CASE OF SEYİTHAN DEMIR v. TURKEY
Remainder inadmissible;Violation of Art. 6-1+6-3-c;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
4. The applicant was born in 1980 and lives in Antalya. 5. On 24 May 2000 the applicant started his compulsory military service. 6. On 10 July 2000 two conscripts, Mr Karaman and Mr Gezici, informed their superiors and other soldiers that the applicant had made several improper comments to them. 7. Mr Karaman claimed that the applicant had shown him a map of Turkey indicating how they were going to establish Kurdistan and put up its flag and had also said that the Special Forces and soldiers were killing their people and innocent children. According to Mr Karaman, the applicant also stated that “during target practice they can if they want shoot right on target but that they would not”. 8. Mr Gezici alleged that the applicant had kept telling him that they were going to establish Kurdistan and that he had a commando physique and they should take him to the camps. 9. On the same day the head of the military unit heard the applicant, Mr Karaman and Mr Gezici, Mr Dere and Mr Sancı. 10. The applicant maintained that he had never made such remarks and that it was nothing but lies and smears. He stated that he did not have any quarrel with the people who had accused him. 11. Subsequently, on 15 December 2000, the public prosecutor at the Izmir State Security Court filed a bill of indictment with that court charging the applicant with the offence defined in section 8 of the AntiTerrorism Act, namely, disseminating separatist propaganda. 12. On 18 December 2000 the Izmir State Security Court held a preparatory hearing at which it decided on procedural matters, namely issuing rogatory letters to various authorities in order to secure the applicant’s and the witnesses’ statements. The next hearing was fixed for 6 February 2001. 13. On 2 February 2001 the applicant appeared before the Erzurum State Security Court. The indictment was read out to him. The applicant denied the accusations against him and claimed that Mr Karaman, with whom he had had an argument, was lying. He maintained that he had never uttered the words mentioned in the indictment. The record of the hearing noted that the applicant had requested to be exempted from the obligation to appear at the hearing (duruşmadan vareste tutulma). The applicant was not represented by a lawyer. 14. On various dates the rogatory courts heard evidence from Mr Sancı, Mr Gezici, Mr Karaman and Mr Dere. In their statements, Mr Sancı and Mr Dere both affirmed, inter alia, that they had not heard the applicant making the impugned remarks but had been informed of them through Mr Gezici and Mr Karaman. 15. In his statement Mr Gezici claimed, inter alia, that the applicant had told him “we have camps in the east. Let me take you to them. You have a commando physique”. He stated that the applicant was smiling and it looked like a joke. However, he started to take his words seriously when he heard what the applicant had said to Mr Karaman and decided to complain about him to their hierarchical authorities. 16. In his statement Mr Karaman claimed, inter alia, that on various occasions the applicant had told him “Turkish soldiers are traitors, they kill our people. Special Forces have killed our people and blame it on us. Before military service I was receiving instruction at a camp.” He further claimed that the applicant was pointing at the eastern part of Turkey on the map and saying “We are going to divide Turkey and establish Kurdistan”. 17. On 6 February, 27 March, 10 May and 26 June 2001 the first-instance court held hearings, in the absence of the applicant, during which the statements of the applicant and two of the witnesses taken by way of rogatory letters were read out. 18. During the trial the applicant was doing his military service in Erzurum. 19. In the hearing held on 4 September 2001 the statements of the other two witnesses, taken by way of rogatory letters, were read out. The prosecutor did not ask for an additional investigation and read out his observations on the merits of the case. On the same day the court, on the basis of witness testimonies, considered that the applicant had disseminated separatist propaganda and convicted him as charged. He was sentenced to one year’s imprisonment and to a heavy fine. This decision was served on the applicant on 24 September 2001. 20. On 28 September 2001 the applicant appealed. 21. On 8 October 2001 the applicant hired a lawyer. 22. On 31 October 2001 the applicant’s lawyer filed an appeal. 23. On 8 January 2002 the principal public prosecutor at the Court of Cassation submitted his written opinion to that court. The prosecutor asked the court to dismiss the applicant’s legal representative’s appeal, in accordance with Article 317 of the Code on Criminal Procedure, on the ground that it had been submitted out of time. This opinion was not communicated to the applicant. 24. On 28 January 2002 the Court of Cassation dismissed the applicant’s objections and upheld the judgment of the first-instance court. In its judgment the court stated, inter alia, that, having regard to the evidence and the conviction and the assessment of the first-instance court in line with the conclusions of its investigation, the applicant’s conviction had been in accordance with the procedure and the law. 25. On 17 April 2002 the principal public prosecutor at the Court of Cassation dismissed a request by the applicant’s lawyer for rectification of the Court of Cassation’s judgment. 26. On 7 March 2003 the applicant started serving his prison sentence. 27. The applicant paid the fine, in three instalments, on 26 March 2003, 29 April 2003 and on 27 May 2003. 28. By an additional judgment, dated 25 July 2003, the Izmir State Security Court, taking into account that section 8 of Law no. 3713 had been abolished pursuant to Law no. 4928, annulled the applicant’s conviction and ordered his immediate release. On the same day the applicant was released. 29. Article 226 of the Code of Criminal Procedure, in force at the material time, provided as follows: “1. If the accused or his lawyer, who has a power of attorney in this respect, so requests, the court may exempt the accused from the obligation to be present during the hearing. 2. ... the accused shall be questioned by a judge in another judicial district, acting on rogatory letters, about the principal facts of the case. 4. Even if the accused does not so request, if the accused has been remanded in custody or is serving a sentence for another crime, the trial court can decide that the accused shall be questioned by a judge in another judicial district, acting on rogatory letters. 5. The public prosecutor and the accused’s lawyer shall be notified of the date set for questioning. There is no obligation for them to be present during the questioning. 6. The record of the questioning shall be read out at the hearing.”