Published on 6 April 2021

SECOND SECTION

Application no. 61831/12 Barış KAYA against Turkey lodged on 22 September 2012 communicated on 15 March 2021

SUBJECT MATTER OF THE CASE

The application concerns the alleged unfairness of the criminal proceedings under Article 6 §§ 1 and 2 of the Convention on account of the applicant ’ s allegation that he was convicted of membership of an illegal organisation, the PKK, and disseminating its propaganda on the basis of a presumption resulting from the domestic courts ’ interpretation of Article 220 § 6 of the Criminal Code. In that connection, the applicant argues that the domestic courts interpreted the criterion of “committing an offence on behalf of a criminal organisation” under that provision as including, in particular, participation to a demonstration in respect of which the PKK issued general calls without the need to demonstrate an individualised link between him and the armed terrorist organisation. In the applicant ’ s view, that interpretation, which was based on presumptions, was a breach of his right to a fair trial.

On the basis of the photographs and video recordings of the demonstrations, the trial court found that: ( i ) the applicant had taken part in two demonstrations as a result of the general calls issued by the PKK, hence committed an offence on behalf of it; (ii) that he had resisted the police officers by throwing stones at them; (iii) that he had covered his face and head during the demonstrations, and sentenced him to a total of eleven years and eight months ’ imprisonment. On the basis of those facts, the trial court found it established that the applicant had committed the following offences:

( a) membership of an illegal organisation, the PKK, pursuant to Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 6 and 314 § 3, resulting in sentence of six years and three months ’ imprisonment;

( b) two counts of disseminating propaganda in support of a terrorist organisation under Section 7(2) of the Prevention of Terrorism Act (Law no. 3713), resulting in a sentence of ten months ’ imprisonment each;

( c) Two counts of participating in a public demonstration while carrying a stone under Section 33(1) of the Marches and Demonstrations Act (Law no. 2911, resulting in a sentence of five months ’ imprisonment each;

( d) Two counts of obstructing a public officer in the execution of their duty by using force under Article 265 § 1 of the Criminal Code, resulting in a sentence of ten months ’ imprisonment each.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 2 of the Convention? In particular, did the applicant ’ s conviction under Article 220 § 6 of the Criminal Code for committing an offence on behalf of an armed terrorist organisation by taking part in two demonstrations (held on 6 December 2010 and 19 April 2011) as a result of the general calls issued by the PKK operate as a presumption of fact capable of reversing the burden of proof to the applicant?

2. If so, did the domestic courts ’ reference to the “calls issued by the PKK” amount to an insurmountable burden, which, in turn, created a presumption of guilt in respect of the accusations under Article 220 § 6 of the Criminal Code? What was the statutory or decisional law basis of such presumption? What were the procedural safeguards provided to the applicant to reverse that presumption of fact?

3. In any event, did the trial court demonstrate that the applicant had acted on the instructions of the PKK or otherwise been aware of them?

The Government are invited to submit examples of the relevant case-law where the individuals accused under Article 220 § 6 of the Criminal Code on account of their participation to demonstrations as a result of the calls made by the PKK were able to successfully defend that they had not acted on behalf of that terrorist organisation.