Communicated on 7 September 2017
SECOND SECTION
Application no. 76619/11
Namet ÇETINKAYA
against Turkey
lodged on 2 December 2011
STATEMENT OF FACTS
The applicant, Mr Namet Çetinkaya, is a Turkish national who was born in 1990 and is detained in İzmir. He is represented before the Court by Mr E. Şenses, a lawyer practising in Batman.
THE CIRCUMSTANCES OF THE CASE
The facts of the case, as submitted by the applicant, may be summarised as follows.
A. Criminal proceedings against the applicant
According to a report prepared by four police officers on 2 December 2009, several websites and some media organs of the PKK (Workers’ Party of Kurdistan), an illegal organisation, had informed its members that the conditions of detention of their leader had worsened, and had instructed them to protest against this situation in every possible way. The report stated that, in line with those instructions, a group of twenty-five or thirty people mainly consisting of minors had burned tyres on 2 December 2009 at approximately 7 p.m. on Göçerler Street, and had started chanting illegal slogans such as “Long live President Öcalan” (“Biji Serok Apo”), “We will drop the world without Öcalan on your head” (“Öcalansız dünyayı başınıza yıkarız”), and “Youth is Öcalan’s fedai[1]”. According to the report, when the police had intervened, the protesters had resisted them by throwing Molotov cocktails and letting off fireworks.
The report indicated that the applicant had been seen throwing a Molotov cocktail at an armoured police vehicle, and that he had been chased and then arrested in front of a house, no. 34 2002 Street in Diyarbakır, at approximately 7.30 p.m.
On 2 December at 9.35 p.m. three of the same police officers drew up an incident report which, in essence, mentioned the same facts. This report did not state that the applicant had been seen throwing a Molotov cocktail. According to the report, the applicant had been identified as a person from the illegal demonstration and had been arrested.
On 3 December 2009 the applicant exercised his right to remain silent before the police in the presence of his lawyer. He was examined by a doctor, who noted tenderness on the upper part of his right arm. The doctor further noted that, according to the applicant, the tenderness was as a result of a work injury. Following the medical examination, the police also drafted a report to the same effect.
On the same day the applicant made statements before the Batman public prosecutor in the presence of a lawyer. His statement read as follows:
“I work in construction as a blacksmith, right next to the Regional State Hospital. On 2 December 2012 at 4.30 p.m. I finished work and got off [the bus] around the place where the Atatürk statute is situated, to have my mobile phone fixed. I was right next to the statute at around 5 p.m. and I was not able to have my mobile phone fixed because all the telephone shops were closed. I was walking to my house in the Bağlar Mahallesi district. I was supposed to meet my friend Veysi and go to my home and then to the cafeteria.
When I was walking on the road I saw a group protesting at the entrance of 2002 Street. However, I don’t really remember what time this was. Subsequently, police officers started coming to the side of the road where I was standing. I then started walking in the direction of my friend’s house. My friend was not at home. On my way back, police officers caught me. I was definitely not involved in the protest and I did not resist [any] police officers”.
The applicant’s lawyer stated that the applicant’s right arm had been injured at work, and that therefore he had not been able to resist police officers.
On the same day the applicant was brought before the Batman Magistrates’ Court. He made statements that were very similar to his statements before the public prosecutor, adding that he had been arrested on the street where his house was situated. The applicant further stated that the distance between his house and the protest was about 100 metres, and that he had neither been involved in the protest nor thrown a Molotov cocktail or stones at armoured police vehicles.
The applicant’s lawyer stated that the applicant had not been able to throw things such as a Molotov cocktail, since he had injured his right arm at work. He further maintained that, according to a preliminary examination carried out on the applicant, no traces of Molotov cocktail had been observed on him. Accordingly, he asked the court to release the applicant.
The Batman Magistrates’ Court noted that the applicant’s clothes had been sent to laboratories with a view to analysing whether they contained traces of firelighters or petroleum products, and that no report had been obtained. However, it ordered the applicant’s detention pending trial.
On 4 December 2009 the Batman public prosecutor took complainant statements from Officers B.Ç. and E.C. Both officers stated that they had seen the applicant throwing a Molotov cocktail, and that he had been arrested following a chase.
On 4 December 2009, in the absence of an analysis report, the Batman public prosecutor also submitted a record (fezleke) summarising the investigation for the Diyarbakır public prosecutor’s office annexed to the Diyarbakır Assize Court which had special jurisdiction to try a number of aggravated crimes enumerated under Article 250 § 1 of the Code of Criminal Procedure at the material time.
On 14 December 2009 the Diyarbakır public prosecutor filed a bill of indictment against the applicant with the Sixth Division of Diyarbakır Assize Court, authorised under Article 250 § 1 of the Code of Criminal Procedure at the material time. The applicant was charged with membership of an illegal organisation, as he was considered to have committed a crime on behalf of an illegal organisation under Article 314 § 2 of the Criminal Code (Law no. 5237) on the basis of Article 220 § 6, resisting the security forces by throwing Molotov cocktails under sections 23(b) and 33(c) of the Meetings and Demonstration Marches Act (Law no. 2911), disseminating propaganda in support of the PKK under section 7(2) of the Prevention of Terrorism Act (Law no. 3713), and the illegal possession of dangerous materials under Article 174 § 1 of the Criminal Code.
