CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 15 septembre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                           Application No. 25658/94                       by Sedat Aslantas                       against Turkey          The European Commission of Human Rights sitting in private on 15 September 1997, the following members being present:              Mr.    S. TRECHSEL, President            Mrs.   G.H. THUNE            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  P. LORENZEN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA            Mrs.   M. HION            MM.    R. NICOLINI                  A. ARABADJIEV              Mr.    H.C. KRÜGER, Secretary to the Commission ;   Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 14 October 1994 by Sedat Aslantas against Turkey and registered on 14 November 1994 under file No. 25658/94;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having regard to :   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      16 May 1995 and the observations in reply submitted by the      applicant on 4 August 1995;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Turkish citizen born in 1966 and resident in Diyarbakir. He is represented before the Commission by Professor Kevin Boyle and Ms. Françoise Hampson, both of the University of Essex, and by Mr. Bill Bowring, a barrister in London.   A.    Particular circumstances of the case        The facts of the case as submitted by the parties may be summarised as follows.        The applicant is a lawyer who has, in the course of his legal practice, undertaken civil liberties cases. In recent years he has been active as the leading member of the Diyarbakir branch of the Human Rights Association.   a)    Proceedings in relation to the speech made at the Turkish Human      Rights Association General Conference in 1992        On 14 June 1994, the Ankara State Security Court held an initial hearing in proceedings against the applicant related to a speech made by him at the Turkish Human Rights Association General Conference on 24 October 1992. The applicant did not attend it, but his lawyer did. The Court postponed the hearing and summoned the applicant to a hearing on 12 July 1994.        On 12 July 1994, the applicant denied that he had ever made statements which could be regarded as crimes, requested that the recording of his speech be re-transcribed and that he be allowed to submit his own copy of the speech, claiming that the tape used by the prosecution was inaccurate. The court postponed the hearing to 13 September 1994 in order to allow the applicant to submit his text of the speech.        On 13 September 1994 the applicant did not submit the text of the speech. Therefore, the Court adjourned the hearing to 25 October 1994 in order to allow the applicant more time to submit his text of the speech.        On 25 October 1994, the applicant declared that he had not been able to find the text of his speech, as the disks containing the text were in Diyarbakir. He then stated that he did not accept the expert investigation related to the transcript of his speech used by the prosecution and requested that his speech be transcribed by three experts to be chosen. The Court ordered that the expert witnesses who had prepared the record of the transcript of the tape used by the prosecution be summoned to the court on 1 December 1994, thus allowing the applicant enough time to prepare his objections to the text of the speech.        The applicant did not attend the hearing on 1 December 1994. The Court heard evidence from the expert witnesses who had prepared the transcript used by the prosecution, all of them police officers. They stated under oath that the transcript of the tape was correct. The transcript of the speech used by the prosecution reads as follows:        "In Kurdistan, a region of the world, the right to life, which      is the most fundamental of human rights, is ground underfoot in      the most unbelievable, barbarous and brutal way. The practices      of a special war aimed at repressing and destroying the national      awakening in Kurdistan are increasing in proportion to the spread      among the people of that awakening and a special war in all its      dimensions is being mercilessly promoted. All their facilities      have been mobilised for war in the most brutal fashion, and the      State which cannot control developments in the region has rushed      to implement new special war practices against the people of the      region. The violence has increased to the point of resulting in      regional massacres. ... However, it is evident that the Kurdish      people will not be subdued by these terrorist methods and that      their legitimate demands will be made with ever louder voices and      an answer will be sought to State terrorism. The Chief of the      General Staff speaks of silencing certain associations which are      active in the region and certain tools of mass communication ...      At the end of last March a bomb was thrown into the home of      Abdullah Kara. Two of his children died. He and two other members      from his family were wounded. They tried to blame the PKK for      this incident. However, at that time a son and two nephews of      Abdullah Kara were guerillas for the PKK. After the incident the      PKK sent him its condolences.... The fearless action of a 75-year      old man of the Kurdish people is noteworthy in showing the      dimensions of the danger facing the Kurdish people in the days      ahead. However, it is necessary to be well aware that the      legitimate case and demands of the Kurdish people will not be      suppressed by the use of force."        