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THIRD
SECTION
CASE OF DÜZGÖREN v. TURKEY
(Application
no. 56827/00)
JUDGMENT
STRASBOURG
9 November 2006
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Düzgören v. Turkey,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr R. Türmen,
Mr C.
Bîrsan,
Mr E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Ziemele, judges,
and Mr V.
Berger, Section Registrar,
Having
deliberated in private on 19 October 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 56827/00) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr Koray Düzgören
(“the applicant”), on 15 October 1999.
- The
applicant was represented by Ms A. J. Stock, Mr M. Muller, Mr T.
Otty and Ms J. Gordon of the Kurdish Human Rights Project in London.
The Turkish Government (“the Government”) did not
designate an Agent for the purposes of the proceedings before the
Court.
- On
28 September 2004 the Court (Second Section) declared the application
partly inadmissible and decided to communicate the complaint
concerning the alleged lack of independence and impartiality of the
military court, the alleged interference with the applicant's right
to freedom of expression and the alleged lack of an effective remedy
to the Government. Under Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1947 and lives in London.
- On
1 April 1998 the applicant, who is a journalist, distributed a
leaflet concerning the conscientious objector Mr O.M.U, outside the
Ankara State Security Court. He also handed the leaflet to the public
prosecutor at the Ankara State Security Court together with a
petition stating that he should be prosecuted for having committed a
crime.
- The
leaflet, entitled “Freedom to think - an initiative against
the crime of thought” contained the press release issued by
O. M. U on 1 September 1995. The latter had been previously
convicted and sentenced on account of this press release. The
relevant parts of the leaflet are as follows:
Preface and Epilogue:
“... For the purpose of defending the free
expression of every kind of thought, we who have signed as
publishers, convey this 'convicted' text to the people, regardless of
its contents and the question whether or not we share its contents,
even though some of us do not agree with some lines in it...'
The press release of O. M. U:
“Good morning, Today's press conference is not
organised by the Izmir Association of the Opponents of War. The
responsibility for this conference rests exclusively with me. As you
know, the case, which was brought before the Ankara Military Court of
the Office of the Chief of Staff where I was allegedly accused of
committing the crime of 'inciting others to evade military service',
was concluded on 29 August.
...
The army, unable to deal with us through judicial
methods, think that they can draw the opponents of war away from the
public view. First of all, I am not a deserter; I am a 'conscientious
objector'. I neither intend to do military service nor desert. There
is no reason to desert, because I defend the principle that people
should exercise their right not to do military service without having
to go into hiding.
As to the papers given by the Recruitment Office...I am
going to burn them right now before your eyes...
I am not a soldier and I never will be. Of course, I am
aware that I will be summoned for military service, but until I am
summoned, whenever that may be there will be no changes to my
lifestyle. They can find me here and take me by force. But I will
resist to the end in the barracks, and I am underlining that I will
refuse to do military service in any shape or fashion.”
- On
1 April 1998 the public prosecutor at the Ankara State Security Court
took the applicant's statement in which the applicant reiterated the
content of his petition. He maintained that, by publishing and
distributing the above-mentioned leaflet, he had committed the same
offence for which O. M. U. had been convicted. He contended that
he agreed with the contents of the leaflet. He further pointed out
that there were judgments of the European Court of Human Rights which
referred to conscientious objectors. He claimed that the leaflet was
not intended to dissuade people from doing military service or to
incite them to desert. He further stated that in the Netherlands
conscientious objectors did not do their military service, but were
given other jobs. He commented that maybe in the future the same
would also be true for Turkey. He concluded that his aim was to
obtain the abolition of compulsory military service in Turkey.
- On
4 June 1998 the military public prosecutor at the General Staff Court
in Ankara filed a bill of indictment, accusing the applicant of
inciting others to evade military service. He requested that the
applicant be convicted and sentenced under Article 155 of the
Criminal Code and Article 58 of the Military Penal Code.
- On
an unspecified date, the criminal proceedings against the applicant
commenced before the General Staff Court in Ankara. During the
proceedings the applicant reiterated his previous submissions. In
particular, he claimed that he was a defender of freedom of
expression and challenged the independence and impartiality of the
court.
- On
9 March 1999 the court convicted the applicant as charged and
sentenced him to two months' imprisonment and to a fine of
1,520,000
Turkish Liras (TL) (approximately 3.5 Euros (EUR) at the time of the
events). In its reasoning, the court held that it had competence to
deal with the case pursuant to the Constitution and domestic law and
that there was no ruling of the European Court of Human Rights which
had concluded that military courts were extraordinary courts. As
regards the merits, the court considered that, by distributing the
leaflet containing the press release which led to O. M. U's
conviction and by handing the leaflet to the public prosecutor and
asking the latter to take legal action, the applicant's actions were
deliberate and that he had committed the offence knowingly and
willingly. The court, relying on Articles 25 and 26 of the
Constitution, Article 10 § 2 of the European Convention on Human
Rights and Article 29 § 2 of the Universal Declaration
of Human Rights, affirmed that freedom of expression and the free
dissemination of ideas was not an absolute right. Citing relevant
articles of the Criminal Code, it reasoned that the provisions under
which the applicant was charged pursued the aim of eliminating
threats to the unity of the country, national security and
sovereignty. The court observed that Article 155 of the Criminal Code
was in accordance with international law and that the applicant's
case fell within the scope of Article 155 of the Criminal Code.
