PROCEDURE

The case originated in an application (no. 29851/96) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehdi Zana (“the applicant”), on 1 September 1995.

The applicant was represented by Mr Sezgin Tanrıkulu, a lawyer practising in Diyarbakır (Turkey). The Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

The applicant alleged, in particular, that his conviction constituted an unjustified interference with his right to freedom of expression and that he was denied a fair hearing on account of the presence of a military judge on the bench of the Istanbul State Security Court.

The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. Mr Rıza Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr Feyyaz Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).

By a decision of 19 September 2000 the Chamber declared the applicant’s complaint under Articles 9 and 10 of the Convention inadmissible and retained his complaint under Article 6 § 1 for examination on the merits.

The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

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

On 28 June 1992 the applicant participated in a meeting organised by a political party, the People’s Labour Party (Halkın Emek Partisi, HEP), in Bursa. At this meeting he made a speech on the Kurdish question.

The Chief Public Prosecutor at the Istanbul State Security Court instituted criminal proceedings against the applicant charging him with disseminating separatist propaganda against the indivisibility of the State on account of his speech. The charges were brought under section 8 § 1 of the Prevention of Terrorism Act 1991 (hereinafter “the 1991 Act”).

In the proceedings before the Istanbul State Security Court, the applicant denied the charges and requested his acquittal. He asserted that he had made this speech because he felt responsible for the Kurdish problem.

In a judgment dated 14 April 1994, the Istanbul State Security Court found the applicant guilty of an offence under section 8 § 1 of the 1991 Act. It sentenced the applicant to 2 years’ imprisonment and a fine of 100,000,000 Turkish Liras (TRL). The court held that the following phrases in the applicant’s speech contravened section 8 of the 1991 Act: “... We know how to die for our cause and we do even die...O Kurds! join hands, give a martyr every day... we will maintain our cause until we achieve it... we are going to stop this oppression and we are going to get our rights with our fists... if the present Government do not say ‘stop’ to this oppression, we are going to stop it... we have taken an oath not to withdraw, even if only a single warrior remains... Kurdistan is seen on the horizon...”

The Istanbul State Security Court considered that the incriminated speech, taken as a whole, amounted to propaganda, including violence, against the indivisible integrity of the State. The court found that the applicant had alleged that the State was guilty of oppression and the infliction of torture. It held that this allegation constituted a clear and present danger since the applicant had given incorrect information about the incidents and the Government’s policies in the south-east. The applicant appealed against his conviction.

On 31 January 1995 the Court of Cassation upheld the Istanbul State Security Court’s judgment. The applicant learned of this decision in July 1995 while he was in prison.

Following the amendments made by Law no. 4126 of 27 October 1995 to the 1991 Act, the Istanbul State Security Court ex officio re‑examined the applicant’s case. On 16 February 1996 the court confirmed the applicant’s conviction, but reduced the sentence imposed on the applicant. It finally sentenced the applicant to 1 year’s imprisonment and a fine of 100,000,000 TRL. The applicant appealed.

On 12 January 1998 the Court of Cassation dismissed the applicant’s appeal, upholding the State Security Court’s reasoning and its assessment of the evidence.