SECOND SECTION

Application no. 46713/10 Deniz BAKIR and others against Turkey lodged on 23 June 2010

STATEMENT OF FACTS

The applicants, whose names appear in the appendix, are Turkish nationals. They are represented before the Court by Ms R.A. Sala , a lawyer practising in Ankara.

A. The circumstances of the case

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

On 6 March 2006 the applicants were taken into police custody on suspicion of aiding and abetting an armed organisation, the MLKP (Marxist-Leninist Communist Party).

On 7 March 2006 they were brought before a judge at the Ankara Assize Court. The applicants were mainly questioned about their participation in a number of demonstrations and about various CDs, documents, books and periodicals that had allegedly been found by the police in their houses. The court ordered the detention of Levent Çakır , Deniz Bakır , Alihan Alhan , Necla Çomak , Metin Kürekçi , Latife Canan Kaplan and Uğur Güdük . The other applicants were released.

On 22 March 2006 the Ankara public prosecutor filed an indictment with the Ankara Assize Court against the applicants. In the indictment, the public prosecutor noted that the applicants had participated in two demonstrations organised by trade unions and non-governmental organisations held on 17 December 2005 and 19 February 2006 with the authorisation of the governor ’ s office. He further noted, on the basis of video footage provided by the police, that the applicants had carried banners on behalf of the ESP (The Socialist Platform of the Oppressed), which, according to information collected on the internet, was connected to the MLKP. The banners that were carried during the demonstration contained phrases such as ‘ workers to the MLKP, the victory of the revolution ’ , ‘ Long live MLKP ’ , ‘ Supporters of Apo are coming ’ , ‘ The sun will rise from Şemdinli ’ , ‘ The murderer State will pay the price ’ , ‘ Susurluk and Şemdinli : the State is an illegal gang ’ , ‘ Long live our resistance in Şemdinli ’ , ‘ End the isolation in F-type prisons and in İmralı ’ , ‘ Long live free Kurdistan ’ , ‘ Kurdistan is resisting ’ . The applicants were charged with membership of an illegal organisation under Articles 220(7) and 314 of the Criminal Code.

On 18 May 2006 the Ankara Assize Court held the first hearing in the case. The applicants maintained before the court that they had participated in the demonstrations of 17 December 2005 and 19 February 2006 and stressed that these demonstrations had been legal. As to the documents, periodicals, books and CDs found in their houses, the applicants maintained that they had not been in possession of any illegal materials and that they did not accept the content of the search and seizure reports prepared after the searches conducted in their houses as they had not been drafted in their presence.

On 17 January 2007 the Ankara Assize Court convicted Metin Kürekçi , Necla Çomak , Alihan Alhan and Deniz Bakır of membership of a terrorist organisation under Articles 220(7) and 314 of the Criminal Code. Metin Kürekçi , Necla Çomak and Alihan Alhan were sentenced to six years and three months ’ imprisonment. Deniz Bakır was sentenced to seven years and six months ’ imprisonment. The remainder of the applicants were convicted of disseminating propaganda in favour of a terrorist organisation under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) and sentenced to one year and eight months ’ imprisonment.

On 27 September 2007 the Court of Cassation quashed the judgment, holding that the applicants had not been able to submit their defence submissions in relation to the qualification by the assize court of their acts under section 7(2) of Law no. 3713.

On 22 October 2008 the Assize Court issued a judgment containing the same conclusions and sentences as in its judgment of 17 January 2007. In convicting the applicants, the Assize Court mostly relied on the applicants ’ participation in the demonstration of 17 December 2005. It further noted that Metin Kürekçi , Alihan Alhan and Deniz Bakır had already been taken into police custody and detained on remand in the past; that Metin Kürekçi had worn clothes indicating “ESP” on them during the demonstrations and had been in possession of four illegal books in his house. As to Necla Çomak , the court noted that four books for which there had been seizure decisions, illegal organisational notes and ESP leaflets had been found in her house. The Ankara Assize Court concluded that these four applicants had aided the MLKP and disseminated propaganda in its favour in a continuous manner by guiding the crowd, making people chant slogans in favour of the MLKP, carrying banners and preparing organisational documents. The court therefore considered that they should be convicted of membership of the MLKP. As regards the applicants who were convicted of disseminating propaganda under section 7(2) of Law no. 3713 , the court noted that they had chanted slogans and carried banners and flags in favour of the MLKP during the demonstra tions of 17 December 2005 or 19 February 2006 and had been in possession of documents in favour of the organisation.

On 24 December 2009 the Court of Cassation upheld the judgment of 22 October 2008.

B. Relevant domestic law

Article 220(7) of the Criminal Code read, at the time of the events, as follows:

“... Anyone who aids and abets an organization knowingly and intentionally, even where they do not belong to the hierarchical structure of the organization, shall be punished as a member of the organization .”

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.”

COMPLAINTS

The applicants complain under Article 6 of the Convention that they were convicted on the basis of search and seizure reports and video footage that did not reflect the truth and that they were unable to challenge the veracity of the evidence as the court rejected their requests for an expert examination of the video footage without reason. They further submit under the same head that admission of the video footage by the police in the case file was unlawful as the police illegally filmed the demonstrations. The applicants also complain that the courts ’ decisions were not reasoned. The applicants finally complain that the references to past arrests and detentions of some applicants were in breach of the right to presumed innocent.

The applicants submit that their conviction on the basis of their participation in demonstrations, chanting slogans and carrying banners constituted a violation of their rights under Articles 10 and 11 of the Convention.

Appendix

First name LASTNAME

Birth year

Place of residence

Deniz BAKIR

1979Detained in Sincan Prison , TURKEY

Alihan ALHAN

1974Detained in Sincan Prison , TURKEY

Levent ÇAKIR

1982Basel, SWITZERLAND

Necla ÇOMAK

1975Ballene , FRANCE

UÄŸur GÃœDÃœK

1982Ankara, TURKEY

Latife Canan KAPLAN

1984Izmir, TURKEY

Serdar KIR

1987Ankara, TURKEY

Metin KÜREKÇİ

1983Istanbul, TURKEY

Selçuk MART

1982Ankara, TURKEY

Mehmet Ali TOSUN

1954Ankara, TURKEY

Filiz ULUÇELEBİ

1970Ankara, TURKEY

Mesut AÇIKALIN

1986Ankara, TURKEY

QUESTION TO THE PARTIES

Has there been a violation of the applicants ’ right to freedom of expression, contrary to Article 10 of the Convention, or their right to freedom of assembly, contrary to Article 11 of the Convention, on account of their conviction under Articles 220(7) and 314 of the Criminal Code and under section 7(2) of the Prevention of Terrorism Act?