AS TO THE ADMISSIBILITY OF
Application No. 25658/94
by Sedat Aslantas
against Turkey
The European Commission of Human Rights sitting in private on
15 September 1997, the following members being present:
Mr. S. TRECHSEL, President
Mrs. G.H. THUNE
Mrs. J. LIDDY
MM. E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
P. LORENZEN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
Mrs. M. HION
MM. R. NICOLINI
A. ARABADJIEV
Mr. H.C. KRÜGER, Secretary to the Commission ; Having
regard to Article 25 of the Convention for the Protection of Human
Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 October 1994
by Sedat Aslantas against Turkey and registered on 14 November 1994
under file No. 25658/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
16 May 1995 and the observations in reply submitted by the
applicant on 4 August 1995;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Turkish citizen born in 1966 and resident in
Diyarbakir. He is represented before the Commission by Professor Kevin
Boyle and Ms. Françoise Hampson, both of the University of Essex, and
by Mr. Bill Bowring, a barrister in London.
A. Particular circumstances of the case
The facts of the case as submitted by the parties may be
summarised as follows.
The applicant is a lawyer who has, in the course of his legal
practice, undertaken civil liberties cases. In recent years he has been
active as the leading member of the Diyarbakir branch of the Human
Rights Association.
a) Proceedings in relation to the speech made at the Turkish Human
Rights Association General Conference in 1992
On 14 June 1994, the Ankara State Security Court held an initial
hearing in proceedings against the applicant related to a speech made
by him at the Turkish Human Rights Association General Conference on
24 October 1992. The applicant did not attend it, but his lawyer did.
The Court postponed the hearing and summoned the applicant to a hearing
on 12 July 1994.
On 12 July 1994, the applicant denied that he had ever made
statements which could be regarded as crimes, requested that the
recording of his speech be re-transcribed and that he be allowed to
submit his own copy of the speech, claiming that the tape used by the
prosecution was inaccurate. The court postponed the hearing to
13 September 1994 in order to allow the applicant to submit his text
of the speech.
On 13 September 1994 the applicant did not submit the text of the
speech. Therefore, the Court adjourned the hearing to 25 October 1994
in order to allow the applicant more time to submit his text of the
speech.
On 25 October 1994, the applicant declared that he had not been
able to find the text of his speech, as the disks containing the text
were in Diyarbakir. He then stated that he did not accept the expert
investigation related to the transcript of his speech used by the
prosecution and requested that his speech be transcribed by three
experts to be chosen. The Court ordered that the expert witnesses who
had prepared the record of the transcript of the tape used by the
prosecution be summoned to the court on 1 December 1994, thus allowing
the applicant enough time to prepare his objections to the text of the
speech.
The applicant did not attend the hearing on 1 December 1994. The
Court heard evidence from the expert witnesses who had prepared the
transcript used by the prosecution, all of them police officers. They
stated under oath that the transcript of the tape was correct. The
transcript of the speech used by the prosecution reads as follows:
"In Kurdistan, a region of the world, the right to life, which
is the most fundamental of human rights, is ground underfoot in
the most unbelievable, barbarous and brutal way. The practices
of a special war aimed at repressing and destroying the national
awakening in Kurdistan are increasing in proportion to the spread
among the people of that awakening and a special war in all its
dimensions is being mercilessly promoted. All their facilities
have been mobilised for war in the most brutal fashion, and the
State which cannot control developments in the region has rushed
to implement new special war practices against the people of the
region. The violence has increased to the point of resulting in
regional massacres. ... However, it is evident that the Kurdish
people will not be subdued by these terrorist methods and that
their legitimate demands will be made with ever louder voices and
an answer will be sought to State terrorism. The Chief of the
General Staff speaks of silencing certain associations which are
active in the region and certain tools of mass communication ...
At the end of last March a bomb was thrown into the home of
Abdullah Kara. Two of his children died. He and two other members
from his family were wounded. They tried to blame the PKK for
this incident. However, at that time a son and two nephews of
Abdullah Kara were guerillas for the PKK. After the incident the
PKK sent him its condolences.... The fearless action of a 75-year
old man of the Kurdish people is noteworthy in showing the
dimensions of the danger facing the Kurdish people in the days
ahead. However, it is necessary to be well aware that the
legitimate case and demands of the Kurdish people will not be
suppressed by the use of force."