The prosecution requested the conviction of the applicant for having made propaganda aimed at destroying the indivisible integrity of the nation and people of the State of the Republic of Turkey.        Noting that the expert witnesses had given their statement under oath, the Court rejected the applicant's objections as to the accuracy of the transcript and, on the basis of this transcript, ruled that the applicant had made separatist propaganda. In accordance with Article 8/1 of Anti-Terror Law 3713, the Court sentenced him to 3 years' imprisonment and a fine of 150 million Turkish liras.        The applicant was arrested on 5 December 1994, whilst he was representing a client at Ankara State Security Court, and detained on remand.        On 1 May 1995, the Court of Cassation rejected the applicant's appeal, upholding the sentence of 1 December 1994.        However, on 20 November 1995, as a result of an amendment to the Anti-Terror Law No. 3713, the Ankara State Security Court converted the applicant's conviction into a fine of 101,825,000 Turkish liras.        On 15 March 1996 the Court of Cassation reexamined the applicant's case in the light of Law No. 4126. The Court upheld the sentence of 1 December 1994 as modified by the State Security Court in its additional judgment of 20 November 1995.   b)    Proceedings related to the press statement on 27 May 1993        On 27 May 1993 a press statement was issued in Diyarbakir signed by the applicant and other members of the Democracy Platform (a body formed by the representatives of 30 associations and trade unions in Diyarbakir in order to follow and report on human rights problems in the region), condemning in strong terms killings, village burnings and evacuations allegedly carried out by State forces.       As a result of this publication the applicant was charged, with other members of the Democracy Platform, under Article 8 of the Turkish Anti-Terror Law.        The applicant alleges that he received telephone threats in Diyarbakir. Unknown persons told him that, if he did not give up his activities, they would kill him. His car was continuously followed by the police.        According to the applicant, on 20 August 1993 H.A., one of the applicant's friends, was stopped by members of special teams belonging to the Turkish security forces while he was driving the applicant's car. The next day, H.A. found a message which the police had left at his house saying that he had been stopped because he was driving the applicant's car. The message also advised him not to drive that car any more. Soon afterwards, lawyer colleagues of the applicant found a message containing foul language stuck to the bumper of the applicant's car.        The applicant states that because of these threats and because of his fear of the treatment he might receive in custody, he did not surrender to the warrant for his arrest but went into hiding at the end of 1993.        The case against the other members of the Diyarbakir Democracy Platform was heard by the Diyarbakir State Security Court on 13 April 1994. The court acquitted three of them and convicted fifteen others on charges of separatist propaganda, sentencing them to two years' imprisonment and severe fines.        The applicant did not attend this hearing out of fear for his safety and because of the risk of torture if detained. His case was therefore disjoined and registered under a new number.        On 12 May 1994 the applicant was arrested by the Turkish police in Ankara and detained for 25 days in Ankara Central Closed prison and then for four days in the Diyarbakir "E type" prison until 8 June 1994, when he was granted bail at a hearing before the Diyarbakir State Security Court.        A further hearing was due to take place on 12 December 1995. The Commission has not been informed whether the hearing in fact took place and, if so, with what result.   c)    Proceedings before the Diyarbakir State Security Court (No. 3)      concerning charges under Article 5 of the Anti-Terror Law        The applicant also faces the charge of being a member of an illegal organisation under Article 5 of the Anti-Terror Law and various articles of the Criminal Code.        On 17 November 1994 the Diyarbakir State Security Court (No. 3) decided to join the two sets of proceedings pending before it concerning the charges under the Anti-Terror Law (referred to under (b) hereof).        A hearing appears to have taken place on 14 December 1995. The Commission has not been informed of the results of the hearing.        These proceedings appear to be still pending.d)     Proceedings related to the publishing of the "Human Rights     Regional Report 1993"        In May 1995, as a result of the publishing of the "Human Rights Regional Report 1993", the applicant was tried and acquitted in Ankara State Security Court on charges of separatist propaganda under Article 8 of the Anti-Terror Law.        This decision was appealed by the State Security Chief Prosecutor and the case is pending before the Court of Cassation.   B.    