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FOURTH
SECTION
CASE OF YARAR v. TURKEY
(Application
no. 57258/00)
JUDGMENT
STRASBOURG
19
December 2006
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 Yarar 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 L. Garlicki, judges,
and
Mr T.L. Early, Section Registrar,
Having
deliberated in private on 28 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 57258/00) 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 Erol Yarar
(“the applicant”), on 20 March 2000.
- The
applicant was represented by Mr C. Şanlı, a lawyer
practising in Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
14 June 2004 the Court decided to give notice of the application to
the Government.
- On
1 November 2004 the Court changed the composition of its Sections
(Rule 25 § 1). This case was assigned to the newly composed
Fourth Section (Rule 52 § 1).
- In
a letter of 24 June 2005, the Court informed the parties that in
accordance with Article 29 §§ 1 and 3 of the Convention it
would decide on both the admissibility and merits of the application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Istanbul. He was the
president of MÜSİAD
at the time of the events.
- On
4 October 1997 the applicant made an opening speech at a consultation
meeting with the members of MÜSİAD. The applicant submitted
that the meeting was held in private and that no journalists were
allowed. During lunch, a journalist, Mr T.Y. approached the applicant
and asked a couple of questions. The applicant gave some short
answers.
- On
5 October 1997, a daily newspaper “Hürriyet”
published an article entitled “Weird criticisms” about
the event. The text was as follows:
“Erol Yarar who braces himself for the leadership
of the Islamic section in view of the likelihood of the closure of
the Welfare Party, stated that 'the head of he who wants to bring
back Article 163 [of the Criminal Code] would be cut off', [and]
continued to say that 'what rests with us is to start a democratic
independence struggle'. In the consultation meeting of the
professions committee, arranged by the Ankara Branch of MÜSIAD,
Yarar criticised what he called the 'absolute atheist education'
[and] asserted that 'Today, Turkey is debating topics which even the
Greek and British occupation forces of Istanbul had not dared to
raise although they might have desired to do so'. Yarar who alleged
that those who bring up this topic on the agenda of Turkey cannot be
believers and that 'attempts to punish even the circumcision
festivities as a religious activity must be the work of those without
circumcision'.
Yarar who alleged that uninterrupted compulsory
education is designed to pave the way for establishing the legal
foundation of an absolute atheist life [and] reached to the ongoing
preparations for the re-introduction of a new criminal law similar to
Article 163. Stating that the most important problem in Turkey was
that of the people who while posing themselves as faithful Muslims by
saying 'I am a Muslim too', prepared the legal foundation for an
atheist life. He went on to state that 'what rests with us in that
regard is to start a democratic independence struggle [against] those
who would own up to such a draft law, if there is any. It is now our
duty to do that'. Yarar then continued to state that 'Today, another
problem of Turkey, which is as important as the unrecorded economy,
is the unrecorded holders of State power. Holders of State power who
do not derive their authority from the Nation, who are afraid of the
Nation's will, who fear to express their own real faith to the
Nation, who are in fact cowards but seek to oppress the nation
through their unrecorded powers and who expect material and political
premium from all this. [This] constitutes the single biggest problem
of Turkey. But as long as the Nation's resolution to struggle
continues, although they may raise their voices from time to time,
their voices shall diminish when the Nation strikes back. Then we
have a duty. We have to continue our struggle.'
Yarar, emphasising that the new arrangements under
preparation would provide for heavy punishment and fines for those
who support religious schools and religious meetings, stated that
'the head who wants to control everything through punishment; this is
the head [kafa] which has to be changed in Turkey. It is a
head which has to be invited to repent. It is a head which we the
Nation have to seek to change. After having exhausted all our
efforts, if it still does not want to come around to a reasonable
point, then it has to be cut off. Turkey can get nowhere with such a
head. Alleging that there was such a head in Turkey which prepares
such law, he continued 'Perhaps there are one or two or three of
them. But they are in positions to bring up such topics on the
agenda. Perhaps they are behind their words, perhaps fearing people
they cannot come out but they have to know that no one can impose
today on the Nation what the English General did not dare to do. In
today's circumstances, this Nation will give its response very
strongly, by a democratic independence struggle. Yarar concluded as
follows; 'Such an agenda should not discourage our will to invest, to
open up to the world and to work in the spirit of the incursionist.
The dog barks and the caravan moves. Dogs will always bark, the
caravans have to move.”
