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SECOND
SECTION
CASE OF ULUSOY v. TURKEY
(Application
no. 52709/99)
JUDGMENT
STRASBOURG
31
July 2007
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 Ulusoy v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Mr D. Popović,
judges,
and Mrs F. Elens-passos, Deputy Section
Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 52709/99) 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 Ziya Ulusoy (“the
applicant”) on 23 July 1999.
- The
applicant was represented before the Court by Messrs
Faruk Nafiz Ertekin, Keleş Öztürk, Tahsin Aycık
and Ms Filiz Kılıçgün, lawyers practising in
Istanbul. The Turkish Government (“the Government”)
did not designate an agent for the purpose of the proceedings before
the Court.
- On
22 November 2005 the Court decided to give notice of the application
to the Government. Under the provisions of 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 1953 and lives in Tunceli, south-east Turkey.
A. Detention of the applicant and the criminal
proceedings brought against him before the Istanbul State Security
Court
- The
applicant, without submitting any documents, submitted the following:
- On
6 November 1992 he was taken into custody by police officers from the
anti-terror branch of the Istanbul police headquarters in the course
of which he was subjected to “torture”.
- On
20 November 1992 the Istanbul State Security Court ordered the
applicant's detention on remand. Criminal proceedings were
initiated against him before the 3rd Chamber of the
Istanbul State Security Court.
- On
an unspecified date, the 3rd Chamber of the Istanbul State
Security Court convicted the applicant under Article 168 of the
Criminal Code of membership of an illegal organisation.
- On
21 December 2000 Law no. 4616, which governed conditional release,
suspension of proceedings and execution of sentences in respect of
offences committed before 23 April 1999, came into force. The Law
stipulated that persons who had committed offences under Article 168
of the Criminal Code were not eligible for parole. Thus, the
applicant could not benefit from Law no. 4616.
B. Criminal proceedings brought against the applicant
before the 1st Chamber of the Istanbul State Security
Court
- The
following information appears from the parties' submissions and from
the documents submitted by them:
- On
21 July 1993 the public prosecutor at the Istanbul State Security
Court filed a bill of indictment with the 1st Chamber of
that court (hereinafter “the trial court”) against B.G.
who is the owner of a monthly review entitled Emeğin Bayrağı
(“The Flag of Labour”). The public prosecutor charged
B.G., in his capacity as owner and editor of the review, with
disseminating propaganda against the indivisibility of the State on
account of an article published in the review in July 1993, entitled
Yeni Bir Maraş: Sivas Katliamı (“A
New Maraş: The Sivas Massacre”).
The charges were brought under Article 8 § 1 of the Prevention
of Terrorism Act (Law no. 3713).
- On
28 September 1993 B.G. stated before the trial court that the author
of the article was Ziya Ulusoy, i.e. the applicant. The trial court
subsequently heard the applicant who confirmed that he was indeed the
author of the impugned article.
- The
relevant passages of the article may be summarised as follows:
“... Today, there is a dirty war which continues
with the most violent methods in Kurdistan. The State carries on a
war with the aim of genocide against the Kurdish people and its
leaders. While the legitimate movement of the Kurdish nation aims at
political freedom, the State reinforces Turkish chauvinism in order
to quieten and weaken the voice of this war. The funerals of the
soldiers who die during this war are used to create a racist and
chauvinist mass movement... These movements occupy the agenda along
with the Kurdish national movement... This State, which aims to
oppress the Kurdish workers and the national freedom movement with
blood and gunpowder, used the fundamentalist Islamists and the
Hizbullah against you yesterday. Today, it again uses the
fundamentalist Islamist masses under the leadership of Hizbullah
against Alevis, progressive and democratic people and Turkish
intellectuals without making a distinction between Kurdish and
Turkish. This massacre, during which houses and offices were burned
and more than forty people were killed, is a new Maraş.
Don't remain silent in the presence of the massacre, demand that it
be accounted for by your actions”.
- On
26 November 1993 the public prosecutor at the Istanbul State Security
Court filed a bill of indictment and charged the applicant with the
offence of disseminating propaganda against the indivisibility of the
State, contrary to Article 8 § 1 of the Prevention of Terrorism
Act (Law no. 3713).