- On
19 April 1999 the applicant appealed to the Military Court of
Cassation. In his appeal, the applicant, relying on Articles 6 and 10
of the European Convention on Human Rights, contended that he should
not have been tried by a military court and that the act which he had
committed could not be considered to be an offence.
- On
25 May 1999 the Military Court of Cassation upheld the decision of
the General Staff Court. In its decision the court, referring to
domestic law and the jurisprudence of the Court, held that the
military courts had jurisdiction and competence to try the applicant
and, after having assessed the contents of the leaflet, concluded
that the judgment given by the General Staff Court was in accordance
with the law.
- On
17 July 1999 the applicant left Turkey in order to avoid
imprisonment.
II. THE RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice in force at the material time are
outlined in the following judgment: Ergin
v. Turkey (no. 6), no. 47533/99, §§ 15-18, 4 May 2006.
- Following
the amendment introduced on 30 July 2003 by section 6 of Law no.
4963, section 11 of the Constitution of Military Courts Act now
reads:
“...Military courts shall not try civilians
charged with committing the crimes and lesser offences referred to in
Article 58 of the Military Penal Code in time of peace.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the General Staff Court which tried him
could not be regarded as an independent and impartial tribunal, given
that it was composed of two military judges and an officer, all of
whom were bound by the orders and instructions of the Military of
Defence and the general staff which appointed them. In that
connection he submitted that, as a civilian, he should not have been
tried in a military court. The applicant relied on Article 6 §
1 of the Convention, which in so far as relevant reads as follows:
“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.”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government submitted that only in exceptional circumstances was a
civilian tried in a military court in Turkey. On that point, they
maintained that the applicant was only tried before a military court
because he was charged with an offence concerning the military
service. The Government further maintained that the domestic law
provided necessary safeguards to guarantee the independence and
impartiality of military courts. Finally, the Government pointed out
that with the adoption of Law no. 4963 Turkish legislation had
been amended to bring it into line with the Convention.
- The
applicant maintained his allegations.
- The
Court notes that it has already examined the same grievance in the
past and has found a violation of Article 6 § 1 of the
Convention in its Ergin (no.
6) judgment (cited above, § 54). In that
judgment, the Court held that it was understandable that the
applicant, a civilian standing trial before a court composed
exclusively of military officers, charged with offences relating to
propaganda against military service, should have been apprehensive
about appearing before judges belonging to the army, which could be
identified with a party to the proceedings. On that account the
applicant could legitimately fear that the General Staff Court might
allow itself to be unduly influenced by partial considerations.
Consequently, the applicant's doubts about that court's independence
and impartiality may be regarded as objectively justified (ibid).
- The
Court has examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned case.
- There
has therefore been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained that his criminal conviction and sentence for
producing and distributing a leaflet had infringed his right to
freedom of expression as guaranteed by Article 10 of the Convention,
which provides, as follows:
“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. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
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.”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Court notes that it is clear and undisputed between the parties that
there has been an interference with the applicant's right to freedom
of expression on account of his conviction and sentence under Article
155 of the Criminal Code. It further considers that the interference
was prescribed by law and pursued a legitimate aim, namely the
prevention of disorder (see Ergin (no.
6), cited above, § 28). The Court will
therefore confine its examination of the case to the question whether
the interference was “necessary in a democratic society”.
- The
Government maintained that compulsory military service in Turkey was
necessary in order to protect national and public security. They
stated that any action taken against this obligation prescribed by
law would amount to a provocation to disobey the law. In this
connection, they noted that the applicant, by distributing the
leaflet concerning the conscientious objector O.M.U in a public area,
committed the offence of inciting others to evade military service.
- The
applicant refuted the Government's arguments. In particular, he
asserted that the dissemination of information by way of a leaflet
was a peaceful and democratic way to disseminate information and
opinions.
- The Court reiterates the basic principles laid down in
its judgments concerning Article 10
(see, in particular, Şener v. Turkey, no.
26680/95, §§ 39-42, 18 July 2000; Öztürk
v. Turkey [GC], no. 22479/93, § 64,
ECHR 1999-VI; and Fressoz and Roire v. France [GC],
no. 29183/95, § 45, ECHR 1999 I). It will
examine the present case in the light of these principles.