- In
the meantime, two other daily newspapers also published similar
articles concerning the event with the titles “An absolute
irreligious life” and “Solution is democratic liberation
struggle”. The applicant claims that these newspapers took the
story from Hürriyet.
- On
13 October 1997 Mr Ç.B., the Second Chief of the General
Staff, denounced the applicant to the Istanbul public prosecutor's
office. He requested that criminal charges be brought against him.
- On
20 October 1997 the General Directorate of Criminal Affairs of the
Ministry of Justice requested the Istanbul public prosecutor's office
to take legal action against the applicant.
- On
30 October 1997 the Istanbul public prosecutor's office decided that
it lacked competence ratione materiae and transferred the case
file to the public prosecutor at the Istanbul State Security Court.
The latter decided that it lacked competence ratione loci and
transferred the case file to the public prosecutor at the Ankara
State Security Court.
- On
26 December 1997 the public prosecutor at the Istanbul State Security
Court decided not to initiate criminal proceedings against the author
of the article, Mr T.Y., and the editor-in-chief of Hürriyet
since it considered that the article had been published without any
accompanying comments with a view to imparting information on an
event which had a news value.
- On
30 April 1998 the public prosecutor at the Istanbul State Security
Court heard the applicant. The applicant submitted that he did not
remember whether he had said the words published in Hürriyet
since he spoke impromptu at the meeting and that his speech had been
a criticism of the general economic situation of Turkey. He denied
the allegation that he had incited people to hatred and hostility and
submitted that the phrases read out to him could not be construed as
such.
- On
20 May 1998 the public prosecutor at the Ankara State Security Court
filed a bill of indictment against the applicant accusing him of
inciting people to hatred and hostility on the basis of a distinction
between class and religion. He requested that the applicant be
convicted and sentenced under Article 312 § 2 of the Criminal
Code.
- The
following statements were highlighted in the indictment;
“Yarar criticised what he called the 'absolute
atheist education' [and] asserted that 'Today, Turkey is debating
topics which even the Greek and British occupation forces of Istanbul
had not dared to raise although they might have desired to do so'.
(...) the uninterrupted compulsory education is designed
to pave the way for establishing the legal foundation of an absolute
atheist life (...)
(...) that those who bring up this topic on the agenda
of Turkey cannot be believers and that 'attempts to punish even the
circumcision festivities as a religious activity must be the work of
those without circumcision'.
(...) It is a head which we the Nation have to seek to
change. After having exhausted all our efforts, if it still does not
want to come around to a reasonable point, then it has to be cut off.
(...) the dog barks and the caravan moves (...)”
- On
an unspecified date the criminal proceedings against the applicant
commenced before the Ankara State Security Court.
- The
court requested various authorities to investigate whether the
applicant's speech had been recorded. It was informed by the Ankara
Security Directorate that, according to their investigation, the
speech had not been recorded by anyone.
- On
various dates, the court heard the testimony of witnesses. Mr A.F.
affirmed that he did not hear the applicant saying the phrases
highlighted by the prosecution. Mr R.A. and Mr M.A.H stated that they
did not remember the contents of the applicant's speech. Mr Y.R.S.
submitted that the applicant had talked about current economic
issues. Mr N.B. affirmed that he only remembered that the applicant
had used the phrase “the dog barks and the caravan moves”.
- On
11 May 1998 Mr T.Y. was heard by the public prosecutor at the
State Security Court. He affirmed that he had recorded the speech of
the applicant but since there had been no request for a disclaimer he
erased the cassette. He claimed that he had been a journalist for
twelve years, that he had not added any comments to the article and
that the applicant had still not requested a disclaimer for the
article.
- In
the course of the proceedings, the applicant denied the charges
against him. In his written submissions, dated 20 July 1998, the
applicant stated, inter alia, that he had never said anything
about cutting heads off and alleged that the journalist had either
added certain remarks which he did not say or twisted the remarks he
had made to him during the interview and made it look as if they were
part of the speech he had made. He further submitted that his speech
criticised economic, political and social policies of the Government.
- On
15 February 1999 the Ankara State Security Court heard as a witness,
Mr Ö.T., a journalist at Milli Gazete. He submitted that
he was unable to remember the contents of the applicant's speech
since the events had taken place over a year ago. He claimed that
when the article appeared in Milli Gazete the press officer of
MÜSİAD had called him and told him of his displeasure and
that the applicant had not made such a speech. He submitted that he
had told the press officer to send a disclaimer. He maintained that
he took the story from Mr T.Y. who had told him that he had spoken
with the applicant over lunch.
