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FOURTH
SECTION
CASE OF YURDATAPAN v. TURKEY
(Application
no. 70335/01)
JUDGMENT
STRASBOURG
8 January 2008
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 Yurdatapan v. Turkey,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Josep
Casadevall,
Giovanni Bonello,
Rıza Türmen,
Kristaq
Traja
Stanislav Pavlovschi,
Ján Šikuta,
judges,
and Fatoş Aracı, Deputy Section
Registrar,
Having
deliberated in private on 4 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 70335/01) 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 Mehmet Şanar
Yurdatapan (“the applicant”), on 1 December 2000.
- The
applicant was represented by Ms Nesrin Ulutürk-Keleş, a
lawyer practising in Istanbul and Mr Kerim Yıldız, Ms Anke
Stock and Ms Lucy Claridge from 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.
- The
applicant alleged, in particular, that he had been tried and
convicted by the General Staff Military Court, which was not an
independent and impartial tribunal within the meaning of Article 6 of
the Convention. He also complained that his right to freedom of
expression had been violated in that he had been convicted for
distributing a leaflet which contained statements from a
conscientious objector.
- On
8 January 2002 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 1941 and lives in Istanbul.
- In
1995, a general civil disobedience movement, called the “Initiative
for freedom of expression” (IFE) commenced following the trial
of the famous writer, Yaşar Kemal, who was prosecuted for his
article published in the German magazine “Der Spiegel”.
One thousand and eighty intellectuals protested against Yaşar
Kemal's prosecution by re-publishing his articles and other banned
articles in a book entitled 'Freedom of Expression'. The aim of the
IFE was the amendment of the provisions of the Turkish legislation
concerning freedom of expression.
- The
members of the IFE continued their campaign by gathering in front of
the Istanbul State Security Court building once a month and
distributing leaflets, which included shortened versions of
previously banned articles.
- On
23 July 1999 the applicant distributed the leaflet entitled “Freedom
of Thought - No. 38” in front of the Istanbul State Security
Court Building. This leaflet was a reproduction of the leaflet
entitled “Freedom of Thought - No. 9”, which contained
statements made by Osman Murat Ülke, who is a conscientious
objector. The same day, the applicant filed a complaint against
himself with the Public Prosecutor attached to the Istanbul State
Security Court and maintained that he should be prosecuted for
re-publishing the leaflet entitled “Freedom of Thought-No. 9”,
banned by the General Staff Military Court.
- On
5 October 1999 the military public prosecutor initiated criminal
proceedings against the applicant in the General Staff Military
Court, and charged him with seeking to dissuade persons from serving
in the military contrary to Article 155 of the Turkish Criminal Code
in conjunction with Article 58 of the Military Criminal Code.
- During
a hearing held on 23 November 1999, the applicant refused to answer
any questions posed by the military court as regards the merits of
the case. He maintained that the trial of a civilian by a military
court breached Article 6 of the Convention, which guaranteed the
fairness of proceedings. He argued that the military court could not
provide him with a fair trial by an independent court and that such a
prosecution would be against the Constitution. He further stated that
Article 155 of the Criminal Code, which makes it an offence to seek
to dissuade persons from serving in the military, was contrary to
Article 10 of the Convention. The applicant maintained that he should
have been tried by an ordinary criminal court. In this respect, he
alleged that by republishing a previously banned article, he had
breached Article 162 of the Criminal Code which provides that
re publication of banned materials is an independent felony and
that its perpetrator is subject to the same punishment as the author
of the impugned article.
- The
applicant further put forward a plea of unconstitutionality, stating
that Article 155 of the Turkish Criminal Code breached Articles 90
and 152 of the Constitution. The Military Court, considering that the
applicant's submissions were unsubstantiated, refused his request.
- On
1 February 2000 the court recalled that Osman Murat Ülke had
been convicted in 1997 for breach of Article 155 of the Criminal Code
for holding a press conference at the Izmir War Resisters'
Association. Accordingly it held that by re-publishing those
statements, the applicant had acted with the intention to break the
law. The court further quoted the following statements from the
leaflet.
