European Court of Human Rights

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4870/02
by Ercan GÜL and Others
against Turkey

The European Court of Human Rights (Second Section), sitting on 11 December 2007 as a Chamber composed of:

Mrs F. Tulkens, President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs A. Mularoni,
Mrs D. Jočienė, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 5 November 2001,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Ercan Gül, Mr Erkan Aslanbenzer, Mr Deniz Kahraman and Mrs Zehra Delikurt, are Turkish nationals who were born in 1966, 1965, 1977 and 1979 respectively and live in Ankara. They are represented before the Court by Ms F Kalaycı, a lawyer practising in Ankara.

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

On 30 November 1999 between midnight and 3 a.m. the applicants were arrested at their homes by police officers from the Anti-Terrorist Branch of the Ankara Police Headquarters. According to the arrest and search reports drawn up by the officers, the applicants were arrested following oral instructions given by a public prosecutor within the context of an investigation. Certain periodicals and books were found in the apartments of Ercan Gül, Erkan Aslanbenzer and Deniz Kahraman. The applicants were subsequently taken to the Ankara Police Headquarters.

On the same day the applicants’ representatives made a request to the principal public prosecutor’s office at the Ankara State Security Court seeking information about the applicants’ arrest and custody period as well as the authorisation to provide them with legal assistance during their questioning by the police. The principal public prosecutor informed them that, pursuant to section 16 of Law no. 2845 and sections 30 and 31 of Law no. 3842, the applicants were not entitled to receive legal assistance during their detention in police custody.

On 3 December 1999 the applicants’ representatives made a further request to the principal public prosecutor’s office at the Ankara State Security Court to be present during the applicants’ questioning by the public prosecutor.

On 3 December 1999 the applicants were brought before a public prosecutor at the Ankara State Security Court and were questioned about their alleged affiliation with the Communist Party Marxist Leninist-Turkish Workers and Peasants’ Liberation Army- Marxist-Leninist Youth Union of Turkey (“the TKP/ML-TIKKO-TMLGB”), an illegal organisation. Ercan Gül stated that he was not a member of the organisation in question. He maintained that the periodicals found in his apartment were legal publications and that the poster allegedly found there did not belong to him. He had therefore refused to sign the arrest and search report. The applicant further stated that he was one of the founders and the directors of Tüm Maliye-Sen (Tüm Maliye Çalışanları Sendikası – the Financial Sector Trade Union) and that, consequently, as a member of this trade union, he had participated in several demonstrations, such as the one on May Day and demonstrations to commemorate the 1993 Sivas Massacre. Ercan Gül finally contended that he had never shouted slogans in support of TKP/ML-TIKKO-TMLGB.

Erkan Aslanbenzer stated before the public prosecutor that he was not a member of the organisation in question. He maintained that the periodicals found in his apartment were legal publications and not propaganda tools for TKP/ML-TIKKO-TMLGB. He further contended that he was a member of the Confederation of Public Employees Trade Unions (“KESK”) and that he had participated in several demonstrations. When the applicant was shown a photograph, allegedly of him, from a demonstration where he was behind the banner Partizan, a periodical, he maintained that the person in the photograph could not have been him. He finally stated that he did not remember whether on 2 July 1998 he had participated in the demonstration to commemorate the 1993 Sivas Massacre.

Deniz Kahraman maintained that he had no affiliation with TKP/ML. He contended that he had taken part in the May Day Workers demonstration in 1997 and in the demonstration of 2 July 1998. When the applicant was shown a photograph allegedly of him from a demonstration where he was behind the banner of Partizan he maintained that the person in the photograph was not him.

Finally, Zehra Delikurt stated that she was not a member of TKP/ML TIKKO-TMLGB. She denied the allegation that she had written slogans in favour of TKP/ML-TIKKO on the walls of schools in Ankara. When she was shown a photograph in which she was allegedly carrying a picture of the general secretary of TKP/ML-TIKKO, Zehra Delikurt contended that she had participated in the demonstration of 2 July 1998 and that she did not know the person in the picture.

