CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 janvier 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .s50C1C01D { width:8.9pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sE9E4B253 { font-family:Arial; font-size:8pt; font-style:italic; vertical-align:super; color:#0069d6 } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .s37DB63F1 { font-family:Arial; font-size:6.67pt; font-style:italic; vertical-align:super; color:#0069d6 } .s10AB3CA3 { font-family:Arial; color:#222222 } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8EDF15DD { font-family:Arial; color:#545454 } .s3A013CA3 { font-family:Arial; color:#424242 } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .sC83985A0 { font-family:Arial; font-style:italic; color:#222222 } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .sF74FB0AA { font-family:Arial; font-size:6.5pt } .sB853CD26 { font-family:Arial; font-size:8pt } .sA5D9624A { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid } .s4B8D41EE { font-family:Arial; font-size:10pt } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s5B12D80C { width:187.62pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 } .sC36A6361 { font-family:Arial; color:#000000 }       SECOND SECTION             CASE OF GÜLCÜ v. TURKEY   (Application no. 17526/10)             JUDGMENT     STRASBOURG   19 January 2016     FINAL   06/06/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.     In the case of Gülcü v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Julia Laffranque, President,   Işıl Karakaş,   Nebojša Vučinić,   Valeriu Griţco,   Ksenija Turković,   Jon Fridrik Kjølbro,   Georges Ravarani, judges,   and Stanley Naismith, Section Registrar, Having deliberated in private on 15 December 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 17526/10) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ferit Gülcü (“the applicant”), on 16 March 2010. 2.     The applicant was represented by Ms S. Şahin and Mr   M.   Şahin, lawyers practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent. 3.     On 31 August 2012 notice of the application was given to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1992 and lives in Diyarbakır. A.     Events of 14 July 2008 5.     On 14 July 2008 a demonstration was held in Diyarbakır to protest about the conditions of detention of Abdullah Öcalan, the leader of the PKK (Kurdish Workers’ Party), an illegal armed organisation. 6.     According to a report prepared by four police officers on 21 July 2008 following the examination of video footage of the demonstration recorded by the police, on 11 July 2008 the Fırat News Agency, a website which was controlled by the PKK, had published a declaration of the Democratic People’s Initiative of Turkey and Kurdistan. The declaration contained instructions to hold meetings and marches in each town and city on 14 July 2008 to show support for Abdullah Öcalan. The report also stated that on the website www.rojaciwan.com, which was also controlled by the PKK, a news article containing a call for participation in the reading out of a press statement to be held by the Party for a Democratic Society ( Demokratik Toplum Partisi (DTP)) in Diyarbakır on 14 July 2008 had been published. 7.     The report stated that the police had received information according to which the Diyarbakır branch of the DTP was the organiser of the press statement to be held and MPs, mayors and local politicians from the DTP as well as members of a number of non-governmental organisations would gather in front of the DTP’s Diyarbakır party office at around 5.30 p.m. and march to Koşuyolu Park, where they would make a press statement. The police took the necessary measures as they suspected that there could be violent protests during the march, which could become a demonstration for the PKK. 8.     According to the police report, people started to assemble by 4.30   p.m. in front of the DTP party office. Mayors and MPs were among the demonstrators. By 5.50 p.m. approximately 3,000 people had gathered. Thereafter, demonstrators started to march, arriving at 6.30   p.m.at Koşuyolu Park, where the press statement was made. At 7 p.m. while Emine Ayna, a Member of Parliament from the DTP, was giving a speech, a group of people started throwing stones at the police officers and the cars parked in the neighbourhood. Both in front of the local branch of the DTP and during the march, demonstrators chanted slogans praising Abdullah Öcalan, such as “Every Kurd is Öcalan’s fedai [1] ” ( “Her Kürt Apo’nun Fedaisidir” ), “We will drop the world without Öcalan on your head” ( “Öcalansız dünyayı başınıza yıkarız” ), “The Youth to Botan [2] , to the free country” (“ Gençlik Botan’a, Özgür Vatana” ), “Salutations to İmralı [3] ” ( “Selam Selam İmralı’ya Bin Selam ”), “With our blood, with our life, we are with you, Öcalan” ( “Canımızla, kanımızla, seninleyiz Öcalan” ) , “Long live President Öcalan” ( “Biji Serok Apo” ), “Martyrs are immortal” ( “Şehîd Namirin” ), “No life without the Leader, Mr./Esteemed Öcalan” ( “Başkansız yaşam olmaz, Sayın Öcalan” ). They carried banners which contained slogans such as “Stop the torture in İmralı” (“ İmralı işkencesine son” ) and “We make war for life, we die for peace” ( Yaşamak için