The prosecution requested the conviction of the applicant for
having made propaganda aimed at destroying the indivisible integrity
of the nation and people of the State of the Republic of Turkey.
Noting that the expert witnesses had given their statement under
oath, the Court rejected the applicant's objections as to the accuracy
of the transcript and, on the basis of this transcript, ruled that the
applicant had made separatist propaganda. In accordance with Article
8/1 of Anti-Terror Law 3713, the Court sentenced him to 3 years'
imprisonment and a fine of 150 million Turkish liras.
The applicant was arrested on 5 December 1994, whilst he was
representing a client at Ankara State Security Court, and detained on
remand.
On 1 May 1995, the Court of Cassation rejected the applicant's
appeal, upholding the sentence of 1 December 1994.
However, on 20 November 1995, as a result of an amendment to the
Anti-Terror Law No. 3713, the Ankara State Security Court converted the
applicant's conviction into a fine of 101,825,000 Turkish liras.
On 15 March 1996 the Court of Cassation reexamined the
applicant's case in the light of Law No. 4126. The Court upheld the
sentence of 1 December 1994 as modified by the State Security Court in
its additional judgment of 20 November 1995.
b) Proceedings related to the press statement on 27 May 1993
On 27 May 1993 a press statement was issued in Diyarbakir signed
by the applicant and other members of the Democracy Platform (a body
formed by the representatives of 30 associations and trade unions in
Diyarbakir in order to follow and report on human rights problems in
the region), condemning in strong terms killings, village burnings and
evacuations allegedly carried out by State forces. As a result of
this publication the applicant was charged, with other members of the
Democracy Platform, under Article 8 of the Turkish Anti-Terror Law.
The applicant alleges that he received telephone threats in
Diyarbakir. Unknown persons told him that, if he did not give up his
activities, they would kill him. His car was continuously followed by
the police.
According to the applicant, on 20 August 1993 H.A., one of the
applicant's friends, was stopped by members of special teams belonging
to the Turkish security forces while he was driving the applicant's
car. The next day, H.A. found a message which the police had left at
his house saying that he had been stopped because he was driving the
applicant's car. The message also advised him not to drive that car any
more. Soon afterwards, lawyer colleagues of the applicant found a
message containing foul language stuck to the bumper of the applicant's
car.
The applicant states that because of these threats and because
of his fear of the treatment he might receive in custody, he did not
surrender to the warrant for his arrest but went into hiding at the end
of 1993.
The case against the other members of the Diyarbakir Democracy
Platform was heard by the Diyarbakir State Security Court on
13 April 1994. The court acquitted three of them and convicted fifteen
others on charges of separatist propaganda, sentencing them to two
years' imprisonment and severe fines.
The applicant did not attend this hearing out of fear for his
safety and because of the risk of torture if detained. His case was
therefore disjoined and registered under a new number.
On 12 May 1994 the applicant was arrested by the Turkish police
in Ankara and detained for 25 days in Ankara Central Closed prison and
then for four days in the Diyarbakir "E type" prison until 8 June 1994,
when he was granted bail at a hearing before the Diyarbakir State
Security Court.
A further hearing was due to take place on 12 December 1995. The
Commission has not been informed whether the hearing in fact took place
and, if so, with what result.
c) Proceedings before the Diyarbakir State Security Court (No. 3)
concerning charges under Article 5 of the Anti-Terror Law
The applicant also faces the charge of being a member of an
illegal organisation under Article 5 of the Anti-Terror Law and various
articles of the Criminal Code.
On 17 November 1994 the Diyarbakir State Security Court (No. 3)
decided to join the two sets of proceedings pending before it
concerning the charges under the Anti-Terror Law (referred to under (b)
hereof).
A hearing appears to have taken place on 14 December 1995. The
Commission has not been informed of the results of the hearing.
These proceedings appear to be still pending.d) Proceedings
related to the publishing of the "Human Rights Regional Report 1993"
In May 1995, as a result of the publishing of the "Human Rights
Regional Report 1993", the applicant was tried and acquitted in Ankara
State Security Court on charges of separatist propaganda under Article
8 of the Anti-Terror Law.