On 4 January 2010 the Sixth Division of the Diyarbakır Assize Court held a preparatory hearing (tensip zaptı). It decided to hear the police officers who had drafted the report as witnesses at the first hearing. It further found that the applicant’s pre-trial detention should be continued.
On 12 March 2010 the Sixth Division of Diyarbakır Assize Court held the first hearing in the case. During the hearing, the applicant reiterated his previous statements and denied having thrown a Molotov cocktail at the police. He stated that his right arm had been injured at work, and that it had not been possible for him to throw a Molotov cocktail in that condition. The applicant’s lawyer asked the Court to hear evidence from his employer, a certain M.K.
At the same hearing, M.K. testified as a witness and confirmed that the applicant had sustained an injury while working. He further maintained that the applicant had to go down the street on which he had been arrested in order to get home.
At the same hearing, Officer B.Ç. testified as a witness and stated that he could not remember the applicant’s face, owing to the passage of time. He said that the applicant had been part of the group which had thrown stones and Molotov cocktails at police. He maintained that he was not sure whether the applicant had thrown a Molotov cocktail at an armoured police vehicle. He maintained that his previous statement before the public prosecutor had been correct.
Officer E.C. testified as a witness and stated that he could not remember the details of this particular incident, owing to the many similar incidents in which he had been involved. He maintained that his previous statement before the public prosecutor and the police report had been correct.
Officer M.H. testified as a witness and stated that he had not seen who had thrown a Molotov cocktail at the armoured police vehicle.
At the end of the hearing, the trial court ordered the applicant’s continued detention.
At the second hearing on 4 May 2010, Officer H.Ş. testified as a witness and stated that he remembered the applicant’s face, but he could not remember the incident, owing to the many similar incidents in which he had been involved. He further maintained that he did not recall seeing the applicant throw a Molotov cocktail or stones or chant any illegal slogans. When the judge reminded him of the police report which he had signed, Officer H.Ş. stated that a Molotov cocktail had been thrown at one of the armoured police vehicles, adding that he was not able to say whether the applicant had thrown it. Officer H.Ş. stated that he had been in a police car with nine or ten other police officers, and that it had not been possible to see the faces of the protesters, since the vehicles had very small windows.
The trial court ordered the applicant’s continued detention.
On an unspecified date the analysis report was obtained. According to the report, no traces of firelighters or petroleum products had been found on the applicant.
On 15 July 2010, at the third hearing, the Diyarbakır public prosecutor presented his opinion (esas hakkında mütalaa) to the trial court. In that opinion, the public prosecutor advised that the court should find the applicant guilty as charged. The applicant’s lawyer pointed out that the analysis report had concluded that no petroleum products had been found on the applicant’s clothes. He further stated that the witness statements were contradictory, and asked the trial court to grant him additional time to prepare his defence submissions. The trial court granted that application and adjourned the hearing, while ordering the applicant’s continued detention.
On 12 August 2010, at the fourth hearing, the applicant’s lawyer lodged two different applications. Firstly, he asked the trial court to grant him additional time to prepare his defence submissions. Secondly, he requested that the court conduct an on-site inspection with a view to determining the distance between the location of the incident and the applicant’s home. The trial court, without giving any reasons for its decision, dismissed the application for an inspection.
On 14 December 2010, at the last hearing, the applicant’s lawyer presented his defence submissions in reply to the public prosecutor’s observations. He stated that the applicant had categorically denied his involvement in the events throughout the proceedings, and that there was no evidence against him. According to the lawyer, if the applicant had thrown a Molotov cocktail, there would have been traces of chemicals on him. However, the analysis report made it clear that no such traces had been found on the applicant. The lawyer pointed out the inconsistencies in the police officers’ statements and submitted that the trial court could not rely on them.
At the end of the hearing, the Diyarbakır Assize Court convicted the applicant as charged, sentenced him to eleven years and three months’ imprisonment and gave him a fine of 120 Turkish liras (TRY). In convicting the applicant, the court relied on the report prepared by the police officers and their statements as witnesses.
Firstly, the trial court convicted the applicant of membership of an illegal organisation under Article 314 § 2 of the Criminal Code, on the basis of Article 220 § 6 and Article 314 § 3 of the same Code, as it found it established that the applicant had resisted police officers by throwing a Molotov cocktail and had taken part in the events of 2 December 2009. According to the trial court, the events had been unlawful from the outset and had involved the chanting of illegal slogans. The trial court sentenced the applicant to six years and three months’ imprisonment for this offence.
Secondly, the trial court convicted the applicant of the illegal possession of dangerous materials under Article 174 of the Criminal Code, on the basis that he had had a Molotov cocktail in his possession, and sentenced him to four years and two months’ imprisonment and a fine of TRY 120.