savaşırız; Barış için ölürüz” ); photographs of Abdullah Öcalan and flags of the so-called “Confederation” were also brandished. Subsequent to the press statements, when the crowd dispersed, some people within the crowd knocked over waste containers and attacked the police and the shops in the neighbourhood with stones and bats while chanting slogans in support of the PKK and its leader. The police gave a warning to those people and asked them to disperse. The demonstrators refused to obey the warnings. As a result, the police had to use proportionate force against the group, who were holding an illegal demonstration. The police intervened using truncheons, water and tear gas. The police report also noted that some people had taken down the Turkish flag in the schoolyard of the Diyarbakır nursery school. 9.     At the end of the report it was noted that, according to the video footage, the applicant had thrown stones at the police together with a number of other persons and had acted with the group which had taken down the Turkish flag at the Diyarbakır nursery school. 10.     The report of 21 July 2008 also contained twenty-four photographs extracted from the video footage recorded by the police. In four photographs, the applicant is seen in a group of young men while, according to the police, throwing stones at the security forces. In two photographs, he is seen while standing together with a group of people by a flag pole. A total of six photographs concern the taking down of the Turkish flag; one photograph contains an image of a knocked-over waste container; and one other photograph shows a damaged passenger van. The remaining photographs contain images of demonstrators standing in front of a building or walking. B.     Criminal proceedings against the applicant 11.     The applicant was arrested on 21 July 2008. According to the arrest and transfer report, the video recording of the demonstration by the police showed that the applicant had thrown stones at the police officers and had been in the crowd which had taken down the Turkish flag in a schoolyard. The officers who drafted the report stated therein that the applicant had been informed of his rights when arrested and had been transferred to the children’s branch of the Security Directorate, as he had been found to be a minor subsequent to a medical check. The applicant noted “I am not signing” and put his signature under that sentence on the report. 12.     On 22 July 2008 the applicant made statements before the Diyarbakır public prosecutor in the presence of a lawyer. His statement reads as follows: “...I am a primary school graduate and a peddler. On 14 July 2008 my brother and I were selling watermelons in front of Koşuyolu Park in Diyarbakır. Suddenly, a large group of demonstrators chanting the slogan “Long live President Öcalan” (“ Biji Serok Apo ”) approached us. Subsequently, the police intervened and took a number of persons into custody. Some individuals among the crowd then began throwing stones at the police officers. I also joined the demonstrators at the beginning and chanted the slogan “Long live President Öcalan”. I then threw stones at the police officers. After a short while, some people went to a school. I also went with them. Some of them climbed on the flagpole in the school garden. They took down the Turkish flag and replaced it with a PKK flag. I was not involved in taking down the Turkish flag. I did not have any particular purpose when I chanted the slogan and threw stones at the police. I only acted together with the crowd. I do not know why there was a demonstration. I do not have any connection with the illegal organisation. The person in the photograph that you have shown is me.” 13.     On the same day the applicant was brought before a judge of the Fifth Division of Diyarbakır Assize Court. He maintained that his statements to the public prosecutor had reflected the truth. His lawyer asked the court not to remand the applicant in custody, submitting that the applicant was a minor and therefore not capable of realising the meaning and consequences of his acts. 14.     The judge remanded the applicant in custody in view of the existence of a strong suspicion that he had committed the offences of “committing an offence on behalf of an illegal organisation without being a member of the organisation”, in breach of Law no. 2911, and “dissemination of propaganda in support of a terrorist organisation”, and having regard to the evidence. 15.     On 22 July 2008 the Diyarbakır public prosecutor filed a bill of indictment against the applicant with the Fifth Division of Diyarbakır Assize Court, which had special jurisdiction to try a number of aggravated crimes enumerated under Article 250 § 1 of the Code of Criminal Procedure at the material time. The applicant was charged with membership of an illegal organisation as he was considered to have committed a crime on behalf of an illegal organisation under Article 314 § 2 of the Criminal Code (Law   no.   5237) on the basis of Articles 220 § 6 and 314 § 3 of the same Code, resisting the security forces by way of throwing stones under sections   23(b) and 33(c) of the Meetings and Demonstration Marches Act (Law no.   2911), disseminating propaganda in support of the PKK under section   7(2) of the Prevention of Terrorism Act (Law no. 3713) and denigration of the symbols of the sovereignty of the State under Article   300 §   1 of the Criminal Code. 16.     