FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52782/99 
by Mustafa ERÇIKDI AND OTHERS 
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 31 March 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr R. Türmen
 Mr M. Pellonpää
 Mr K. Traja
 Mr L. Garlicki
 Ms L. Mijović, 
 Mr J. Borrego Borrego, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 30 July 1999,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mustafa Erçıkdı, Gülşen Çamoğlu, Ali Kazan, Bülent Çamoğlu and Mehmet Kaya are Turkish nationals, who were born in 1959, 1965, 1972, 1959 and 1972 respectively and live in Aydın. They are represented before the Court by Kamil Tekin Sürek, a lawyer practising in Istanbul.

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

The applicants were the Nazilli district directors of the Labour Party (Emeğin Partisi) at the time of the events.

On 31 July 1997 Izmir Magistrates' Court ordered the confiscation of a leaflet entitled “The Kurdish Problem is a problem of the people of Turkey”.

On 1 September 1997 the leaflet was distributed by the Nazilli District Headquarters of the Labour Party (Emeğin Partisi). The applicants' claim that the leaflet was distributed on the orders of the General Headquarters of the Labour Party (Emeğin Partisi) and that they did not distribute it themselves.

On 1 October 1997 the public prosecutor at the Izmir State Security Court filed a bill of indictment with the latter accusing the applicants of provoking hatred and hostility on the basis of a distinction between race and region. He requested that they be convicted and sentenced under Article 312 §§ 2 and 3 of the Criminal Code.

On 17 March 1996 the Izmir State Security Court convicted the applicants and sentenced them to one year and eight months' imprisonment and to a fine of 1,433,333 Turkish liras. The sentences of Gülşen Çamoğlu and Ali Kazan were suspended as they did not have a criminal record. In its judgment the Izmir State Security Court reasoned that the leaflet contained an open provocation to hatred and hostility on the basis of a distinction between races.

The court referred to the following passage of the leaflet in support of its conclusions;

“(...) they want a peace which would not object to the treatment of the Kurds as a second class citizen, stepping over its rights, the degradation of the Kurds (...)”

“(...) because the war against the Kurds is not continuing only in the Emergency region but in the whole of Turkey (...)”

The Court further held that it did not find convincing the applicants' submissions that they did not know that the content of the leaflet was illegal and that they only distributed it because they were told to do so, since there was a confiscation order issued against it and since as they had at least a primary school education they would be able to understand it. The applicants defence submissions were taken by way of rogatory letters.

On 6 April 1999 the Court of Cassation upheld the judgment of the Izmir State Security Court. The court further rejected the applicants' representative's request for a hearing as the conditions necessary for a hearing to be held before the Court of Cassation were not met.

By a letter dated 7 May 2004 the Registry of the Court requested the applicants' representative to submit before 1 June 2004 the following documents: the applicants' statements before the police and before the rogatory court and their appeal petition to the Court of Cassation, as well as further information regarding their complaints under Article 11 of the Convention.

On 1 June 2004 the applicants' representative informed the Court that he had requested the necessary documents from the applicants but that he had not yet received them. He requested a further extension to submit the documents.

On 4 June 2004 the Court acknowledged receipt and requested the applicants' representative to submit the requested documents as soon as it was possible.

By a letter dated 7 October 2004 the Registry reiterated its request. It further warned the applicants' representative that if they did not submit the requested documents by 28 October 2004 then the Court might decide on the admissibility of the case on the basis of the file as it stood at the time or alternatively, it might conclude that they were no longer interested in pursuing the application and decide to strike it out of its list of cases. They have not to date replied.

COMPLAINTS

The applicants complain under Article 6 of the Convention that they did not receive a fair trial by an independent and an impartial tribunal. They contend that the judges sitting on the bench of the State Security Court cannot be considered as independent and impartial as the military judge was attached to the Military Service and that the civil judges were attached to the Supreme Council of Judges and Public Prosecutors. They claim that they were tried and convicted for a leaflet which was neither written nor distributed by them and that they were not given the possibility to defend themselves before the court. They further submit that the written opinion of the principal public prosecutor at the Court of Cassation was never served on them, thus depriving them of the opportunity to put forward their counter-arguments and that the court did not hold a hearing. Finally, they contend that both the indictment and the domestic courts' decisions were not reasoned.

The applicants assert under Articles 10 of the Convention that their conviction and sentence constituted an unjustified interference with their freedom of expression.

The applicants aver under Article 11 of the Convention that they were convicted because they were members of the Labour Party and that the authorities sought to hinder the activities of the Party in their city.