This decision was appealed by the State Security Chief Prosecutor
and the case is pending before the Court of Cassation.
B. Relevant domestic law
Article 8 of the Anti-Terror Law provides :
"Written and oral propaganda and assemblies, meetings and
demonstrations with the aim of damaging the indivisible unity of
the State of the Republic of Turkey, the nation and its
territories, are prohibited, regardless of the method, intention
and ideas behind it."
The punishment under this Article is between two and five years'
imprisonment and a fine of between 50 million and 100 million Turkish
liras.
COMPLAINTS
The applicant alleges violations of Articles 2, 3, 6, 10, 11, 13,
14 and 18 of the Convention.
As to Article 2, the applicant complains of the threats made to
his life. He refers to the lack of any effective legal system ensuring
protection of the right to life.
As to Article 3, the applicant states that he runs a real and
substantial risk that he will be subjected to torture.
As to Article 6, the applicant complains that since he was
convicted, he has been unable to practise as a lawyer. He also
complains that he was not present at the hearing of the Ankara State
Security Court on 1 December 1994 and that he could not therefore
defend himself.
As to Articles 10 and 11, the applicant submits that the
penalties imposed upon him in relation to his statements made at the
Turkish Human Rights Association General Conference in 1992 and the
proceedings instituted against him as a result of his activities as the
leading member of the Human Rights Association are in conflict with his
right to freedom of expression and his right to freedom of association.
As to Article 13, the applicant complains of the lack of an
independent national authority before which these complaints could be
brought with any prospect of success.
As to Article 14, the applicant refers to an administrative
practice of discrimination on the grounds of ethnic origin.
As to Article 18, the applicant submits that the restrictions on
his rights and freedoms set forth in the Convention are applied for
purposes not permitted under the Convention.
The applicant also alleges that the real reason for his
conviction is that his signature as a lawyer appears on several
applications introduced before the Commission in relation to human
rights violations in Turkey.
In respect of the threats made against his life, the risk of his
being tortured, and the fact that he is prevented from pursuing his
profession, the applicant maintains that there is no requirement that
he pursue alleged domestic remedies. Any alleged remedy is illusory,
inadequate and ineffective because:
a) there is an administrative practice giving rise to a presumption
that the local remedies, if any, are not effective;
b) whether or not there is an administrative practice, domestic
remedies are ineffective in this case owing to the failure of the legal
system to provide redress;
c) in a large number of cases of extrajudicial killings, it was
alleged that no judicial or disciplinary proceedings had been initiated
against those responsible, even if they had been identified;
d) in December 1993 some lawyers were charged with "belittling the
State by faxing allegations of human rights violations to the
Commission of Human Rights". A fortiori, it will be more dangerous for
a lawyer to pursue a domestic remedy.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 October 1994 and registered
on 14 November 1994.
On 19 January 1995 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
16 May 1995. The applicant replied on 4 August 1995.
THE LAW
a) Proceedings in relation to the speech made at the Turkish Human
Rights Association General Conference in 1992
1. The applicant complains that the penalties imposed upon him in
relation to his speech in 1992 are in conflict with his rights to
freedom of expression and association as provided for in Articles 10
and 11 (Art. 10, 11) of the Convention. He also complains, invoking
Article 13 of the Convention, of the lack of an independent national
authority before which his complaints could be brought with any
prospects of success.
Article 10 (Art. 10) of the Convention provides :
"1. Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority
and regardless of frontiers [...]
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such formalities,
conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of
others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of
the judiciary."
Article 11 (Art. 11) of the Convention provides :
"1. Everyone has the right to freedom of peaceful assembly and
to freedom of association with others [...]
2. No restrictions shall be placed on the exercise of these
rights other than such as are prescribed by law and are necessary
in a democratic society in the interests of national security or
public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the
rights and freedoms of others [...]"
Article 13 (Art. 13) of the Convention provides :
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Government consider that the applicant's conviction was in
accordance with Article 8 (Art. 8) of the Anti-Terror Law No. 3713,
pursued the aim of fighting the threat of terrorism and was necessary
in a democratic society in the interests of national security,
territorial integrity, public safety and for the prevention of disorder
and crime.
