedom of thought and expression guaranteed by Articles 9 and 10 of the Convention, in so far as he was convicted for making a speech.

Under Article 6 § 1 of the Convention the applicant complains that his right to a fair hearing was breached because he was tried and convicted by the Ankara State Security Court, which lacked independence and impartiality.

The applicant contends that the submissions of the public prosecutor attached to the Court of Cassation were not communicated to him, thus depriving him of the opportunity to put forward his counter-arguments. He invokes Article 6 § 3 in this respect.

The applicant alleges that the Court of Cassation reached its decision without holding a public hearing, in breach of Article 6.

THE LAW

A.  The Government's preliminary objections

The Government maintained that pursuant to Law No. 4616 on Conditional Release, Deferral of Procedure and Punishments, the Ankara State Security Court delivered a decision on 12 February 2001 in which it deferred the applicant's sentence. Accordingly, the applicant cannot be considered a victim within the meaning of the Convention.

The Court recalls that its sole task is to assess the particular circumstances of a given case and it reiterates that a decision or measure favourable to an applicant is not sufficient in principle to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Öztürk v. Turkey [GC], no. 22479/93, § 73, ECHR 1999-VI, and Erdoğdu, cited above, § 72).

In the present case, the applicant did not benefit from any such decision or measure. Accordingly, it rejects the Government's preliminary objection in this respect.

The Government further argued under Article 35 § 1 of the Convention that as the applicant was complaining of the lack of independence and impartiality of the Ankara State Security Court, he should have lodged his application with the Court within six months of the date on which that court rendered its judgment, namely 22 January 1997.

The Court reiterates that it has already examined in several cases similar objections of the Government based on an alleged non-compliance with the six-month rule and has rejected such objections (see Özdemir v. Turkey, no. 59659/00, § 29, 6 February 2003, and Doğan and Keser v. Turkey, nos. 50193/99 and 50197/99, § 17, 24 June 2004). It finds no particular circumstances in the instant case which would require it to depart from its conclusions in these cases.

Accordingly, the Court rejects this part of the Government's preliminary objection.

B.  Merits

1.  The applicant contended that his conviction and sentence constituted an unjustified interference with his rights to freedom of thought and freedom of expression. In this respect, he invoked Articles 9 and 10 of the Convention.

The Government maintained that the interference with the applicant's right to freedom of expression was compatible with the provisions of the second paragraph of Article 10. The interference was based on Article 8 of the Prevention of Terrorism Act and the applicant's conviction was necessary in order to maintain national security and public safety. They further stressed that the applicant's speech contained provocative views.

The Court finds that in the circumstances of this case the applicant's complaint need only be examined under Article 10 of the Convention.

The Court considers in the light of the parties' submissions that the complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. It 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 complained under Article 6 § 1 of the Convention that his right to a fair hearing was breached on account of the presence of a military judge on the bench of the Ankara State Security Court which tried and convicted him.

The Government maintained that the State Security Courts were established by law to deal with threats to the security and integrity of the State. In the instant case there was no basis for finding that the applicant could have any legitimate doubts about the independence of the Ankara State Security Court. They further referred to the constitutional amendment of 1999 whereby military judges could no longer sit on State Security Courts.

The Court considers in the light of the parties' submissions that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of their merits. It 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.

3.  The applicant complained under Article 6 § 3 (b) of the Convention that the written opinion of the Chief Public Prosecutor at the Court of Cassation was never served on him, thus depriving him of the opportunity to put forward his counter-arguments.

The Government submitted that the written opinion of the Chief Public Prosecutor at the Court of Cassation generally took the form of a one-page document, which only contained practical information concerning the case and briefly stated whether the judgment of the first-instance court should be upheld or quashed. They also referred to the amendment of the Criminal Procedure Code. As from 2 January 2003 the Chief Public Prosecutor's opinion must be notified to the parties.

The Court considers in the light of the parties' submissions that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. It 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.

4.  The applicant complained that the lack of an oral hearing before the Court of Cassation constituted a breach of his right under Article 6 § 1 of the Convention.

The Government stated that the complaint was manifestly ill-founded. An oral hearing before the Court of Cassation would not have added anything to the proceedings as the applicant's submissions to that court would not have been capable of raising any issue of fact or law of such a nature as to require a hearing. The issues involved could be adequately resolved on the basis of the case file and the applicant's written observations.

The Court recalls that the entitlement to a “public hearing” in Article 6 § 1 necessarily implies a right to an “oral hearing”. The Court has, however, on a number of occasions held 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. Accordingly, proceedings which concern solely the interpretation of law and not the establishment of facts may comply with the requirements of Article 6, even if the appellant is not given an opportunity of being heard in person by the appeal or cassation court (see, amongst others, Ekbatani v. Sweden, judgment of 26 May 1988, Series A no. 134, p.14, § 31, Jan Åke Andersson v. Sweden, judgment of 29 October 1991, Series A no. 212-B, p. 45, § 27, and, most recently, Güzel v. Turkey (dec.), nos. 54479/00 and 65849/01, 10 June 2003).

The Court recalls in the first place that, according to Turkish law (Article 307 of the Code of Criminal Procedure), the examination of the Court of Cassation is limited solely to questions of interpretation of domestic law.

The Court observes that several hearings were held before the first-instance court. Furthermore, the applicant's representative had the possibility of submitting a detailed memorial to the Court of Cassation. In the Court's opinion, the appeal court was able to make an adequate assessment of the case on the basis of the case file before it and did not need to hold a hearing to reach its decision. In the particular circumstances of the instant case, the applicant's or his lawyer's physical attendance was not necessary and the Court of Cassation could properly examine the case without holding a public hearing. Oral argument at a public hearing before the Court of Cassation would not have provided any further guarantee of the fundamental principles underlying Article 6 of the Convention. Having regard to the foregoing, the Court finds that the absence of a public hearing at the cassation stage did not infringe Article 6 § 1 of the Convention.

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 inadmissible the applicant's complaint concerning the refusal of the Court of Cassation to hold a hearing;

Declares, without prejudging the merits, the remainder of the application admissible.

S. Dollé J.-P. Costa 
 Registrar President

1.  Maintenance of Order Law, promulgated on 4 March 1925. By virtue of this Act, Martial Law was declared and the Government were granted broad powers to ban all kinds of organisations, propaganda and publications that could lead to reaction and rebellion against Turkish public order and security.


HAN v. TURKEY DECISION


HAN v. TURKEY DECISION