HALIS v. TURKEY

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 30007/96
by Atilla HALİS
against Turkey

The European Court of Human Rights (Third Section), sitting on 23 May 2002 as a Chamber composed of

MrG. Ress, President,
MrI. Cabral Barreto,
MrL. Caflisch,
MrP. Kūris,
MrR. Türmen,
MrB. Zupančič,
MrK. Traja, judges,
andMrV. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 19 December 1995 and registered on 30 January 1996,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

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, born in 1969, is a Turkish journalist resident in İstanbul. He is represented by Mr Özcan Kılıç, a lawyer practising in İstanbul.

A.  The circumstances of the case

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

The applicant worked as a journalist for the Turkish daily newspaper Özgür Gündem.

On 2 January 1994 Özgür Gündem published an article with the title “Four New Books by Magros Publications”, written by the applicant. In this article, the applicant reviewed four books written by four different authors who discussed problems related to Turkey’s south-eastern region. The first book reviewed in the article, the “Tasfiyeciliğin Tasfiyesi” (Liquidation of Liquidators), was written by Abdullah Öcalan, the leader of the PKK.

Under this heading the author expressed his views in the following terms:

“Combating liquidation is of paramount importance for every revolutionary movement. There is hardly any great movement in which liquidation does not exist. Abdullah Ocalan, the General Secretary of the PKK, examined the characteristics of the liquidators and the destructive damage they caused in the struggle. He reveals his determination on this issue by declaring: “I will not hesitate even if I have to sacrifice the whole party in order to liquidate one of them”.

In this connection, a further success of the PKK is its never ceasing firm struggle against liquidation. The PKK has revealed facts that almost no other revolutionary movement managed to do. This discipline and determination of the PKK may give an idea about its prospective system and the characteristics of its creators.

The PKK has, in this sense, diagnosed at the right time the liquidation tendencies which would lead the revolution to defeat, took measures against possible damage, organised the struggle to save the revolution’s origins and thus has carried the revolution further to victory. These issues are explicitly taken up and evaluated in the book. "Liquidation of Liquidators" is not a theoretical work, nor a book written after examination of the relevant literature. On the contrary, it is a book that collects in chronological order the evaluations on the problem of liquidation, encountered in practice during a long and hard struggle. The book is in this respect a documentary, including information and instructive lessons not only for The National Liberation Struggle for Kurdistan but also for all class or national liberation movements in the world.”

On 1 July 1994, the Public Prosecutor at the İstanbul State Security Court accused the applicant with disseminating propaganda about an illegal separatist terrorist organisation. The charges in the indictment were brought under Article 7 § 2 of Prevention of Terrorism Act (Law no. 3713). The public prosecutor based his indictment on the following sentences from the applicant’s article:

“...In this connection, a further success of the PKK is its never ceasing firm struggle against liquidation. The PKK has revealed facts that almost no other revolutionary movement managed to do. This discipline and determination of the PKK may give an idea about its prospective system and the characteristics of its creators.

The PKK has, in this sense, diagnosed at the right time the liquidation tendencies which would lead the revolution to defeat, took measures against possible damage, organised the struggle to save the revolution’s origins and thus has carried the revolution further to victory...”

On 20 March 1995 the İstanbul State Security Court found the applicant guilty of the offence under Section 7 § 2 of Prevention of Terrorism Act and sentenced the applicant to one year’s imprisonment and a fine of four hundred million Turkish liras (TRL).

The applicant appealed. On 10 October 1995, the Court of Cassation upheld the decision of the İstanbul State Security Court.

B.  Relevant domestic law

Section 7 of the Prevention of Terrorism Act (Law no.3713) provides as follows:

“Under reservations of provisions in Articles 3, 4, 168, 169, 171, 313, 314 and 515 of the Criminal Code, those who found organisations as specified in Article 1 under any name or who organise and lead activities in such organisations shall be punished with imprisonment of 5 to 10 years and with a fine of 200 million to 500 million Turkish liras; those who join these organisations shall be punished with imprisonment of 3 to 5 years and with a fine of 100 million Turkish Liras.

Those who assist members of organisations constituted in the manner described above or make propaganda in connection with such organisations shall be punished with imprisonment of 1 to 5 years, with a fine of 50 million to 100 million Turkish Liras, even if their offence constitute a separate crime...”

COMPLAINTS

The applicant complains of a violation of his rights guaranteed by Articles 5, 6 , 9, 10 and 14 of the Convention.

The applicant submits under Article 5 § 1 (b) of the Convention that he was unlawfully deprived of his liberty by the İstanbul State Security Court, which erred in its judgment by considering his opinions expressed in an article as a terrorist offence.

The applicant complains that he has been denied a fair hearing in breach of Article 6 § 1 of the Convention on account of the presence of a military judge on the bench of the İstanbul State Security Court which tried and convicted him.

The applicant alleges that the authorities have unjustifiably interfered with his right to freedom of thought and expression guaranteed by Articles 9 and 10 of the Convention, insofar as he was convicted for his newspaper review on recently published books.

