FOURTH SECTION

PARTIAL DECISION

Application nos. 58709/00 and 58756/00 
by Mehmet Vahi YAZAR and Nazmi KAR and Others  
against Turkey

The European Court of Human Rights (Fourth Section), sitting on 31 January 2006 as a Chamber composed of:

Mr J. Casadevall, President
 Mr R. Türmen
 Mr M. Pellonpää
 Mr R. Maruste
 Mr K. Traja
 Ms L. Mijović, 
 Mr J. Šikuta, judges
and Mr M. O’Boyle, Section Registrar,

Having regard to the above applications lodged on 3 and 4 April 2000,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mehmet Vahi Yazar, Nazmi Kar, Zekeriya Özen, Fuat Başarılı and Osman Yavuz are Turkish nationals, who were born in 1964, 1972, 1969, 1969 and 1968 respectively and are all residing in İzmir except for Mr Zekeriya Özen who lives in Balıkesir. The first applicant is represented before the Court by Mr M. H. Çelik, a lawyer practising in İzmir and the other applicants are represented before the Court by Mr S. Çetintulum and Mr M. Korkusuz, lawyers also practising in İzmir.

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

The first applicant is a playwright, actor and the director of the İzmir Conquest Theatre (İzmir Fetih Tiyatrosu). The other applicants are actors who took part in the play “An Enemy of Justice/God1” (“Bir Hak Düşmanı”) written by the first applicant and which was staged in different cities of Turkey between 20 March 1997 and 8 April 1997.

On 20 April 1997 and 22 April 1997 two daily newspapers published an article on the play.

On 24 April 1997 the applicants, with the exception of the third applicant, were arrested and taken into police custody by the Anti-terror branch of the İzmir Security Directorate. The third applicant was arrested and taken into custody the next day.

On 1 May 1997 the applicants appeared before judge S.G. at the Ankara State Security Court where they gave their statements against the accusations. The judge, referring to the nature of the offence and the state of evidence, ordered their remand in custody.

On 26 May 1997 the public prosecutor at the Ankara State Security Court filed a bill of indictment requesting that the applicants be convicted and sentenced under Article 149 § 1 of the Criminal Code and Article 5 of Law no. 3713.

On an unspecified date, the criminal proceedings commenced before the Ankara State Security Court against the applicants and thirty-five other co-accused.

During the criminal proceedings before the Ankara State Security Court, the public prosecutor requested that the applicants be convicted and sentenced under Article 312 § 2 of the Criminal Code.

On 25 July 1997 the applicants’ representatives submitted common written defence submissions in which they stated, inter alia, that they staged different versions of the play in different places. They maintained that the first applicant was the writer and the director of the play whereas the other applicants were paid actors. They stated that the play concerned an imaginary country and had nothing to do with Turkey.

On 1 September 1997 the applicants’ representatives submitted common written defence submissions in which they reiterated their earlier submissions. In particular, they maintained that the play and the words used during the play constituted an artistic event.

On 11 September 1997 the Ankara State Security Court convicted the applicants as charged and sentenced the first applicant to three years’ imprisonment and to a heavy fine and the other applicants to two years four months’ imprisonment and to a heavy fine. The other co-accused were acquitted.

In its judgment, the court referred, inter alia, to the following passages of the play:

“ - We abided by the laws of Allah, believing that he is real, took the name of Muslims as it is said in the book of Allah [and] became its conscripts but you, you believed in the religion of Satan [and] abided by the laws and principles which tolerated your desires [and] systematized them and gave them to the people. As a result you created a religion for the people.

....

- ..We have for years criticised you but you pretended not to hear us, closed your ears and left us no other way but Jihad. Now you are trying to show Jihad as a common event to the public opinion. However, your phoney court proves once again how indispensable Jihad is.”

The court noted that the applicants had applied to various National Youth Associations with another script but instead staged the play “An Enemy of Justice”. The court noted that the play was set in an imaginary country where there was a movement against Muslims who were gathering together to discuss how to prevent this movement. The Muslims were considering creating a military movement as a deterrent measure and at the end of the play there was a coup d’état and their leader was sentenced to death. The court considered that it was evident that the imaginary country in the play was Turkey and that the play as a whole conveyed messages to those that it referred to as Muslim to fight against the State and that it considered the Military forces as those who had adhered to another religion than Islam. The court concluded that the impugned play as a whole incited hostility and hatred by making distinctions between persons on the basis of class, race and region under Article 312 § 2 of the Criminal Code.