They point out that the applicant made reference in his speech
to the existence of two peoples, Turkish and Kurdish, that he referred
to Turkey as being a foreign country distinct from Kurdish territory,
that instead of criticising the activities of the PKK he defended this
organisation, and that his speech as a whole was an incitement to
violence against the State.
The applicant claims that the real reason behind his conviction
was the fact that he is a human rights activist. He points out in this
respect that, in sentencing him, the Ankara State Security Court took
into account his "character and personality", which can only relate to
his activities as a lawyer defending human rights. The applicant points
out further that he was considered by the judges to be a separatist
because he had stated that there are Kurds living in Turkey and used
the expressions "Kurdish people" and "Kurdish problem".
The applicant maintains that his conviction for his opinions on
the Turkish State's Kurdish policy infringes his freedom of expression
and association.
The Commission considers, in the light of the parties'
submissions, that this part of the case raises complex issues of law
and of fact under the Convention, the determination of which should
depend on an examination of the merits of the application. The
Commission concludes, therefore, that this part of the application is
not manifestly ill-founded, within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other grounds for declaring it
inadmissible have been established.
2. The applicant invokes Article 14 (Art. 14), referring to an
administrative practice of discrimination on the grounds of ethnic
origin. Invoking Article 18 (Art. 18) of the Convention, he also
alleges that the restrictions to his rights and freedoms set forth in
the Convention are applied for purposes not permitted under the
Convention.
The Government point out that the Turkish Constitution provides
for the equality of all Turkish citizens. The aplicant, who is a
successful lawyer, has not, at any moment, either when he began his
studies or later, when he started practising, been discriminated
against. The applicant is being prosecuted not because of his ethnic
origin or of his professional activities, but in accordance with legal
provisions applicable to everyone, whatever their religious beliefs or
nationality.
As to the applicant's complaint under Article 18 (Art. 18) of the
Convention, the Government consider that it should rather be examined
under Article 17 (Art. 17) of the Convention. They point out that all
the measures taken in the emergency region are provided for by the
Turkish constitution and the relevant laws and that the restrictions
on the applicant's rights to the freedom of expression and association
are necessary in a democratic society to fight terrorism.
The applicant maintains that he has been unable to practise
freely as a lawyer and that he has been targeted for his human rights
work, especially in relation to his work in assisting applicants in
bringing cases before the European Commission of Human Rights. He
contends that his complaint is substantiated by the fact that there is
a disproportionate number of violations of human rights abuses against
Kurds and Kurdish lawyers.
The Commission notes that these complaints are closely linked to
the above complaints under Articles 10 and 11 (Art. 10, 11) of the
Convention, which have been declared admissible.
Therefore, the Commission concludes that this part of the
application is not manifestly ill-founded, within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for
declaring it inadmissible have been established.
3. The applicant complains under Article 6 (Art. 6) of the
Convention that he was not present at the hearing of the Ankara State
Security Court on 1 December 1994 and that, therefore, he could not
defend himself.
The Commission has examined the applicant's complaints in the
light of the provisions of Article 6 para. 1 (Art. 6-1) of the
Convention, which provides, inter alia, that, in the determination of
any criminal charge against him, everyone is entitled to a fair
hearing.
The Commission recalls that the object and purpose of Article 6
(Art. 6) of the Convention as a whole and the concept of a fair trial
make it clear that the accused must be entitled to take part in the
hearing (cf. Eur. Court H.R., Colozza v. Italy judgment of 12 February
1985, Series A No. 89, p. 14, para. 27).
The Commission notes that the applicant was summoned to each of
the hearings before the Ankara State Security Court. He was present at
all of them, except the first one, on 14 June 1994, when he was
represented by his lawyer, and the hearing on 1 December 1994.
The Commission further notes that the applicant was not able to
provide an explanation for his absence at the trial, nor did he show
that he had requested a further adjournment. This is even more
inexplicable, given the importance of the hearing of 1 December for the
defence of the applicant, who could thus have challenged the
prosecution's transcript of his speech and called his own experts.
In these circumstances, the Commission considers that, in the
present case, the applicant failed to exercise his right to appear at
the hearing and defend himself.