On the same day the applicants were brought before a single judge at the Ankara State Security Court where they repeated their statements made to the public prosecutor. The judge ordered Zehra Delikurt’s detention and the other applicants’ release.

On 21 December 1999 the public prosecutor at the Ankara State Security Court filed a bill of indictment against ten persons, including the applicants. The public prosecutor charged Zehra Delikurt with membership of an illegal organisation and the other applicants with aiding and abetting members of an illegal organisation under Articles 168 and 169 of the former Criminal Code respectively. The public prosecutor alleged that Zehra Delikurt had shouted slogans in support of TKP/ML-TIKKO during the May Day demonstrations in 1997 and 1999 as well as the demonstration of 2 July 1998 where she had been behind the banner Partizan and carried a poster of the general secretary of TKP/ML-TIKKO. She had also written slogans of TKP/ML-TIKKO on the school walls in Ankara. He also alleged that the applicant had participated in seminars held in cultural centres and in the headquarters of a left-wing political party and a trade union. The applicant was also suspected to have sold Özgür Gelecek, a periodical.

As regards Ercan Gül, the public prosecutor noted that he had participated in the May Day demonstration of 1997 where slogans in support of TKP/ML-TIKKO had been shouted. The public prosecutor alleged that Ercan Gül had further shouted illegal slogans in the demonstration of 1999. It was also noted that some periodicals, a picture of a member of TKP/ML-TIKKO and a book had been found in his apartment.

The public prosecutor alleged that Erkan Arslanbenzer had participated in the May Day demonstrations of 1996 and 1997, the Newroz (the Kurdish New Year) celebrations in 1998 as well as the demonstrations of 1997 and 1998 to commemorate the Sivas Massacre where he had shouted slogans in favour of TKP/ML TIKKO. He further noted that periodicals and books in support of this organisation had been found in his apartment.

Finally, regarding Deniz Kahraman, the public prosecutor stated that the applicant had taken part in the May Day demonstrations of 1997 and 1998 and the demonstration of 2 July 1998 where he had shouted the slogans of the TKP/ML TIKKO. The public prosecutor also noted that certain periodicals were found in his apartment.

On 26 January 2000 the Ankara State Security Court held the first hearing on the merits of the case and heard the accused. The applicants reiterated their statements made before the public prosecutor and the single judge on 3 December 1999 and retracted their statements taken by the police. On the same day, the first-instance court ordered Zehra Delikurt’s release from prison.

The Ankara State Security Court held eight hearings in the case and on 9 August 2000 gave its judgment. The court convicted the applicants under Article 169 of the former Criminal Code, which read as follows at the material time:

“Any person who, knowing that such an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to not less than three and not more than five years’ imprisonment...”

The first-instance court sentenced the applicants to three years and nine months’ imprisonment. The Ankara State Security Court considered that the applicants had committed the acts contained in the bill of indictment of 21 December 1999. In particular, it found it established that the applicants had participated in the demonstrations behind the banners of TKP/ML TIKKO. The court based its judgment on the transcriptions of video recordings from demonstrations undertaken by the Anti-Terrorist Branch of the Ankara Police Headquarters, photographs taken by the security forces and the applicants’ “evasive” statements made to the police, the public prosecutor and the single judge at the Ankara State Security Court as well as the arrest and search reports according to which periodicals used as propaganda tools for TKP/ML-TIKKO were found in the applicants’ apartments. The court also noted that some of these periodicals were illegal as the distribution of certain issues had been suspended by court decision.

The applicants appealed.

On 16 April 2001 the Court of Cassation upheld the judgment of 9 August 2000.

Following the enactment of Law no. 4963, which came into force on 7 August 2003, the phrase “or facilitates its operations in any manner whatsoever” was removed from the text of Article 169 of the former Criminal Code.

Subsequently, the case against the applicants was reopened at the request of both the applicants’ representative and the public prosecutor at the Ankara State Security Court.

