SECOND SECTION

DECISION

Application no . 28745/11 Kadri ÖZKAN and Zelal Ö ZKAN against Turkey

The European Court of Human Rights (Second Section), sitting on 1 October 2013 as a Committee composed of:

Peer Lorenzen, President, András Sajó, Nebojša Vučinić, judges, and Seçkin Erel , Acting Deputy Section Registrar ,

Having regard to the above application lodged on 28 February 2011,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Kadri Özkan and Ms Zelal Özkan, are Turkish nationals, who were born in 1943 and 1950 respectively and live in Şanlıurfa. They were represented before the Court by Mr M.A. Altunkalem, a lawyer practising in Diyarbakır.

A. The circumstances of the case

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

On 3 April 2006 the applicants participated in a demonstration, in the Viranşehir District of Şanlıurfa . The first applicant, Kadri Özkan, read out a press statement concerning the problems of Kurdish people. The second applicant, Zelal Özkan, chanted slogans during the demonstration.

On 27 September 2006 criminal proceedings were brought against the applicants by the Diyarbakır Public Prosecutor.

On 4 March 2010 the Diyarbakır Assize Court convicted the applicants under Article 314 of Criminal Code for aiding and abetting an illegal organisation and sentenced them to six years and three months ’ imprisonment. Additionally, it found the applicants guilty of making terrorist propaganda on behalf of an illegal organisation, the PKK (Kurdish Workers ’ Party), under Article 7 § 2 of the Prevention of Terrorism Act, and sentenced them to ten months ’ imprisonment.

The case is still pending before the Court of Cassation.

B. Relevant domestic law

A description of the relevant domestic law may be found in Hasan Uzun v. Turkey ((dec.), no. 10755/13, §§ 68-71, 30 April 2013).

COMPLAINTS

The applicants complained under Article 10 of the Convention that the institution of criminal proceedings against them for making a speech constituted an unjustified interference with their right to freedom of expression.

The applicants also alleged a violation of the right to freedom of assembly under Article 11 of the Convention.

The applicants further contended under Article 6 of the Convention that they had been denied a fair hearing as the domestic judicial authorities had erred in the assessment of the evidence and the establishment of the facts.

THE LAW

The Court observes that in the instant case the proceedings against the applicants are still pending before the Court of Cassation.

Having examined the main aspects of the new remedy before the Turkish Constitutional Court, the Court found that the Turkish Parliament had entrusted that court with powers that enabled it to provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012, and declared it as a remedy to be used ( Hasan Uzun v. Turkey , cited above, §§ 68-71).

Accordingly, the applicants should avail themselves of the new remedy before the Turkish Constitutional Court offered by Law no. 6216 ( ibidem ).

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Seçkin Erel Peer Lorenzen              Acting Deputy Registrar President