On 21 October 2008 the Fifth Division of Diyarbakır Assize Court held the first hearing in the case. During the hearing, the applicant reiterated his statements of 22 July 2008 and asked to be released. He maintained that he had participated in the demonstration, chanted the slogan “Long live President Öcalan” and thrown stones at the police when they intervened. He submitted that he had not been among those who had taken down the Turkish flag. 17.     The public prosecutor asked the court to convict the applicant under Articles   300 and 314 of Law no. 5237, section 7(2) of Law no. 3713 and sections   23(b) and 33(c) of Law no. 2911. The public prosecutor also requested that the sentences be reduced taking into account the fact that the applicant had been aged between 15 and 18 years old at the material time. 18.     On 11 November 2008 the Fifth Division of Diyarbakır Assize Court rendered its judgment in the case against the applicant. The court noted, at the outset, a summary of the applicant’s defence submissions, the public prosecutor’s observations on the merits of the case and the following evidence in the case file: the applicant’s statements before the public prosecutor and the judge on 22 July 2008; his identity documents and a document showing that he did not have a previous criminal record; the arrest and transfer report of 21 July 2008; an incident report dated 14   July 2008; printed versions of documents downloaded from the Internet; the police report of 21 July 2008 describing the events of 14   July 2008 [4] and the applicant’s participation in those events; photographs extracted from the video footage recorded by the police; and medical reports. 19.     In its judgment, the Assize Court held as follows: “... THE INCIDENT, EVIDENCE AND ASSESSMENT In a declaration made on 11 July 2008 on the website of the Fırat News Agency, which is controlled by the terrorist organisation, the PKK, the Democratic People’s Initiative of Turkey and Kurdistan gave the following instructions: ‘This year’s July 14 celebrations should be made on the basis of the approach of “live and make the leadership live”... in each town and city, a march should be held on 14 th   of July with a view to showing respect for our leader. This march should have the nature of Serhildan (rebellion); should paralyse the life of the enemy and be handled in a way that shows how to deal with the Kurdish people’s leader ... in the form of vicious notification to the enemy that the approach to the people’s leader is the approach to the Kurdish people, and at the same time, a reason for war for the Kurdish people ... every city and district should determine the itinerary depending on the conditions and get prepared ... today, as well, there are attacks against our leadership and our people ... this march should be the victory of human dignity.’ Similarly, on the website entitled www.rojaciwan.com, which is also controlled by the PKK, a news article containing a call for participation in the reading out of a press statement was published: “...while the shaving off of Öcalan is provoking heated reaction, the non-governmental organisations have lent support to the press statement to be made under the leadership of the Democratic Society Party. The NGOs have described the treatment of Öcalan as torture and made a call to participate.” Against this background, on 14 July 2008 at around 4.30 p.m. people began to gather in front of the local branch of the DTP. Among the crowd, there were Members of Parliament and mayors who were members of the DTP. At around 5.50 p.m. there were 3,000 persons gathered. At 5.50 p.m. the crowd started the march and arrived in Koşuyolu Park at around 6.30 p.m. Both in front of the local branch of the DTP and during the march, demonstrators chanted slogans praising Abdullah Öcalan, the leader of the terrorist organisation, such as “Every Kurd is Öcalan’s fedai” ( “Her Kürt Apo’nun Fedaisidir” ), “We will drop the world without Öcalan on your head” ( “Öcalansız dünyayı başınıza yıkarız” ), “The Youth to Botan, to the free country” (“ Gençlik Botan’a, Özgür Vatana” ), “Salutations to İmralı” ( “Selam Selam İmralı’ya Bin Selam ”), “With our blood, with our life, we are with you, Öcalan” ( “Canımızla, kanımızla, seninleyiz Öcalan” ), “Long live President Öcalan” ( “Biji Serok Apo” ), “Martyrs are immortal” ( “Şehîd Namirin” ), “No life without the Leader, Mr./Esteemed Öcalan” ( “Başkansız yaşam olmaz, Sayın Öcalan” ). They carried banners which contained slogans such as “Stop the torture in İmralı” (“ İmralı işkencesine son” ) and “We make war for life, we die for peace” ( Yaşamak için savaşırız; Barış için ölürüz” ); photographs of Abdullah Öcalan, the leader of the terrorist organisation and flags of the so-called “Confederation”. At around 6 p.m. speeches began. At 7 p.m., while Emine Ayna, a Member of Parliament from the DTP, was giving a speech, a group of people started throwing stones ... at the police officers and the cars parked in the neighbourhood. Subsequent to the press statements, when the