CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 31 janvier 2006

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Casadevall , President ,   Mr   R. Türmen ,   Mr   M. Pellonpää ,   Mr   R. Maruste ,   Mr   K. Traja ,   Ms   L. Mijović ,   Mr   J. Šikuta, judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged on 16 October 1999, Having deliberated, decides as follows: THE FACTS The applicant, Mr Akın Birdal, is a Turkish national who was born in 1948 and lives in Ankara. He is represented before the Court by Mr   S.   Aslantaş, a lawyer practising in Ankara. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 6 September 1995, on the occasion of World Peace Day, the applicant spoke at a panel discussion which was organised by the United Socialist Party in Mersin. The applicant’s speech read as follows: “We have gathered here for peace. Hello to all who support fraternity for peace. In a system where the imperialist and socialist worlds exist, wars continue and the bloodiest war is in our country. We have reacted against the Serbian brutality over the Bosnian people. However, some of us ignored this dirty war which is against the human dignity. We have observed the consequences of an unjust and dirty war in the country. This war has continued for 11 years as the rights of the Kurdish people have not been recognised. 20,000 persons died as a result of this dirty war. 118 villages were burned down. Kurdish people were thrown out of their villages, their land. The Kurdish problem exists in Turkey. Turks should also recognise this problem. Turkey is now at a critical point. Solution of the Kurdish problem in a just, democratic and peaceful way has now become a reality in everybody’s mind. Then, why do they still want to continue this dirty war? This war caused the displacement of the Kurdish people from their land. Is this war only the problem of the Kurdish people? Is this week of peace only for the Kurdish people? No, it is a problem for the Turkish people, too. While the Kurdish people have been crying for peace for a week, isn’t this a problem of the Turkish working class? Isn’t the problem of the killing of the children of the Kurdish and Turkish peoples a problem of the Turkish working class? One third of the budget, which is 446 trillion Turkish liras, is used in east and south-east. All this happens at which price? It is at the price of tears. We, the Turks, Kurds, Alevis and Sunnis, are all against the war. We want peace. We want the lives of Kurds to be also protected by the Constitution. We want peace for the fraternity of the peoples.” On an unspecified date, the public prosecutor at the Konya State Security Court initiated an investigation against the applicant. On 29 January 1996 the applicant made a statement before the public prosecutor at the Ankara State Security Court. He contended that he had made the speech in question and that he had not committed the offence of incitement to hatred and hostility by making distinctions on the basis of race and region. He maintained that he had talked about the fraternity of the peoples, the peace and the war which should end. On 6 February 1996 the public prosecutor at the Konya State Security Court filed a bill of indictment charging the applicant with separatist propaganda in contravention of Article 8 § 1 of Law no. 3713. On 10 April 1996 the applicant reiterated his statements of 29   January   1996 before the Ankara State Security Court. He asserted that he had expressed his opinions and that his speech had not contained any element which could constitute an offence. On 2 July 1996 the Konya State Security Court convicted the applicant under Article   312   §   2 of the Criminal Code of incitement to hatred and hostility by making distinctions on the basis of race and region. The applicant was sentenced to one year imprisonment and a fine of 300,000 Turkish liras (TRL). The first-instance court held that the struggle in the region was directed against the PKK and its acts of terrorism and that in the speech the applicant had alleged that there had been a war in the region directed against the people. The applicant appealed. On 20 April 1998 the 9 th Chamber of the Court of Cassation quashed the judgment of the first-instance court, holding that the speech in question consisted of a critical assessment concerning the country’s problems and that it did not contain any element which could constitute an offence. Following promulgation of Law no. 4210, which abolished the Konya State Security Court and established the Adana State Security Court, the Adana State Security Court acquired jurisdiction over the case and the case-file was sent to it. On 16 December 1998 the Adana State Security Court did not abide by the ruling of the Court of Cassation. It held that the previous judgment of the Konya State Security Court was in accordance with law and sentenced the applicant to one year imprisonment and a fine of TRL 300,000. On the same day, the applicant appealed to the Plenary Chamber of the Court of Cassation ( Yargıtay Ceza Genel Kurulu ). On 20 April 1999 the Plenary Chamber of the Court of Cassation upheld the judgment of the Adana State Security Court. The court considered that the applicant had committed the offence defined by Article 312 § 2 of the Criminal Code by stating that the struggle of the security forces had been similar to the Serbian brutality and that the villages had been burned down and people had been displaced. The court further held that the applicant incited the people to hatred and hostility by alleging that the lives of the Kurdish citizens had not been protected by the Constitution and that there had been terror as the rights of Kurds had not been recognised. The applicant served his prison sentence in 2000. B.     