SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 15071/03 by Erhan UÇMA and Yurttaş UÇMA against Turkey

The European Court of Human Rights (Second Section), sitting on 3 October 2006 as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr R. Türmen , Mr M. Ugrekhelidze , Mrs E. Fura-Sandström , Ms D. Jočienė , Mr D. Popović , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application lodged on 8 April 2003 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Erhan Uçma and Ms Yurttaş Uçma , are Turkish nationals who were born in 1979 and 1982 respectively and live in Izmir . They are represented before the Court by Mr S. Çetinkaya , a lawyer practising in Izmir .

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

On 28 April 2001 at around 3 p.m. the applicants were arrested by police officers who were on patrol that day whilst sticking posters on the pillars of a pedestrian bridge in Karşıyaka . The posters contained slogans such as “Strike at work!, Protest on the streets!, Long live MayDay !- Kald ıra ç [1] ”. Later on the same day, the applicants were handed over to the anti-terrorism branch of the Izmir Security Directorate.

On 29 April 2001 officers from the anti-terrorism branch conducted a search at the applicants ’ residence with their permission; no unlawful material was found. On the same day, the police took statements from the applicants regarding the charges of pasting the Kaldıra ç posters on to the pillars of the bridge . The first applicant accepted that he was a reader of the magazine and had heard about the DSIH but denied any connection with the organisation. The second applicant admitted that Kaldıraç was the legal publication of the DSIH and that she embraced the ideology of the organisation, which advocates Marxism and Leninism. She further admitted that, together with the first applicant, she had previously pasted other posters for the DSIH and had written graffiti on walls.

On 30 April 2001 the applicants were taken for a medical examination. The medical reports drafted on that occasion noted that the applicants bore no signs of physical violence on their bodies. After that, the applicants were brought before the public prosecutor and then the investigating judge at the Izmir State Security Court . Before both the public prosecutor and the investigating judge, the first applicant denied the charges; the second applicant ’ s statement was in line with her police statement. Subsequently, the investigating judge ordered the applicants ’ detention on remand.

On the same day, a newspaper published, in small font size, the information that the applicants had been arrested whilst putting up unauthorised posters.

On 3 May 2001 the public prosecutor filed an indictment with the Izmir State Security Court, accusing the first applicant of aiding and abetting an illegal organisation, and the second applicant of being a member of an illegal organisation, pursuant to sections 7(2) and (1) of Law no. 3713 (the Anti-terrorism Act) respectively. In his indictment, the public prosecutor stated that the applicants had been hanging posters and writing graffiti on behalf of the organisation and had participated in the public employees ’ meetings in Ankara behind the placard of Kaldıraç .

On 26 June 2001 the Izmir State Security Court heard statements from the applicants. The first applicant denied his connection with the DSIH, admitting to the statements he had made to the public prosecutor and the investigating judge. However, he repudiated the veracity of his police statement, arguing that it had been extracted from him under duress. The second applicant also denied the previous statements she had made before the police, the public prosecutor and the investigating judge, alleging that she had been under duress at the police station and that she had repeated her police statement before the public prosecutor and the investigating judge because of the continuing threat from the police.

On 13 July 2001 the police submitted a document to the court which stated that the DSIH was an illegal armed organisation and that the magazine Kaldıraç was the legal publication of that organisation. It also contained information about the activities of the DSIH, such as attempting to throw Molotov cocktails into banks, hanging banners with fake bombs attached to them, and distributing illegal leaflets.

On 13 September 2001 the Izmir State Security Court found the applicants guilty of the offences. It concluded that the applicants at different stages of the criminal proceedings, implicitly or explicitly, had admitted their connection with the organisation. Moreover, this fact had been verified by the expert report which suggested that the paints sent by the police officers for examination were similar to the paints used in the graffiti. The court also took note of the material seized by the police during the applicants ’ arrest, namely, the paste, posters and brushes, and the medical reports that had been issued in respect of the applicants following their time in police custody, which recorded no signs of ill-treatment on their body. Accordingly, it convicted the applicants of aiding and abetting the DSIH, and sentenced them to ten months ’ imprisonment as well as to fines. The court further ruled that the posters which had been deposited with the court ’ s registry be confiscated pursuant to Article 36 of the Criminal Code. The applicants appealed against this judgment.

On 6 December 2001 the Principal Public Prosecutor at the Court of Cassation submitted his written opinion to the 9 th Chamber of the Court of Cassation, in which he argued that the Court of Cassation should uphold the applicants ’ conviction.

On 24 January 2002 the 9 th Chamber of the Court of Cassation quashed the first-instance court ’ s judgment on the ground that the applicants should have been punished pursuant to Article 169 of the Criminal Code for aiding and abetting an illegal armed organisation as opposed to an ordinary one.

On 16 May 2002 the Izmir State Security Court adhered to the reasoning of the Court of Cassation and convicted the applicants pursuant to Article 169 of the Criminal Code for aiding and abetting an illegal armed organisation. However, their sentence remained the same, due to the fact that the applicants had vested rights under section 326 of the Code of Criminal Procedure. The applicants appealed the same day.