crowd dispersed, some people within the crowd knocked over waste containers and attacked the police and the shops in the vicinity with stones and bats while chanting slogans in support of the PKK and its leader. The police gave a warning to those people and asked them to disperse. The demonstrators refused to obey the warnings. As a result, the police had to interfere with the group who were holding an illegal demonstration. Some within the crowd took down the Turkish flag in the schoolyard of the Diyarbakır nursery school ... In this connection, in the light of the indictment, the applicant’s indirect confessions, the incident report, the document containing the description of the events of 14   July 2008 prepared by the police, the arrest report, photographs showing the accused and the whole content of the case file, it has been established that the accused Ferit Gülcü actively took part in the illegal demonstrations held on 14 July 2008 in Diyarbakır in accordance with the instructions of the terrorist organisation PKK; that he chanted the slogan “Long live President Öcalan” ( “Biji Serok Apo” ) together with the crowd; that he attacked the police with stones; that he acted together with the group who took down the Turkish flag in the schoolyard of the Diyarbakır nursery school; and that he incited the persons who took down the flag, thereby strengthening their will to commit that offence. In his defence submissions, the accused accepted that he had taken part in the illegal demonstration; that he had made propaganda in support of the terrorist organisation; and that he had resisted the police by way of throwing stones. He denied, however, the veracity of the allegation that he had participated in the taking down of the Turkish flag in the schoolyard of the Diyarbakır nursery school. Having regard to the documents and photographs in the case file, it has been understood that the accused acted together with the group who took down the Turkish flag in the schoolyard of the Diyarbakır nursery school and that he incited the persons who took down the flag, thereby strengthening their will to commit that offence. An accused should be convicted under Article 314 § 2 on the basis of Articles   314   §   3 and 220 § 6 of the Criminal Code if it is established that the offences in question were committed within the scope of an [illegal] organisation’s activities or if those offences serve as the evidence or basis of offences committed on behalf of an [illegal] organisation. In the present case, it has been understood that on 14 July 2008 the accused took part in the meetings and demonstrations, which subsequently became illegal, held as a result of the general call made by the organisation and the calls disseminated by the media controlled by the organisation and in accordance with the organisation’s purposes and that, with that aim, he committed the following offences: dissemination of terrorist propaganda, breach of Law no. 2911, denigration of symbols of the sovereignty of the State. It has thus been concluded that these acts, which were committed within the knowledge and in line with the will of the organisation, were perpetrated on behalf of the organisation. Therefore, the accused should also be convicted under Article 314 § 2 with reference to Articles 314 § 3 and 220 § 6 of Law no. 5237 along with the convictions for his other acts...” 20.     Diyarbakır Assize Court then acquitted the applicant on the charge of denigration of the symbols of the sovereignty of the State under Article   300 § 1 of the Criminal Code, noting that it was not established that the crime had been committed by the applicant. 21.     However, the Assize Court convicted the applicant under Article   314   § 2 of the Criminal Code, on the basis of Articles 220 § 6 and 314 § 3 of the same Code; section   7(2) of Law no. 3713; and sections 23(b) and 33(c) of Law no.   2911 and sentenced him to a total of seven years and six months of imprisonment. 22.   The Assize Court first convicted him   of membership of an illegal organisation pursuant to Article 314 § 2 of the Criminal Code on the basis of Articles   220 § 6 and 314 § 3 of the same Code as it found it established that the applicant had taken part in the events of 14 July 2008 which had become propaganda in support of the illegal organisation, upon the call made by the PKK. Applying the minimum penalty, the court sentenced the applicant to five years’ imprisonment; increased it by one and a half times by virtue of section 5 of Law no. 3713 (seven years and six months); reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account that the accused had been aged between 15 and 18 at the material time (five years); and, finally, reduced it by one sixth under Article   62 § 1 of the Criminal Code taking into account the accused’s “sincere confessions”, as well as his attitude and behaviour during the proceedings (thus reaching a total of four years and two months of imprisonment). 23.     