CASE OF ZANA v. TURKEY
Violation of Art. 6-1;Violation of Art. 6-3-c;No violation of Art. 10;Preliminary objection rejected (ratione temporis);Preliminary objection rejected (estoppel);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
John Freeland
9. Mr Mehdi Zana, a Turkish citizen born in 1940, is a former mayor of Diyarbakır, where he currently lives. 10. Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces. 11. At the time of the Court’s consideration of the case, ten of the eleven provinces of south-east Turkey had since 1987 been subjected to emergency rule. 12. In August 1987, while serving several sentences in Diyarbakır military prison, the applicant made the following remarks in an interview with journalists: “I support the PKK national liberation movement; on the other hand, I am not in favour of massacres. Anyone can make mistakes, and the PKK kill women and children by mistake …” “... PKK'nın ulusal kurtuluş hareketini destekliyorum. Katliamlardan yana değiliz, yanlış şeyler her yerde olur. Kadın ve çocukları yanlışlıkla öldürüyorlar …” That statement was published in the national daily newspaper Cumhuriyet on 30 August 1987. 13. On 30 August 1987 the “press offences” department of the Istanbul public prosecutor’s office began a preliminary investigation in respect of the applicant among others, on the ground that he had “defended an act punishable by law as a serious crime”, an offence under Article 312 of the Criminal Code (see paragraph 31 below). 14. On 28 September 1987 the Istanbul public prosecutor’s office ruled that there was no case to answer in respect of the journalists and that it had no jurisdiction ratione loci to deal with Mr Zana’s case. It sent the file to the Diyarbakır public prosecutor. 15. In an order of 22 October 1987 the Diyarbakır public prosecutor ruled that he had no jurisdiction, on the ground that the offence committed by the applicant was governed by Article 142 §§ 3–6 of the Criminal Code (a provision which makes it an offence to disseminate propaganda that is racist or calculated to weaken national sentiment). He forwarded the file to the public prosecutor at the Diyarbakır National Security Court. 16. On 4 November 1987 the latter likewise ruled that he had no jurisdiction, on the ground that when the applicant had made his statement to the journalists he was in custody in a military prison and therefore had military status in law. He forwarded the file to the Diyarbakır military prosecutor’s office. 17. By means of an indictment dated 19 November 1987, the Diyarbakır military prosecutor’s office instituted proceedings in the Diyarbakır Military Court against Mr Zana (among others) under Article 312 of the Criminal Code. The applicant was charged with supporting the activities of an armed organisation, the PKK, whose aim was to break up Turkey’s national territory. 18. At a hearing before the Diyarbakır Military Court on 15 December 1987 the applicant argued that the court had no jurisdiction to hear his case and refused to put forward a defence on the merits. 19. At a hearing on 1 March 1988 counsel for Mr Zana asked the Military Court to rule that it had no jurisdiction as the offence with which his client was charged was not a military one and a military prison could not be regarded as military premises. The court dismissed that application on the same day. 20. On 28 July 1988 the applicant was transferred from Diyarbakır military prison to Eskişehir civilian prison. 21. The Eskişehir Air Force Court, acting under powers delegated to it by the Diyarbakır Military Court, summoned the applicant to submit his defence. The applicant, who was on hunger strike, did not appear at the hearing on 2 November 1988. He did appear at one held on 7 December 1988 but refused to address the court, as he considered that it had no jurisdiction to try him. 22. In a decision of 18 April 1989 the Diyarbakır Military Court held that it had no jurisdiction in the case and sent the file to the Diyarbakır National Security Court. 23. On 2 August 1989 Mr Zana was transferred to the high-security civilian prison at Aydın. 24. At a hearing held on 20 June 1990 by the Aydın Assize Court, acting under powers delegated by the Diyarbakır National Security Court, the applicant refused to speak Turkish and said in Kurdish that he wished to defend himself in his mother tongue. The Assize Court pointed out to him that, if he persisted in his refusal to defend himself, he would be deemed to have waived his right to do so. Since Mr Zana continued to speak in Kurdish, the court noted in the record of the hearing that he had not put forward a defence. 25. The proceedings then continued before the Diyarbakır National Security Court, where the applicant was represented by his lawyers. 26. In a judgment of 26 March 1991 the Diyarbakır National Security Court sentenced the applicant to twelve months’ imprisonment for having “defended an act punishable by law as a serious crime” and “endangering public safety”. In accordance with the Act of 12 April 1991, he would have to serve one-fifth of the sentence (two months and twelve days) in custody and four-fifths on parole. 27. The National Security Court held that the PKK qualified as an “armed organisation” under Article 168 of the Criminal Code, that its aim was to bring about the secession of part of Turkey’s territory and that it committed acts of violence such as murder, kidnapping and armed robbery. The court also held that Mr Zana’s statement to the journalists, the exact terms of which had been established during the judicial investigation, amounted to an offence under Article 312 of the Criminal Code. 28. The applicant appealed on points of law on 3 April 1991. In a judgment of 19 June 1991, served on the applicant’s representative on 18 July 1991, the Court of Cassation upheld the National Security Court’s judgment. 29. In the meantime, on 16 April 1991, Mr Zana, who had just served the sentences imposed on him earlier, had been released. 30. On 26 February 1992 the Diyarbakır public prosecutor requested the applicant to report to Diyarbakır Prison in order to serve his latest sentence – one-fifth of the prison term, for the remainder of which he would be on parole. 31. The relevant provisions of the Criminal Code at the material time provided: Article 168 “It shall be an offence punishable by at least fifteen years’ imprisonment to form an armed gang or organisation or to assume control or special responsibility within such a gang or organisation with the intention of committing any of the offences referred to in Articles 125 ... It shall be an offence punishable by five to fifteen years’ imprisonment to belong to such an organisation.” Article 312 “It shall be an offence, punishable by six months’ to two years’ imprisonment and a ‘heavy’ [ağır] fine of 6,000 to 30,000 liras publicly to praise or defend an act punishable by law as a serious crime or to urge the people to disobey the law. It shall be an offence, punishable by one year’s to three years’ imprisonment and by a heavy fine of 9,000 to 36,000 liras, publicly to incite hatred or hostility between the different classes in society, thereby creating discrimination based on membership of a social class, race, religion, sect or region. Where such incitement endangers public safety, the sentence shall be increased by one-third to one-half. ...” 32. Article 226 § 4 of the Code of Criminal Procedure at the material time provided: “A person in custody in a prison situated outside the jurisdiction of the court which is to try him may be examined by other courts.” 33. On 22 January 1990 the Turkish Minister for Foreign Affairs deposited with the Secretary General of the Council of Europe the following declaration under Article 46 of the Convention: “On behalf of the Government of the Republic of Turkey and acting in accordance with Article 46 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, I hereby declare as follows: The Government of the Republic of Turkey acting in accordance with Article 46 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, hereby recognises as compulsory ipso facto and without special agreement the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention which relate to the exercise of jurisdiction within the meaning of Article 1 of the Convention, performed within the boundaries of the national territory of the Republic of Turkey, and provided further that such matters have previously been examined by the Commission within the power conferred upon it by Turkey. This Declaration is made on condition of reciprocity, including reciprocity of obligations assumed under the Convention. It is valid for a period of 3 years as from the date of its deposit and extends to matters raised in respect of facts, including judgments which are based on such facts which have occurred subsequent to the date of deposit of the present Declaration.” That declaration was renewed on 22 January 1993 for a period of three years and again on 22 January 1996, in slightly different terms, for two years.