FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 64684/01 by Gülseren ÖNER and Others against Turkey

The European Court of Human Rights (Fourth Section), sitting on 1 st June 2004 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr R. Türmen , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki, judges ,, and Mr M. O'Boyle , Section Registrar ,

Having regard to the above applications lodged on 13 November 2000,

Having deliberated, decides as follows:

THE FACTS

The applicants, Gülseren Öner, Abuzer Aslan, Hacı Pamuk, Hüseyin Duran, İsmail Turap, Fatma Doymaz, Nazife Bilgiç, Sakine Doymaz, Ismail Minkara, Muhammet Emin Toprak, Bedir Çetin, Hüseyin Aslan, Fatma Dolaş, Arzu Doymaz, Ramazan Sertkaya, Hasan Gül, Rıza Kılınç, Sakine Sürgülü and Şükrü Karadağ, are Turkish nationals, who were born in 1964, 1941, 1963, 1958, 1963, 1978, 1977, 1977, 1964, 1960, 1949, 1978, 1973, 1979, 1970, 1961, 1966, 1968 and 1961 respectively. They are represented before the Court by Mr Y. Alataş, a lawyer practising in Ankara.

A. The circumstances of the case

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

The applicants; Bedir Çetin, Hüseyin Duran, İsmail Minkara, Hacı Pamuk, Abuzer Aslan, Şükrü Karadağ, Rıza Kılınç, Ramazan Sertkaya and Muhammet Emin Toprak; were the regional administrators of the political party called HADEP ( Halkın Demokrasi Partisi- People's Democracy Party ) in the province of Adıyaman.

The rest of the applicants are the relatives of prisoners who were convicted of being members of an illegal organisation at the time of occurrence of the below mentioned events.

Following the capture of Abdullah Öcalan in Italy, prisoners who were convicted of being members of the PKK went on a hunger strike in several prisons. Some of these prisoners set themselves on fire in protest of the arrest.

On 16 December 1998, various relatives of these prisoners gathered in the Adıyaman regional office of HADEP and started a collective hunger strike in this office.

On 19 December 1998 the Adıyaman Public Prosecutor issued a search warrant in respect of the Adıyaman regional office of HADEP. On the same day the police conducted a search of the Adıyaman regional office of HADEP. According to the arrest report of the same date, the police arrested 45 people including the applicants, who were present in the office when the search was taking place except Hüseyin Duran who was not in the party building at that time.

The arrest report that was signed by the arrested persons, including the applicants, revealed that publications of a separatist nature and flags of the PKK were found in the regional office of HADEP.

On 21 November 1998 the applicants, Bedir Çetin, Muhammet Emin Toprak, İsmail Minkara and Hüseyin Aslan were tried before Adıyaman Magistrates' Court for participating in and organising meetings with the aim of disseminating separatist propaganda . The court ordered that the applicants be released pending trial on the same day.

On 31 December 1998 the Public Prosecutor filed a bill of indictment with the Malatya State Security Court accusing the applicants of aiding the members of a terrorist organisation and requested that they be convicted under Section 169 of the Turkish Criminal Code and Section 5 of the Prevention of Terrorism Act.

On 6 May 1999 the Malatya State Security Court, considering as evidence the publications of separatist nature and flags of the PKK which had been found in the office, convicted the applicants of aiding a terrorist organisation pursuant to Article 169 of the Criminal Code and sentenced each of them to three years and nine months' imprisonment.

On 12 April 2000 the applicants appealed against this decision. On 15 May 2000 the Court of Cassation, in a public hearing, upheld the decision of the State Security Court.

B. Relevant domestic law

1. Section 169 of the Criminal Code provides:

“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...”

2. The Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) provides:

“Under section 4 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in Article 169 of the Criminal Code is classified in the category of “acts committed to further the purposes of terrorism”.

Pursuant to section 5 of Law no. 3713, the penalties laid down in the Criminal Code as punishment for the offence defined in section 4 of the Act are increased by one half.”

3. On 18 June 1999 Turkey's Grand National Assembly amended Article 143 of the Constitution and excluded military members (whether of the bench or of the prosecutor's office) from state security courts. Similar amendments were made on 22 June 1999 to the Law on the State Security Courts.

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention that they were tried and convicted by the State Security Court, which cannot be considered an independent and impartial tribunal.

Invoking Article 6 § 3 of the Convention, the applicants claim that the nature and cause of the accusations against them were not explained to them. Furthermore they claim that, the indictment of the Public Prosecutor was not communicated to them prior to the hearing before the State Security Court and that therefore they did not have adequate time to prepare for their defence. The applicants further claim that they were not allowed to defend themselves through the assistance of a lawyer and that the whole trial process took place in their absence.

Invoking Article 8 of the Convention the applicants complain that their right to respect for private and family life was violated because their hunger strike was interpreted by the domestic court as aiding a terrorist organisation whereas they were only trying to draw attention to the situation of their relatives in prison.

Invoking Article 11 of the Convention the applicants complain that the police search that was conducted during their hunger strike followed by the fact that they were taken into custody, constituted an interference with their right to peaceful assembly.

The applicants complain under Article 14 of the Convention in connection with Articles 6, 8 and 11. They allege that they were discriminated against on account of their ethnic origin.

THE LAW

1. The applicants complain that they were deprived of a fair hearing in breach of Article 6 § 1 of the Convention on account of their being tried before the Malatya State Security Court.

The 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.

2. The applicants complain under Article 6 § 3 (a) and (b) of the Convention that the nature and cause of the accusations against them were not explained to them; the indictment of the Public Prosecutor was not communicated to them prior to the hearing and they had to defend themselves without adequate time to prepare their defence.

The Court 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.

3. Invoking Article 6 § 3 (c) of the Convention the applicants claim that they were not allowed to defend themselves with the assistance of a lawyer. They further allege that the whole trial process took place in their absence.

The Court notes that the transcripts of the Malatya National Security Court clearly reveal that the applicants were present during the hearings and especially that the verdict was read out in their presence. The transcripts of the Court of Cassation further reveal that the applicants were represented during the proceedings by a lawyer. Therefore, 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 complain under Article 11 of the Convention that the interference with their hunger strike violated their right to a peaceful assembly.

The Court notes that under Article 169 of the Criminal Code, it is illegal to assist an illegal organisation in any manner. The applicants were taken into police custody not because of the fact they had gone on hunger strike, but because of the suspicion that their acts fell within the scope of Article 169. They were later convicted since it was determined by the court that their acts fell within this provision. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5. The applicants complain under Article 8 of the Convention that their right to respect for private and family life was violated because their hunger strike was interpreted by the domestic court as aiding a terrorist organisation. Invoking Article 14 of the Convention in connection with Articles 6, 8 and 11 the applicants complain that they were discriminated against because of their Kurdish ethnic origin.

The Court considers that these allegations have not been substantiated. The case file reveals that the applicants' relationship with their relatives was never relied on in evidence as a basis of their conviction. Moreover, there is no concrete evidence to support the complaint that the action taken against the applicants were based on racial prejudice.

These complaints should accordingly be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicants' complaints concerning their right to a fair trial by an independent and impartial tribunal, not being informed promptly and in sufficient detail of the nature and cause of the accusation against them and non-communication of the public prosecutor's indictment before the court hearing.

Declares the remainder of the applications inadmissible.

Michael O'Boyle Nicolas Bratza Registrar President