PROCEDURE

The case originated in an application (no. 56827/00) 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 Koray Düzgören (“the applicant”), on 15 October 1999.

The applicant was represented by Ms A. J. Stock, Mr M. Muller, Mr T. Otty and Ms J. Gordon of 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.

On 28 September 2004 the Court (Second Section) declared the application partly inadmissible and decided to communicate the complaint concerning the alleged lack of independence and impartiality of the military court, the alleged interference with the applicant's right to freedom of expression and the alleged lack of an effective remedy to the Government. Under 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 1947 and lives in London.

On 1 April 1998 the applicant, who is a journalist, distributed a leaflet concerning the conscientious objector Mr O.M.U, outside the Ankara State Security Court. He also handed the leaflet to the public prosecutor at the Ankara State Security Court together with a petition stating that he should be prosecuted for having committed a crime.

The leaflet, entitled “Freedom to think - an initiative against the crime of thought” contained the press release issued by O. M. U on 1 September 1995. The latter had been previously convicted and sentenced on account of this press release. The relevant parts of the leaflet are as follows: Preface and Epilogue: “... For the purpose of defending the free expression of every kind of thought, we who have signed as publishers, convey this 'convicted' text to the people, regardless of its contents and the question whether or not we share its contents, even though some of us do not agree with some lines in it...' The press release of O. M. U: “Good morning, Today's press conference is not organised by the Izmir Association of the Opponents of War. The responsibility for this conference rests exclusively with me. As you know, the case, which was brought before the Ankara Military Court of the Office of the Chief of Staff where I was allegedly accused of committing the crime of 'inciting others to evade military service', was concluded on 29 August. ... The army, unable to deal with us through judicial methods, think that they can draw the opponents of war away from the public view. First of all, I am not a deserter; I am a 'conscientious objector'. I neither intend to do military service nor desert. There is no reason to desert, because I defend the principle that people should exercise their right not to do military service without having to go into hiding. As to the papers given by the Recruitment Office...I am going to burn them right now before your eyes... I am not a soldier and I never will be. Of course, I am aware that I will be summoned for military service, but until I am summoned, whenever that may be there will be no changes to my lifestyle. They can find me here and take me by force. But I will resist to the end in the barracks, and I am underlining that I will refuse to do military service in any shape or fashion.”

On 1 April 1998 the public prosecutor at the Ankara State Security Court took the applicant's statement in which the applicant reiterated the content of his petition. He maintained that, by publishing and distributing the above-mentioned leaflet, he had committed the same offence for which O. M. U. had been convicted. He contended that he agreed with the contents of the leaflet. He further pointed out that there were judgments of the European Court of Human Rights which referred to conscientious objectors. He claimed that the leaflet was not intended to dissuade people from doing military service or to incite them to desert. He further stated that in the Netherlands conscientious objectors did not do their military service, but were given other jobs. He commented that maybe in the future the same would also be true for Turkey. He concluded that his aim was to obtain the abolition of compulsory military service in Turkey.

On 4 June 1998 the military public prosecutor at the General Staff Court in Ankara filed a bill of indictment, accusing the applicant of inciting others to evade military service. He requested that the applicant be convicted and sentenced under Article 155 of the Criminal Code and Article 58 of the Military Penal Code.

On an unspecified date, the criminal proceedings against the applicant commenced before the General Staff Court in Ankara. During the proceedings the applicant reiterated his previous submissions. In particular, he claimed that he was a defender of freedom of expression and challenged the independence and impartiality of the court.

On 9 March 1999 the court convicted the applicant as charged and sentenced him to two months' imprisonment and to a fine of 1,520,000 Turkish Liras (TL) (approximately 3.5 Euros (EUR) at the time of the events). In its reasoning, the court held that it had competence to deal with the case pursuant to the Constitution and domestic law and that there was no ruling of the European Court of Human Rights which had concluded that military courts were extraordinary courts. As regards the merits, the court considered that, by distributing the leaflet containing the press release which led to O. M. U's conviction and by handing the leaflet to the public prosecutor and asking the latter to take legal action, the applicant's actions were deliberate and that he had committed the offence knowingly and willingly. The court, relying on Articles 25 and 26 of the Constitution, Article 10 § 2 of the European Convention on Human Rights and Article 29 § 2 of the Universal Declaration of Human Rights, affirmed that freedom of expression and the free dissemination of ideas was not an absolute right. Citing relevant articles of the Criminal Code, it reasoned that the provisions under which the applicant was charged pursued the aim of eliminating threats to the unity of the country, national security and sovereignty. The court observed that Article 155 of the Criminal Code was in accordance with international law and that the applicant's case fell within the scope of Article 155 of the Criminal Code.

On 19 April 1999 the applicant appealed to the Military Court of Cassation. In his appeal, the applicant, relying on Articles 6 and 10 of the European Convention on Human Rights, contended that he should not have been tried by a military court and that the act which he had committed could not be considered to be an offence.

On 25 May 1999 the Military Court of Cassation upheld the decision of the General Staff Court. In its decision the court, referring to domestic law and the jurisprudence of the Court, held that the military courts had jurisdiction and competence to try the applicant and, after having assessed the contents of the leaflet, concluded that the judgment given by the General Staff Court was in accordance with the law.

On 17 July 1999 the applicant left Turkey in order to avoid imprisonment.