Diyarbakır Assize Court also convicted the applicant of disseminating propaganda in support of a terrorist organisation under section   7(2) of Law no. 3713. Applying the minimum penalty, it sentenced the applicant to one year of imprisonment; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); further reduced it by one sixth under Article 62 § 1 of the Criminal Code, taking into account his “sincere confessions”, as well as his attitude and behaviour during the proceedings (thus reaching a total of six months and twenty days). The court decided not to commute the sentence to a fine under section   7(2) of Counter-Terrorism Law no. 3713, or to defer it pursuant to section   13 of Law No. 3713. It finally found Article 231 of the Code of Criminal Procedure governing the suspension of the pronouncement of a judgment inapplicable in the circumstances of the applicant’s case. 24.     The first-instance court finally convicted the applicant of resistance to security forces pursuant to sections 23(b) and 33(c) of Law no.   2911. Applying the minimum penalty, the court sentenced the applicant to five years’ imprisonment; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (three years and four months); reduced it by one sixth under Article 62 § 1 of the Criminal Code, taking into account the accused’s “sincere confessions” as well as his attitude and behaviour during the proceedings (thus reaching a total of two years, nine months and ten days’ imprisonment). It decided not to commute the sentence to a fine, and not to defer it either, regard being had to the overall sentence and the fact that the accused did not give the impression that he would refrain from committing a crime. 25.     On 6 October 2009 the Court of Cassation upheld the judgment of 11   November 2008. 26.     On 16 December 2009 the final decision was deposited with the registry of the first-instance court. C.     Subsequent developments 27.     On 25 July 2010 Law no. 6008 entered into force. 28.     On 26 July 2010 the applicant’s representative lodged a petition with the Fifth Division of Diyarbakır Assize Court. Noting that Law no.   6008 had amended certain provisions of Laws nos. 2911 and 3713, the applicant’s representative requested that the court examine whether the amended versions of those provisions could be considered to be in favour of the applicant and, if so, whether the execution of the applicant’s sentence could be suspended. 29.     On the same day the Fifth Division of Diyarbakır Assize Court decided to suspend the execution of the applicant’s sentence in view of the fact that certain provisions of Laws no. 2911 and 3713 amended by Law no.   6008 were in favour of juvenile offenders. Subsequently, the applicant was released from prison and a new procedure was initiated in accordance with Article 7 § 2 of the Criminal Code, according to which in the case of a difference between the legal provisions in force on the date of commission of a crime and those in force after that date, the provision which is more favourable will be applied to the offender. 30.     On 3 December 2010 the Fifth Division of Diyarbakır Assize Court held that it no longer had jurisdiction over the applicant’s case in the light of a new paragraph added to Article 250 of the Code of Criminal Procedure by Law no. 6008. According to this new paragraph, minors could not be tried by assize courts which had special jurisdiction. 31.     On 20 January 2011 and 22 February 2011 Diyarbakır Juvenile Assize Court and Diyarbakır Juvenile Court decided, respectively, that they were not competent to examine the case. 32.     Upon both juvenile courts declining jurisdiction, the case was transferred to the Court of Cassation to resolve the issue of jurisdiction. On 3   October 2012 the Court of Cassation decided that Diyarbakır Juvenile Court had jurisdiction over the case. 33.     Subsequently, Diyarbakır Juvenile Court started the re ‑ assessment of the applicant’s case with a view to determining the applicable legal provisions and the sentences in accordance with Article 7 § 2 of the Criminal Code (see paragraph 29 above) and in the light of the amendments made to Laws nos.   2911 and 3713 by Law no. 6008 ( uyarlama yargılaması ). 34.     On an unspecified date the applicant made statements before Diyarbakır Juvenile Court. He contended that he had already served his prison sentence and that he contested the new procedure. 35.     On 20 December 2012 Diyarbakır Juvenile Court rendered its judgment regarding the applicant. Having regard to the amendments made to Laws nos. 2911 and 3713 by Law no. 6008, the Juvenile Court revoked the applicant’s convictions contained in the judgment of 11 November 2008, holding that the amendments applied by Law no. 6008 were in favour of the applicant. 36.     The first-instance court then acquitted the applicant of the charge of membership of a terrorist organisation under Article 314 § 2 of the Criminal Code, having regard to section 34/A of Law no. 2911, which had entered into force on 25 July 2010 with Law no. 6008 (see paragraph 50 below). 37.     Diyarbakır Juvenile Court further convicted the applicant of disseminating propaganda in support of a terrorist organisation under section   7(2) of Law No. 3713. Applying the minimum penalty, it sentenced the applicant to one year of imprisonment under this head; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of six months and twenty days). Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article   231 of the Code of Criminal Procedure (Law no. 5271) and Article   23 of the Code of Juvenile Protection (Law no. 5395). 