- On
17 March 1999 Mr T.Y. reiterated his previous submissions before the
Ankara State Security Court. He further claimed that he had not
interviewed the applicant. He also submitted that when the police
asked him about the cassette he had told them that there was no
cassette since it had already been erased. The applicant submitted
that he did not accept the statements of the journalist.
- On
21 April 1999 the Ankara State Security Court convicted the applicant
of incitement to hatred and hostility on the basis of a distinction
between class and religion and sentenced him to one year imprisonment
and to a fine of 3,000 Turkish liras (TRL). The court decided to
suspend the execution of the applicant's sentence pursuant to Law
no.647.
- In
its decision the court considered that the testimony of the
journalist was sincere since he did not have any reason to
incriminate the applicant and that the latter did not request a
disclaimer of the article. It noted that similar articles had been
published in other newspapers. Taking into account the speech as a
whole, the court held, in particular, that the applicant had divided
society into two groups, namely believers and non believers. It
found that the applicant considered those who were in favour of eight
years of compulsory and consecutive primary education and the
reintroduction of Article 163 of the Criminal code as non-believers
and those against as believers. The court considered that the
applicant had set these two groups against each other and incited the
religious feelings of the sincere Muslim masses. It concluded that
the applicant had been trying to divide the society into two enemy
camps according to their beliefs.
- However,
the court found that since the impugned speech had been given before
a limited number of people and on a day which did not have any
specific importance, it did not endanger public security.
- On
6 October 1999 the Court of Cassation upheld the judgment of the
Ankara State Security Court.
- The
Government informed the Court that the criminal record of the
applicant had been erased.
II. THE RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice in force at the material time are
outlined in the following judgments: Karkın v. Turkey,
no. 43928/98, §§ 17-19, 23 September 2003; Özel
v. Turkey no. 42739/98, §§ 20-21, 7 November 2002;
and Öcalan v. Turkey [GC], no. 46221/99, §§ 52-54,
ECHR 2005-...).
- By
Law no. 5190 of 16 June 2004, published in the Official Journal on 30
June 2004, State Security Courts were abolished.
THE LAW
I. ADMISSIBILITY
- The
Court considers that the application raises serious issues of fact
and law under the Convention, the determination of which requires an
examination of the merits. It concludes therefore that the
application is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. No other ground for declaring
it inadmissible has been established.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant first complained that he had been denied a fair hearing by
an independent and impartial tribunal on account of the presence of a
military judge sitting on the bench of the Ankara State Security
Court which tried and convicted him. Secondly, he claimed that the
court had been influenced by the Army since the proceedings against
him had been prompted by the request of the Second Chief of the
General Staff. Finally, he maintained that he had been convicted
solely on the basis of the statements of the journalist who had a
personal interest in incriminating him. The applicant relied on
Article 6 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. Independence and impartiality of the State Security
Court
- The Court has examined a large number of cases raising
similar issues to those in the present case and found a violation of
Article 6 § 1 of the Convention (see Özel, cited
above, §§ 33-34; and Özdemir v. Turkey,
no. 59659/00, §§ 35-36, 6 February 2003).
- The
Court finds no reason to reach a different conclusion in the instant
case. Accordingly, the Court concludes that there has been a
violation of Article 6 § 1.
B. Fairness of the proceedings
- Having
regard to its finding of a violation of the
applicant's right to a fair hearing by an independent and
impartial tribunal, the Court considers that it is not necessary to
examine the remaining complaints under Article 6 of the Convention
relating to the fairness of the proceedings before the domestic
courts (see, among other authorities, Incal v. Turkey,
judgment of 9 June 1998, Reports of Judgments and Decisions
1998 IV, p. 1568, § 74).
III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- 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, 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.”
- 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 maintained that the interference
was proportionate since the applicant's sentence had been suspended.
Finally, they pointed out that Article 312 of the Criminal Code had
been amended, in light of the jurisprudence of the Court, by Law no.
4744 which entered into force on 19 February 2002.
- The
applicant maintained his allegations. In particular, he submitted
that he had been convicted on the basis of remarks which he did not
make. He claimed that even if he had made such a speech, it did not
constitute an incitement to hatred or hostility on the basis of a
distinction between class and religion.