- The
Court must look at the impugned interference in the light of the case
as a whole, including the content of the leaflet and the context in
which it was diffused. In particular, it must determine whether the
interference in question was “proportionate to the legitimate
aims pursued” and whether the reasons adduced by the national
authorities to justify it are “relevant and sufficient”
(see Koç and Tambaş v. Turkey, no.
50934/99, § 36, 21 March 2006). Furthermore, the nature and
severity of the penalties imposed are also factors to be taken into
account when assessing the proportionality of the interference (see
Skałka v. Poland, no. 43425/98, § 42, 27 May
2003).
- The
Court observes that, in the instant case, the applicant was convicted
for having distributed a leaflet which contained, in particular, the
press statement of O.M.U, a conscientious objector, giving the
reasons why the latter refused to do his compulsory military service.
The General Staff Court considered that, by distributing this
leaflet, the applicant had incited others to evade military service.
- The
Court has examined the contents of the leaflet in question. It
considers that, although the words used in the impugned article give
it a connotation hostile to military service, they do not encourage
violence, armed resistance or insurrection and do not constitute hate
speech (see Ergin (no.
6), cited above, § 34; contrast
Sürek v. Turkey (no. 1) [GC],
no. 26682/95, § 62, ECHR 1999-IV; and Gerger v.
Turkey [GC], no. 24919/94, § 50, 8 July
1999). In addition, the context in which the opinions were expressed
can be distinguished, as regards their potential impact, from that of
the Arrowsmith case, in which the applicant, a pacifist
activist, had distributed a leaflet inciting servicemen to desert at
a military camp occupied by troops who were shortly to be posted to
Northern Ireland (see Arrowsmith v. the United Kingdom,
no. 7050/75, Commission's report of 12 October 1978,
Decisions and Reports (DR) 19, p. 5). In the present case the
offending leaflet was distributed in a public place in Istanbul. It
did not seek, either in its form or in its content, to precipitate
immediate desertion. In the Court's view, these are the essential
factors in the assessment of the necessity of the measure.
- Finally,
the Court considers the applicant's sentencing, in particular the two
months' imprisonment, a harsh penalty.
- Against
this background, the Court considers that the reasons given by the
General Staff Court, although relevant, cannot be considered
sufficient to justify the interference with his right to freedom of
expression.
- Having
regard to the above considerations, the Court concludes that the
applicant's conviction and sentence was disproportionate to the aims
pursued and therefore not “necessary in a democratic society”.
Accordingly, there has been a violation of Article 10 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that he had been denied an effective remedy in
respect of his grievances within the meaning of Article 13 of the
Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] 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
Court reiterates that a remedy under Article 13 of the Convention
does not mean a remedy bound to succeed, but simply an accessible
remedy before an authority competent to examine the merits of the
complaint (see the Islamic Republic of Iran Shipping Lines
v. Turkey (dec.), no. 40998/98, 10 April 2003). In the
instant case, the Court is satisfied that the domestic courts
reviewed the admissibility of the applicant's complaints to a
sufficient degree to provide him an effective remedy for the purposes
of Article 13 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 in accordance with
Article 35 § 4.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 60,000 United States dollars (USD) (approximately
EUR 46,207) in respect of pecuniary damage. He submitted that this
amount represented his yearly wage at Channel 8 before he was
dismissed following his conviction. He further claimed EUR 5,000 in
respect of non pecuniary damages.
- The
Government contested the amounts.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 2,000 in respect of
non pecuniary damage.
- The
Court considers that where an individual, as in the instant case, has
been convicted by a court which did not meet the Convention
requirements of independence and impartiality, a retrial or a
reopening of the case, if requested, represents, in principle an
appropriate way of redressing the violation (see Öcalan v.
Turkey, no. 46221/99 [GC], § 210, in fine,
ECHR 2005 - ...).
B. Costs and expenses
- The
applicant also claimed 7,520 pounds sterling (GBP) (approximately
EUR 10,750) for fees and costs incurred by his lawyers and the
Kurdish Human Rights Project (KHRP) in assisting with the
application.
- The
Government contested the amount.
- The
Court may make an award in respect of costs and expenses in so far as
these were actually and necessarily incurred and were reasonable as
to quantum (see, for example, Sawicka v. Poland, no. 37645/97,
§ 54, 1 October 2002). Making its own estimate based
on the information available, and having regard to the criteria laid
down in its case-law (see, in particular, Ergin (no.
6), cited above, § 64), the Court awards the
applicant EUR 1,500 for the costs and expenses claimed.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint regarding the lack of
independence and impartiality of the military court and the alleged
interference with the applicant's right to freedom of expression
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
10 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention the following
sums to be converted into pounds sterling at the rate applicable at
the date of settlement and to be paid into the bank account
identified by the applicant in the United Kingdom:
i. EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
ii. EUR
1,500 (one thousand and five hundred euros) for costs and expenses;
iii. any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 9 November 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President