Communicated on 8 January 2014

SECOND SECTION

Application no. 74845/12 Nezir ÜREK and Ahmet Ü REK against Turkey lodged on 18 September 2012

STATEMENT OF FACTS

The applicants, Mr Nezir Ürek and Mr Ahmet Ürek , are Turkish nationals, who were born in 1960 and are serving sentences at the Siirt prison. They are represented before the Court by Ms A. Pamukçu Yördem , a lawyer practising in Diyarbak ı r .

A. The circumstances of the case

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

On 5 December 2009 the applicants, who lived in the Uludere district of Hakkari , arrived in Cizre in order to sell goods and to do shopping. They found out that the shops were closed in Cizre as there was a demonstration being held in the city centre. They then found themselves in the middle of the demonstration and listened the press statement made by the Cizre mayor and administrators of the DTP (Party for a Democratic Society) . Subsequently, the police began using tear gas in order to disperse the demonstrators. The applicants ran away from the scene of the incident and entered a garden where they were found and arrested by the police.

According to the statements of eight police officers who effected the applicants ’ arrest, given on the same day, the applicants were found in a barn in the garden of a house and arrested along with four other persons. The officers maintained that during the demonstration, there had been a group of 10 to 15 people who had carried banners of Abdullah Ö calan , the leader of the PKK, an illegal organisation. They had also shouted slogans in favour of Abdullah Ö calan and the PKK and had stones and Molotov cocktails in their hands. According to the police officers, the demonstrators were asked to disperse by the police. As they failed to do so, the security forces used tear gas. All police officers contended that the applicants had been among these demonstrators and that they had followed these demonstrators when the latter ran away. The police officers found banners containing slogans in Kurdish and Turkish which constituted propaganda in favour of the PKK and its leader. The officers stated that they had taken six persons, including the applicants, into custody by using force as they had resisted the arrest.

On 7 December 2009 the applicant were brought before the Cizre public prosecutor and the Cizre Magistrates ’ Court. They maintained that they had not participated in the demonstration and had no knowledge regarding the banners found in the barn. Nezir Ürek contended that he had taken refuge in that garden as children had thrown stones at the police and the police had used tear gas. Ahmet Ürek further stated that he had not chanted illegal slogans.

On the same day the judge at the Cizre Magistrates ’ court decided to remand the applicants in custody.

On 10 December 2009 the applicants objected to the detention order. They submitted that they had not been involved in the demonstration or any unlawful acts.

On 23 December 2009 the Diyarbak ı r public prosecutor filed a bill of indictment with the 6 th Chamber of the Diyarbak ı r Assize Court against the applicants and two other persons. In the indictment, the applicants were charged with membership of an illegal organisation under Articles 220(6) and 314 of the Criminal Code, violating the Meetings and Demonstration Marches Act (Law n o 2911) and disseminating p ropaganda in favour of the PKK under section 7(2) of the Preve ntion of Terrorism Act (Law n o 3713) . In the indictment, the public prosecutor alleged, on the basis of the statements of the police officers, that the applicants had chanted slogans in favour of the PKK and its leader and carried banners, stones and Molotov cocktails during the demonstration.

On 19 March 2010 a police officer made statements regarding the incident before the Diyarbak ı r Assize Court. He maintained that he had not been at the place of the arrest and that therefore he did not have any knowledge regarding the incident.

On 13 May 2005 a witness, Mr Y.T., stated before the court that the first applicant had come to Cizre in order to sell him gold.

On 1 June 2010 the police officers who had made statements on 5 December 2009 gave evidence before the first-instance court without the attendance of the applicants and their lawyers. Five of these officers maintained that they had not seen the applicants or the other arrestees throwing stones or Molotov cocktails during the clashes. They noted that when they had effected the arrest, some demonstrators had had lemons in their hands (in order to be protected against the tear gas) and there had been banners and sheets of paper containing slogans in the barn. One officer submitted that he had seen one person throwing stones at the police but that he could not remember the face of that person. Two officers, on the other hand, contended that they had seen all arrestees throwing stones and chanting illegal slogans during the incident.

During the hearing held on 24 June 2010, the applicants objected to the statements of the police officers, claiming that they had been deprived of their right to cross-examine those witnesses.

On various occasions during the trial, the applicants maintained that they had not been involved in the clashes.

On 3 October 2010 the Diyarbak ı r Assize Court rendered its judgment in the case. The court based its judgment on the statements of the applicants, the arresting officers, a document drafted by the police according to which the second applicant was in a group of people carrying posters of Abdullah Ö calan and the PKK flags and a photograph according to which there were banners containing slogans in the barn where the applicants had been arrested. The first-instance court found it established that the demonstration had been illegal; that the applicants had been in the group of demonstrator who had chanted illegal slogans, carried banners containing propaganda in favour of the PKK and thrown stones at the police. The court noted that the applicants had chanted slogans such as “Bastards of Atat ü rk”, “Long live Ö calan ”, “PKK is the people and people are here” and “We would destroy a world without Ö calan ”. It further found it established that the applicants had carried banners which read: “We are with you, Ö calan ” and “no peace without Ö calan ”. The court held that the applicants had acted in accordance with the PKK ’ s demand and within its knowledge and that they had committed the offences in question on behalf of the PKK. The first-instance court therefore concluded that the applicants should be convicted of membership of the PKK. In the light of the content of the slogans, the court considered that the applicants had disseminated propaganda in favour of the PKK. In sum, the Diyarbak ı r Assize Court convicted the applicants of membership of an illegal organisation , violating the Meetings and Demonstration Marches Act (Law n o 2911), disseminating propaganda in favour of a terrorist organisation and physical resistance to police officers. Taking into consideration the length of the prison sentences for the offences of violation of Law n o 2911 and resistance to police officers (less than two years), the first-instance court decided to suspend the pronouncement of the judgment in respect of these offences for a period of five years, pursuant to Article 231 of the Code of Criminal Procedure. On the other hand, the court sentenced each of the applicants to a total of seven years and one month ’ s imprisonment for the offences proscribed by Articles 220(6) and 314 of the Criminal Code and section 7(2) of the Preve ntion of Terrorism Act (Law n o 3713) .