- In
the course of the trial the applicant submitted a number of petitions
to the trial court in which he submitted, inter alia, the
following:
“... I am proud to have protested against the
Sivas massacre by writing that article... Protesting against such
fascist massacres, just like protesting against the actions of Hitler
who massacred Jews, is a democratic duty...”.
- On
15 April 1997 the trial court convicted the applicant as charged and
sentenced him to one year and four months' imprisonment and a fine of
133,333,333 Turkish liras (approximately 1,000 US dollars at the
time). In its judgment, the trial court considered that the applicant
had committed the offence defined in Article 8 of Law no. 3713 by,
inter alia, having referred to a part of the country as
“Kurdistan” and having stated that this part belonged to
the Kurdish nation. The trial court further observed that the
applicant had defined terrorist acts as a “national liberation
movement” and the fight against terrorism as a “dirty
war”. In the opinion of the trial court, the opinions expressed
by the applicant were negative propaganda capable of destroying the
indivisibility and integrity of the Turkish Republic and the nation.
- On
9 July 1997 the applicant appealed against his conviction. He argued
in his appeal petition that he had written the article in order to
protest against the massacre of 35 intellectuals in Sivas and to
explain the truth behind it. He further stated that the article was
an expression of opinion; punishing persons like him who opposed such
massacres would facilitate further massacres.
- On
5 March 1999 the Court of Cassation rejected the applicant's appeal
and upheld the conviction of 15 April 1997.
- According
to the documents, which were drawn up by national authorities and
submitted to the Court by the Government, the applicant began serving
his prison sentence on 30 April 1999. On 1 November 1999 the Istanbul
State Security Court suspended the applicant's prison sentence
pursuant to Law no. 4454, concerning the suspension of pending cases
and penalties in media-related offences, which had entered into force
on 28 August 1999. The court also held that the applicant would
continue to serve the remainder of his sentence if, within the next
three years, he were to commit one of the offences set out in Article
1 of Law no. 4454.
II. RELEVANT DOMESTIC LAW
- A full description
of the relevant domestic law may be found in İbrahim
Aksoy v. Turkey (nos.
28635/95, 30171/96 and 34535/97, §§ 41 42,
10 October 2000), Incal
v. Turkey (judgment of
9 June 1998, Reports of
Judgments and Decisions
1998 IV, §§ 21 33) and Alınak v.
Turkey ((dec.), no. 40287/98, 31 January 2002).
THE LAW
I. COMPLAINTS CONCERNING THE APPLICANT'S ALLEGED DETENTION
IN 1992
- The
applicant alleged that, in the course of his detention in the custody
of the Istanbul police headquarters between 6 and 20 November
1992 (see paragraphs 6 7 above), he had been subjected to
serious forms of torture in violation of Article 3 of the Convention.
He further alleged that he had been detained in police custody for a
period of 14 days before being brought before the judge at the
Istanbul State Security Court on 20 November 1992. In the
applicant's opinion, he had not been brought promptly before the
judge, in violation of Article 5 § 3 of the Convention. Finally,
the applicant alleged that his inability to benefit from early
release pursuant to Law no. 4616 on account of the fact that he had
been convicted under Article 168 of the Criminal Code (see paragraph
8 above), violated his rights under Article 5 § 1 (a) of the
Convention in conjunction with Article 14 of the Convention.
- The
Court stresses that the applicant has not submitted to the Court any
documents showing that he had been detained in police custody in 1992
or that he had been convicted and sentenced to a term of
imprisonment. Furthermore, other than alleging that “he had
been subjected to serious torture” in the course of this
alleged detention (see paragraphs 6 and 21 above), he has
neither provided the Court with any details of the alleged
ill-treatment nor submitted any evidence in support of that
allegation.
- In
the light of the above, the Court concludes that the applicant has
failed to lay the factual basis for such complaints. It follows that
they must be rejected as being manifestly ill-founded pursuant to
Article 35 §§ 3 and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he had been denied a fair hearing by an
independent and impartial tribunal on account of the presence of a
military judge sitting on the bench of the Istanbul State Security
Court which tried and convicted him on 15 April 1997. He invoked
Article 6 § 1 of the Convention which provides, in so far
as relevant, as follows:
“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.”
A. Admissibility
- The
Government argued that the complaint was inadmissible as the
applicant had not introduced his application until 7 October 1999,
i.e. more than six months after his conviction was upheld by the
Court of Cassation on 5 March 1999.
