SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 47328/99
by Nureddin ŞİRİN
against Turkey
The European Court of Human Rights (Second Section), sitting on 27 April 2004 as a Chamber composed of:
MrJ.-P. Costa, President,
MrL. Loucaides,
MrR. Türmen,
MrC. Bîrsan,
MrK. Jungwiert,
MrM. Ugrekhelidze,
MrsA. Mularoni, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 15 March 1999,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Nureddin Şirin, is a Turkish national, who was born in 1964 and lives in Istanbul. He is represented before the Court by Mr Mudassir Arani, a lawyer practising in Middlesex (United Kingdom).
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant, who is a journalist, is the owner of a news agency, called the “Jerusalem Cultural Centre”.
The applicant was invited by the Sincan District Council in Ankara as a speaker at the “Jerusalem Night” which was held on 31 January 1997. This event was organised as part of a thirty-day programme during the month of Ramadan. Before going to the meeting, the applicant sent some posters to the organisers of the meeting and asked them to hang them on the walls on the night.
On 31 January 1997 the applicant made a speech about the liberation movement in Palestine and praised the Muslim leaders who worked for the liberation of Jerusalem. He further stated that he longed for a regime which was based on the Koran. He criticised secularism and praised Shariah-based State systems.
On 6 February 1997 the applicant was taken into police custody. In his statement, taken at the police station, the applicant stated that he had previously been convicted on account of some of his articles. He repeated that he supported the Iranian regime and that he longed for a regime that was based on the Koran. The applicant further admitted that he had sent the posters to the meeting and maintained that these did not refer to terrorists but to martyrs who had given their lives for the liberation of Jerusalem.
On 13 February 1997 the applicant was questioned by the public prosecutor attached to the Ankara State Security Court. During his questioning by the prosecutor, the applicant repeated the statement he had made to the police. He stated that he had not meant to incite people to hatred. On the contrary, he had expressed the hope that those labouring under oppression would be liberated as soon as possible.
On the same day the applicant was brought before the investigating judge attached to the Ankara State Security Court. In his statement, the applicant pleaded not guilty. He maintained that he had called for a Shariah-based regime and that he was in favour of changing the secular regime. The applicant further repeated that the photographs on the posters were not those of terrorists but of Muslim leaders who had fought for the liberation of Jerusalem.
The investigating judge ordered that the applicant be remanded in custody.
In an indictment dated 7 March 1997, the Ankara State Security Court public prosecutor initiated criminal proceedings against the applicant. He charged the applicant with having disseminated propaganda in breach of Article 312 § 2 of the Criminal Code and accused him of inciting people to hatred and hostility on the basis of a distinction between social classes. The public prosecutor further charged the applicant under Article 168 § 2 of the Criminal Code with membership of an armed gang.
The public prosecutor submitted 161 videotapes to the court in evidence. These videotapes, which were found in the applicant's house, contained several speeches made by the applicant. The public prosecutor based his case on the applicant's speech of 31 January 1997, on his previous videotaped speeches and on the fact that he had sent posters of Hezbollah and Hamas leaders to the meeting.
Before the Ankara State Security Court, which was composed of three judges including a military judge, the applicant contested the charges against him. He argued, in particular, that he had not meant to incite hatred and he had not engaged in separatist propaganda. He also said that Hezbollah was a national, legal liberation movement in Palestine and denied being a member of any terrorist or illegal organisation.
On 15 October 1997 the Ankara State Security Court acquitted the applicant of the charges under Article 312 of the Criminal Code. However, the court found the applicant guilty of the charges under Article 168 § 2 of the Criminal Code and sentenced him to 17 and a half years' imprisonment.
In its judgment, the Ankara State Security Court first 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 further took into consideration a report from a magazine called “Eurasia File” (Avrasya Dosyası). This magazine, which was published by the International Relations and Strategic Studies Centre, was used in evidence by the public prosecutor. In the light of the evidence before it, the court rejected the applicant's assertion that Hezbollah was a legal national movement.
Finally, the court found it established that the applicant had been continuously making propaganda on behalf of Hezbollah in order to recruit members to that organisation. Having regard to the fact that the applicant had committed similar offences in the past, the court concluded that the applicant was a member of Hezbollah.
