SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60177/00 
by Osman ÖZÜPEK and Others 
against Turkey

The European Court of Human Rights (Second Section), sitting on 27 April 2004 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr L. Loucaides
 Mr R. Türmen
 Mr C. Bîrsan
 Mr K. Jungwiert
 Mr M. Ugrekhelidze, 
 Mrs A. Mularoni, judges
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 16 March 1999,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Osman Özüpek, Mr Duran Özdemir and Mr Hüseyin Avni Yazıcıoğlu, are Turkish nationals, who were born in 1973, 1965 and 1960 respectively. They are represented before the Court by Ms A. Stock of the Kurdish Human Rights Project (London).

A.  The circumstances of the case

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

The applicants were employed by the Culture and Education Department of the Sincan District Council in Ankara and were involved in the organisation of public activities and events during religious and national days.

Upon the instructions of the mayor and the deputy mayor, the applicants organised on 31 January 1997 a special night called the “Jerusalem Night” during the month of Ramadan.

The event was announced months in advance and representatives of the security forces and several important personalities living in the district were invited. The hall was decorated with posters of martyrs who had given their lives for the liberation of Jerusalem. The applicants also organised a five- minute play for that evening. The second applicant cleaned the hall, set up and maintained the sound system and welcomed the guests. The play, which was written by the first and third applicants, took the form of a conversation between a father and his son about life in Palestine and the struggle of the Palestinian people. The first applicant played the role of the father in the play. The mayor of Sincan and the Ambassador to Iran made speeches before the play began.

The second and third applicants were taken into police custody on 5 February 1997 and the first applicant on 6 February 1997. They were accused of disseminating propaganda in support of an armed, illegal organisation.

In his statement at the police station, the first applicant stated that the “Jerusalem Night” was organised under the supervision of H.A. Yazıcıoğlu (the third applicant), who was the Director of the Culture and Education Department. He explained that the posters had been sent from Istanbul and that he had only been in charge of inviting the ambassadors of Iran, Sudan and Palestine to the event. The first applicant argued that Hamas and Hezbollah were national liberation movements and that he sympathised with those organisations. He further maintained that he did not have any connections with any illegal organisations in Turkey.

In his statement at the police station, the second applicant stated that the “Jerusalem Night” had been organised under the supervision of the third applicant. He also pointed out that he was the author of, and had been an actor in, the play which had been performed that evening. The applicant explained that the persons depicted on the posters were the leaders of liberation movements in Palestine, and underlined that he had no connection with any illegal organisation.

In his police statement the third applicant explained that the “Jerusalem Night” had been organised as part of the activities in celebration of Ramadan. He stated that he had been solely responsible for arranging the layout of the hall for the evening and that he had found it appropriate to decorate the hall by hanging posters of Palestinian martyrs, given that the aim of the event was to support the Palestinian people. He also pointed out that the play staged that night had been written by the second applicant. The applicant stated that he did not support the ideas and actions of any illegal organisation operating in Turkey. However he believed that Hamas and Hezbollah were national liberation movements in Palestine and he supported those organisations.

On 13 February 1997 the applicants were brought before the public prosecutor. During their questioning, the applicants repeated the statements they had made at the police station.

On the same day the applicants were brought before the investigating judge attached to the Ankara State Security Court. The applicants made similar statements before the investigating judge. Subsequently, the investigating judge ordered that the applicants be remanded in custody.

In an indictment dated 7 March 1997, the public prosecutor attached to the Ankara State Security Court initiated criminal proceedings against the applicants. It was alleged that the applicants had disseminated propaganda in support of an armed, illegal organisation. The indictment, inter alia, reads:

“The organisation committee displayed the Hezbollah organisation leaders' pictures at the most suitable places in the hall. Under the shadow of those pictures the mayor and the Ambassador to Iran engaged in pro-Hezbollah propaganda and explained their aims. The defendants, who were on the organisation committee, (...) H. Avni Yazıcıoğlu (...) Osman Özüpek, [and] Duran Özdemir (...) prepared the background to the events. In the play which was performed, the defendants Duran Özdemir and..., who acted the roles of a father and his son, obviously made propaganda on behalf of Hezbollah and the leaders of that organisation (...)”

The prosecution called for the applicants to be sentenced pursuant to Article 169 of the Turkish Criminal Code and Article 5 of the Anti-Terrorism Law.

Before the Ankara State Security Court, which was composed of three judges including a military judge, the applicants contested the charges against them.

On 2 July 1997 the applicants were released from detention on remand pending trial.

The Ankara State Security Court established the status of Hezbollah in Turkey. In this respect, it relied on a report prepared by the National Intelligence Organisation (MIT), dated 30 April 1997, which referred to the structure and goals of Hezbollah. The court also based itself on another report prepared by the General Directorate of Security, dated 24 October 1996. In this report, it was stated that Hezbollah had been involved in many terrorist attacks throughout Turkey. Finally, the court examined a report from a magazine called “Eurasia File” (Avrasya Dosyası), which was published by the International Relations and Strategic Studies Centre. In the light of the evidence before it, the court rejected the applicants' assertions that Hezbollah had no activities in Turkey and that it was solely a national movement which operated in Palestine.