- The
Court notes that the applicant sent a letter to the Court on 23 July
1999 in which he set out his complaints under the Convention. On
14 September 1999 the Registry of the Court, in accordance with
its practice prevailing at the time, drew the applicant's attention
to a number of problems associated with the application and asked him
to inform the Court by 8 October 1999 whether he intended to continue
with the application. On 7 October 1999 the applicant submitted
to the Court his full application form. The Registry informed the
applicant on 18 November 1999 that the date of introduction of his
application was 23 July 1999.
- The
Court, observing that the application was introduced on 23 July
1999, i.e. less than six months after the final domestic court
decision which was taken on 5 March 1999, therefore rejects the
Government's objection to the admissibility of this complaint.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It must
therefore be declared admissible.
B. Merits
- The
Court has examined a large number of cases raising issues similar to
those arising in the present case and found a violation of Article 6
§ 1 of the Convention (see, in particular, Incal,
cited above, §§ 61 73; see also, more recently, Akgül
v. Turkey, no. 65897/01, § 25, 16 January 2007).
- The
Court, finding no reason to reach a different conclusion in the
instant case, concludes that there has been a violation of Article 6
§ 1 of the Convention on account of the presence of a military
judge on the bench of the Istanbul State Security Court which
convicted the applicant on 15 April 1997.
III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complained of a violation of Article 10 of the Convention
on account of his conviction for the article written by him.
Article 10, insofar as relevant, 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...
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... territorial integrity ...”
A. Admissibility
- The
Government argued that the applicant could not be regarded as a
victim within the meaning of Article 34 of the Convention as his
prison sentence was not executed.
- However,
the Court observes from the documents submitted by the Government
that the applicant did indeed begin to serve his prison sentence on
30 April 1999. It was suspended on 1 November 1999 (see
paragraph 19 above).
- In
any event, the Court considers that, although the suspension of the
remainder of the applicant's prison sentence might be a relevant
factor to be taken into account in assessing the proportionality of
that measure to the legitimate aim it pursued, a decision or measure
favourable to an applicant is not sufficient in principle to deprive
him of his status as a “victim” unless the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for the breach of the Convention (see, among
other authorities (see, mutatis mutandis, Öztürk
v. Turkey [GC], no. 22479/93, § 73, ECHR 1999 VI;
see also Müslüm Özbey v. Turkey,
no. 50087/99, § 26, 21 December 2006). No such
acknowledgement was made in the present case. On the contrary, the
applicant's prison sentence was suspended providing that he does not
commit one of the offences mentioned in Article 1 of Law no. 4454
(see paragraph 19 above).
- In
the light of the foregoing the Court concludes that the applicant can
claim to be a “victim” within the meaning of Article 34
of the Convention. The Government's objection must therefore be
dismissed.
- The
Government further argued that the applicant failed to exhaust
domestic remedies as he did not claim in the course of the domestic
proceedings that there had been an unjustified interference with his
right guaranteed by Article 10 of the Convention.
- The
Court reiterates that the purpose of the rule of exhaustion of
domestic remedies is to afford the Contracting States the opportunity
of preventing or putting right – usually through the courts –
the violations alleged against them before those allegations are
submitted to the Court. To this end, it is sufficient that the
complaints intended to be made subsequently in Strasbourg should have
been raised, at least in substance and in compliance with the formal
requirements and time-limits laid down in domestic law, before the
national authorities (see, inter alia, Akdıvar and
Others v. Turkey, judgment of 16 September 1996, Reports
1996 IV, §§ 65 69).
- As
set out above, in the course of the criminal proceedings the
applicant submitted that he had exercised his democratic duty by
expressing opinions opposing massacres (see paragraph 15 above). The
Court finds that that submission was directly connected to Article 10
of the Convention (see, mutatis mutandis,
Fressoz and Roire v. France [GC], no. 29183/95,
§§ 36 39, ECHR 1999-I).
- The
Court further notes that the applicant maintained in his appeal
petition that the article written by him was an “expression of
opinion” (see paragraph 17 above). It must therefore be
considered that the applicant's complaint under Article 10 of the
Convention was raised, at least in substance, before the Court of
Cassation. The Court consequently rejects the Government's objection.