On 6 January 1998 the applicant appealed to the Court of Cassation. The Chief Public Prosecutor at the Court of Cassation submitted his opinion on the merits of the appeal. The written opinion of the Chief Public Prosecutor was read out during the hearing before the Court of Cassation but was not served on the applicant before the hearing.
On 21 September 1998 the Court of Cassation dismissed the applicant's appeal, upholding the Ankara State Security Court's assessment of evidence and its reasons for rejecting the applicant's defence.
On 24 December 1998 the Chief Public Prosecutor attached to the Court of Cassation rejected the applicant's request for rectification.
B. Relevant domestic law and practice
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 applicant complains under Article 5 § 3 of the Convention that he was kept in police custody for seven days without being brought before a judge.
2. The applicant alleges under Article 6 § 1 of the Convention that he was 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.
The applicant further maintains under Article 6 §§ 1 and 3 of the Convention that he was denied a fair hearing. He alleges in this connection that the principle of equality of arms was violated since he was not notified of the Chief Public Prosecutor's observations at the appeal stage. He also states that not all the evidence which had been taken into consideration in the Ankara State Security Court's decision had been communicated to him for his comments, and that the national court had erred in its interpretation of domestic law.
3. The applicant next complains of a violation of Article 7 in that he was convicted of an act that did not constitute a criminal offence at the relevant time.
4. The applicant further invokes Articles 9, 10 and 11 of the Convention, alleging that his rights to freedom of thought, expression and assembly were breached as a result of the State Security Court's judgment.
THE LAW
1. The applicant complains that he was not brought promptly before a judge in breach of Article 5 § 3 of the Convention, which provides as relevant:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge (...).”
The Court observes that the applicant's complaint relates to the period spent in custody between 6 February 1997 and 13 February 1997. However, the applicant introduced his application under the Convention on 15 March 1999, which is more than 6 months from the date of the facts giving rise to the alleged violation. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The applicant further states that he was 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. He also states that not all the evidence which had been taken into consideration in the Ankara State Security Court's decision had been communicated to him for his comments, and that the national court had erred in its interpretation of domestic law. Finally, he maintains that the fairness of the appeal proceedings was undermined by reason of the failure to notify him in advance of the Chief Public Prosecutor's observations on his appeal. The applicant invokes Article 6 §§ 1 and 3 of the Convention, which provide:
“1. 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.
3. Everyone charged with a criminal offence has the following minimum rights:
... (b) to have adequate time and facilities for the preparation of his defence; ...”
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 Court, to give notice of this part of the application to the respondent Government.
3. The applicant further alleges that, prior to his conviction, there was no offence recognised in Turkish law of engaging in propaganda in respect of organisations that did not operate in Turkey. He therefore claims that his conviction for such an offence constituted a breach of Article 7 § 1 of the Convention, which reads as follows:
“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 national or international law at the time when it 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. It is clear from the case file that the national court found on the evidence that the applicant was a member of that illegal organisation. He was thus convicted and sentenced in respect of a crime clearly defined in the Criminal Code.
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.
4. The applicant further alleges under Articles 9, 10 and 11 of the Convention that his conviction resulted in a violation of his rights to freedom of thought, expression and assembly.
The Court observes that the applicant was not convicted for having expressed his opinions or for having participated in a meeting, but for membership of an illegal organisation, pursuant to Article 168 of the Criminal Code. Having regard to the applicant's previous convictions and speeches, the domestic court found it established that the applicant had been continuously engaged in the making of propaganda on behalf of Hezbollah in order to recruit members. On the basis of that evidence, the court, contrary to the applicant's denials, concluded that he was a member of that organisation. There is therefore nothing in the case file that could support the applicant's claims concerning his complaints under Articles 9, 10 and 11 (see in this respect, Kılıç v. Turkey, cited above).
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 applicant's complaints concerning his right to a fair hearing by an independent and impartial tribunal, and the failure to notify the applicant in advance of the Chief Public Prosecutor's submissions on his appeal;
Declares the remainder of the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy