Communicated on 28 May 2014

SECOND SECTION

Application no. 28338/07 Ömer GÜNER against Turkey lodged on 26 June 2007

STATEMENT OF FACTS

The applicant, Mr Ömer Güner , is a Tu rkish national, who was born in 1969 and lives in Aydın. He is represented before the Court by Mr Ç. Bingölbalı , a lawyer practising in Izmir.

A. The circumstances of the case

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

At the material time, the applicant, who had a residence permit for Austria, was the manager of a hotel in Kuşadası .

On 10 July 2002 at 4.50 a.m. the applicant was taken into police custody by police officers from the Anti-Terrorist Branch of the İzmir Security Directorate in connection with an operation conducted against an illegal organisation , namely the Bolşevik Parti - Kuzey Kürdistan / Turkiye (Bolshevik Party-North Kurdistan/Turkey). According to the arrest report, signed by the applicant, the police found 88 books in his room, including leftist propaganda. These books were confiscated to ascertain whether they contained illegal material.

On 11 July 2002 the applicant gave a statement to the police, in the absence of a lawyer. He explained that he regularly bought the periodical Çağrı from a newspaper kiosk and enjoyed reading it. This periodical, which was sold legally, was supportive of leftist ideas. He also stated that he was friends with M.D. and E.Y., whom he had met when he was in Germany. He let them stay in his hotel and use his car when they needed a vehicle. The applicant affirmed that he had expressed his wish to be involved in the activities of the Bolshevik Party, but M.D., who had connections in the organisation , had never replied to him.

On 13 July 2002 the applicant was questioned by the public prosecutor and the investigating judge respectively, again in the absence of a lawyer. He admitted to lending his car to M.D. and to providing him with accommodation in his hotel. However, he denied any affiliation with the illegal organisation . Following his questioning, the applicant was released.

On 6 September 2002 the public prosecutor at the Izmir State Security Court filed a bill of indictment against the applicant together with nine other co-accused . The prosecutor charged the applicant with membership of an illegal organisation , Bolşevik Parti-Kuzey K ürdistan / Türkiye , under Article 169 of the former Criminal Code and under Section 5 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991).

During the proceedings, the applicant, who was represented by a lawyer, denied the charges against him. He maintained that he had not been involved in any illegal activity and that the periodicals found in his room had been returned to him as it had been established that they did not contain any illegal propaganda. Before the trial court, one of the co-accused, namely M.D., repeatedly stated that he had been ill-treated whilst in police custody and that his police statements had been taken under duress.

On 24 July 2003 the Izmir State Security Court convicted the applicant of aiding and abetting an unarmed terrorist organisation under Section 7 § 2 of Law no. 3713 then in force. The applicant was sentenced to one year ’ s imprisonment and a fine. Having regard to the police statements of the applicant as well as of the other co-accused persons, the trial court concluded that the applicant regularly bought the Çağrı periodical, a leftist magazine, and that he had provided accommodation to members of the illegal organisation in his hotel. The court therefore concluded that the applicant had intentionally aided and abetted the illegal organisation .

On 8 April 2004 the Court of Cassation quashed the judgment, holding that in rendering its judgment the first instance court should have taken into account the recent amendments made to Section 7 of Law no. 3713.

In the meantime, by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was therefore transferred to the Izmir Assize Court.

On 12 October 2004 the Izmir Assize Court convicted the applicant once again under Section 7 § 2 of Law no. 3713 then in force and sentenced him to ten months ’ imprisonment and a fine. On 13 December 2004 the applicant appealed.

While the appeal proceedings were pending before the Court of Cassation, in 2005 new legislation amending the Code of Criminal Procedure came into force. By a decision dated 10 November 2005, the Chief Public Prosecutor at the Court of Cassation sent the case file back to the first ‑ instance court and requested the latter to reconsider the case in the light of the amendments made to the Code of Criminal Procedure. The case was accordingly transferred back to the Izmir Assize Court.

