SECOND SECTION
Application no. 17526/10
Ferit GÜLCÜ
against Turkey
lodged on 16 March 2010
STATEMENT OF FACTS
The applicant, Mr Ferit Gülcü, is a Turkish national, who was born in 1992 and lives in Diyarbakır. He is represented before the Court by Ms S. Şahin and Mr M. Sahin, lawyers 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 14 July 2008 demonstrations were being held in Diyarbakır. People started to assemble by 16h30 at the party office of the DTP (the largest pro‑Kurdish party); among them were mayors and deputies. Approximately 3,000 people gathered by 17h50. After the press statement had been read out, they started to march and arrived at a public park by 18h30. The applicant, who was with his brother outside the park at the material time, spontaneously participated in one of the groups marching towards them and chanting slogans in support of Abdullah Öcalan. Either during the march or its dispersal, some protesters targeted containers, cars and shops and hurled stones at the police. As the crowd did not disperse despite the warnings, the police intervened using batons and a kind of tear gas known as “pepper spray”. Some protesters entered a school garden and took down the Turkish flag and replaced it with a PKK flag.
The applicant was arrested on 21 July 2008 and placed in detention on remand on 22 July 2008 on the basis of video footage from police cameras.
In the indictment dated 22 July 2008, the charges were brought under Articles 39, 220, 300 and 314 of the Criminal Code, Articles 5 and 7 of Law No. 3713 on the Prevention of Terrorism and Article 33 of Law No. 2911 on Assemblies and Marches.
Before the Diyarbakır 5th Assize Court the applicant admitted having participated in the demonstration, chanted the slogan “Biji serok Apo” and thrown stones at the police when they intervened. He submitted that he had been among the crowd in the school garden during the disturbance but denied that he had taken down the Turkish flag and raised the flag of the PKK on the flagpole.
Having taken note of the applicant’s statements, his birth certificate and criminal record, the police arrest and incident reports, information obtained from the internet, pictures taken on the spot, video recordings and medical expert evidence, the Assize Court delivered its judgment on 11 November 2008.
In support of its conclusions, it referred to the call to protest by the Democratic People’s Initiative of Turkey and Kurdistan, published on 11 July 2008 on the website of the Fırat News Agency, which read as follows:
“this year’s July 14 celebrations should be made on the basis of live and make live the leadership...this march should paralyse the life of the enemy and be handled in a way that shows how to deal with the Kurdish people’s leader...in the form of vicious notification of the enemy that the approach to the people’s leader is the approach to the Kurdish people, at the same time, a reason for war for the Kurdish people...every city and district should determine the itinerary depending on the conditions and get prepared...today as well there are attacks against our leadership and our people...this march should be the victory of human dignity.”
It also referred to the news published on 12 July 2008 on another website, allegedly controlled by the PKK:
“while the shaving off of Öcalan is provoking heated reaction, the non-governmental organisations have lent support to the press statement to be made under the leadership of the Democratic Society Party. The NGOs have described the treatment of Öcalan as torture and made a call to participate.”
It further noted that the public had been invited through leaflets to participate in the demonstration which was to be held following the press statement.
The Assize Court pointed out that the demonstrators had chanted slogans like: “every Kurd is a guard of Öcalan”, “we will drop the world without Öcalan on your head”, “the young to Botan to the free country”, “salutations to İmralı”, “with our blood, with our life, together with Öcalan”, “Biji Serok Apo”, “Mr./Esteemed Öcalan” and that they had carried the photos of Öcalan, flags of “confederation”, banners and placards saying “stop the torture in İmralı”, “we make war for living, we die for peace”.
The Assize Court observed that the applicant had acknowledged having participated in an illegal demonstration, made terrorist propaganda and resisted the police intervention through an attack with stones but he had denied his involvement in the incident in the school garden. It held that the applicant had participated actively in the illegal demonstration in accordance with the instructions of the PKK, that he had chanted slogans like “Biji Serok Apo” and resisted the police intervention. As regards the incident that took place in the school garden, the Assize Court considered that he had incited the crowd to commit a crime by chanting slogans, thus reinforcing their determination.
The Assize Court next took into account Articles 314 and 220 of the Criminal Code and observed:
“Turning to the circumstances of the present case, the accused participated in a demonstration that turned into an illegal one on 14 July 2008 following a call issued by the terrorist organisation and the media controlled by it in accordance with its purposes, thereby he committed the offences of making terrorist propaganda, breaking Law No. 2911 on Assemblies and Marches and humiliating the State’s sovereignty signs. Those acts perpetrated within the knowledge and at the request of the terrorist organisation were committed on behalf of it. Therefore, the applicant should also be convicted under Articles 314 (3), 220 (6) and 314 (2) of being a member of a terrorist organisation...”