“Above all I am not a draft evader, but a
conscientious objector. I intend neither to evade nor to accept
conscription. I have no reason to evade conscription, because I am in
favour of people using their right not to be conscripted without
having to hide.
...
Even though I cannot be called a draft evader, I
consider it meaningless to go of my own accord. On the contrary, here
and now, I will burn this military pass against which my own will
rebels. In addition, I will burn the notification paper and send back
the rest of the documents to the state by mail. Perhaps they will
need them. Also I will send back the money that was given to me by
the Ankara Recruiting Office for transportation and food expenses. I
am not a soldier and I will never be... But I want to stress that if
I'm taken to the barracks by force, I will resist to the end and
never perform military service.”
- The
military court held that, pursuant to Article 13 of the Constitution,
fundamental rights and freedoms may be restricted by law, in
conformity with the latter and the spirit of the Constitution, with
the aim of safeguarding the indivisible integrity of the state with
its territory and nation, national sovereignty, the Republic,
national security, public order, general peace, the public interest,
public morals and public health. Moreover, pursuant to Article 10 §
2 of the Convention, the exercise of freedom of expression may be
subjected to such formalities, conditions, restrictions or penalties
as are described by law and are necessary in a democratic society, in
the interests of national security, territorial integrity or public
safety.
- Consequently,
the military court found the applicant guilty under Article 155 of
the Criminal Code, in conjunction with Article 58 of the Military
Criminal Code, for seeking to dissuade persons from serving in the
military. It further sentenced him to two months' imprisonment and a
fine.
- On
16 May 2000 the Military Court of Cassation, finding the reasoning of
the first instance court in line with the domestic legislation,
refused the applicant application for leave to appeal.
- On
21 July 2000 the applicant was informed about the final decision of
the Military Court of Cassation by the demand sent by the Üsküdar
Public Prosecutor's Office that the applicant surrender to serve his
sentence.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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
relevant provisions of the now defunct Criminal Code provides:
Article 155
“ Whoever, in circumstances other than those
indicated in the aforementioned articles, publishes editorials to
incite people to violate the laws of Turkey or endangers the security
of the country, or makes publications or suggestions that seek to
dissuade persons from serving in the military or makes speeches to
that end in public meetings or gathering places, shall be imprisoned
for a period of between two months and two years and punished with a
heavy fine of between 4,500 and 36,000 Turkish liras.”
Article 162
“Republication of banned materials is an
independent felony and its perpetrator is subjected to the same
punishment as the author of the impugned article.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 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 Ministry 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, they 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 could 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
publishing and distributing a leaflet which contained statements from
a conscientious objector 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 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 Osman Murat Ülke in a public area, had
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; 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 Osman Murat Ülke, 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 recalls that it had already examined the contents of the
leaflet in question in its judgment in the case of Düzgören
v. Turkey (application no. 56827/00, §§ 23-34, 9
November 2006). It therefore reiterates its considerations in that
case where it had held that, although the words used in the impugned
leaflet gave it a connotation hostile to military service, they did
not encourage violence, armed resistance or insurrection and did 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 the applicant's right to
freedom of expression.
- Having
regard to the above considerations, the Court concludes that the
applicant's conviction and sentence were 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 79,864 euros (EUR) in respect of pecuniary damage.
He submitted that this amount represented the income that he had been
deprived of as a result of his conviction and the costs and expenses
incurred in the course of the domestic proceedings. He further
claimed EUR 40,000 in respect of non pecuniary damage.
- 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 (see Düzgören, cited
above, § 40).
- 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-IV).
B. Costs and expenses
- The
applicant also claimed EUR 12,147.87 and 1,364.16 pounds sterling
(GBP) for the costs and expenses incurred for his representation by
his Turkish and British lawyers, respectively, before the Court.
- The
Government contested these claims.
- 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 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 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 8 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