38.     The Juvenile Court further convicted the applicant of participation in a demonstration while in possession of prohibited materials pursuant to section   33(1) of Law no. 2911. Applying the minimum penalty, it sentenced the applicant to six months’ imprisonment under this head; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (four months); and further reduced it by one sixth under Article   62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of three months and ten days). Considering that the applicant would not commit any further crime and having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court decided to suspend the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of Law no. 5271 and Article   23 of Law no. 5395. 39.     Diyarbakır Juvenile Court also convicted the applicant of resistance to the security forces which had used force to disperse the demonstrators pursuant to section 32(1) of Law   no.   2911. Applying the minimum penalty, the first-instance court sentenced the applicant to six months’ imprisonment under this head; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (four months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of three months and ten days). Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of the Code of Criminal Procedure (Law no.   5271) and Article 23 of the Code of Juvenile Protection (Law no.   5395). 40.     Diyarbakır Juvenile Court finally convicted the applicant of obstructing the security forces in the execution of their duties by way of resistance together with other persons and using the influence of an organisation pursuant to section 32(2) of Law no. 2911 and Article 265 §   1 of the Criminal Code. Applying the minimum penalty, the court sentenced the applicant to six months’ imprisonment under this head. It then increased the sentence by one third as the crime had been committed collectively (eight months); further increased it by one half pursuant to Article 265 §   4 of the Criminal Code as the crime had been committed using the influence of an organisation (twelve months); reduced it by one third by virtue of Article   31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for a minor (thus reaching a total of six months and twenty days). Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of Law no. 5271 and Article 23 of Law no. 5395. 41.     On 31 December 2012 the judgment of 20 December 2012 became final in the absence of any objection. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Criminal Code (Law no. 5237) 42.     Under Article 7 § 2 of the Criminal Code, in case of a difference between the legal provisions in force at the date of commission of an offence and those in force after that date, the provision which is more favourable is applied to the offender. 43.     At the material time, Article 220 of the Criminal Code read as follows: Establishing organisations for the purpose of criminal activity “Article 220 - (1)     Anyone who establishes or directs organisations for the purpose of criminal activity shall be liable to imprisonment of between two and six years provided that the structure of the organisation, the number of members, and the quantity of equipment and supplies are sufficient to commit the intended crimes. (2)     Anyone who becomes a member of an organisation established for the purpose of criminal activity shall be liable to imprisonment of between one and three years. (3)     If the organisation is armed, the sentences stated above shall be increased by a proportion of between one quarter and one half. (4)     Any crime committed within the framework of the organisation’s activities shall be punished separately. (5)     The heads of the organisations shall also be sentenced as the perpetrators of all crimes committed within the framework of the organisation’s activities. (6)     Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. (7)     Anyone who aids and abets an (illegal) organisation knowingly and intentionally, even if they do not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation. (8)     Anyone who makes propaganda for the organisation or its objectives shall be punished by imprisonment of between one and three years. If the said crime is committed through the media and press the sentence shall be increased by one half.” Paragraphs 6 and 7 of Article 220 were amended by Law   no.   6352, which entered into force on 2 July 2012, as follows: “(6)     Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. The penalty to be imposed for membership may be reduced by up to half. (7)     Anyone who aids and abets an (illegal) organisation knowingly and intentionally, even if they do not belong to the hierarchical structure of the organisation, shall be punished as a member of the organisation. The penalty to be imposed for membership may be reduced by up to two thirds depending on the nature of the assistance.” Article 220 § 6 was further amended by Law no. 6459, which entered into force on 11 April 2013. It currently reads as follows: (6)     Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation. The penalty to be imposed for membership may be reduced by up to half. This paragraph shall be applicable only for armed organisations. 