In view of the foregoing, the Assize Court,
a) acquitted the applicant of the charge of humiliating the State’s sovereignty signs, considering that his involvement in the incidents had not been established;
b) applying the minimum penalty sentenced the applicant to five years’ imprisonment for membership of a terrorist organisation pursuant to Articles 314 (3), 220 (6) and 314 (2); increased it by one and a half times by virtue of Article 5 of the Anti-Terrorism Law No. 3713 (seven years and six months); reduced it by one third by virtue of Article 31 (3) of the Criminal Code taking into account that the accused had been between 15 and 18 years old (five years); reduced it by one sixth under Article 62 (1) of the Criminal Code taking into account the accused’s “sincere confession”, attitude and behaviour during the proceedings (thus reaching a total of four years and two months);
c) applying the minimum penalty sentenced the applicant to one year’s imprisonment for making propaganda for a terrorist organisation under Article 7 (2) of the Anti-Terrorism Law No. 3713; reduced it by one third by virtue of Article 31 (3) of the Criminal Code taking into account that the accused had been between 15 and 18 years old (eight months); reduced it by one sixth under Article 62 (1) of the Criminal Code taking into account the accused’s “sincere confession”, attitude and behaviour during the proceedings (thus reaching a total of six months and twenty days); decided not to commute the sentence to a fine, not to defer it either pursuant to Article 13 of the Anti-Terrorism Law No. 3713; found Article 231 of the Criminal Code governing the suspension of the pronouncement of a judgment inapplicable;
d) applying the minimum penalty sentenced the applicant to five years’ imprisonment for breaking Law No. 2911 on Assemblies and Marches; reduced it by one third by virtue of Article 31 (3) of the Criminal Code taking into account that the accused had been between 15 and 18 years old (three years and four months); reduced it by one sixth under Article 62(1) of the Criminal Code taking into account the accused’s “sincere confession”, attitude and behaviour during the proceedings (thus reaching a total of two years nine months and ten days’ imprisonment); decided not to commute the sentence to a fine, not to defer it either, regard being had to the overall sentence and the fact that the accused did not give the impression that he would avoid committing a crime.
On 6 October 2009 the judgment was upheld by the Court of Cassation. The final decision was deposited with the registry of the first instance court on 16 December 2009.
B. Relevant domestic law
Article 220 of the Criminal Code reads as follows:
“Establishing organizations for the purpose of criminal activity
Article 220 (1) Anyone who establishes or directs organizations for the purpose of criminal activity shall be sentenced to imprisonment of from two to six years provided that the structure of the organization, the number of members, and the quantity of equipment and supplies are sufficient to commit the intended crimes.
(2) Anyone who becomes a member of an organization established for the purpose of criminal activity shall be sentenced to imprisonment of from one to three years.
(3) If the organization is armed, the sentences stated above shall be increased by from one fourth to one half.
(4) Any offence committed within the framework of the organization’s activities shall be punished separately.
(5) The heads of the organizations shall also be sentenced as the perpetrators of all crimes committed within the framework of the organization’s activities.
(6) Anyone who commits a crime on behalf of the organization, even if they are not a member of that organization, shall also be punished for being a member of the organization. (Amended on 2 July 2012) The penalty to be imposed for membership may be reduced up to half.
(7) 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.
(8) Anyone who makes propaganda for the organization or its objectives shall be punished by imprisonment of from one to three years. If the said crime is committed through the media and press the sentence shall be increased by one half.”
COMPLAINTS
The applicant complains of a violation of his right to liberty and security under Article 5 of the Convention.
The applicant alleges a violation of Article 6 in that he was tried by a specialist court and that he was subjected to disproportionate punishment.
The applicant further argues that his conviction violated his rights enshrined in Articles 9 and 10 of the Convention as well as Article 2 of Protocol No. 1.
QUESTIONS
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?
a) In light of the findings of the Court in Altuğ Taner Akçam v. Turkey (no. 27520/07, §§ 87-96, 25 October 2011) 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?
b) The Government are requested to inform the Court about the application of Article 220 (6) of the Turkish Criminal Code, in particular in the context of prosecution of minors under Anti-terrorism legislation, and to enlighten the Court as to the meaning attributed to and interpretation of the terms “on behalf of a terrorist organisation” and “committed crime” by the relevant State authorities in practice.
c) Has there been any reduction in the applicant’s sentence following the entry into force of the amendments made to the laws applied in the present case? Are the sentences passed going to be served concurrently or consecutively?
d) Regard being had to the acts attributed to him and his age at the material time, could the prison sentence imposed on the applicant be considered reasonable and proportionate?
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, taking into account the applicant’s age and the offences he was charged with, can he be considered to have participated effectively in the criminal proceedings against him, as required by Article 6 of the Convention? How was his age taken into consideration in the criminal proceedings carried out before the Diyarbakır Assize Court?
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