CASE OF DÖNER AND OTHERS v. TURKEY
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression);Violation of Article 5 - Right to liberty and security (Article 5-3 - Brought promptly before judge or other officer);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
4. At the time of the events giving rise to the present application, the applicants lived in Istanbul and their children attended different public elementary schools. 5. On unspecified dates in December 2001 the applicants (save for Mr Yılmaz Yavuz) each sent petitions to the Bağcılar, Esenler and Kadıköy Education Directorates with a request for their children to be provided with education in Kurdish in their respective elementary schools. It appears that similar petitions were submitted by many other parents of Kurdish ethnic origin around the same time. 6. According to the examples submitted by the applicants, the petitions were worded, with slight variations, as follows: “I want my child who is studying at ... school to receive education in Kurdish, which is his [her] mother tongue, in addition to education in Turkish, at school...” 7. On receipt of the petitions the relevant education directorates informed the Istanbul Security Directorate, which brought the matter to the attention of the principal public prosecutor’s office at the Istanbul State Security Court. 8. On 28 December 2001 the public prosecutor asked the Anti-terrorism branch of the Istanbul Security Directorate to identify the names and addresses of the persons who had petitioned the Bağcılar and Esenler Education Directorates with a request for education in Kurdish. It appears that on an unspecified date the same instruction was given in relation to the petitions lodged with the Kadıköy Education Directorate. 9. On 8 January 2002 the public prosecutor requested a warrant authorising a search of the homes of forty people, including the applicants, who had submitted petitions. The public prosecutor considered that the petitions in question had been made on the instructions of the PKK (Workers’ Party of Kurdistan), an illegal armed organisation, and wished to collect relevant evidence from the petitioners’ homes. The Istanbul State Security Court granted the public prosecutor’s request that day. 10. On 9 January 2002 the public prosecutor instructed the Antiterrorism branch of the Istanbul Security Directorate to conduct the searches with a view to finding evidence that could link the relevant persons to the PKK as aiders and abettors. It also instructed the Anti-terrorism branch to take the petitioners into police custody and question them in relation to the content and purpose of their petitions. The public prosecutor provided a list of questions to ask the petitioners, which mainly aimed to establish whether they had acted on the orders of the PKK. 11. Early on the morning of 13 January 2002 police officers from the Anti-terrorism branch of the Istanbul Security Directorate carried out a simultaneous search of all the properties, including the applicants’ houses. The search and seizure reports drafted by the police and signed by the applicants and other members of the household indicated that a search warrant had been issued by the Istanbul State Security Court on account of their petitions requesting education in Kurdish for their children. The reports also stated that the public prosecutor had ordered the petitioners’ arrest for questioning. According to these search and seizure reports, no illegal material was found in the applicants’ homes. 12. The applicants were arrested and taken into police custody following the searches on 13 January 2002. The search and seizure reports and custody records submitted by the Government indicate that the applicants were arrested and taken into police custody at the following times: 13. On the same day the applicants were questioned by officers from the Anti-terrorism branch of the Istanbul Security Directorate. They were asked, in particular, whether they had submitted the petitions in accordance with the PKK’s new “civil disobedience” strategy adopted at its Sixth National Conference held between 5 and 22 August 2001. The applicants Meryem Peker and Yılmaz Yavuz claimed that they had not submitted any petitions requesting education in Kurdish to any State authorities. The remaining applicants mainly denied any affiliation with the PKK and stated that they had submitted the petitions in question so that their children could learn their parents’ mother tongue. Some of the applicants also stated that the issue of submission of such petitions had also been discussed at the Bağcılar branch of HADEP (Halkın Demokrasi Partisi – the People’s Democracy Party), a Turkish political party, which they attended from time to time. The applicants’ signed statements suggest that interpretation services were provided to three of them (Ayşe Döner, Fatma Yılmaz and Güli Akyol) on request. A note drafted by the police also suggests that the applicants other than Meryem Peker, Halime Günana, Asiya Karadeniz and Yılmaz Yavuz were illiterate. 14. It appears that in the meantime, some of the applicants’ families contacted the Istanbul Bar Association seeking legal aid for their relatives during their detention in police custody. A lawyer was accordingly appointed. On 13 January 2002 the lawyer applied to the public prosecutor’s office at the Istanbul State Security Court for information in relation to twelve of the applicants (Esma Döner, Gülperi Döner, Ayşe Döner, Hanım Gülün, Şahide Gümüş, Hasibe Yılmaz, Fatma Yılmaz, Tenzile Akyol, Güli Akyol, Fatma Duruşkan, Meryem Peker and Mehmet Şirin Döner). In particular, he enquired about their legal status and the charges they were facing, and asked to meet them and to provide them with the necessary legal assistance. On the same day he applied to the Istanbul State Security Court to have the same twelve applicants released, arguing that they were being held in custody unlawfully. 15. On the same day a judge at the Istanbul State Security Court decided that there was no need to decide on the lawyer’s request as there was no record of the individuals in question being detained in relation to an investigation conducted by the public prosecutor’s office. On 16 January 2002 the Istanbul State Security Court rejected a request by the lawyer to have the decision rendered by the judge set aside. 