On 13 November 2001 the Principal Public Prosecutor filed further observations with the 9 th Chamber of the Court of Cassation, noting that the Chamber should uphold the judgment of the State Security Court .

On 28 November 2002 , the 9 th Chamber, in conformity with the opinion of the Principal Public Prosecutor, upheld the judgment of the Izmir State Security Court .

COMPLAINTS

1. The applicants complain under Article 6 §§ 1 and 3 (b) of the Convention that their right to a fair hearing was breached on the following accounts: firstly, they claim that there was no evidence proving that they committed an offence on behalf of the illegal organisation, that Kaldıraç was a legal publication, and that the court had regard to the information provided by the police and convicted them on that ground; secondly, they question the impartiality and independence of the domestic courts dealing with their case. In this connection, they allege that both courts, the Izmir State Security Court and the 9 th Chamber of the Court of Cassation, had already expressed their opinion on the case. However, after the appeal, the case file was remitted to the Izmir State Security Court and the new appeal was again examined by the 9 th Chamber of the Court of Cassation. They further allege that they were never given the opportunity to reply to the written opinion of the Principal Public Prosecutor at the Court of Cassation. They finally complain under this head that they were denied legal assistance during their time in police custody.

2. The applicants contend under Article 6 § 2 of the Convention that the police gave their names to the press, which violated their right to the presumption of innocence.

3. They further maintain under Article 7 § 1 of the Convention that they were unlawfully convicted of an act which did not constitute a criminal offence under domestic or international law.

4. The applicants complain under Articles 9 and 10 of the Convention that they were punished for being readers of the Kaldıraç , sticking MayDay posters, and participating in meetings. They therefore submit that their conviction resulted in a breach of their right to freedom of thought and expression.

5. They allege under Article 14 of the Convention that they were discriminated against on account of their political beliefs.

6. Finally, they complain under Article 1 of Protocol No. 1 that the confiscation of the posters and the imposition of a fine constituted a violation of their right to the peaceful enjoyment of their possessions.

THE LAW

1. The applicants complain under Article 6 §§ 1 and 3 (b) of the Convention that there was no evidence before the domestic court justifying their conviction for aiding an illegal organisation. They contend that the Izmir State Security Court and the 9 th Chamber of the Court of Cassation lacked impartiality, being the same courts which dealt with their case after the remittal. They further maintain that they were denied the assistance of a lawyer during their time in police custody. They finally complain under this head that the written opinion of the Principal Public Prosecutor was never served on them, thus depriving them of the opportunity to put forward their counter-arguments.

a) As to the complaint regarding the non-communication of the submissions of the Principal Public Prosecutor to the applicants, t he Court considers 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.

b) As regards the complaint pertaining to the fairness of the domestic court ’ s decision, the Court observes that the applicants ’ complaint is related to the taking and the assessment of the evidence before the domestic court. In this connection, the Court reiterates that its supervisory jurisdiction is limited to ensuring whether the proceedings in their entirety, including the way in which the evidence was taken, were fair and that the decision reached by the domestic court was not arbitrary of manifestly unreasonable (see , among other authorities, Edwards v. the United Kingdom , judgment of 6 December 1992, Series A no. 247-B, pp. 34-35, § 34 ).

In the present case, the Izmir State Security Court considered all the evidence in its possession, as well as giving the applicants the opportunity to challenge the admissibility and veracity of that evidence. The court was then convinced that the applicants had committed the above-mentioned acts in support of the illegal organisation, which had been verified with reference to the contents of the case file, such as the expert report, before it as a whole.

In light of the foregoin g, the Court ’ s finds no element which would allow it to conclude that, in the present case, the national authorities acted in an arbitrary or unreasonable manner in establishing the facts or interpreting the applicable provisions of the domestic la w (see Barim v. Turkey ( dec .), no. 34536/97, 12 January 199 9 , and Tamkoç v. Turkey ( dec .) , no. 31881/96, 11 January 2000 ).

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.

c) As to the applicants ’ allegation that they had been denied the assistance of a lawyer during their time in police custody, the Court reiterates that the restriction of the right to benefit from the assistance of a lawyer during police custody has to be assessed in a context of whether this restriction deprived the accused of a fair trial as a whole (see John Murray v. the United Kingdom , judgment of 8 February 1996, Reports of Judgments and Decisions 1996 ‑ I, § 62).

The Court notes that, in the present case, the applicants were represented both at the trial before the Izmir State Security Court and on appeal by their lawyer and had the opportunity of challenging the allegations of the prosecution. It further observes that the statements made by the applicants during their pre-trial detention were not the sole basis for their conviction. The domestic court considered the circumstantial factors surrounding the applicants ’ arrest, such as the material, namely, the paste, posters and brushes seized by the police, as well as the evidence provided by experts.

The Court therefore considers that there is no element before it to suggest that the fairness of the applicants ’ trial was prejudiced on account of the fact that they did not have access to a lawyer during their period in custody (see Saraç v. Turkey ( dec .), no. 35841/97, 2 September 2004 ).