On an unspecified date Zehra Delikurt filed a request with the Ankara State Security Court in order to benefit from the Reintegration of Offenders into Society Act, which came into force on 6 August 2003.

By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, state security courts were abolished. The case against the applicants was transferred to the Ankara Assize Court.

On 21 July 2004 the Ankara Assize Court delivered its judgment. It allowed Zehra Delikurt’s request and decided not to convict her pursuant to section 4 of Law no. 4959. As regards the other applicants, the Assize Court held that following the amendment of Article 169 of the former Criminal Code, the acts committed by them could not be considered to constitute the offence defined in this provision. The court however found Ercan Gül, Erkan Arslanbenzer and Deniz Kahraman guilty of disseminating propaganda related to an illegal armed organisation through incitement to use of violent methods, proscribed by section 7 § 2 of the Prevention of Terrorism Act, and sentenced them to ten months’ imprisonment.

Ercan Gül and Erkan Arslanbenzer appealed.

On 26 February 2006 the principal public prosecutor at the Court of Cassation sent the case file back to the Ankara Assize Court together with a letter, containing a request from the first-instance court to reconsider its judgment of 21 July 2004 since in the meantime a new criminal code had entered into force (Law no. 5237).

On 15 December 2006 the Ankara Assize Court once again convicted Ercan Gül and Erkan Arslanbenzer under section 7 § 2 of the Prevention of Terrorism Act of disseminating propaganda related to an illegal armed organisation through incitement to use of violent methods and sentenced them to ten months’ imprisonment.

Ercan Gül and Erkan Arslanbenzer appealed.

By a letter dated 20 March 2007, the applicants’ representative informed the Court that the case was still pending before the Court of Cassation.

COMPLAINTS

The applicants complained under Article 5 § 1 of the Convention that there had been no reasonable suspicion as ground for their arrest. They further complained under the same Article that their lawyers’ requests to be present during their questioning by the police, public prosecutor and the single judge following their custody period had been refused.

Relying on Article 5 § 2 of the Convention, the applicants submitted that they had not been promptly informed of the reasons for their arrest and that they had been denied legal assistance during their detention in police custody.

The applicants complained under Article 6 § 1 of the Convention that their right to a fair trial had been infringed as the Ankara State Security Court had not assessed the evidence properly. They maintained in this connection that the first instance court had failed to watch the video recordings itself but accepted transcriptions of these recordings adduced by the police as evidence. They further complained that the first instance court had regarded their participation in authorised demonstrations as a reason for their conviction. They finally submitted under this head that the periodicals found in their homes had been legal publications.

The applicants complained that their conviction and sentence had constituted a breach of Articles 10 and 11 of the Convention since the first-instance court had convicted them for reading certain periodicals, participating in demonstrations and shouting slogans. Ercan Gul and Erkan Arslanbenzer further submitted in this connection under Article 11, that the Ankara Assize Court had failed to take into consideration the fact that they had participated in several demonstrations within the context of their trade union duties.

THE LAW

The Court reiterates that pursuant to Article 35 § 1 of the Convention, the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. In the absence of domestic remedies, the six-month period runs from the date of the act complained of.

In the instant case, the Court observes that the applicants were taken into police custody on 30 November 1999 and that their detention in police custody ended on 3 December 1999. The applicants introduced their application with the Court on 5 November 2001, that is more than six months later.

It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicants further submitted under Article 5 §§ 1 and 2 of the Convention that they had been denied legal assistance while in police custody.

The Court considers that this complaint should be examined under Article 6 § 3 (c) of the Convention and that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

The Court considers that the applicant’s complaint under Article 6 § 1 of the Convention should also be examined under Articles 10 and 11 of the Convention. It further considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants’ complaints concerning the alleged unavailability of legal assistance during their detention in police custody and the alleged interferences with the applicants’ right to freedom of expression and to freedom of assembly;

Declares the remainder of the application inadmissible.

S. Dollé F. Tulkens
Registrar President