- Observing
that this complaint is not inadmissible on any other grounds and that
it is not manifestly ill-founded within the meaning of Article 35
§ 3 of the Convention, the Court declares the complaint
admissible.
B. Merits
- The
Court considers that the conviction of the applicant under Article 8
§ 1 of the Prevention of Terrorism Act, and the sentence imposed
on him constituted an interference with his right to freedom of
expression guaranteed in Article 10 of the Convention.
- The
Court has examined a number of cases raising similar issues to those
arising in the present case and found a violation of Article 10 of
the Convention (see, in particular, the following judgments: Ceylan
v. Turkey [GC], no. 23556/94, § 38, ECHR 1999 IV;
Öztürk, cited above, § 74; İbrahim
Aksoy, cited above, § 80; Kızılyaprak v.
Turkey, no. 27528/95, § 43, 2 October 2003; and
Han v. Turkey, no. 50997/99, §§ 27 33,
13 September 2005).
- The
Court considers that the interference with the applicant's right to
freedom of expression was prescribed by law – the
aforementioned Article 8 § 1 of the Prevention of Terrorism
Act – and pursued the legitimate aims of protecting territorial
integrity and preventing disorder or crime for the purposes of
Article 10 § 2 (see Yağmurdereli v. Turkey, no.
29590/96, § 40, 4 June 2002). The Court will therefore
confine its examination of the case to the question whether the
interference was “necessary in a democratic society”.
- The
Government invited the Court to pay particular attention to the words
used by the applicant in his article and to the context in which the
article was published. The Government pointed out that the applicant
referred to parts of Turkish territory as “Kurdistan” and
to terrorist activities as a “national liberation struggle”.
In the opinion of the Government, the article was provocative in
nature and incited the reader to an armed struggle against the State
with its untrue and aggressive comments. The article was published in
the context of the security situation in south-east Turkey where,
since 1985, serious disturbances had occurred between security forces
and members of the PKK,
involving very heavy loss of life.
- The
Government further submitted that the article in question provoked
hatred among the various groups in Turkish society, thereby
endangering human rights and democracy. The applicant's separatist
propaganda threatened fundamental interests of the national community
such as territorial integrity, national unity and security and the
prevention of crime and disorder.
- The
Court has examined the present case in the light of its case-law and
considers that the Government have not submitted any facts or
arguments capable of leading to a different conclusion from that
reached in the above-mentioned judgments. It has had particular
regard to the words used in the impugned article and taken into
account the background to the case as well as the problems linked to
the prevention of terrorism (see İbrahim Aksoy, cited
above, § 60, and Incal, cited above, § 58).
- In
this connection, the Court observes that in the article the applicant
expressed his opinion that the State had been involved in the fire in
Sivas in which 37 people were killed, and criticised the indifference
displayed by the armed forces when the hotel was set on fire. The
article also sets out the applicant's critical assessment of Turkey's
policies concerning the Kurdish problem, whereas the State Security
Court considered that the impugned article contained negative
propaganda capable of destroying the indivisibility and integrity of
the Turkish Republic and the nation (see paragraph 16 above).
- The
Court has examined the reasons given in the State Security Court's
judgment and does not consider them sufficient to justify the
interference with the applicant's right to freedom of expression
(see, mutatis mutandis, Sürek v. Turkey (no. 4)
[GC], no. 24762/94, § 58, 8 July 1999). It finds that, taken as
a whole, the applicant's article does not encourage violence, armed
resistance or insurrection and does not constitute hate speech. In
the Court's view, this is the essential factor (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 the assessment of the necessity of the measure.
Indeed, unlike the Government, the trial court did not consider that
the expressions in the article were of a nature to encourage or
incite the commission of violent acts.
- Having
regard to the above considerations, the Court concludes that the
applicant's conviction 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.
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.”
- On
29 May 2006 the Court forwarded the respondent Government's
observations to the applicant and invited him to submit his just
satisfaction claims by 7 July 2006. However, he failed to submit his
claims in time.
- Accordingly,
the Court considers that there is no call to award the applicant any
sum on that account.
- Nevertheless, 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 [GC],
no. 46221/99, § 210, in
fine, ECHR 2005 ...).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the applicant's complaints
under Articles 6 § 1 and 10 of the Convention 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.
Done in English, and notified in writing on 31 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-Passos F.
Tulkens
Deputy Registrar President