Relevant domestic law        Article 8 of the Anti-Terror Law provides :        "Written and oral propaganda and assemblies, meetings and      demonstrations with the aim of damaging the indivisible unity of      the State of the Republic of Turkey, the nation and its      territories, are prohibited, regardless of the method, intention      and ideas behind it."        The punishment under this Article is between two and five years' imprisonment and a fine of between 50 million and 100 million Turkish liras.     COMPLAINTS        The applicant alleges violations of Articles 2, 3, 6, 10, 11, 13, 14 and 18 of the Convention.        As to Article 2, the applicant complains of the threats made to his life. He refers to the lack of any effective legal system ensuring protection of the right to life.        As to Article 3, the applicant states that he runs a real and substantial risk that he will be subjected to torture.        As to Article 6, the applicant complains that since he was convicted, he has been unable to practise as a lawyer. He also complains that he was not present at the hearing of the Ankara State Security Court on 1 December 1994 and that he could not therefore defend himself.        As to Articles 10 and 11, the applicant submits that the penalties imposed upon him in relation to his statements made at the Turkish Human Rights Association General Conference in 1992 and the proceedings instituted against him as a result of his activities as the leading member of the Human Rights Association are in conflict with his right to freedom of expression and his right to freedom of association.        As to Article 13, the applicant complains of the lack of an independent national authority before which these complaints could be brought with any prospect of success.        As to Article 14, the applicant refers to an administrative practice of discrimination on the grounds of ethnic origin.        As to Article 18, the applicant submits that the restrictions on his rights and freedoms set forth in the Convention are applied for purposes not permitted under the Convention.        The applicant also alleges that the real reason for his conviction is that his signature as a lawyer appears on several applications introduced before the Commission in relation to human rights violations in Turkey.        In respect of the threats made against his life, the risk of his being tortured, and the fact that he is prevented from pursuing his profession, the applicant maintains that there is no requirement that he pursue alleged domestic remedies. Any alleged remedy is illusory, inadequate and ineffective because:   a)    there is an administrative practice giving rise to a presumption that the local remedies, if any, are not effective;   b)    whether or not there is an administrative practice, domestic remedies are ineffective in this case owing to the failure of the legal system to provide redress;   c)    in a large number of cases of extrajudicial killings, it was alleged that no judicial or disciplinary proceedings had been initiated against those responsible, even if they had been identified;   d)    in December 1993 some lawyers were charged with "belittling the State by faxing allegations of human rights violations to the Commission of Human Rights". A fortiori, it will be more dangerous for a lawyer to pursue a domestic remedy.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 14 October 1994 and registered on 14 November 1994.        On 19 January 1995 the Commission decided to communicate the application to the respondent Government.        The Government's written observations were submitted on 16 May 1995.   The applicant replied on 4 August 1995.     THE LAW   a)    Proceedings in relation to the speech made at the Turkish Human      Rights Association General Conference in 1992   1.    The applicant complains that the penalties imposed upon him in relation to his speech in 1992 are in conflict with his rights to freedom of expression and association as provided for in Articles 10 and 11 (Art. 10, 11) of the Convention. He also complains, invoking Article 13 of the Convention, of the lack of an independent national authority before which his complaints could be brought with any prospects of success.        Article 10 (Art. 10) of the Convention provides :        "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 [...]        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."        Article 11 (Art. 11) of the Convention provides :        "1.    Everyone has the right to freedom of peaceful assembly and      to freedom of association with others [...]        2.     No restrictions shall be placed on the exercise of these      rights other than such as are prescribed by law and are necessary      in a democratic society in the interests of national security or      public safety, for the prevention of disorder or crime, for the      protection of health or morals or for the protection of the      rights and freedoms of others [...]"        Article 13 (Art. 13) of the Convention provides :        "Everyone whose rights and freedoms as set forth in this      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 Government consider that the applicant's conviction was in accordance with Article 8 (Art. 8) of the Anti-Terror Law No. 3713, pursued the aim of fighting the threat of terrorism and was necessary in a democratic society in the interests of national security, territorial integrity, public safety and for the prevention of disorder and crime.        