On 16 March 2006 the Izmir Assize Court convicted the applicant and sentenced him to ten months ’ imprisonment and a fine under Section 7 § 2 of Law no. 3713 then in force. Having considered the structure, methods, purpose and activities of the said organisation , the court concluded that it could be qualified as a terrorist organisation , contrary to the submissions of the accused and the public prosecutor in charge of the investigation. It noted that even though the members of the organisation had not resorted to physical violence, they had used “psychological duress” ( manevi cebir ), such as issuing threats, in order to achieve their aims. The court considered that the aim of the organisation was to start an uprising with a view to replacing the democratic regime with a totalitarian Marxist and Leninist regime. Having regard to the arrest and seizure report and the report based on the identification parade concerning all the accused, the documentary evidence found in the possession of the applicant and other members of the organisation , the court found it established that the applicant was aiding and abetting the illegal organisation .

On 23 March 2006 the applicant appealed against the above judgment, alleging that the organisation in question did not correspond to the definition of a terrorist organisation under Sections 1 and 7 of Law no. 3713.

The Chief Public Prosecutor in charge of the investigation submitted his opinion on the merits of the case and requested the acquittal of the applicant and his co-accused on the ground that the organisation which they had allegedly founded did not correspond to the definition of a terrorist organisation under Section 7 § 1 of Law no. 3713. Consequently, he considered that the applicant ’ s acts could not be assumed as aiding and abetting an illegal organisation under Section 7 § 2 of the same law.

On 25 December 2006 the Court of Cassation upheld the judgment of 16 March 2006. At the material time, Court of Cassation judgments in criminal proceedings were not served on the parties. The latter could be informed only after the decision had been deposited with the registry of the first-instance court and/or an order to enforce the sentence had been served. On 1 February 2007, the Court of Cassation ’ s judgment was deposited with the registry of the first-instance court.

B. Relevant domestic law and practice

At the time of the applicants ’ conviction, Article 169 of the Criminal Code provided as follows:

“Any person who, knowing that 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 no less than three and no more than five years ’ imprisonment ...”

On 30 July 2003 this Article was amended and the part “... or facilitates its operations in any manner whatsoever ...” was deleted.

And Section 7 § 2 of the Prevention of Terrorism Act at the time of the applicant ’ s convention provided as follows:

“ Section 7.

(1) Having regard to Sections 3 and 4 above and Articles 168, 169, 171, 313, 314 and 315 of the Turkish Criminal Code, those who found organisations as specified in Section 1 under any name or who organise and lead activities in such organisations shall be punished with imprisonment of 5 to 10 years and with a fine of 200 million to 500 million Turkish liras; those who join these organisations shall be punished with imprisonment of 3 to 5 years and with a fine of 100 million to 300 million Turkish liras .

(2) Those who assist members of organisations constituted in the manner described above or make propaganda in connection with such organisations shall be punished with imprisonment of 1 to 5 years and with a fine of 50 million to 100 million Turkish liras, even if their offence constitutes a separate crime.”

Further information on the relevant domestic law and practice in force at the material time can be found in the following judgments and decision: Ä°brahim Aksoy v. Turkey , nos. 28635/95, 30171/96 and 34535/97, §§ 41 ‑ 42, 10 October 2000; Özel v. Turkey no. 42739/98, §§ 20-21, 7 November 2002; Gençel v. Turkey , no. 53431/99, §§ 11-12, 23 October 2003; and Halis v. Turkey ( dec. ), no. 30007/96, 23 May 2002.

COMPLAINTS

The applicant complains under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 that he was denied legal assistance during the preliminary investigation in the criminal proceedings against him. He further maintains under the same provision that he was convicted on the basis of unlawful evidence. In this connection, he maintains that in convicting him, the domestic court relied on M.D. ’ s statements which were extracted under duress. The applicant finally complains under Article 10 that his conviction, which was partly based on the confiscated periodicals which were in his possession during his arrest, constituted a breach of his right to freedom of expression.

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 of the Convention? In particular, did the use of statements allegedly taken under duress from the co-accused violate the applicant ’ s right to a fair hearing (see Örs and others v. Turkey , no. 46213/99 , §§ 53-61, 20 June 2006 )?

2. Has there been a breach of Article 6 § 3 (c) of the Convention, in conjunction with Article 6 § 1, as a result of the lack of legal assistance available to the applicant during the preliminary investigation (see Salduz v. Turkey [GC], no. 36391/02, §§ 45-63, ECHR 2008)?

3. Do the facts of the case disclose an unjustified interference with the applicant ’ s right to freedom of expression under Article 10 of the Convention?

The Government are requested to submit copies of the police statements taken from the other co-accused, who testified against the applicant and whose statements were used in the applicant ’ s conviction.