The applicant further alleges that the application of special rules under the Prevention of Terrorism Act and his trial before a state security court constituted discriminatory treatment contrary to Article 14 of the Convention.

THE LAW

1. The applicant contends that his conviction and sentence for having published the impugned article violated his rights guaranteed by Articles 9 and 10 of the Convention.

The Court considers that the essence of the applicant’s complaints concerns the alleged interference with his right to freedom of expression, in particular with his right to impart ideas and information, guaranteed by Article 10 § 1 of the Convention. Therefore, this complaint should be examined from the standpoint of Article 10 alone. (see, among other authorities, the İncal v. Turkey judgment, dated 9 June 1998, Reports of Judgements and Decisions, 1998 IV, p.1569, § 60).

Article 10 provides as relevant:

“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...

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...”

The Government submit that the interference with the applicant’s rights under Article 10 of the Convention was prescribed by Section 7 of the Prevention of Terrorism Act, which is in conformity with the constitutional rules concerning freedom of expression and aims to protect the territorial integrity and national security of the State.

The Government contend that the term “liquidation” used in the applicant’s article refers to the act of destroying or killing. Accordingly, they maintain that the applicant spread propaganda for a terrorist organisation which killed many people. In the Government’s opinion the national courts used their margin of appreciation as there was a pressing social need to take a restrictive measure against life-threatening terrorism. The sanction imposed therefore had a legitimate aim, for the act in dispute was a threat to the territorial integrity, the national security and the public order of the state, and it was proportionate with the legitimate aim pursued.

The applicant maintains his account of the facts and complaints.

The Court is of the opinion that this complaint raises important questions of fact and law, which cannot be resolved at the stage of admissibility but require an examination on the merits. The application cannot therefore be considered as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it inadmissible have been established.

2. The applicant complains under Article 6 § 1 of the Convention that he did not have a fair hearing on account of the presence of a military judge on the bench of the İstanbul State Security Court, which tried and convicted him. Article 6 § 1 provides as relevant:

“In the determination of ...any criminal charge against him, everyone is entitled to a fair ...hearing ...by an independent and impartial tribunal established by law...”

The Government replied that the rules governing the appointment of military judges to state security courts and the guarantees which these judges enjoy in the performance of their judicial functions were such as to ensure that these courts fully complied with the requirements of independence and impartiality within the meaning of Article 6 § 1.

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. The Court 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 complains that his detention by order of the İstanbul State Security Court violated his right to liberty within the meaning of Article 5 § 1 (b) of the Convention.

The Court considers however that this complaint should be considered from the standpoint of Article 5 § 1 (a), which provides, so far as relevant, as follows:

“No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;

... ”

The Government maintain that the applicant’s detention was lawful since he was arrested, tried and sentenced for spreading propaganda about a terrorist organisation.

The Court recalls that, on the question whether the detention is “lawful”, including whether it complies with “a procedure prescribed by law”, the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. However, the scope of review by the Court is limited and it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see the Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, pp. 17-18, § 39). 

In the instant case, the İstanbul State Security Court held that the applicant’s conduct constituted the offence of disseminating propaganda about an illegal separatist terrorist organisation within the meaning of Section 7 § 2 of the Prevention of Terrorism Act. In its decision of 10 October 1995, the Court of Cassation confirmed this judgment and the applicant was subsequently sentenced to one year’s imprisonment and a fine of four hundred million Turkish liras.

The Court considers that the applicant’s submissions, in particular his views regarding the State Security Court’s assessment of evidence and application of the domestic law, do not disclose any element which would render his detention “unlawful” within the meaning of Article 5 § 1 (a) of the Convention. It concludes therefore that this part of the application is manifestly ill-founded within the meaning of Article 35 §§ 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

4.The applicant alleges that he is discriminated on account of his political opinions contrary to Article 14 of the Convention, which provides:

“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government refutes this allegation. They submit that the applicant was sentenced for violating Section 7 of the Prevention of Terrorism Act, which is a general and abstract law. They submit that States are entitled to make distinctions between different type of offences.

The applicant maintains his account of the facts and complaints.

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 by which persons or group of persons are distinguishable from each other (see the Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976, Series A no. 23, p. 29, § 56).

The Court notes that in principle the aim of Law no. 3713 is to prevent terrorism and that anyone arrested and charged with an offence falling within the scope of that law will be treated less favourably than persons arrested and charged with an offence under the ordinary law. In this regard, the Court considers that the distinction is made not between different groups of people, but between different types of offences, according to the legislature’s view of their gravity (see Gerger v. Turkey, no. 24919/94, § 69, ECHR 1999-II). It therefore concludes that that practice does not amount to a form of “discrimination” that is contrary to the Convention.

The Court concludes that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

DECLARES ADMISSIBLE, without prejudging the merits, the applicant’s complaints concerning his right to a fair hearing by an independent and impartial tribunal and his right to freedom of expression;

DECLARES INADMISSIBLE the remainder of the application.

Vincent BergerGeorg Ress
RegistrarPresident

Full & Egal Universal Law Academy