They point out that the applicant made reference in his speech to the existence of two peoples, Turkish and Kurdish, that he referred to Turkey as being a foreign country distinct from Kurdish territory, that instead of criticising the activities of the PKK he defended this organisation, and that his speech as a whole was an incitement to violence against the State.        The applicant claims that the real reason behind his conviction was the fact that he is a human rights activist.   He points out in this respect that, in sentencing him, the Ankara State Security Court took into account his "character and personality", which can only relate to his activities as a lawyer defending human rights. The applicant points out further that he was considered by the judges to be a separatist because he had stated that there are Kurds living in Turkey and used the expressions "Kurdish people" and "Kurdish problem".        The applicant maintains that his conviction for his opinions on the Turkish State's Kurdish policy infringes his freedom of expression and association.        The Commission considers, in the light of the parties' submissions, that this part of the case raises complex issues of law and of fact under the Convention, the determination of which should depend on an examination of the merits of the application. The Commission concludes, therefore, that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.   2.    The applicant invokes Article 14 (Art. 14), referring to an administrative practice of discrimination on the grounds of ethnic origin. Invoking Article 18 (Art. 18) of the Convention, he also alleges that the restrictions to his rights and freedoms set forth in the Convention are applied for purposes not permitted under the Convention.        The Government point out that the Turkish Constitution provides for the equality of all Turkish citizens. The aplicant, who is a successful lawyer, has not, at any moment, either when he began his studies or later, when he started practising, been discriminated against. The applicant is being prosecuted not because of his ethnic origin or of his professional activities, but in accordance with legal provisions applicable to everyone, whatever their religious beliefs or nationality.        As to the applicant's complaint under Article 18 (Art. 18) of the Convention, the Government consider that it should rather be examined under Article 17 (Art. 17) of the Convention. They point out that all the measures taken in the emergency region are provided for by the Turkish constitution and the relevant laws and that the restrictions on the applicant's rights to the freedom of expression and association are necessary in a democratic society to fight terrorism.        The applicant maintains that he has been unable to practise freely as a lawyer and that he has been targeted for his human rights work, especially in relation to his work in assisting applicants in bringing cases before the European Commission of Human Rights. He contends that his complaint is substantiated by the fact that there is a disproportionate number of violations of human rights abuses against Kurds and Kurdish lawyers.        The Commission notes that these complaints are closely linked to the above complaints under Articles 10 and 11 (Art. 10, 11) of the Convention, which have been declared admissible.        Therefore, the Commission concludes that this part of the application is not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other grounds for declaring it inadmissible have been established.   3.    The applicant complains under Article 6 (Art. 6) of the Convention that he was not present at the hearing of the Ankara State Security Court on 1 December 1994 and that, therefore, he could not defend himself.        The Commission has examined the applicant's complaints in the light of the provisions of Article 6 para. 1 (Art. 6-1) of the Convention, which provides, inter alia, that, in the determination of any criminal charge against him, everyone is entitled to a fair hearing.        The Commission recalls that the object and purpose of Article 6 (Art. 6) of the Convention as a whole and the concept of a fair trial make it clear that the accused must be entitled to take part in the hearing (cf. Eur. Court H.R., Colozza v. Italy judgment of 12 February 1985, Series A No. 89, p. 14, para. 27).        The Commission notes that the applicant was summoned to each of the hearings before the Ankara State Security Court. He was present at all of them, except the first one, on 14 June 1994, when he was represented by his lawyer, and the hearing on 1 December 1994.        The Commission further notes that the applicant was not able to provide an explanation for his absence at the trial, nor did he show that he had requested a further adjournment. This is even more inexplicable, given the importance of the hearing of 1 December for the defence of the applicant, who could thus have challenged the prosecution's transcript of his speech and called his own experts.        In these circumstances, the Commission considers that, in the present case, the applicant failed to exercise his right to appear at the hearing and defend himself.        Consequently, the Commission considers that the applicant's complaint concerning the lack of a fair trial is manifestly ill-founded and must be rejected in accordance with Article 27 par. 2 (Art. 27-2) of the Convention.     b)    Remaining complaints   4.    