ECtHR Case-Law Hanım HAN v. Turkey (2012) (English)

The applicant, Tahir Han, is a Turkish national who was born in 1960 and lives in Adana (Turkey). In January 1996 the public prosecutor at Ankara State Security Court filed an indictment in which he accused the applicant of disseminating propaganda against the indivisible integrity of the State, an offence under Article 8 of the Prevention of Terrorism Act. The offence related to a speech the applicant made in 1994 at a congress held by the Peoples' Democracy Party (Halkın Demokrasi Partisi), of which he was a member. In January 1997 Ankara State Security Court, which was composed of three judges including a military judge, found the applicant guilty of an offence under Article 8 ? 1 of the Prevention of Terrorism Act, and sentenced him to one year's imprisonment and a fine. On 21 December 2000 Law No. 4616 on Conditional Release, Deferral of Procedure and Punishments was promulgated and the applicant's sentence was deferred. As a result, he did not pay the fine or serve his prison sentence. The applicant complained that, among other things, he did not have a fair trial by an independent and impartial tribunal due to the presence of a military judge on the bench in breach of Article 6 (right to a fair trial). He further complained that his conviction and sentence constituted an unjustified interference with his rights to freedom of thought and expression, in breach of Article 10 (freedom of expression). The European Court of Human Rights found, as it had done in previous cases of a similar nature, that it was understandable that the applicant, who had been prosecuted in a State Security Court should have been apprehensive about being tried by a bench which included a regular army officer and member of the Military Legal Service. The applicant's fear as to the State Security Court's lack of independence and impartiality could be regarded as objectively justified. It examined the reasons given in the State Security Court's judgment and did not consider them sufficient to justify the interference with the applicant's right to freedom of expression. It considered that, taken as a whole, the applicant's speech did not encourage violence, armed resistance or insurrection and, therefore, did not constitute hate speech. In the Court's view, this was the essential factor in the assessment of the necessity of the measure. The Court therefore concluded, as it had done in previous cases raising similar issues, that the applicant's conviction was disproportionate to the aims pursued and therefore not necessary in a democratic society. The Court held unanimously that there had been a violation of Articles 6 ? 1 and Article 10. It considered the finding of a violation constituted in itself sufficient just satisfaction for non-pecuniary damage in respect of Article 6 ? 1 but awarded the applicant EUR 5,000 for non-pecuniary damage for his complaint under Article 10 and EUR 1,000 for costs and expenses. (The judgment is available only in English.)

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