Relevant domestic law At the material time Article 312 of the Criminal Code provided: “Non-public incitement to commit an offence A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall be liable to between six months’ and two years’ imprisonment and a heavy fine of between six thousand and thirty thousand Turkish liras. A person who incites the people to hatred or hostility on the basis of a distinction between social classes, races, religions, denominations or regions, shall be liable to between one and three years’ imprisonment and a fine of between nine thousand and thirty-six thousand liras. If this incitement endangers public safety, the sentence shall be increased by one-third to one-half. The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have been committed by the means listed in Article 311 § 2.” COMPLAINTS The applicant complains under Article 6 of the Convention that he did not have a fair trial on account of the presence of the military judges on the bench of the State Security Courts which tried and convicted him. He further complains under Articles 6 and 5 § 1 (a) of the Convention about his imprisonment as a result of the judgments of the domestic courts. The applicant maintains under Articles 9 and 10 of the Convention that his conviction for having delivered the speech in question violated his rights to freedom of thought and expression. He further contends under Article 11 of the Convention that as a result of his conviction he had to quit his position as the president of the Human Rights Association and annul his membership of the Association. The applicant finally complains under Article 14 of the Convention that his conviction for having expressed his political opinions constituted discrimination on the ground of political opinion and identity. THE LAW 1.     The applicant complains under Article 6 that he did not have a fair trial on account of the presence of the military judges on the bench of the Konya and Adana State Security Courts, which tried and convicted him. He further complains under Articles 6 and 5 § 1 (a) of the Convention about his imprisonment following his conviction by the domestic courts. (a)     As to the complaint concerning the unfairness of the trial on account of the presence of the military judges on the State Security Courts’ benches, The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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. (b)     As regards the applicant’s complaint under Articles 6 and 5 § 1 (a), the Court observes that the legislation governing the status and functioning of State Security Courts in force at the material time gave these courts jurisdiction to try persons charged with the offence defined in Article 312 of the Criminal Code. Accordingly, the applicant was detained following conviction by a competent court and his imprisonment thus fell within the scope of Article 5 § 1 (a) of the Convention. Furthermore, the sentence handed down was lawful under Turkish law and was imposed in accordance with a procedure prescribed by law. Moreover, it cannot be said that the applicant’s detention was not in conformity with the purposes of the deprivation of liberty permitted by Article 5 § 1 (a), so as to be arbitrary (see Volkan Ükünç and Deniz Güneş v. Turkey (dec.), no. 42775/98, 5   December 2000). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2. The applicant complains under Articles 9, 10 and 11 of the Convention that his conviction for having delivered the speech in question violated his rights to freedom of thought and expression and that as a result of his conviction he had to give up his position as the president of the Human Rights Association and annul his membership of the Association. The Court considers that the essence of the applicant’s complaint concerns the alleged interference with his right to express views and opinions, and therefore it should be considered from the standpoint of Article 10 alone. It further considers that it cannot, on the basis of the case file, determine the admissibility of this complaint 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 finally contends under Article 14 of the Convention that his conviction for having expressed his political opinions constituted discrimination on the ground of political opinion and identity. The Court considers that the applicant’s complaint under Article 14 of the Convention relates to his right to freedom of expression and should therefore be examined in conjunction with Article 10 of the Convention. The Court observes that the applicant did not submit any evidence in support of his allegation under Article 14 of the Convention. The Court is of the opinion that the applicant has failed to substantiate his allegation and to lay the basis of an arguable claim of a breach of Article 14. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Decides to adjourn the examination of the applicant’s complaints concerning the alleged interference with his right to freedom of expression and unfairness of the proceedings on account of the presence of the military judges on the bench of the State Security Courts, which tried and convicted the applicant; Declares the remainder of the application inadmissible.   Michael O’Boyle   J osep Casadevall   Registrar   President