16. In the meantime, on 14 January 2002 the public prosecutor informed the lawyer that the applicants in question were in custody on suspicion of being affiliated with an illegal organisation, and that there was no need to decide on the lawyer’s request to have access to them as no authorisation for their detention in police custody had yet been issued by the public prosecutor’s office. 17. It appears that shortly after that decision, still on 14 January 2002, the public prosecutor authorised the applicants’ detention in police custody for four days between 13 and 17 January 2002. The authorisation was granted in response to a request made by the Anti-terrorism branch of the Istanbul Security Directorate, who had claimed that the applicants’ detention was needed for the completion of their files, in particular to verify whether the petitions had been submitted by the applicants themselves, whether they had any affiliation with the PKK and whether they were being searched for in connection with other offences (see paragraph 32 below for the legal basis for that authorisation). 18. At 8.30 a.m. on 17 January 2002 the applicants were taken out of the detention centre and, following a routine medical check-up, were brought before the public prosecutor at the Istanbul State Security Court. They admitted before the public prosecutor that they had written the petitions, either themselves or with the help of their children, but stated that they had no other motive than wanting their children to learn their mother tongue. They denied any involvement with the PKK. Some of the applicants claimed that they had submitted petitions after hearing about it from other parents at school or on television. According to the information provided by the Government, seven of the applicants (Ayşe Döner, Hasibe Yılmaz, Fatma Yılmaz, Tenzile Akyol, Güli Akyol, Meliha Can and Kudret Dağ) were assisted by an interpreter during questioning by the public prosecutor. 19. At an unspecified time on 17 January 2002 the applicants (except for Meryem Peker, Mehmet Şirin Döner and Yılmaz Yavuz) were brought before a judge at the Istanbul State Security Court, who ordered their release after taking statements from them. The applicants concerned were actually released following the Istanbul State Security Court’s order. Seven of the applicants (Ayşe Döner, Şahide Gümüş, Hasibe Yılmaz, Fatma Yılmaz, Güli Akyol, Meliha Can and Kudret Dağ) were assisted by an interpreter before that court. It appears that Meryem Peker, Mehmet Şirin Döner and Yılmaz Yavuz were also released that day, but the decision ordering their release was not submitted to the Court. 20. On the same day the public prosecutor filed an objection concerning the decision to release the applicants, claiming that it was evident from the statements made by them following their arrest that they had submitted the petitions in an organised manner with the aim of assisting the PKK’s “politicisation” process. The public prosecutor added that although the applicants appeared to have lawfully used their right to petition, in reality they were acting on the instructions of the PKK and were thus aiding and abetting that organisation. 21. On 18 January 2002 the Istanbul State Security Court upheld the public prosecutor’s objection in respect of the applicants Esma Döner, Hanım Gülün, Hasibe Yılmaz, Meliha Can, Şükrüye Temüroğlu, Halime Günana and Zübeyde Yavuz, and issued a warrant for their arrest. The court did not provide any reasons for its decision. 22. On 22 January 2002 the lawyer asked the Istanbul State Security Court to set aside its decision of 18 January 2002 ordering the arrest of the relevant applicants. On 28 January 2002 the State Security Court dismissed that request, basing its decision on the nature of the offence, date of arrest, state of the evidence and contents of the case file. 23. In the meantime, on 19 January 2002 Esma Döner, Hasibe Yılmaz and Zübeyde Yavuz were arrested on the basis of that warrant. The next day they were remanded in custody. It appears that the remaining four applicants named in the warrant could not be located. 24. On 21 January 2002 the applicants Esma Döner and Zübeyde Yavuz filed objections concerning their detention on remand. 25. On 22 January 2002 the Istanbul State Security Court dismissed Esma Döner and Zübeyde Yavuz’s objections, basing its decision on the nature of the offence and the state of the evidence. 26. On 6 February 2002 the public prosecutor at the Istanbul State Security Court decided not to prosecute the applicant Yılmaz Yavuz because of a lack of evidence against him. 27. On the same day the public prosecutor issued an indictment against thirty-eight suspects, including the remaining applicants, accusing them of aiding and abetting an armed organisation under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713) in force at the material time. In the indictment the public prosecutor stated that following the arrest and conviction of their leader Abdullah Öcalan, the PKK had set out to pursue new policies. Accordingly, at the Sixth National Conference held between 5 and 22 August 2001, it had adopted the “Democratisation and Peace Project”, a new strategy which had involved undertaking non-violent activities of “civil disobedience” and aimed at leaving the State and its authorities in a difficult position in the international arena. The public prosecutor submitted that such organised acts of civil disobedience agreed on by the PKK had included petitioning the State authorities for education in Kurdish, dressing up in traditional Kurdish female costume, and applying to courts or population registration offices with requests for their Kurdish identities to appear on their national identity cards. When viewed against this background, the petitions in question – which had been submitted to certain authorities on predetermined dates and times – could not be considered to be individual acts. They had actually been part of an organised movement which had aimed to implement the decisions adopted by the PKK and thereby undermine the authority of the State. 28. On 12 February 2002 the first-instance court ordered the release of the applicants Esma Döner, Hasibe Yılmaz and Zübeyde Yavuz pending the criminal proceedings. 29. On 28 May 2003 the Istanbul State Security Court acquitted all the accused, including the applicants, because on the facts none of the elements of the crime of aiding and abetting an armed organisation had been present in their actions and there was no other evidence to support the allegations brought against them. The judgment became final on 5 June 2003.