CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 1 février 2005

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Costa , President ,   Mr   I. Cabral Barreto ,   Mr   R. Türmen ,   Mr   K. Jungwiert ,   Mr   M. Ugrekhelidze ,   Mrs   A. Mularoni ,   Mrs   E. Fura-Sandström, judges , and Mrs S. Dollé , Section Registrar , Having regard to the above application lodged with the European Commission of Human Rights on 24 January 1997, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having regard to the partial decision of 11 May 1999, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, who was born in 1971, is a Turkish national and lives in Diyarbakır. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 and 24 June 1996 the HADEP ( Halkın Demokrasi Partisi – People's Democracy Party) held its annual congress in Ankara. The applicant participated in the congress as a delegate from Diyarbakır. During the congress, he was elected secretary of the board. While some of the delegates were reading their reports, a group of masked persons entered the congress building and chanted slogans in support of the PKK. They subsequently pulled down the Turkish flag and hung up a PKK banner and posters of Abdullah Öcalan. On 24 June 1996, on the instructions of the Ankara State Security Court Chief Public Prosecutor, police officers surrounded the congress building. When the congress was over, the police arrested the applicant as he was leaving the building. The police also arrested the executive board members of HADEP, the chairman and deputy chairman of the congress, as well as those involved in the pro-PKK actions. The applicant was taken to the anti-terror branch of the Ankara Security Directorate, where he was allegedly kept in a cell with four other persons and subjected to verbal abuse. On 4 July 1996 the applicant was brought before the Ankara State Security Court and subsequently placed in detention on remand. On 23 August 1996 the public prosecutor at the Ankara State Security Court filed an indictment with the court. He accused the applicant of being a member of an illegal organisation, namely the PKK. He referred to the events that had taken place during the HADEP congress. The prosecutor considered that as the applicant had been acting as secretary of the board during the congress, he could have stopped the masked persons from pulling down the Turkish flag and from displaying the PKK banner and posters of Abdullah Öcalan. The prosecutor called for the applicant to be sentenced pursuant to Article 168 § 2 of the Criminal Code for aiding and abetting a terrorist organisation. On 23 October 1996 the applicant was released pending trial. During the trial, the applicant maintained that he was not a member of the group which had pulled down the Turkish flag. He denied any responsibility for the impugned acts and requested to be acquitted. On 4 June 1997 the Ankara State Security Court delivered its decision. In the first place, the court found it necessary to distinguish the case from a simple case of insult to the Turkish flag. It took into consideration the statement of one of the accused persons who had pulled down the flag during the congress. In his statement, this accused person had explained that he had been acting on the instructions of HADEP officials. He stated that several university students had been brought to Ankara by bus to participate in the congress and had been instructed to shout slogans in support of the PKK and to hang posters of Öcalan and PKK banners on the walls. The court further noted that this was the first time that such a big Turkish flag had been hung in a congress building. According to the court, this act was planned by the HADEP officials in order to provoke a reaction. The court further examined video footage taken during the congress and concluded that the applicant, who was acting as secretary of the board during the congress, could have stopped the masked individuals from carrying out their acts. The court stated, inter alia, “...All the accused persons are competent and responsible persons in the HADEP. They had therefore the possibility of interrupting or even suspending the congress. By doing so, they could have helped the police force to capture the PKK militants who had taken down the Turkish flag and put up posters of Abdullah Öcalan instead... On the contrary the accused persons hid the PKK militants by forming groups and they assisted them in performing their activities...” In delivering its decision, the State Security Court further referred to sections   2 and 3 of the United Kingdom Prevention of Terrorism Act 1989, which concerned the membership of, support for and meetings of proscribed organisations and display of support to such organisations in public. The State Security Court convicted the applicant of aiding and abetting the members of a proscribed organisation and sentenced him to four years and six months' imprisonment pursuant to Article 169 of the Criminal Code and Article 5 of the Prevention of Terrorism Act (Law no. 3713 of 12   April 1991). The applicant appealed. The Court of Cassation quashed the judgment of the Ankara State Security Court on the ground that the case file lacked relevant information and documents. The case was sent back to the Ankara State Security Court. While the proceedings were pending before the Ankara State Security Court, on 21 December 2000 new legislation (Law No. 4616), which governed the conditional release, suspension of proceedings or execution of sentences in respect of offences committed before 23 April 1999, came into force. The court accordingly suspended the proceedings against the applicant. According to Law No. 4616, these proceedings would be resumed only if the applicant were to commit an offence of the same or more serious kind within five years of the court's decision to suspend the proceedings. Pursuant to Article 4 of Law No. 4758, it was open to the applicant to request the Ankara State Security Court to continue the proceedings against him. However, he did not make such a request. COMPLAINTS 1.     The applicant maintained under Article 3 of the Convention that he had been subjected to inhuman treatment in custody. In this connection, he alleged that he had been held in a cell together with four other detainees and subjected to verbal abuse. 2.     The applicant submitted under Article 6 of the Convention that he had not been informed promptly of the nature and cause of the accusations against him and that he had not been permitted to see his lawyer during his police custody. He also maintained that he had not received a fair hearing on account of the presence of a military judge on the bench of the Ankara State Security Court. 3.     The applicant further maintained under Article 6 § 2 of the Convention that his right to the presumption of innocence had been breached. He submitted that the public prosecutor, who had been in charge of the preliminary investigation, had made statements to the press which depicted him as a criminal. 4.     The applicant alleged under Articles 10 and 11 of the Convention that the authorities' decision to intervene in the annual congress of HADEP and his subsequent arrest infringed his right to freedom of peaceful assembly. THE LAW 1.     The applicant alleged that during his police custody he had been subjected to treatment which constituted a breach of Article 3 of the Convention. He submitted in this connection that he had been held in a cell together with four other persons and had been verbally insulted. The Government denied these allegations. They maintained in the first place that the applicant had not exhausted domestic remedies in respect of his complaint. They further stated that during his custody the applicant was kept alone in a cell and was not subjected to any verbal abuse. The Court notes that during the proceedings before the domestic courts the applicant confined himself to defending himself against the charges that had been brought against him. At no stage of the proceedings did he give any indication to the national courts about the sort of ill-treatment he had allegedly suffered in custody. The Court further observes that the applicant has not produced any concrete evidence in support of his allegations and has thus failed to substantiate his claim that he was subjected to ill-treatment. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 2.     The applicant alleged under Article 6 of the Convention that his right to a fair trial had been breached on account of the presence of a military judge on the bench of the Ankara State Security Court which tried him. He further complained under the same Article that he had not been informed promptly of the nature and cause of the accusation against him and that he had not been permitted to see his lawyer in custody. The Government denied the applicant's allegations. The Court reiterates that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him, took place in the course of proceedings in which he was acquitted or which were discontinued (see, in this respect, I.I. v.   Bulgaria (dec.), no. 44082/98, 25 March 2004). It observes that in the instant case the criminal proceedings against the applicant were suspended pursuant to Law No. 4616. Furthermore, it is clear from the applicant's submissions that he did not request the Ankara State Security Court to continue the proceedings against him pursuant to Article   4 of Law No. 4758. As a result, he was not convicted by the State Security Court. A final sentence would only be imposed on the applicant if he were to commit another offence of the same or more serious kind within five years of the court's decision. In the light of the foregoing the Court concludes that the applicant cannot claim to be a victim within the meaning of Article 34 of the Convention (see Sincar v. Turkey (dec.), no. 46281/99, 19 September 2002). It follows that this part of the application should be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. 3.     The applicant further alleged that as the public prosecutor had made incriminating statements about him to the press, his right to the presumption of innocence as guaranteed by Article 6 § 2 of the Convention was breached. The Government denied this allegation. They maintained that the public prosecutor had not made any declarations to the press about the applicant. The Court recalls that the presumption of innocence is one of the elements of a fair criminal trial that is required by Article 6 § 1 of the Convention. It will be violated if a judicial decision or a statement by a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proven guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or the official regards the accused as guilty (see among others, Allenet de Ribemont v. France , judgment of 10   February 1995, Series A no. 308, p. 16, § 35). Furthermore, Article 6 § 2 does not prevent the authorities from informing the public about criminal investigations in progress, but it does require them to be discreet and circumspect in order to preserve the presumption of innocence (see Allenet de Ribemont , cited above, § 38). The Court notes that in the present case the applicant has not submitted any copies of newspaper clippings which allegedly portrayed him as a criminal. Nor has he provided a detailed description of the public prosecutor's statement which allegedly depicted him as a criminal. Accordingly, he has failed to produce any evidence in support of his allegations. In the light of the foregoing, the Court concludes that this part of the application should be rejected as being manifestly ill-founded pursuant to Article   35 §§ 3 and 4 of the Convention. 4.     The applicant submitted under Articles 10 and 11 of the Convention that his right to freedom of assembly had been breached as a result of his arrest and his subsequent trial for attending the annual congress of the HADEP. The Government recalled in the first place that there was no interference with the congress' proceedings. The applicant was not prosecuted for having participated in the congress but on account of the illegal events that had taken place there. The Government referred to the record of the applicant's apprehension, which indicated that the applicant was arrested while leaving the congress building. They further submitted that the applicant had been prosecuted pursuant to Article 169 of the Criminal Code for aiding and abetting an illegal organisation. The Court observes that the applicant was not prosecuted for having participated in a meeting, but for aiding and abetting the members of an illegal organisation pursuant to Article 169 of the Criminal Code. Furthermore, at no stage of the proceedings before the domestic courts did the applicant invoke a breach of his right to peaceful assembly. His defence submissions were confined to denying the charges against him. It therefore considers that the prosecution of the applicant cannot be viewed as an interference with his right under Article 11 of the Convention (see in this respect Nurettin Şirin v. Turkey (dec.), no. 47328/99, 27 April 2004). It follows that this part of the application should also be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the remainder of the application inadmissible.   S. Dollé   J.-P. Costa   Registrar   President