On 24 October 1997 the applicants appealed against the judgment of the State Security Court. In their common appellate petition they reiterated their earlier submissions and emphasised that the play and the words used in the play constituted an artistic event.

On 23 March 1998 the Court of Cassation quashed the judgment of the first-instance court in so far as it concerned the sentencing of the applicants and upheld the remainder of the judgment.

In their defence submissions submitted to the Ankara State Security Court on 22 May 1998 and 28 July 1998, the applicants denied that the play was staged in different versions in different cities. They submitted that there were two scenarios, one the play submitted to the authorities and the other being the one in respect of which they were charged.

On 4 August 1998 the Ankara State Security Court convicted the applicants as charged. The court, taking into account that the play was staged eight times, sentenced the first applicant to twenty-four years’ imprisonment and to a heavy fine and the other applicants to sixteen years’ imprisonment and to a heavy fine.

The applicants appealed against the judgment of the Ankara State Security Court.

On 22 February 1999 the Court of Cassation quashed the judgment of the first-instance court on the ground that the sentencing of the applicants had not been in accordance with Article 80 of the Criminal Code.

On 13 May 1999 the Ankara State Security Court convicted the applicants under Article 312 § 2 of the Criminal Code and sentenced the first applicant to ten years and twelve months imprisonment and to a heavy fine and the other applicants to five years and six months’ imprisonment and to a heavy fine.

On 11 October 1999 the Court of Cassation upheld the judgment of the first-instance court.

By a letter dated 6 April 2005 the Registry requested the applicants’ representatives to submit a copy of their defence submissions before the courts and to inform the Court whether they were still in prison.

On 24 April 2005 the representatives of Nazmi Kar, Zekeriya Özen, Fuat Başarılı and Osman Yavuz informed the Court that, having completed their sentences, they had been released from prison.

COMPLAINTS

The applicants contend that their detention on remand was unlawful and excessive. They invoke Article 5 §§ 1 (c) and 3 of the Convention.

The applicants submit under Article 6 of the Convention that they did not receive a fair trial within a reasonable time by an independent and impartial tribunal. They submit that one of the three members of the State Security Court which convicted them was a military judge and another member, Ms S.G. was the same judge who had ordered their remand in custody. They argue that the court attached considerable weight to the fact that the plot of the scenario of the play was not given to the authorities beforehand and also decided to notify the public prosecutor’s offices where the play was staged that they had also committed an offence under Article 159 of the Criminal Code. As a result, they submit that they were sentenced and convicted under that article before other domestic courts. They also complain of the way in which they were sentenced and of the length of the criminal proceedings.

The applicants complaint under Article 6 § 2 of the Convention that since the media had already convicted them prior to their having been charged the State Security Court was prejudiced.

The applicant maintain under Article 6 § 3 (c) of the Convention that they were denied the assistance of a lawyer while held in police custody.

The applicants allege under Articles 9 and 10 of the Convention that their conviction and sentence under Article 312 of the Criminal Code constituted an unjustified interference with their freedom of thought and expression.

The applicants claim under Article 14 of the Convention that they had been discriminated against due to a difference of procedure before the criminal proceedings in State Security Courts and before criminal courts.

THE LAW

A.  As regards the applicant Mehmet Vahi Yazar (application no. 58709/00)

By a letter of 6 April 2005 the Registry requested the applicant’s representative to submit a copy of the applicant’s defence submissions before the courts and to inform the Court whether the applicant was still in prison. The applicant’s attention was drawn to the fact that if he did not submit the requested documents by 3 May 2005 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 he was no longer interested in pursuing the application and decide to strike it out of its list of cases. The applicant’s representative received this letter on 22 April 2005. However, he has not to date replied.

The Court considers that in the circumstances the applicant may be regarded as no longer wishing to pursue his application within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, the Court finds no reasons of a general character, as defined in Article 37 § 1 in fine, which would require the examination of this part of the application by virtue of that Article. It therefore decides to strike the application out of its list of cases.

B.  As regards the applicants Nazmi Kar, Zekeriya Özen, Fuat Başarılı and Osman Yavuz (application no. 58756/00)

1.  The applicants contend that their detention on remand was unlawful and excessive. They invoke Article 5 §§ 1 (c) and 3 of the Convention.