The applicant also complains of the threats made to his life, that he runs a real and substantial risk of being subjected to torture and that since he was convicted he has been unable to practise as a lawyer.   The applicant invokes Articles 2, 3 and 6 (Art. 2, 3, 6) of the Convention.        However, the Commission finds no indication of a violation of these provisions. In particular, the Commission notes that the applicant has not substantiated his allegations that the State authorities were responsible for the threats he has received. As to the allegation that the applicant has since his conviction been unable to practise as a lawyer, even assuming that the allegation were substantiated, the Commission considers that it raises no issue under Article 6 (Art. 6) of the Convention.        It follows that these allegations are manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   5.    The applicant complains that the proceedings instituted against him in relation to the press statement of 27 May 1993, to the publishing of the "Human Rights Regional Report 1993" and the proceedings concerning charges under Article 5 of the Anti-Terror Law are in conflict with his rights to freedom of expression and association as provided for in Articles 10 and 11 (Art. 10, 11) of the Convention.        The Government point out that all these proceedings are pending before the national authorities and consider therefore that the applicant has not exhausted domestic remedies.        The applicant considers that the scope of the provisions of the Anti-Terror Law under which he is charged is so wide that an expression of opinion may be arbitrarily taken as falling within the scope of the legislation and criminalised.        He also contends that the use of the Anti-Terror Law in such circumstances is itself a violation of the Convention.        The Commission notes that all these proceedings are still pending before the Diyarbakir State Security Court and the Court of Cassation. This complaint is therefore premature.        The Commission concludes that the applicant has not yet exhausted the remedies available to him under Turkish law, in accordance with Article 26 (Art. 26) of the Convention.        It follows that this part of the application must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   6.    The applicant finally complains of the lack of an independent national authority before which his complaints could be brought with any prospects of success.   He invokes Article 13 (Art. 13) of the Convention.        The Government consider that this complaint is manifestly ill- founded as the applicant had at his disposal remedies under Turkish law which he did not exhaust.        The applicant contends that there is an administrative practice of non-respect of the rule under Article 13 (Art. 13) of the Convention in south-east Turkey. He alleges that there is substantial reason to believe that any trial and investigation will not offer effective and adequate redress.        The Commission recalls that, according to the established case- law of the Convention organs, Article 13 (Art. 13) requires an effective remedy only in respect of grievances which can be regarded as "arguable" in terms of the Convention (cf., inter alia, Eur. Court HR, Powell and Rayner judgment of 21 February 1990, Series A No. 172, p. 14, para. 31).        Insofar as the applicant complains about a lack of remedies in respect of his allegations under Articles 10 and 11 (Art. 10, 11) (cf. para. 5 above), the Commission notes that various proceedings are pending before the domestic courts.        The Commission also observes that the applicant's complaints under Articles 10 and 11 (Art. 10, 11) in relation to these proceedings have been found to be inadmissible for non-exhaustion of domestic remedies.        Therefore, the Commission considers that it cannot be said for the time being that the applicant was denied a remedy for the alleged violations.        As regards the applicant's complaint that he has no remedies in respect of his claim that his rights under Articles 2, 3 and 6 (Art. 2, 3, 6) were infringed (cf. para. 4 above), the Commission has found that the complaints under these Articles are manifestly ill- founded. The Commission finds that the applicant cannot be said to have an "arguable claim" of a violation of these Articles. Consequently, the applicant cannot derive from Article 13 (Art. 13) of the Convention a right to a remedy for the alleged violation of the Convention in this respect.        It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission unanimously          DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaints that his rights to freedom of expression      and to freedom of association have been infringed as a result of      his conviction for the speech made in 1992, that there is no      national authority before which these complaints could be brought      with any prospects of success, that his conviction amounts to      discrimination on the ground of ethnic origin and that the      restrictions on his rights and freedoms set forth in the      Convention are applied for purposes not permitted under the      Convention ;        DECLARES INADMISSIBLE the remainder of the application.               H.C. KRÜGER                          S. TRECHSEL          Secretary                            President      to the Commission                     of the Commission