Consequently, the Commission considers that the applicant's
complaint concerning the lack of a fair trial is manifestly ill-founded
and must be rejected in accordance with Article 27 par. 2 (Art. 27-2)
of the Convention.
b) Remaining complaints
4. The applicant also complains of the threats made to his life,
that he runs a real and substantial risk of being subjected to torture
and that since he was convicted he has been unable to practise as a
lawyer. The applicant invokes Articles 2, 3 and 6 (Art. 2, 3, 6) of
the Convention.
However, the Commission finds no indication of a violation of
these provisions. In particular, the Commission notes that the
applicant has not substantiated his allegations that the State
authorities were responsible for the threats he has received. As to the
allegation that the applicant has since his conviction been unable to
practise as a lawyer, even assuming that the allegation were
substantiated, the Commission considers that it raises no issue under
Article 6 (Art. 6) of the Convention.
It follows that these allegations are manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
5. The applicant complains that the proceedings instituted against
him in relation to the press statement of 27 May 1993, to the
publishing of the "Human Rights Regional Report 1993" and the
proceedings concerning charges under Article 5 of the Anti-Terror Law
are in conflict with his rights to freedom of expression and
association as provided for in Articles 10 and 11 (Art. 10, 11) of the
Convention.
The Government point out that all these proceedings are pending
before the national authorities and consider therefore that the
applicant has not exhausted domestic remedies.
The applicant considers that the scope of the provisions of the
Anti-Terror Law under which he is charged is so wide that an expression
of opinion may be arbitrarily taken as falling within the scope of the
legislation and criminalised.
He also contends that the use of the Anti-Terror Law in such
circumstances is itself a violation of the Convention. The
Commission notes that all these proceedings are still pending before
the Diyarbakir State Security Court and the Court of Cassation. This
complaint is therefore premature.
The Commission concludes that the applicant has not yet exhausted
the remedies available to him under Turkish law, in accordance with
Article 26 (Art. 26) of the Convention.
It follows that this part of the application must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
6. The applicant finally complains of the lack of an independent
national authority before which his complaints could be brought with
any prospects of success. He invokes Article 13 (Art. 13) of the
Convention.
The Government consider that this complaint is manifestly ill-
founded as the applicant had at his disposal remedies under Turkish law
which he did not exhaust.
The applicant contends that there is an administrative practice
of non-respect of the rule under Article 13 (Art. 13) of the Convention
in south-east Turkey. He alleges that there is substantial reason to
believe that any trial and investigation will not offer effective and
adequate redress.
The Commission recalls that, according to the established case-
law of the Convention organs, Article 13 (Art. 13) requires an
effective remedy only in respect of grievances which can be regarded
as "arguable" in terms of the Convention (cf., inter alia, Eur. Court
HR, Powell and Rayner judgment of 21 February 1990, Series A No. 172,
p. 14, para. 31).
Insofar as the applicant complains about a lack of remedies in
respect of his allegations under Articles 10 and 11 (Art. 10, 11) (cf.
para. 5 above), the Commission notes that various proceedings are
pending before the domestic courts.
The Commission also observes that the applicant's complaints
under Articles 10 and 11 (Art. 10, 11) in relation to these proceedings
have been found to be inadmissible for non-exhaustion of domestic
remedies.
Therefore, the Commission considers that it cannot be said for
the time being that the applicant was denied a remedy for the alleged
violations.
As regards the applicant's complaint that he has no remedies in
respect of his claim that his rights under Articles 2, 3 and 6
(Art. 2, 3, 6) were infringed (cf. para. 4 above), the Commission has
found that the complaints under these Articles are manifestly ill-
founded. The Commission finds that the applicant cannot be said to have
an "arguable claim" of a violation of these Articles. Consequently, the
applicant cannot derive from Article 13 (Art. 13) of the Convention a
right to a remedy for the alleged violation of the Convention in this
respect.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission unanimously
DECLARES ADMISSIBLE, without prejudging the merits, the
applicant's complaints that his rights to freedom of expression
and to freedom of association have been infringed as a result of
his conviction for the speech made in 1992, that there is no
national authority before which these complaints could be brought
with any prospects of success, that his conviction amounts to
discrimination on the ground of ethnic origin and that the
restrictions on his rights and freedoms set forth in the
Convention are applied for purposes not permitted under the
Convention ;
DECLARES INADMISSIBLE the remainder of the application.
H.C. KRÜGER S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy