Information Note on the Court’s case-law No.
November 1997
Zana v. Turkey - 18954/91
Judgment 25.11.1997 [GC]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Reasonable time
Article 6-3-c
Defence in person
Accused unable to appear at hearing in Diyarbakır National Security Court and lenght of criminal proceedings against him: violations
Article 10
Article 10-1
Freedom of expression
Prison sentence imposed by Diyarbakır National Security Court on account of a statement to journalists: no violation
[This summary is extracted from the Court’s official reports (Series A or Reports of Judgments and Decisions). Its formatting and structure may therefore differ from the Case-Law Information Note summaries.]
I.ARTICLE 10 OF THE CONVENTION
A.Government’s preliminary objections
1.Lack of jurisdiction ratione temporis
Court could only take cognisance of facts subsequent to 22 January 1990, when Turkey’s declaration (under Article 46 of the Convention) was deposited – in the instant case principal fact lay in applicant’s conviction by Diyarbakır National Security Court on 26 March 1991 – question whether the Government, who had referred case to Court, were estopped from relying on Turkey’s declaration had not been raised before Court and did not need to be determined.
Conclusion: objection dismissed (eighteen votes to two).
2.Failure to exhaust domestic remedies
Objection had not been raised at admissibility stage and there was therefore an estoppel.
Conclusion: objection dismissed (unanimously).
B.Merits of complaint
Applicant’s conviction and sentence had amounted to an interference with his exercise of his freedom of expression.
The interference had been based on Articles 168 and 312 of the Criminal Code and had therefore been prescribed by law within the meaning of Article 10 § 2.
It had pursued legitimate aims under Article 10 § 2, since the statement in question could, at a time when serious disturbances were raging in south-east Turkey, have had an impact such as to justify the national authorities’ taking a measure designed to maintain national security and public safety.
As to necessity of interference, Court first recapitulated its case-law.
Applicant’s statement contained both a contradiction and an ambiguity – it could not, however, be looked at in isolation and had had a special significance in the circumstances of the case – interview had coincided with murderous attacks carried out by the PKK on civilians in south-east Turkey – the support given to the PKK, described as a “national liberation movement”, by former mayor of Diyarbakır in interview published in major national daily newspaper had had to be regarded as likely to exacerbate an already explosive situation in that region – penalty imposed could therefore reasonably have been regarded as answering a pressing social need, and reasons adduced by the national authorities were relevant and sufficient – at all events, applicant had served only one-fifth of his sentence in prison – interference in issue proportionate to legitimate aims pursued.
Conclusion: no violation (twelve votes to eight).
II.ARTICLE 6 OF THE CONVENTION
A.Government’s preliminary objections (failure to exhaust domestic remedies)
Objection had not been raised at admissibility stage and there was therefore an estoppel.
Conclusion: objection dismissed (unanimously).
B.Merits of complaint
1.Article 6 §§ 1 and 3 (c) (fair trial)
Fact that applicant had raised procedural objections or wished to address court in Kurdish in no way signified that he had implicitly waived his right to appear before Diyarbakır National Security Court – in view of what had been at stake for the applicant, that court could not, if the trial was to be fair, give judgment without a direct assessment of the applicant’s evidence – neither the “indirect” hearing by the Aydın Assize Court nor presence of applicant’s lawyers at hearing before Diyarbakır National Security Court could compensate for absence of accused.
Conclusion: violation (seventeen votes to three).
2.Article 6 § 1 (length of proceedings)
(a)Period to be taken into consideration
Starting-point: deposit of Turkey’s declaration.
End: date of service of Court of Cassation’s judgment.
Total: one year and six months, but account had to be taken of fact that by date of deposit of Turkey’s declaration the proceedings had already lasted two years and five months.
(b)Reasonableness of length of proceedings
To be assessed in light of circumstances of case, regard being had to criteria laid down in Court’s case-law.
Proceedings complained of not particularly complex – applicant’s conduct could not, on its own, explain such a length of time – during period in question Diyarbakır National Security Court had not delivered its judgment until nine months after hearing at Aydın Assize Court – earlier period of inactivity on part of judicial authorities, which Court could take into account in assessing whether “reasonable time” requirement had been satisfied – importance to applicant of what had been at stake in the case.
Conclusion: violation (nineteen votes to one).
III.ARTICLE 50 OF THE CONVENTION
A.Damage
Pecuniary damage: no causal link between violations found and alleged damage.
Non-pecuniary damage: compensation awarded.
Conclusion: respondent State to pay applicant specified sum for non-pecuniary damage (eighteen votes to two).
B.Costs and fees
Reimbursed on equitable basis.
Conclusion: respondent State to pay applicant specified sum for costs and fees (nineteen votes to one).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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