KILIC proti Turecku

FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40498/98
by Murat KILIÇ
against Turkey

The European Court of Human Rights first Section, sitting on 8 July 2003 as a Chamber composed of

Mr C.L. Rozakis, President,
Mr G. Bonello,
Mr R. Türmen,
Mrs F. Tulkens,
Mr E. Levits,
Mr A. Kovler,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Deputy Section Registrar,

Having regard to the above application introduced on 7 March 1998,

Having regard to the Court’s partial decision of 16 March 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Turkish national, born in 1964 and living in Ankara, Turkey. He is currently detained in Çankırı Prison, near Ankara. The applicant is represented before the Court by Mr Selahattin Kaya, a lawyer practising in Ankara.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 18 October 1992 the applicant was arrested by the police following a search of his house.

On 2 November 1992 the public prosecutor attached to the Ankara State Security Court laid charges against the applicant and six other persons for having formed an illegal organisation (“Partiye Rizgariye Kurdistan”: hereinafter “PRK”) whose aim was to undermine the territorial integrity of the State by illegal means. The applicant and his co-accused were also charged with distributing illegal leaflets and carrying identification cards and driving licences belonging to third parties.

The public prosecutor requested the court to convict the applicant and his co-accused under Article 125 of the Criminal Code with reference to Articles 171 § 1, 350 § 2 and 536 §§ 2 and 3 of the same Code as well as Article 5 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991). The public prosecutor relied on the leaflets, the internal regulations of the PRK as well as the latter’s political programme and flag, all of which were seized during the search of the applicant’s and his co-accused’s houses. The first paragraph of the PRK’s regulations contained the following statement:

“(...) In protecting the goals which have been obtained with great difficulty, in preventing the destruction of the masses and in creating a group with good warrior-skills against the enemy, the rules and regulations constitute the vitally important corner stones of our struggle for independence. (...)”

“(...) Kurallar ve yöntemler, ulusal ve toplumsal kurtuluş mücadelemizde, dişle tırnakla yaratılan düzeylerin korunması, kadroların ve kitlelerin imhasının önlenmesi ve düşman karşısında savaşçı yetenekleri gelişmiş bir örgütün varolmasının hayati öneme sahip temel taşlarıdır. (...)”

The public prosecutor summarised the ways in which the party’s goals were to be attained.

“The first stage: A vast foundation will be laid by means of publications. Young people, workers and villagers will be organised at this level. In order to succeed in the second stage a large group of supporters will be needed. Emphasis will therefore be given to recruiting university students.

The second stage: At this level, a revolution will take place in the leadership of the proletarian revolutionaries who were set up at the first level. An independent Republic of Kürdistan will be founded on the east and south-east regions of the Turkish Republic where it is called northern Kürdistan.”

“1. aşama: Yayın yoluyla çok geniş bir taban oluşturulacaktır. Bu aşamada gençler, işçiler ve köylüler örgütlenecektir. II. Aşamaya kadar mutlak bir başarı için taraftar kazanılacak ve ağırlık üniversite gençlğine verilecektir.

2. aşama: Bu aşamada birinci aşamada görülen proleter devrimcilerin öncülüğünde gerçekleştirilecek halk ihtilali ve Kuzey Kürdistan diye adlandırılan T.C. Devletinin Doğu ve Güneydoğu illeri üzerinde Bağımsız Kürdistan Cumhuriyeti kurulacaktır.”

In his statements to the police and the public prosecutor the applicant accepted the accusations against him. However, when brought before the substitute member of the Ankara State Security Court he denied these allegations.

On 7 November 1996 the Ankara State Security Court found the applicant and four of his co-accused guilty of an offence under Article 168 § 2 of the Criminal Code and Article 5 of the Prevention of Terrorism Act. The search of their houses had uncovered the internal regulations of the party whose aim was to establish an independent Kurdish State on the territory of the Turkish State through dissemination of propaganda. The court also noted that the aim of the party was to set up by means of force an independent socialist and united State of Kurdistan within the territories of Iran, Iraq and Syria.

