SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Applications nos. 60813/00 and 61317/00
by Ali KAYA and Veysel DİRİ
against Turkey
The European Court of Human Rights (Second Section), sitting on 11 December 2007 as a Chamber composed of:
MrsF. Tulkens, President,
MrA.B. Baka,
MrR. Türmen,
MrM. Ugrekhelidze,
MrV. Zagrebelsky,
MrsD. Jočienė,
MrD. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 26 July 2000,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicants were born in 1964 and 1955 respectively and live in Istanbul. They were represented before the Court by Mr Ö. Kılıç, Mr O. Ergin and Mr A. R. Aydın, lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants were members of the Tunceli Culture and Solidarity Association (Tunceli Kültür ve Dayanışma Derneği; hereafter “the Association”) at the time of the events.
On 17 November 1996 the Association held its 4th general assembly, during which certain people made speeches of a political nature. At this meeting the second applicant was elected as member of the board of directors.
Subsequently, the Fatih public prosecutor’s office issued, on various dates, indictments against the Association’s president and eight members of the board of directors at the time of the commission of the offence on the ground that they had acted contrary to the aim of the establishment of the Association by making and authorising declarations of a political nature. The charges were brought under Section 76 of Law no. 2908.
The second applicant was not charged as he had not been a member of the board of directors at that time.
On 18 November 1998 the Fatih Criminal Court of First Instance convicted the Association’s president and eight members of the board of directors as charged. In addition, it ordered the dissolution of the Association, pursuant to Section 76 § 1 of Law no. 2908.
At the Association’s 5th general assembly held on 27 December 1998, the second applicant was again elected as a member of board of directors.
On 19 November 1999, the first applicant became a member of the board of directors, following the resignation of another member.
On 28 January 2000 both applicants were still members of the board of directors of the Association.
On 14 February 2000 the Court of Cassation held a hearing and upheld the judgment of the first-instance court in respect of the Association’s president and one member of the board of directors, and quashed the judgment in respect of the remaining board members.
In the meantime, since the dissolution of the Association became final with the decision of the Court of Cassation, its assets were confiscated and transferred to the Treasury.
On 3 April 2000 the Fatih Criminal Court of First Instance adhered to the reasoning of the Court of Cassation and acquitted the remaining accused.
On 23 May 2000 the Ministry of Interior, upon the Security Directorate’s request, gave his approval to erase the name of the Association from the Registry of Associations.
B. Relevant domestic law and practice
The relevant domestic law and practice in force at the material time are set out in the case of Yeşilgöz and Firik v. Turkey (nos. 58459/00 and 62224/00, § 27, 27 June 2006).
Following the amendment introduced on 30 July 2003 by Section 11 of Law no. 4963, the five-year ban on becoming a director of another association under Section 4 of Law no. 2908 was limited to one year following the dissolution of the Association. The ban on becoming a member of another association was no longer in place.
On 4 November 2004 the new Law on Associations (Law no. 5253) was adopted by Parliament. This law entered into force following its publication in the Official journal on 23 November 2004. It no longer contained any ban similar to that provided for in Sections 4 and 16 of Law no. 2908.
COMPLAINTS
The applicant complained under Articles 10 and 11 of the Convention that the unjustified dissolution of the Association, of which they were members and directors, and the automatic five-year ban on joining another association imposed on them as members of the board of directors, was in violation of their freedom of expression and association. In this connection, they maintained that certain provisions of the Law on Associations constituted an undemocratic and unlawful interference with their aforementioned rights.
In addition, the applicants complained under Article 13 of the Convention of a lack of an effective domestic remedy enabling them to request the revision or abrogation of these undemocratic provisions of Law no. 2908.
THE LAW
The applicants maintained that the unjustified dissolution of the Association, of which they were members and directors, together with the automatic five-year ban imposed on them as members of the board of directors, was in violation of their freedom of expression and association, that certain provisions of the Law on Associations were undemocratic and unlawful, and that they had no effective domestic remedy enabling them to request the revision or abrogation of these provisions. They invoked Articles 10, 11 and 13 of the Convention.
The Court considers that the applicants’ complaints should be examined under Articles 11 and 13, which read insofar as relevant as follows:
Article 11
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, ...
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety [or] for the prevention of disorder or crime, ...”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties’ submissions
The Government first submitted that the applicants cannot claim to be victims within the meaning of Article 34 of the Convention. In this regard, they claimed that the ban under Sections 4 and 16 of Law no. 2908 did not apply to the applicants, and that they had failed to submit any evidence showing that they had been directly affected by the dissolution of the Association. Secondly, the Government maintained that the applicants had failed to exhaust domestic remedies as they did not raise the substance of their complaints before the national authorities.
As to the merits, the Government claimed that there had been no interference with the applicants’ freedom of association. Alternatively, they submitted that if the Court were to find that there had been interference, they were of the opinion that it was prescribed by law and protected the legitimate interests of national security and public safety, as well as the prevention of disorder or crime. They considered that the interference had been necessary in a democratic society because the executive members of the Association had intentionally failed to comply with the legal provisions of the Law on Associations. Finally, the Government pointed out that the new Law on Associations had completely repealed Law no. 2908.
The applicants maintained that they had been members of the board of directors at the time of the dissolution of the Association and that they were therefore victims of the alleged Convention violations. They claimed that they had had no effective domestic remedy in respect of their grievances under domestic law.
As to the merits, the applicants stated that the dissolution of the Association and the prohibition imposed on them, preventing them from becoming members or directors of another association for five years, constituted an unjustified and disproportionate interference with their right to freedom of association.
B. The Court’s assessment
The Court considers it unnecessary to determine whether the applicants could claim to be victims or whether they have exhausted domestic remedies, within the meaning of Articles 34 and 35 § 1 of the Convention, since their complaints under Articles 11 and 13 of the Convention are in any event inadmissible for the following reasons.
The present case concerns the dissolution of the Tunceli Culture and Solidarity Association and of the incidental effects thereof. In this connection, the Court observes that the applicants’ general complaints regarding the dissolution of the Association and the lack of an effective domestic remedy are substantially the same as those already examined by the Court in the case of Tunceli Kültür ve Dayanışma Derneği v. Turkey (no. 61353/00, judgment of 10 October 2006). The Court finds that the applicants have not submitted any “relevant new information” in relation to the above complaints. Consequently, the Court considers that this part of the application is inadmissible in accordance with Article 35 §§ 2 (b) and 4 of the Convention as being substantially the same as a matter that has previously been examined by the Court (see, for example, Alabay and Güzel v. Turkey (dec.), no. 41334/98, 31 January 2006).
While the applicants have also referred to their own position as members of the board of the association, the Court notes that there is nothing in the case file to demonstrate with certainty that the applicants had this status at the relevant time, the last pertinent document being dated 28 January 2000, which was some weeks prior to the decision of the Court of Cassation. Nor have they demonstrated, or even asserted, that following the dissolution of the Association they had attempted, but were prevented, from becoming members or directors of another association, or that they had suffered personal apprehension and distress due to the imposition of any ban on them until the amendment of these provisions on 30 July 2003 (see, for example, mutatis mutandis, Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, § 40). Since the applicants’ complaints centred essentially on the dissolution of the association, which measure has already been found to be an unjustified interference with Article 11 of the Convention in the aforementioned Tunceli Kültür ve Dayanışma Derneği case, the Court is not persuaded in the circumstances that the applicants have shown themselves to have been subjected to any separate or further interference with their rights. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention in the present case.
For these reasons, the Court unanimously
Declares the remainder of the applications inadmissible.
S. DolléF. Tulkens
RegistrarPresident
Full & Egal Universal Law Academy