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FOURTH
SECTION
CASE OF BİRDAL v. TURKEY
(Application
no. 53047/99)
JUDGMENT
STRASBOURG
2 October 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 Birdal v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G. Bonello,
Mr R.
Türmen,
Mr K. Traja,
Mr S.
Pavlovschi,
Mr J. Šikuta, judges,
and Mrs
F. Aracı, Deputy Section Registrar,
Having
deliberated in private on 11 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 53047/99) 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 Akın Birdal (“the
applicant”), on 16 October 1999.
- The
applicant was represented by Mr S. Aslantaş, a lawyer practising
in Ankara. The Turkish Government (“the Government”) did
not designate an Agent for the purposes of the proceedings before the
Court.
- On
31 January 2006 the Court declared the application partly
inadmissible and decided to communicate the complaints concerning the
applicant's right to freedom of expression and the independence and
impartiality of the State Security Court which convicted him 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 1948 and lives in Ankara.
- 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, off
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 the 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 making
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's 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 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, 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, composed of three
judges including a military judge, rendered its judgment. It did not
abide by the ruling of the Court of Cassation, and held that the
previous judgment of the Konya State Security Court was in accordance
with law. It sentenced the applicant to one year imprisonment and a
fine. The applicant appealed.
- On
20 April 1999 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.
- Following
the promulgation of Law no. 4744 on 6 February 2002, which amended
Article 312 of the Criminal Code, the applicant applied to the Adana
State Security Court and requested a re-trial.
- In
2004 the State Security Courts were abolished following a
constitutional amendment and the applicant's case was transferred to
the Adana Assize Court.
- On
1 February 2005 the Adana Assize Court acquitted the applicant of the
charges against him.
- On
4 December 2004 Law No. 5271 which provided a remedy for persons who
have been acquitted following a re-trial whereby they can claim
compensation for damages suffered due to the execution of a sentence
was adopted. This law entered into force on 1 June 2005. Since the
applicant was acquitted on 1 February 2005, he could not claim
compensation for the time he had spent in prison.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
312 of the Criminal Code, before its amendment on 6 February
2002, 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, on conviction, be liable to between six months' and
two years' imprisonment and a heavy fine of from six thousand to
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, on conviction, be liable
to between one and three years' imprisonment and a fine of from nine
thousand to 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 done so by the means listed in Article 311 § 2.”
THE LAW
I. ADMISSIBILITY
- The
applicant complained under Article 6 § 1 of the Convention that
he had not been tried by an independent and impartial court on
account of the presence of a military judge on the bench of the Adana
State Security Court which convicted him. He further maintained under
Article 10 of the Convention that his criminal conviction and
sentence had infringed his right to freedom of expression.
- The
Government suggested that, since the applicant had been acquitted in
2005, he could no longer be considered a victim. They further
contended that the applicant's complaint under Article 10 of the
Convention should be rejected for non-exhaustion of domestic
remedies; since he had not at any stage in the domestic proceedings
relied on the provisions of the Convention.
- As
regards Article 6 of the Convention, the Court notes that the
applicant was convicted by the Adana State Security Court, composed
of three judges including a military judge, and sentenced to one year
imprisonment. He served his prison sentence in 2000. It is true that
subsequently he had a re-trial and in 2005 he was acquitted of the
charges against him. Nevertheless, although he was acquitted,
pursuant to domestic law he was not entitled to claim compensation
for the time he had spent in prison. The Court therefore concludes
that the Government's objection that the applicant can no longer be
considered as a victim cannot be upheld.
- As
regards the complaint raised under Article 10, the Court notes that
in so far as the Government contend that the applicant cannot be
considered a victim of the alleged violation, it reiterates that it
has already examined and rejected the Government's preliminary
objections in similar cases (see, in particular, Yaşar Kaplan
v. Turkey, no. 56566/00, §§ 32-34, 24 January
2006). The Court finds no particular circumstances in the instant
case which would require it to depart from its previous findings.
- As regards the second part of the Government's
preliminary objections, the Court recalls that the rule of exhaustion
set forth in Article 35 § 1 of the Convention must be applied
“with some degree of flexibility and without excessive
formalism”; 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 Erdoğdu v. Turkey, no. 25723/94, §
38, ECHR 2000 VI). In the present case, the Court notes that,
during trial, the applicant submitted before the domestic courts that
he had not incited to hatred and hostility by making distinctions on
the basis of race and region (see paragraphs 8 and 10 above). In the
light of the above, the Court concludes that the applicant's
complaint under Article 10 of the Convention was thus brought, at
least in substance, to the attention of the domestic courts (see,
mutatis mutandis, Fressoz
and Roire v. France [GC], no. 29183/95, §§
36-39, ECHR 1999-I and Kar and Others v. Turkey, no. 58756/00,
§§ 35-38, 3 May 2007). In conclusion, this objection cannot
be upheld either.