The court found that the applicant and his co-accused had distributed leaflets containing separatist propaganda. Furthermore, the applicant was in charge of the keys to the apartments where the members of the impugned organisation held meetings.

The court sentenced the applicant and four of his co-accused to twelve years and six months’ imprisonment and debarred them from public service indefinitely. The applicant appealed.

On 7 October 1997 the Court of Cassation dismissed the applicant’s appeal.

B. Relevant domestic law

The Criminal Code

Article 168

Any person who, with the intention of committing the offences defined in Articles ..., forms an armed gang or organisation or takes leadership ... or command of such a gang or organisation or assumes some special responsibility within it shall be sentenced to not less than fifteen years’ imprisonment.

The other members of the gang or organisation shall be sentenced to not less than five and not more than fifteen years’ imprisonment.”

Article 169

“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment...”

The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991)

Under Article 3 of the Act, the offence defined in Article 168 of the Criminal Code is classified in the category of “acts committed to further the purposes of terrorism”.

Pursuant to Article 5 of the Act, the penalty laid down in the Criminal Code by way of punishment for the offence defined in Article 3 is increased by half.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that he did not receive a fair hearing before an independent and impartial tribunal due to the presence of a military judge on the bench of the Ankara State Security Court.

He further complained under Articles 9 and 10 of the Convention that he was convicted merely on account of having expressed his opinions in leaflets belonging to a political group, the aim of which was to promote its opinions by means of publications.

THE LAW

1. The applicant alleged that he was tried and convicted by a State Security Court which comprised among its members a military judge. He complained that the presence of the military judge on the bench prevented the court from being an independent and impartial tribunal within the meaning of Article 6 § 1 of the Convention, which provides as relevant:

“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 Government replied that the rules governing the appointment of military judges to the State Security Courts and the guarantees which they enjoyed in the performance of their judicial functions on the bench were such as to ensure that these courts fully complied with the requirements of independence and impartiality within the meaning of Article 6 § 1.

The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of its merits. The Court concludes, therefore, that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant complained under Articles 9 and 10 of the Convention that he had been convicted merely on account of having distributed leaflets belonging to a political group, the aim of which was to promote its opinions by means of publications.

The Government referred to Article 2 of the internal regulations of the PRK, which stated that the goal of the PRK was to put an end to the military presence in Kurdistan. They further highlighted Article 11 of the same regulations, which stated that military camps should be set up and ruled by the PRK’s military wing. That provision of the regulations also stated that the goals of the organisation could only be achieved through a military struggle. The Government averred that, in view of these considerations, the PRK was an illegal terrorist organisation which considered that the use of violence was legitimate for attaining its goals.

The applicant refuted the Government’s allegations and contended that they had failed to submit any evidence proving that he had written the above-mentioned regulations or that these regulations belonged to the PRK. He maintained that the organisation had not been engaged in any military activity or acts of violence. He further claimed that he had been merely in charge of distributing leaflets for the party and had not engaged in any other activity on behalf of the organisation, as was noted by the Ankara State Security Court in its final judgment.

The Court notes that the applicant was charged with membership of an illegal organisation and was convicted of this offence by the Ankara State Security Court. The court found the applicant guilty on the basis of incriminating evidence uncovered during a search of his house and was satisfied in particular that he was in charge of the keys to the apartments where members of the organisation held their meetings. The court was also persuaded that the applicant’s association with the organisation was confirmed by the fact that he had been involved in distributing illegal leaflets on its behalf.

In the light of the foregoing, the Court considers that the conviction of the applicant cannot be viewed in terms of an interference with his rights under Articles 9 and 10 of the Convention. The applicant was not convicted of disseminating separatist propaganda or of harbouring separatist sentiments. Evidence of his involvement in the distribution of the organisation’s leaflets or the uncovering of the organisation’s internal regulations in his home was used as proof of his involvement in the organisation and that he had committed an offence under Article 168 of the Criminal Code.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning his right to a fair trial by an independent and impartial tribunal.

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis
Deputy Registrar President