Accordingly, it rejects this complaint as being manifestly-ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

d) As to the complaint in relation to the impartiality of the domestic courts dealing with their case, the Court reiterates that the existence of “impartiality”, for the purposes of Article 6 § 1, must be determined according to a subjective test, on the basis of the personal conviction and behaviour of a particular judge in a given case – that is, no member of the tribunal should hold any personal prejudice or bias – and also according to an objective test – that is, ascertaining whether the judge offered sufficient guarantees to exclude any legitimate doubt in this respect (see, among many other authorities, Bulut v. Austria , judgment of 22 February 1996, Reports 1996-II, p. 356, § 31, and Thomann v. Switzerland , judgment of 10 June 1996, Reports 1996-III, p. 815, § 30).

The Court observes that, in the present case, t he applicant s did not contest the personal impartiality of the members of either the State Security Court or the Court of Cassation. However, they stated that their case was heard by the same State Security Court after the remittal and the second decision of that court was confirmed by the same 9 th Chamber of the Court of Cassation. In this connection, the Court notes that it ha s previous ly held that , “ it cannot be stated as a general rule resulting from the obligation to be impartial that a superior court which sets aside [a]... judicial decision is bound to send the case back to a different jurisdictional authority or to a differently com posed branch of that authority” (see, among others, Diennet v. France , judgment of 26 September 1995 , Series A no. 325 ‑ A, p. 17 , §§ 37-38). Furthermore, in its second judgment, the State Security Court merely altered the applicable provisions of the Criminal Code whilst the applicants ’ sentence remained the same, regard being had to the vested right which they had obtained as a result of the first judgment. Therefore, the Court notes that no ground for legitimate suspicion can be discerned in the fact that the case was examined for a second time by the same State Security Court and that its judgment was upheld by the 9 th Chamber of the Court of Cassation.

Accordingly, the applicants ’ allegations that the domestic courts dealing with their case lacked impartiality cannot be regarded as objectively justified. The Court therefore concludes that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicants complain under Article 6 § 2 of the Convention that their right to be presumed innocent was violated since, subsequent to their arrest, the ir names were given to the press.

The Court reiterates in the first place that the presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of a fair trial that is required by paragraph 1. The presumption of innocence 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 so proved according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court or official s regard the accused as guilty (see, mutatis mutandis , Claes and Others v. Belgium , nos. 46825/99, 47132/99, 47502/99, 49010/99, 49104/99, 49195/99 and 49716/99, §§ 45-49 , 2 June 2005 , Karakaş and Yeşilırmak v. Turkey , no. 43925/985, § § 49-55 , 28 June 2005 , and a contrario , Y.B. and Others v. Turkey , nos. 48173/99 and 48319/99, §§ 49-51, 28 October 2004).

However, Article 6 § 2 cannot prevent the authorities from informing the public about criminal investigations in progress, whilst requiring that they do so with all the discretion and circumspection necessary if the presumption of innocence is to be respected (see Karakaş and Yeşilırmak , cited above, § 50 ).

The Court observes that in the present case a newspaper published, in small font, the names of the applicants and stated that they had been arrested by the police whilst putting up unauthorised posters. The Court does not observe any remark made by the police indicating that the applicants were guilty of aiding an illegal organisation or otherwise prejudging the assessment of the facts by the competent judicial authorities.

In light of the foregoing, the Court concludes 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.

3. The applicants allege under Article 7 § 1 of the Convention that their acts did not constitute an offence under domestic or international law. An examination by the Court of this complaint as it has submitted by the applicants does not disclose any appearance of a violation of Article 7 § 1 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicants further maintain under Articles 9 and 10 of the Convention that their conviction resulted in the violation of their right to freedom of thought and expression.

The Court observes that the applicants were not convicted for having expressed their opinions or being readers of the Kaldıraç magazine, but for aiding and abetting an illegal organisation, namely the DSIH, pursuant to Article 169 of the Criminal Code. In the light of the evidence before it, the domestic court considered that the applicants had been continuously engaged in activities supporting the DSIH. There is therefore nothing in the case file which suggests that there was a breach of the applicants ’ rights under Articles 9 and 10 (see in this respect Murat Kılıç v. Turkey , no. 40498/98, 8 July 2003 , and Şirin v. Turkey ( dec .), no. 47328/99, 27 April 2004 ).

It follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 § § 3 and 4 of the Convention.

5. The applicant s submit under Article 14 of the Convention that they were discr iminated against on account of their political beliefs.

T he Co urt observes that the applicants w ere tried and convicted for aiding an illegal o rganisation and not because of their political views.

Consequently, this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

6. Finally, the applicants allege under Ar ticle 1 of Protocol No. 1 that the confiscation of the posters and their sentence to a fine constituted a violation of the peaceful enjoyment of their possessions.

The Court notes that the measures complained of were incidental effects of the applicants ’ conviction. It therefore considers that this complaint is unsubstantiated and must be rejected as being manifestly-ill founded under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants ’ complaint concerning the non-communication to the applicant of the submissions of the Principal Public Prosecutor at the Court of Cassation ;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa Registrar President

[1] According to the police records, the legal publication of the illegal organisation of the Revolutionary Socialist Labour Movement (the DSIH).