FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 29295/95 and 29363/95

by Abdulaziz ECER and Mehmet ZEYREK

against Turkey

The European Court of Human Rights ( First Section ) sitting on 15 February 2000 as a Chamber composed of

Mrs E. Palm, President , Mr J. Casadevall, Mr Gaukur Jörundsson, Mr C. Bîrsan, Mrs W. Thomassen, Mr R. Maruste, judges , Mr F. Gölcüklü, ad hoc judge,

and Mr M. O’Boyle, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the applications introduced on 18 July 1995 by Mr Abdülaziz Ecer and Mehmet Zeyrek against Turkey and registered respectively on 16 November 1995 and 23 November 1995 under files nos. 29295/95 and 29363/95;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 22 May 1998 and the observations in reply submitted by the applicants on 4 July 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicants , born in 1952 and 1939 respectively, are Turkish national s who are living in the Geçitboyu village of the province of Şırnak .

They are represented before the Court by Mr Mustafa Sezgin Tanrıkulu , a lawyer practising in Diyarbakır .

A. Particular circumstances of the case

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

On 2 September 1993 security forces from the Şırnak Central Gendarme Command arrested the applicants and placed them in custody.

On 22 September 1993 two officers interrogated the applicants at the Şırnak Central Gendarme Command. During their interrogation the applicants both confessed that they had been involved in the PKK since 1988 and that they had supplied food and money to PKK militants. The applicant Abdulaziz Ecer further stated that he had placed his son, M.E., at the disposal of the PKK rather than paying them a levy.

The applicants were then confronted with a witness, Ä°.Y., who had been arrested on charges of helping and sheltering members of the PKK between April 1990 and July 1992. Ä°.Y. identified the applicants and stated that they had been supplying food and clothes to members of the PKK when he was in the organisation.

On 23 September 1993 the Şırnak Public Prosecutor questioned the applicants in relation to their activities in the PKK. On the same day they were brought before the Şırnak Criminal Court. Before the court the applicants denied their involvement in the PKK and maintained that they were innocent of the charges. The court ordered the applicants’ detention on remand.

On 27 September 1993 the Şırnak Public Prosecutor issued a decision of non ‑ jurisdiction and sent the investigation file to the Chief Public Prosecutor’s office at the Diyarbakır State Security Court.

On an unspecified date the Chief Public Prosecutor at the Diyarbakır State Security Court questioned the applicants. During their questioning they denied the statements they had made at the Şırnak Gendarme Command and claimed that they had not supplied food or money to members of the PKK and that they had not been involved in the PKK.

On 19 October 1993 the Public Prosecutor filed an indictment with the court accusing the applicants of having assisted and given shelter to members of the PKK between 1988 and 1989. The Public Prosecutor alleged that the applicants had supplied food to members of the armed gang in a rural area. He further asserted that the applicant Abdülaziz Ecer had stored food in his shop for members of the gang and that he had helped and sheltered them by means of his contacts with his son in the gang. The Public Prosecutor relied on the applicants’ statements at the Şırnak Central Gendarme Command and the evidence given by the witness, İ.Y. He therefore requested that the applicants be punished in accordance with Article 169 of the Turkish Penal Code and Article 5 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991).

In the proceedings before the Diyarbakır State Security Court the applicants both denied the statements they had made during their pre-trial detention.

On 6 December 1993 the Diyarbakır State Security Court convicted the applicants on account of their assistance to the PKK in 1988 and 1989 and sentenced them to 3 years and 9 months’ imprisonment and debarred them from public service for three years. In assessing the penalty to be imposed, the court first found that a sentence of three years’ imprisonment would be appropriate under Article 169 of the Turkish Penal Code; it then applied Article 5 of the Prevention of Terrorism Act , according to which  this sentence had to be increased  by half, i.e. to 4 years and 6 months’ imprisonment;  finally the court applied Article 59 of the Turkish Penal Code, mitigating the sentence by one-sixth and thus reducing the overall length to 3 years and 9 months’ imprisonment.

