SECOND SECTION

Application no. 74018/11 M . A . K . against Turkey lodged on 3 November 2011

STATEMENT OF FACTS

The applicant, Mr M . A . K . , is a Turkish national, who was born in 1973 and is serving a prison sentence in Diyarbakır prison. He is represented before the Court by Mr S. Akbaş , 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 20 April 2010 the applicant attended the reading out of a press statement in front of the court building in Diyarbakır. He was subsequently taken into police custody. According to the arrest report, he was apprehended as the police officers recognised him from photographs taken during a meeting which had taken place in Diyarbakır on 28 March 2006. In the case file, there are three photographs: in one photograph, a man is seen with a paving stone in his hand; in the second photograph, a man is standing on the street together with four other men; in the third photograph, a man is seen standing with seven other men.

On the same day the applicant ’ s statement was taken at the Diyarbakır police headquarters. The applicant was asked whether he was a member of a political party or a non-governmental organisation and whether he had participated in two demonstrations held on 6 February 2005 and 28 March 2006 in Diyarbakır and whether he had thrown stones at the security forces. The applicant maintained that he was a member of the BDP (Party for Peace and Democracy) and that he had not participated in the demonstrations held on the aforementioned dates.

On 21 April 2010 the applicant was questioned by the Diyarbakır public prosecutor. He submitted that he was the man in the second photograph and that he had not participated in any violence. He also maintained that he was the person in the first photograph. He noted, however, that this photograph had not been taken during a demonstration and that he had not thrown stones at the police.

On the same day the applicant was detained on remand.

On 22 April 2010 the Diyarbakır public prosecutor filed an indictment against the applicant, charging him with membership of the PKK under Articles 220(6) and 314 of the Criminal Code and violating the Meetings and Demonstration Marches Act (Law No. 2911). The public prosecutor alleged, on the basis of a video recording and photographs taken from that recording, that the applicant had participated in the demonstration on 28 March 2006 upon the instructions of the PKK and thrown stones at the police.

On 15 June 2010 the Diyarbakır Assize Court held the first hearing in the case. The applicant maintained before the court that he had not participated in the demonstration held on 28 March 2006 in Diyarbakır. He further submitted that although the person in the photographs in the case file resembled him, it was not known whether those photographs had been taken on that date and during the demonstration at issue. The public prosecutor alleged once again that according to photographs taken from video recordings, the applicant was seen throwing stones at the police on 28 March 2006.

On 26 October 2010 the Diyarbakır Assize Court convicted the applicant under Articles 220(6) and 314(3) and (4) of the Criminal Code and Articles 28(1), 32 and 33 of the Meetings and Demonstration Marches Act (Law No. 2911). The court sentenced the applicant to a total of eight years and four months ’ imprisonment. The first-instance court based its judgment on an expert report dated 22 April 2010 regarding the police force ’ s video recording, the arrest report, the incident report and the report on the photographs. In its judgment, the court found it established that the demonstration of 28 March 2006 had been organised upon the call of the PKK; that the applicant had participated in this demonstration as an organiser; that he had failed to leave despite the police warnings to disperse and that he had thrown stones at the police. 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.”

In the judgment, the court further noted that according to the expert report dated 22 April 2010, there were images showing the applicant smashing paving stones and waiting with other people to throw stones on the day of the demonstration.

On 5 December 2010 the applicant appealed against the judgment of 26 October 2010. In his petition, the applicant maintained that the photograph in which he was seen with a stone in his hand had not been taken during a demonstration and that this photograph was the only evidence for his conviction.

On 30 May 2011 the Court of Cassation upheld the judgment of the first-instance court in so far as it concerned the applicant ’ s conviction of membership of the PKK under Articles 220(6) and 314 of the Criminal Code and his conviction under Articles 32 and 33 of Law No. 2911) for not leaving the demonstration and throwing stones at the police. The high court on the other hand quashed the judgment in so far as it concerned the conviction under Article 28(1) of Law no. 2911 as it was not found established that the applicant had been one of the organisers of the demonstration of 28 March 2006.

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.”

COMPLAINTS

The applicant maintains under Article 6 §§ 1 and 3 (d) of the Convention that the dates on which the photographs which constituted the basis for his conviction had been taken were unknown and that the national court had failed to take into consideration his submissions and to render a judgment containing sufficient reasoning.

The applicant complains under Article 6 § 1 of the Convention that the first-instance court took only digital evidence into consideration despite the fact that digital evidence had to be supported by concrete evidence.

The applicant further complains under Article 6 § 1 of the Convention that there was no evidence in the case-file demonstrating that he had participated in a demonstration upon an instruction of the PKK but that he was nevertheless convicted of membership of the PKK.

The applicant complains that his rights under Articles 5, 10 and 11 of the Convention were violated, as his conviction by the Diyarbakır Assize Court was neither prescribed by law nor proportionate.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant ’ s freedom of peaceful assembly within the meaning of Article 11 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 11 § 2? In particular, could it be held that Article 220 (6) of the Turkish Criminal Code is precise enough to enable the persons concerned to foresee the consequences which a given action may entail?

2. 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 national courts adequately examine the applicant ’ s submissions that the date of the photographs in the case file was unknown and include sufficient reasoning in their decisions in this respect?

The Government are invited to submit a copy of the file of the case brought against the applicant before the Diyarbakır Assize Court, including the expert report of 22 April 2010. The Government are further requested to submit the police forces ’ video footage concerning the demonstration held on 28 March 2006.