44.     Article 314 of the Criminal Code reads as follows: Armed organisations “ Article 314 - (1)     Anyone who forms an armed organisation to commit the crimes listed in the fourth and fifth sections of this chapter, or commands such an organisation, shall be liable to a term of imprisonment of between ten and fifteen years. (2)     Anyone who becomes a member of an (armed) organisation mentioned in the first paragraph of this Article shall be liable to a term of imprisonment of between five and ten years. (3)     Other provisions relating to the crime of forming an organisation for the purpose of criminal activity are also applicable for this crime.” 45.     Article 300 § 1 of the Criminal Code reads as follows: Denigration of symbols of the sovereignty of the State “ Article 300 - (1)     Anyone who publicly tears, burns or otherwise denigrates the Turkish flag shall be sentenced to a term of imprisonment of between one and three years. This provision shall apply to all signs bearing the white crescent and star on a red ground described in the Constitution as a symbol of the sovereignty of the State of the Republic of Turkey...” 46.     Article 265 § 1 of the Criminal Code reads as follows: Resistance with a view obstructing the execution of duties “ Article 265 - (1)     Anyone who uses methods of violence or threats against a public officer with a view to obstructing him or her in the execution of his or her duties shall be liable to imprisonment of between six months and three years.” B.     The Meetings and Demonstration Marches Act (Law no. 2911) 47.     According to section 23(b) of the Meetings and Demonstration Marches Act (Law no. 2911), in force at the material time, meetings or demonstration marches during which the demonstrators or the participants bear, inter alia , firearms, explosives, cutting and perforating tools, stones, bats, iron or rubber bars, wires, chains, poisons, gas or fog materials, were considered to be “unlawful meetings and demonstration marche s”. 48.     Section 33(c) of Law no. 2911 provided as follows, before it was amended by Law no. 6008 on 25 July 2010: “Section 33 ... (c) Persons who show resistance with weapons or materials listed in section   23(b) while being dispersed [during meetings and demonstration marches] shall be liable to a term of imprisonment of between five and eight years...” Following the amendments introduced by Law no. 6008, section 33 of Law no. 2911 read, in so far as relevant, as follows: “Persons who take part in meetings and demonstration marches while carrying weapons or materials listed in section 23(b) shall be liable to a term of imprisonment of between six months and three years...” 49.     Following the amendments introduced by Law no. 6008, section   32(1) and (2) of Law no. 2911 currently reads as follows: “Persons taking part in unlawful meetings or demonstration marches who continue not to disperse despite warnings or use of force shall be liable to a term of imprisonment of between six months and three years. If the offender is one of the organisers of the meeting or the demonstration march, the sentence shall be increased by half. Persons who resist the security forces by methods of violence or threats despite warnings or use of force shall also be punished for committing the crime proscribed by Article 265 of the Criminal Code (Law no. 5237) of 26 September 2004.” 50.     By Law no. 6008 a new provision, section 34/A, was added in Law no.   2911. Section 34/A reads as follows: “Section 2(2) of the Prevention of Terrorism Act (Law no. 3713) shall not be applicable to children who commit the crime of resistance during unlawful meetings and demonstration marches or who commit the crime of propaganda during meetings and demonstration marches in which they take part.” C.     The Prevention of Terrorism Act (Law no. 3713) 51.     At the material time, section 7(2) of the Prevention of Terrorism Act read as follows: “Any person who disseminates propaganda in support of a terrorist organisation shall be liable to a term of imprisonment of between one and five years...” 52.     Section 2(2) of Law no. 3713 which is referred to in section 34/A of Law no. 2911 (see paragraph 50 above) reads as follows: “Persons who commit crimes on behalf of a (terrorist) organisation shall be considered as terror offenders even if they are not a member of that terrorist organisation.” D.     Code of Criminal Procedure (Law no. 5271) 53.     