- The
Court notes that the application 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.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had not received a fair trial by an
independent and impartial tribunal due to the presence of a military
judge on the bench of the Adana State Security Court. In this
connection, he invoked Article 6 of the Convention, which reads:
“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.”
- The Court notes that it has examined similar cases in
the past and has concluded that there was a violation of Article 6 §
1 of the Convention (see Özel v. Turkey, no. 42739/98, §§
33-34, 7 November 2002, and Özdemir v. Turkey, no.
59659/00, §§ 35-36, 6 February 2003).
- The
Court sees no reason to reach a different conclusion in this case. It
is understandable that the applicant who was prosecuted in a State
Security Court for disseminating propaganda in support of an armed,
illegal organisation should have been apprehensive about being tried
by a bench which included a regular army officer and member of the
Military Legal Service. On that account, he could legitimately fear
that the Adana State Security Court might allow itself to be unduly
influenced by considerations which had nothing to do with the nature
of the case. In other words, the applicant's fear as to the State
Security Court's lack of independence and impartiality can be
regarded as objectively justified (see Incal v. Turkey,
judgment of 9 June 1998, Reports of Judgments and Decisions
1998 IV, p. 1573, § 72 in fine).
- In
the light of the foregoing the Court finds that there has been a
violation of Article 6 § 1 of the Convention in this respect.
III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
32. The
applicant complained that his criminal conviction and sentence had
infringed his right to freedom of expression. He relied on Article 10
of the Convention, which provides insofar as relevant 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....
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 or public safety, [or] for the prevention
of disorder or crime...”
- The
Government submitted that the interference with the applicant's right
to freedom of expression was justified under the provisions of the
second paragraph of Article 10. They also pointed out that, in light
of the jurisprudence of the Court, Article 312 of the Criminal Code
had been amended, by Law no. 4744 which entered into force on 19
February 2002.
- The
Court notes that it is not in dispute between the parties that the
conviction complained of constituted interference with the
applicant's right to freedom of expression, protected by Article 10 §
1. Nor is it contested that this interference was prescribed by law
and pursued a legitimate aim or aims, namely the protection of
territorial integrity and public order for the purposes of Article 10
§ 2. In the present case what is in issue is whether the
interference was “necessary in a democratic society”.
- The
Court has examined a number of cases raising similar issues to those
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
v. Turkey [GC], no. 22479/93, § 74, ECHR 1999 VI;
İbrahim Aksoy v. Turkey, nos. 28635/95, 30171/96 and
34535/97, §§ 80, 10 October 2000 and Kızılyaprak
v. Turkey, no. 27528/95, § 43, 2 October 2003).
- 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 in this
instance. The Court has had particular regard to the words used in
the speech and the context in which it was given. In this connection,
it has taken into account the background to the case submitted to it,
particularly the problems linked to the prevention of terrorism (see
İbrahim Aksoy, cited above, § 60 and Incal v.
Turkey, cited above, p. 1568, § 58).
- The
speech in issue consisted of a critical assessment of the situation
in the south-east Turkey at the material time. The Adana State
Security Court held that the speech in question contained words aimed
at inciting people to hatred and hostility.
38. The Court notes that, although the applicant was acquitted
of the charges against him eventually, he nevertheless served his
prison sentence and there is no remedy under domestic law by which he
could request compensation for the damage he had suffered. Against
this background, the Court considers that the reasons given by the
State Security Court for convicting and sentencing the applicant,
cannot be considered 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 and Üstün v. Turkey, no.
37685/02, §§ 34-35, 10 May 2007). It considers that, taken
as a whole, the applicant's speech does not encourage violence, armed
resistance or insurrection and, therefore, 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.
- Having
regard to the above considerations, the Court concludes that the
applicant's original 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. 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 100,000 United States dollars (USD), (approximately
83,104 euros (EUR)) in respect of non-pecuniary damage.
- The
Government contested this claim.
- The
Court considers that the applicant may be taken to have suffered a
certain amount of distress in the circumstances of the case. Making
its assessment on an equitable basis, it awards him EUR 5,000 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 510 for translation costs and 4,030 New
Turkish Liras (YTL)
for the legal fees. In support of his claims, the applicant submitted
bills specifying the amount he paid for translation. He also relied
on the Ankara Bar Association's list of recommended minimum fees and
submitted a schedule of costs.
- The
Government contested these claims.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 2,000 covering all heads.
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 remainder of the application
admissible;
- Holds that there has been a violation of Article
6 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 amounts to be
converted into New Turkish liras at the rate applicable at the date
of settlement and free of any taxes or charges that may be payable;
(i) EUR
5,000 (five thousand euros) in respect of non-pecuniary damage;
(ii) EUR
2,000 (two thousand euros) in respect of costs and expenses.
(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 2 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