The Court observes that on 13 May 1999 the applicants’ were convicted by the Ankara State Security Court and that on 11 October 1999 that judgment was upheld by the Court of Cassation. Following 13 May 1999 the applicants were detained “after conviction by a competent court” and no longer “for the purpose of bringing them before the competent legal authority” (see, among other authorities, Turan v. Turkey (dec.), no. 879/02, 27 January 2005). Accordingly, the applicants’ detention on remand ended on 13 May 1999. However, as they lodged their application with the European Court of Human Rights on 3 April 2000 these complaints have been introduced out of time. Consequently, this part of the application should be rejected for non-compliance with the six-month time limit pursuant to Article 35 §§ 1 and 4 of the Convention.

2.  The applicant complains under Article 6 of the Convention that they did not receive a fair trial by an independent and impartial tribunal on account of the presence of the military judge sitting on the bench of the State Security Court. In addition, the applicants complain that the fairness of the proceedings was also undermined by other shortcomings.

The applicants submit under Article 6 § 2 of the Convention that the media had convicted them prior to their having been charged and that as a result the State Security Court was prejudiced.

The applicants maintain under Article 6 § 3 (c) of the Convention that they were denied the assistance of a lawyer whist held in police custody.

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 it to the respondent Government.

3.  The applicants complain under Article 6 of the Convention that they did not receive a fair trial by an impartial tribunal on account of the presence of judge S.G. on the bench of the State Security Court which convicted them since she had previously ordered their remand in custody.

The Court observes that the applicants appear never to have attempted to disqualify that judge on grounds of impartiality pursuant to Article 23 of the Criminal Procedure Code. It follows that this part of the application must be rejected for non- exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.

4.  The applicants complain under Article 6 of the Convention that the length of the criminal proceedings was excessive.

The Court observes that the period complained of began on 24 and 25 April 1997 when the applicants were arrested and taken into custody and ended on 11 October 1999 when the Court of Cassation upheld the judgment of the first-instance court. They therefore lasted two years and five months before two instances which examined the case three times each.

After examining the overall duration of the proceedings, taking into account that the case was of some complexity, the number of the accused and the fact that the case was dealt with at two levels of jurisdiction, three times each, the Court does not consider that the length of the proceedings in the present case was excessive. It finds, therefore, that there has been compliance with the “reasonable time” requirement of Article 6 § 1 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.

5.  The applicants allege under Articles 9 and 10 of the Convention that their conviction and sentence under Article 312 of the Criminal Code constituted an unjustified interference with their freedom of thought and expression.

The Court considers that this part of the complaint should be examined from the standpoint of Article 10 alone.

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 it to the respondent Government.

6.  The applicants claim under Article 14 of the Convention that they had been discriminated against since the criminal procedures for the offences tried before the State Security Court were different from the offences tried in other courts.

The Court reiterates that Article 14 is not concerned with all differences of treatment but only with differences having as their basis or reason a personal characteristic (“status”) by which persons or group of persons are distinguishable from each other (see Kjeldsen, Busk Madsen and Pedersen v. Denmark, judgment of 7 December 1976, Series A no. 23, p. 29, § 56).

In the instant case, the distinction was made not between different groups of people, but between different types of offence, according to the legislature’s view of their gravity (see, among many others, mutatis mutandis, Gerger v. Turkey [GC], no. 24919/94, § 69, ECHR 1999 and Kömürcü v. Turkey (dec.), no. 77432/01, 28 November 2002). The Court sees no ground for concluding that this practice amounts to a form of “discrimination” that is contrary to the Convention.

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 strike the application no. 58709/00 out of its list of cases;

Decides to adjourn the examination of the complaints introduced by Nazmi Kar, Zekeriya Özen, Fuat Başarılı and Osman Yavuz (application no. 58756/00) concerning their right to a fair hearing by an independent and impartial tribunal and the interference with their right to freedom of expression;

Declares the remainder of that application inadmissible.

Michael O’Boyle Josep Casadevall 
 Registrar President

1.  The word “HAK” in Turkish could mean both justice and God depending on the context it is used.


YAZAR v. TURKEY and KAR AND OTHERS v. TURKEY DECISION


YAZAR v. TURKEY and KAR AND OTHERS v. TURKEY DECISION