On 11 July 1994 the applicants lodged an appeal with the Court of Cassation , challenging the judgment of the Diyarbakır State Security Court on points of law. In particular, they alleged that the State Security Court had violated the principle of non-retrospective application of the criminal law since it had applied Article 5 of Law No. 3713 of 12 April 1991 to increase the basic penalty under Article 169 of the Turkish Penal Code by half of its length, although they had been convicted for acts committed in 1988 and 1989.

On 21 February 1995 the Court of Cassation rejected the appeal. It upheld the cogency of the State Security Court’s reasoning and its assessment of the evidence. The Court of Cassation did not deal specifically with the applicants’ complaint relating to the retroactive application of the Prevention of Terrorism Act to their case.

On 22 May 1995 the applicants applied to the Public Prosecutor’s office at the Court of Cassation requesting the rectification of the decision of 21 February 1995. However, their request was dismissed by the Court of Cassation .

B. Relevant domestic law and practice

i ) Article 169 of the Turkish 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...”

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

Under section 4 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), the offence defined in section 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, penalties laid down in the Criminal Code as punishment for the offences defined in sections ... and 4 of the Act are increased by one half.

iii) Article 150 of the Turkish Code on Criminal Procedure provides:

“The punishment resulting from an investigation and conviction is determined by the crimes set forth in the indictment and can concern only those persons named in the indictment.”

COMPLAINT

The applicants complain under Article 7 of the Convention that Law No. 3713 of 12 April 1991 was applied retrospectively to acts which they committed in 1988 and 1989 with the result that the Diyarbakır State Security Court increased their basic penalty by half pursuant to Article 5 of this Law.

PROCEDURE

The application was introduced on 18 July 1995 and registered on 23 November 1995.

On 3 December 1997 the European Commission of Human Rights decided to communicate to the respondent Government the applicants’ complaint concerning the imposition of a heavier penalty on the applicants than the one that was applicable at the time when they committed the criminal offence of which they were convicted and to declare the remainder of the application inadmissible.

The Government’s written observations were submitted on 22 May 1998. The applicant s replied on 4 July 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicants complain that Law No. 3713 of 12 April 1991 was applied retrospectively to acts which they committed in 1988 and 1989 with the result that the Diyarbakır State Security Court increased their basic penalty by half, pursuant to Article 5 of the Law. They invoke Article 7 of the Convention which provides, in so far as relevant, as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.”

The Government observe in reply that the applicants were charged with assisting and giving shelter to an illegal armed organisation, an offence which was defined in Article 169 of the Turkish Criminal Code and was of a continuing nature. They submit that the years 1988 and 1989 set out in the Chief Public Prosecutor’s indictment should be considered to be the commencement dates of the offence committed by the applicants.

In this regard, the Government point out that during their interrogation at the Şırnak Central Gendarme Command the applicants stated that they had been helping militants of the PKK since 1988 and 1989. The Government further refer to the evidence given by İ.Y., a former PKK militant, who had testified both before the Özalp Criminal Court and during his confrontation with the applicants at the Şırnak Central Gendarme Command that the applicants had been giving assistance and shelter to militants of the PKK.

The Government finally assert that the courts applied Article 5 of Law No. 3713 of 12 April 1991 to the acts which began in 1988 and 1989 and which continued until 1993. They therefore submit that the applicants’ allegation concerning the retrospective application of Law No. 3713 of 12 April 1991 should be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

The applicants contest the Government’s submission that the years 1988 and 1989 should be taken to be the commencement dates of the offences. They submit that the Chief Public Prosecutor at the Diyarbakır State Security Court had only charged them with the acts that they had committed between 1988 and 1989. The State Security Court clearly indicated in its judgment that they had been convicted of offences committed committed during these years.

In this respect, the applicants contend that the Government cannot extend the indictment so as to cover the period between 1989 and 1993 since they were not engaged in any criminal activity during that period. They point out that according to Article 150 of the Turkish Code on Criminal Procedure the jurisdiction of the courts is limited by the crimes set forth in the indictment. On that account, the applicants allege that the retrospective application of Law No. 3713 of 12 April 1991 to the acts they committed in 1988 and 1989 is in breach of their rights guaranteed under Article 7 of the Convention.

The Court considers, in the light of the parties’ submissions, that the case raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of merits of the application as a whole. The Court concludes, therefore, that the application is not manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

Michael O’Boyle Elisabeth Palm

  Registrar     President