THE LAW

1. The applicants complain under Article 6 of the Convention that they were denied a fair hearing by an independent and impartial tribunal having regard to the presence of a military judge on the bench of the Izmir State Security Court. They further submit that the written opinion of the principal public prosecutor at the Court of Cassation was never served on them, thus depriving them of the opportunity to put forward their counter-arguments.

The Court considers that it cannot on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of the Court, to give notice of them to the respondent Government.

2. The applicants further contend under Article 6 of the Convention that they were not tried by an independent and impartial tribunal having regard to the fact that the civil judges sitting on the bench of the Izmir State Security Court were attached to the Supreme Council of Judges and Public Prosecutors.

The Court reiterates that it has already rejected similar complaints concerning the issue of the independence and the impartiality of the civil judges on account of their attachment to the Supreme Council of Judges and Public Prosecutors (see, among many others, Imrek v. Turkey (dec.), no. 57175/00, 28 January 2003). The Court finds no particular circumstances in the instant case which would require it to depart from its findings in the above-mentioned cases.

Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

3. The applicant's claim under Article 6 of the Convention that they were tried and convicted for a leaflet which was neither written nor distributed by them and that they were not given the possibility to defend themselves before the Izmir State Security Court. They further aver that the Court of Cassation did not hold a hearing and that both the indictment and the domestic courts decisions were not reasoned.

As regards the applicants' complaint pertaining to the fairness of the proceedings before the State Security Court, the Court considers that the applicants have failed to substantiate their claims. In particular, it notes that the applicants did not provide reasons why they were prevented from attending the criminal proceedings before the first-instance court since they were not detained on remand. Moreover, the reasoned decision of the first-instance court stated that the applicants in their submissions made to the rogatory court and before the public prosecutor acknowledged that they had distributed the impugned leaflets. In the light of the foregoing, the Court considers this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

As to the applicants' complaint pertaining to the absence of reasoning of the decision of the Court of Cassation, the Court reiterates that Article 6 of the Convention does not require that a court, when rejecting an appeal by reference to the reasoning given by a lower court, accompanies its decision by detailed reasons (see Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001). Consequently, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

As regards the absence of a hearing before the Court of Cassation, 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. Consequently, the court concerned does not have the task of establishing the facts of the case, but only of interpreting the legal rules involved.

The Court notes that the applicants' representative had the possibility of submitting a memorial to the Court of Cassation. Moreover, the Court notes that the hearings held before the first-instance court were public and the applicants failed to provide reasons why they were prevented from attending them. In the Court's opinion, in the particular circumstances of the instant case, an 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.

4. The applicants assert under Article 10 of the Convention that their conviction and sentence constituted an unjustified interference with their freedom of expression.

The Court reiterates that under the terms of Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law. This condition is not met by the mere fact that an applicant has submitted his case to the various competent courts. It is also necessary for the complaint brought before the Court to have been raised, at least in substance, during the proceedings in question (see, among others, Çakar v. Turkey, no. 42741/98, § 30, 23 October 2003).

In the instance case, the Court observes that according to the documents provided by the applicants, at no time, however, did they allege, rely on or raise any arguments in respect of their right to freedom of expression. The Court notes that throughout the criminal proceedings, the applicants only denied the allegations against them, claiming that they did not know that the contents of the leaflet were illegal, and put forward arguments which were based solely on domestic law and did not raise the matter of freedom of expression.

Even assuming that the national courts were able, or even obliged, to examine the case of their own motion under the Convention, this could not dispense the applicants from relying on the Convention in those courts or from advancing arguments to the same or like effect before them, thus drawing their attention to the problem they intended to submit subsequently, if need be, before the Court (see Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, p. 19 § 39, and Ahmet Sadık v. Greece, judgment of 15 November 1996, Reports of Judgments and Decisions 1996 -V, § 33).

In view of the considerations above, the Court holds that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for failure to exhaust domestic remedies.

5. The applicants aver under Article 11 of the Convention that they were convicted because they were members of the Labour Party and that the authorities sought to hinder the activities of that party in their city.

The Court considers it unnecessary to determine whether the applicants have exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention since this part of the applications is inadmissible for the following reasons:

The Court observes that the applicants' were convicted and sentenced for provoking hatred and hostility on the basis of a distinction between race and region and not because they were members of a certain party. Furthermore, the applicants have failed to demonstrate that the authorities sought to hinder in any way the activities of the Labour Party. Consequently, this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants' complaints concerning their right to a fair hearing by an independent and impartial tribunal;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas bratza 
 Registrar President

ERCIKDI AND OTHERS v. TURKEY DECISION


ERCIKDI AND OTHERS v. TURKEY DECISION