Suspension of the pronouncement of a judgment is governed by Article   231 of the Code of Criminal Procedure, the relevant paragraphs of which read as follows: “... (5)     If the accused has been convicted on the charges against him and ordered to pay a fine or sentenced to imprisonment for less than two years, the court may decide to suspend the pronouncement of the judgment ... The suspension of the pronouncement of the judgment entails that the judgment shall not bear any legal consequences for the offender. (6)     Suspension of the pronouncement of the judgment may be decided provided that: (a)     the offender has never been found guilty of a wilful offence; (b)     the court is convinced, taking into account the offender’s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; [and] (c)     the damage caused to the victim or to society is redressed by way of restitution or compensation. ... (8)     If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years. ... (10)     If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment [whose] pronouncement had been suspended will be cancelled and the case discontinued. (11)     If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court shall impose the sentence. Nevertheless, the court may evaluate the offender’s situation and may decide that ... up to half of the total sentence will not be executed. If the conditions so permit, the court may also suspend the execution of [any] imprisonment or commute it to other optional measures. (12)     An objection to the decision to suspend the pronouncement of the judgment may be filed.” 54.     At the material time, according to Article 250 of the Code of Criminal Procedure and section 4 of the Prevention of Terrorism Act assize courts with special jurisdiction were competent to try a number of crimes, including the crimes proscribed by Article 314 of the Criminal Code and section   7(2) of the Prevention of Terrorism Act. By Law no. 6008 a new paragraph (paragraph 4) was inserted in Article   250 of the Code of Criminal Procedure, according to which children could not be tried by assize courts which had special jurisdiction. On 5 July 2012 both Article 250 of the Code of Criminal Procedure and section   4 of the Prevention of Terrorism Act were repealed and assize courts with special jurisdiction were abolished. E.     Code of Child Protection (Law no. 5395) 55.     Article 23 of the Code of Child Protection reads as follows: “At the end of the criminal proceedings brought against a child, the court may decide to suspend the pronouncement of the judgment if the conditions are fulfilled. With regard to these persons, the period of supervision is three years.” F.     The decision of the Court of Cassation of 4 March 2008 (Case no.   2007/9-282, Decision no. 2008/44) 56.     In criminal proceedings brought against a certain F.Ö., on 29   September 2006 Diyarbakır Assize Court convicted him under section   7(2) of Law no. 3713 and section 32(1) and (3) of Law no. 2911 on account of his participation in and conduct during three demonstrations. 57.     On 21 February 2007 the Ninth Criminal Division of the Court of Cassation quashed the judgment of the first-instance court, holding that F.Ö.’s acts constituted not only the offences proscribed in section 7(2) of Law no. 3713 and section 32(1) and (3) of Law no. 2911, but also membership of an illegal organisation under Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3 of the same Code, as he had committed those offences on behalf of the organisation. The Ninth Chamber therefore considered that F.Ö. should be punished for having committed the offence of membership of an illegal organisation and the other offences proscribed in section 7(2) of Law no. 3713 and section   32(1) and (3) of Law no. 2911. 58.     On 31 May 2007 Diyarbakır Assize Court reiterated its previous judgment that F.Ö.’s acts did not constitute the offence proscribed in Article   314 § 2 of the Criminal Code. The Assize Court noted the following: “... In cases where people participate in the funerals of members of a terrorist organisation or in Newroz celebrations, subsequent to abstract and generalised calls of that organisation, and in cases where chanting slogans constitutes propaganda for that organisation, it is not possible to state that those crimes were committed on behalf of the organisation. In order for a court to conclude that a crime was committed on behalf of an organisation, the latter must have called for action not to an undefined collective, but rather to an individual person who is capable of directly committing that act. ...” 59.     As a result of the disagreement between Diyarbakır Assize Court and the Ninth Criminal Division of the Court of Cassation, the case was transferred to the Plenary Court of Cassation (Criminal Divisions). On 4   March 2008 the Plenary Court of Cassation decided to quash the judgment of the Assize Court. Its decision, in so far as relevant, reads as follows: “... In the criminal proceedings brought against F.Ö. under Articles 314 § 2, 53, 63, 58 §   9 of the Criminal Code (Law no. 5237) and section 5 of the Prevention of Terrorism Act (Law no. 3713) with reference to Articles 220 §§ 6 and 7 and 314 § 3 of the same Code, the first-instance court held that the accused should be convicted under section   7(2) of Law no. 3713, section 32(1) and (3) of Law no. 2911 and not under Article   314 § 2 of the Criminal Code. The Plenary Court of Cassation (Criminal Divisions) must resolve the following issues: 1.     Whether the acts of the accused which were considered to have constituted three separate crimes could also be considered to be crimes committed on behalf of an [illegal] organisation in view of the provision which reads as follows: ‘Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation.’ ... In the light of the information specific to the present case file and also the general information obtained from other case files concerning the [illegal] organisation, it is conside