Thirdly, the trial court convicted the applicant of disseminating propaganda in support of a terrorist organisation under section 7(2) of Law no. 3713, as it found it established that the applicant had chanted illegal slogans such as “Long live President Öcalan” (“Biji Serok Apo”), “We will drop the world without Öcalan on your head” (“Öcalansız dünyayı başınıza yıkarız”), and “Youth is Öcalan’s fedai”. It sentenced the applicant to ten months’ imprisonment.
Lastly, under sections 23(b) and 33(c) of Law no. 2911 and Article 265 of the Criminal Code, the trial court convicted the applicant of resisting the security forces by throwing Molotov cocktails, and sentenced him to a total of seventeen months’ imprisonment. However, having regard to Article 231 of the Code of Criminal Procedure, it decided to suspend pronouncement of that part of the judgment.
On 15 December 2010 the applicant lodged an appeal against the trial court’s judgment. In his appeal dated 7 January 2011, the applicant maintained that the trial court had turned a blind eye to the fact that no traces of any substances used to prepare Molotov cocktails had been found on him. He further complained that no evidence other than the police statements had been taken into consideration by the trial court.
On 22 June 2011 the Court of Cassation upheld the trial court’s judgment.
B. Subsequent developments
On 2 July 2012 Law no. 6352 entered into force, which amended Article 220 § 6 of the Criminal Code.
On 10 September 2012 the Sixth Division of Diyarbakır Assize Court decided, ex officio, to suspend the pronouncement of the applicant’s sentence for the dissemination of propaganda in support of a terrorist organisation under section 7(2) of Law no. 3713 on the condition that he did not commit another wilful offence for a period of five years, in accordance with Article 231 of Law no. 5271. However, it decided not to amend the applicant’s sentence under Article 220 § 6 of the Criminal Code.
The applicant filed an objection against that decision.
On 6 March 2013 the Seventh Division of Diyarbakır Assize Court dismissed that objection.
C. Relevant domestic law and practice
A description of the relevant domestic law and practice may be found in Gülcü v. Turkey (no. 17526/10, §§ 43-59, 19 January 2016).
COMPLAINTS
The applicant complains of a violation of his rights under Article 6 §§ 1 and 2 of the Convention. In particular, he raises the following complaints under Article 6 § 1 of the Convention:
(a) Both the trial court and the Court of Cassation failed to give sufficient reasons for the judgment convicting him of very serious offences;
(b) The trial court did not give any details as to why it had accepted the police’s version of events and convicted him, despite the evidence which he had adduced to challenge that version of events, namely the analysis report indicating that no chemical substance had been found on him, and the fact it had been impossible for him to throw a Molotov cocktail because of the injury to his right arm;
(c) His conviction on the sole basis of contradictory police statements and in the absence of any concrete evidence was unacceptable in a democratic society, and in any event the sentence of more than ten years which was imposed on him was disproportionate;
(d) The trial court disregarded the fact that the police officers would be tried for falsifying official documents in the event that they stated anything contrary to their reports;
(e) His application for an on-site inspection regarding the distance between the location of the events and his home was dismissed without any reasons being given;
(f) The public prosecutor carried out no independent investigation, but relied on the reports prepared by the police officers;
(g) The police did not collect any independent evidence, such as the testimony of passers-by or the police radio recordings from the day of the incident;
(h) There was no evidence to convict him of disseminating propaganda in favour of the PKK, and this conviction was unfair.
Under Article 6 § 2 of the Convention, the applicant complains further that Article 220 § 6 of the Criminal Code creates a legal presumption whereby anyone might be convicted of being a member of an armed, illegal organisation. The applicant further explains that it was sufficient for the public prosecutor to rely on Article 220 § 6 of the Criminal Code to link him to the PKK. As a result, he states that the burden of proof shifted onto him and that he was obliged to prove that he was innocent.
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?
a) In particular, was the principle of equality of arms respected as regards the admission and assessment of evidence by the courts (see, mutatis mutandis, Kasparov and Others v. Russia, no. 21613/07, § 64, 3 October 2013, and Navalnyy v. Russia, no. 29580/12, §§ 63‑75, 2 February 2017)?
b) Were sufficient reasons given for the applicant’s conviction (see Vetrenko v. Moldova, no. 36552/02, § 55, 18 May 2010, and Ajdarić v. Croatia, no. 20883/09, § 51, 13 December 2011)?
c) Taking into account Article 6 § 2 of the Convention, which requires that: when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution; and any doubt should benefit the accused, has the presumption of innocence been respected in the instant case (see, mutatis mutandis, Barberà, Messegué and Jabardo v. Spain, 6 December 1988, § 77, Series A no. 146; Lavents v. Latvia, no. 58442/00, § 125, 28 November 2002; Melich and Beck v. the Czech Republic, no. 35450/04, § 49, 24 July 2008; and Nemtsov v. Russia, no. 1774/11, § 92, 31 July 2014)? In particular, did the burden of proof shift onto the applicant?
[1]. The word fedai (from Arabic) has two meanings in Turkish: 1. A person who gives his or her life for another person or for a cause; 2. A person who protects another person or a place.
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