On 11 April 2012 the Court of Cassation upheld the judgment of 3 October 2010.

On 5 July 2012 a new law amending various laws with a view to suspending proceedings and sentences given in cases concerning cri mes committed through the press, media and similar expressions of thought (Law n o 6352) entered into force.

On an unspecified date the applicants requested the first-instance court to revise their sentences pronounced in the judgment of 3 October 2010 and reduce them.

On 20 July 2012 the 6 th Chamber of the Diyarbak ı r Assize Court revised its judgment of 3 October 2010 in the light of the provisions of Law no. 6352. As to the applicants ’ conviction under section 7 (2) of Law no. 3713, the court decided to suspend the pronouncement of the judgment for a period of five years. As regards their conviction under Articles 220(6) and 314 of the Criminal Code, the Diyarbak ı r Assize Court reduced the original sentence of six years and three months ’ imprisonment to five years, two months and fifteen days ’ imprisonment for each of the applicants.

On 3 August 2012 the applicants lodged an objection against the decision of 22 July 2012.

On 9 August 2012 their objection was dismissed by the 7 th Chamber of the Diyarbak ı r Assize Court.

B. Relevant domestic law

Article 220(6) of the Criminal Code read, at the time of the events, as follows:

“...Anyone who commits a crime on behalf of the (illegal) organisation, even if they are not a member of that organisation, shall also be punished for being a member of the organisation.”

Article 314(2) of the Criminal Code reads as follows:

“Anyone who becomes a member of an (illegal) organisation mentioned in the first paragraph of this Article shall be sentenced to a term of imprisonment of five to ten years.”

Section 7(2) of the Prevention of Terrorism Act read, at the relevant time, as follows:

“Anyone who disseminates propaganda in favour of a terrorist organisation shall be sentenced to a term of imprisonment of one to five years.”

Suspension of the pronouncement of a judgment is regulated by Article 231 of the Cod e of Criminal Procedure (Law n o 5271), the relevant paragraphs of which read as follows:

Article 231

“...

(5) If the accused has been convicted of the charges against him and ordered to pay a fine or sentenced to imprisonment for less than two years, the court may decide to suspend the pronouncement of the judgment... The suspension of the pronouncement of the judgment entails that the judgment shall not bear any legal consequences for the offender.

(6) Suspension of the pronouncement of the judgment may be decided provided that;

(a) the offender has never been found guilty of a wilful offence;

(b) the court is convinced, taking into account the offender ’ s personal traits and his behaviour during the proceedings, that there is little risk of any further offence being committed; [and]

(c) the damage caused to the victim or to society is satisfied by way of restitution or compensation.

...

(8) If the pronouncement of the judgment is suspended, the offender will be kept under supervision for the following five years.

...

(10) If the offender does not commit another wilful offence and abides by the obligations of the supervision order, the judgment [whose] pronouncement had been suspended will be cancelled and the case discontinued.

(11) If the offender commits another wilful offence or acts in violation of the obligations of the supervision order, the court shall impose the sentence. Nevertheless, the court may evaluate the offender ’ s situation and may decide that [...] up to half of the total sentence will not be executed. If the conditions so permit, the court may also suspend the execution of [any] imprisonment or commute it to other optional measures.

(12) An objection to the decision to suspend the pronouncement of the judgment may be filed.”

COMPLAINTS

The applicant s complain under Articles 9, 10 and 11 of the Convention that their conviction was in breach of his rights to freedom of thought, expression and assembly.

The applicants further submit under Article 6 § 1 of the Convention that they were convicted despite the fact that they had not been involved in any violence and that the first-instance court failed to conduct a proper enquiry regarding the events. They further contend under the same head that they were deprived of the opportunity to question the police officers as their statements were not taken during a hearing. The applicants finally complain under Artic le 6 § 3 of the Convention that their written and oral defence submissions were not taken into account by the first-insta n ce court.

QUESTIONS TO THE PARTIES

1. Has there been a violatio n of the applicant s ’ right to freedom of expression, contrary to Article 10 of the Convention, and their right to freedom of assembly, contrary to Article 11 of the Convention, on account of the judgment of the Diyarbak ı r Assize Court ?

2. Has there been a violation of Article 6 §§ 1 and 3 (d) of the Convention in the present case on account of the use of the statements of eight police officers in the first-instance court ’ s judgment? In particular, w as there a good reason for the non-attendance of the applicants or their lawyer a t the session held on 1 June 2010 by the first-instance court , during which the police officers were heard by the court ?

The Government are invited to submit a copy of all documents in the file of the case brought against the applicant s before the Diyarbakır Assize Court (including photographs and documents prepared by the police and the public prosecutor at the investigation stage).