SECOND SECTION

Application no. 16066/12 Mehmet ERÄ°K against Turkey lodged on 12 January 2012

STATEMENT OF FACTS

The applicant, Mr Mehmet Erik , is a Turkish national, who was born in 1990 and is detained in Siirt prison . He is represented before the Court by Mr E. Bulut , a lawyer practising in Diyarbakır .

A. The circumstances of the case

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

On 27 December 2009 a demonstration was held in Cizre , a district of Şırnak , in south-east Turkey.

On the same day, immediately after the demonstration, the applicant was arrested by police officers from the Cizre police headquarters. He did not make any statements in police custody.

On 29 December 2009 the applicant made statements to the Cizre public prosecutor and the Cizre Magistrates ’ Court. He submitted that he had left his workplace early that day as he had been ill. He had his face and his head covered as it was cold and since he was ill. The applicant contended that police officers arrested him while he was standing in front of a grocery store in his neighbourhood. He maintained that he had not participated in the demonstration, nor had he chanted slogans or thrown stones at the police.

On the same day the applicant was placed in detention on remand.

On 27 January 2010 the Diyarbakır public prosecutor filed an indictment against the applicant with the Diyarbakır Assize Court charging him with membership of an illegal organisation under Articles 220(6) and 314 of the Criminal Code, violating the Meetings and Demonstration Marches Act (Law no. 2911), disseminating propaganda in favour of the PKK, an illegal organisation under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and resistance to police officers under Article 265 of the Criminal Code. The public prosecutor noted that the applicant had participated in the demonstration; covered his face; chanted slogans in favour of the PKK, an illegal organisation, and its leader. According to the indictment the applicant was in a group of people who refused to disperse despite the security forces ’ warnings and threw stones at them.

During the trial, the owner of the restaurant where the applicant worked as a waiter and another waiter made statements. They maintained that the applicant had left the restaurant earlier than usual as he had been ill and that half an hour after the applicant had left, they had learned that the applicant had been arrested.

Fourteen police officers testified before the Cizre Criminal Court that the applicant had been among those who had thrown stones at the police officers on the day of the demonstration. These statements were then forwarded to the Diyarbakır Assize Court and included in the case file.

The applicant ’ s cousin who also worked at the grocery store in front of which the applicant was arrested maintained before the Diyarbakır Assize Court that he had been standing with the applicant in front of the shop when the police officers arrived there and arrested the applicant.

Two women who lived in the applicant ’ s neighbourhood stated before the court that the applicant had been standing in front of the grocery shop and that four or five plain clothes officers had beaten him, sprayed pepper gas in his face and arrested him.

On 14 December 2010 the Diyarbakır Assize Court convicted the applicant under section 7 (2) of Law no. 3713, Article 33 (1) of the Meetings and Demonstration Marches Act (Law No. 2911) and Articles 220(6) and 314 as well as Article 265 of the Criminal Code. The court sentenced the applicant to a total of eight years six months and fifteen days ’ imprisonment. The court based its judgment on the arrest report, the incident report, the identification report by the police and the witness statements. In its judgment, the court found it established that the demonstration of 29 December 2009 had been organised upon the call of the PKK; that the applicant had participated in this demonstration; that he had chanted slogans such as “ PKK is the people, people are here ” ; that he had failed to leave despite the police warnings to disperse ; and that he had thrown stones at the police. The Diyarbakır Assize Court considered that the applicant had committed the offences of violating the Meetings and Demonstration Marches Act and resisting the police on behalf of the PKK and that therefore he had committed the offence of being a member of an illegal organisation. The first ‑ instance court made reference to a decision of the Court of Cassation (decision no. 2008/44), in which it had held:

“When the organisation (the PKK) makes a public call for participation in a demonstration, that call does not have to target a specific person. These acts (demonstrations) are realised on behalf of the organisation within its knowledge and in line with its will. Therefore, the acts of the accused who participate in these demonstrations will constitute the offence ... proscribed in Article 314 (2) of the Criminal Code.”

On 12 July 2011 the Court of Cassation upheld the judgment of 14 December 2010.

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 from 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.”

COMPLAINT S

The applicant complains under Article 6 of the Convention that the statements of the police officers who testified against him were taken by the Cizre Criminal Court, thus depriving him or his representative from the opportunity of examining them.

The applicant complains that his conviction under Article 220 (6) and 314 of the Criminal Code for acts allegedly committed by him constituted a violation of Article 7 of the Convention.

The applicant further contends under Article 10 of the Convention that his trial and conviction by the Diyarbakır Assize Court was in breach of his right to freedom of expression.

QUESTIONs TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to freedom of expression, contrary to Article 10 of the Convention, and his right to freedom of assembly, contrary to Article 11 of the Convention, on account of his conviction under section 7(2) of the Prevention of Terrorism Act , under Articles 220(6), 314 and 265 of the Criminal Code and under the Meetings and Demonstration Marches Act (Law No. 2911) ?

2. Was the applicant able to examine the witnesses against him and have examined those on his behalf as required by Article 6 § 3 (d) of the Convention? If not, has there been a breach of the applicant ’ s right to a fair trial provided by Article 6 §§ 1 and 3 (d) of the Convention due to his inability to examine or have examined the witnesses?

The Government are invited to submit a copy of the file of the case brought against the applicant bef ore the Diyarbakır Assize Court.