(Application no. 57258/00)
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:
I. THE CIRCUMSTANCES OF THE CASE
“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.”
“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 (...)”
II. THE RELEVANT DOMESTIC LAW
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“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
B. Fairness of the proceedings
III. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“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.”
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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;
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
11. Müstakil Sanayiciler ve İşadamları Derneği - Association of Independent Industrialists and Businessmen.