- 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 the interference was prescribed by law
and pursued a legitimate aim or aims, namely prevention of disorder
or crime and the protection of the rights of others for the purposes
of Article 10 § 2. The Court agrees. In the present case what is
in issue is whether the interference was “necessary in a
democratic society”.
- The
Court reiterates the basic principles laid down in its judgments
concerning Article 10 (see, in particular, Karkın, cited
above, §§ 27-30; and Gündüz v. Turkey,
no. 35071/97, § 37-41, ECHR 2003-XI). 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 speech and the context in
which it was delivered. 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, among
other authorities, Fressoz and Roire v. France [GC],
no. 29183/95, ECHR 1999-I). 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 the applicant- a well known public figure being
the president of MÜSİAD at the time of the events- was
convicted on account of a speech he had made during a meeting of
MÜSİAD and which was considered by the State Security Court
to have amounted to an incitement to hatred and hostility on the
basis of a distinction between class and religion. In reaching this
conclusion, the domestic court relied, in particular, on the passages
highlighted by the prosecution (see paragraph 16 above).
- The
Court has examined the speech in question as it appeared in the
Hürriyet newspaper. It notes the following phrases
highlighted by the prosecution: “It is a head which we the
Nation have to seek to change. After having exhausted all our
efforts, if it still does not want to come around to a reasonable
point, then it has to be cut off” and “that those who
bring up this topic on the agenda of Turkey cannot be believers and
that 'attempts to punish even the circumcision festivities as a
religious activity must be the work of those without circumcision”.
It is true that these passages from the speech could, if viewed
alone, be interpreted as a call to violence or the promotion of
hatred based on religious intolerance. However, for the Court the
domestic courts omitted to set these remarks in the context of the
speech as a whole, which, on any reading, could not be construed as
an incitement to hatred or violence (see by way of 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).
- Furthermore,
in the instant case, since it was the press that reported the
applicant's comments, some of which the applicant subsequently denied
making, including the above remarks, the Court finds that it is not
possible to hold him responsible for everything that appeared in the
published article (see Amihalachioaie v. Moldova,
no. 60115/00, § 37, ECHR 2004 III; and Erbakan
v. Turkey, no. 59405/00, § 67, 6 July 2006).
- Finally,
the Court observes that, notwithstanding the fact that the execution
of the sentence imposed on the applicant was suspended, he
nevertheless faced the threat of a heavy penalty (see, among other
authorities, Halis v. Turkey, no. 30007/96, §
37, 11 January 2005).
- Against
this background, the Court considers that the reasons given by the
Ankara State Security Court for convicting and sentencing the
applicant, although relevant, cannot be considered sufficient to
justify the interference with his right to freedom of expression.
- Having
regard to the above considerations, the Court concludes that the
applicant's conviction 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.
IV. 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 the claims.
- 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, as required by Article 41 of
the Convention, it awards him EUR 2,000 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed the global sum of USD 90,257 (approximately
EUR 75,007) for the costs and expenses incurred both before the
domestic courts and before the Court. The applicant submitted
documentation, such as fee notes and receipts, in support of his
claims.
- The
Government contested the claims.
- The
Court reiterates that only those costs and expenses that were
actually and necessarily incurred in connection with the violation or
violations found, and are reasonable as to quantum, are recoverable
under Article 41 (see, for example, Şahin v. Germany
[GC], no. 30943/96, § 105, ECHR 2003). It further
reiterates that, where it finds that there has been a violation of
the Convention, the Court may award the applicant the costs and
expenses incurred before the national courts for the prevention or
redress of the violation (see, among other authorities, Zimmermann
and Steiner v. Switzerland, judgment of 13 July 1983, Series A
no. 66, p. 14, § 36; and Hertel v. Switzerland,
judgment of 25 August 1998, Reports 1998 VI,, p. 2334,
§ 63). In this connection, the Court considers the applicant's
claims excessive. Making its own estimate based on
the information available and the above criteria,
the Court considers it reasonable to award the
applicant EUR 3,000 covering costs and expenses under
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 application admissible;
- Holds that there has been a violation of Article
6 of the Convention as regards the complaint relating to the
independence and impartiality of the Ankara State Security Court;
- Holds that it is not necessary to consider the
applicant's other complaints under 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:
(i) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(ii) EUR
3,000 (three thousand euros) in respect of 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 19 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