On 15 October 1997 the Ankara State Security Court found that the applicants had aided and abetted a terrorist organisation by engaging in propaganda in support thereof. It found the applicants guilty as charged, sentenced them to three years and nine months' imprisonment and debarred them from public service for three years.

On 21 September 1998 the Court of Cassation upheld the decision of the Ankara State Security Court.

B.  Relevant domestic law

A full description of the relevant domestic law may be found in Kılıç v. Turkey (no. 40498/98, decision dated 8 July 2003), and in the Incal v. Turkey judgment of 9 June 1998 (Reports of Judgments and Decisions 1998-IV, §§ 21-33).

COMPLAINTS

1.  The applicants complain that their punishment constituted inhuman treatment contrary to Article 3 of the Convention.

2.  The applicants further allege that the length of their police detention and detention on remand was in breach of Article 5 of the Convention.

3.  The applicants next allege, under Article 6 § 1 of the Convention, that they were tried and convicted by a court which did not meet the requirements of independence and impartiality on account of the presence of a military judge on the bench.

4.  The applicants complain of a violation of Article 7 of the Convention in that they were allegedly convicted of an act that did not constitute a criminal offence at the relevant time.

5.  The applicants also state that their prosecution and conviction for having organised a cultural activity constituted a breach of their rights to freedom of expression, religion and assembly. In this respect, they invoke Articles 9, 10 and 11 of the Convention.

6.  Finally, under Article 18 of the Convention, the applicants contend that the restrictions on their rights and freedoms were applied for purposes which were not permitted under the Convention.

THE LAW

1. The applicants complain that their punishment constituted inhuman treatment contrary to Article 3 of the Convention. Article 3 provides as follows:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court reiterates that in order to fall within the scope of the Convention the treatment complained of should attain a minimum level of severity (see, the Ireland v. United Kingdom, judgment of 18 January 1978, Series A, No.25, p.65 § 162.) In the instant case, the treatment of which the applicants complain is not such as to raise an arguable issue of non-compliance with Article 3 of the Convention.

The Court therefore considers that this part of the application is manifestly ill-founded with the meaning of Article 35 § 3 of the Convention and should be rejected pursuant to Article 35 § 4.

2. The applicants further complain that their arrest and detention breached their right to liberty, guaranteed by Article 5 of the Convention.

The Court notes that it is not required to decide whether or not the facts alleged by the applicants disclose any appearance of a violation of Article 5, as Article 35 § 1 of the Convention provides that the Court may only deal with a matter submitted to it within a period of six months from the date on which the final decision was taken.

In the absence of domestic remedies, the six months' period runs from the date of the act complained of. The Court notes that the applicants were taken into police custody on 5 February 1997, and were placed in detention on remand on 13 February 1997. They were released from detention pending trial on 2 July 1997. However, the application was only lodged with the Court on 16 March 1999, which is more than six months after the end of the applicants' period of detention on remand.

The Court therefore finds that the applicants' complaints under Article 5 of the Convention have been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

3. The applicants further state that they were denied a fair trial before an independent and impartial tribunal, having regard to the presence of a military judge on the bench of the Ankara State Security Court. The applicants invoke Article 6 § 1 of the Convention, which provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public 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 this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

4. The applicants also allege that, prior to their conviction, there was no offence recognised in Turkish law of engaging in propaganda on behalf of organisations that did not operate in Turkey. They therefore claim that their conviction for such an offence constituted a retrospective application of a criminal charge or penalty, in contravention of Article 7 of the Convention. Article 7 § 1 provides:

“No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under nation or international law at the time when it was committed. Nor shall heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The Court observes that in its judgment the Ankara State Security Court gave a detailed explanation about the activities of Hezbollah. Basing itself on the reports of the Directorate General of Security and the National Intelligence Organisation, the court concluded that Hezbollah had been involved in many terrorist attacks in Turkey. The applicants were convicted of aiding and abetting that illegal organisation by engaging in propaganda for it, and that offence was clearly defined in domestic law at the time of the organisation of the “Jerusalem night.”

In the light of the foregoing, the Court finds that there is no appearance of a violation of Article 7 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 and must be rejected pursuant to Article 35 § 4.

5. The applicants further allege under Articles 9, 10 and 11 of the Convention that their conviction constituted a violation of their rights to freedom of thought, expression and assembly.

The Court notes that the applicants were not convicted on account of having expressed opinions or of having organised a cultural event. They were tried and convicted on account of aiding and abetting an armed terrorist organisation by disseminating propaganda in support of it, in contravention of Article 169 of the Turkish Criminal Code.

There is nothing in the case file that could support the applicants' claims concerning their complaints under Articles 9, 10 and 11 (see in this respect, Aksaç v. Turkey (dec.), no. 41956/98, 15 January 2004; Koçak, Yavaş, and Özyurda (dec.), nos. 23720/02, 23735/02, 23736/02, 3 July 2003).

It follows that 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.

6. Finally, the applicants invoke Article 18 of the Convention in conjunction with Articles 9, 10 and 11 of the Convention. Article 18 provides as follows:

“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

The Court notes that the applicants have not substantiated their argument regarding the respondent State's alleged violation of this provision. It follows that 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.

For these reasons, the Court unanimously

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

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

ÖZÜPEK AND OTHERS v. TURKEY DECISION


ÖZÜPEK AND OTHERS v. TURKEY DECISION