F.A. v. TURKEY
Inadmissible
The applicant, who was born in 1971, is a Turkish national and lives in Diyarbakır. The facts of the case, as submitted by the parties, may be summarised as follows. On 23 and 24 June 1996 the HADEP (Halkın Demokrasi Partisi – People's Democracy Party) held its annual congress in Ankara. The applicant participated in the congress as a delegate from Diyarbakır. During the congress, he was elected secretary of the board. While some of the delegates were reading their reports, a group of masked persons entered the congress building and chanted slogans in support of the PKK. They subsequently pulled down the Turkish flag and hung up a PKK banner and posters of Abdullah Öcalan. On 24 June 1996, on the instructions of the Ankara State Security Court Chief Public Prosecutor, police officers surrounded the congress building. When the congress was over, the police arrested the applicant as he was leaving the building. The police also arrested the executive board members of HADEP, the chairman and deputy chairman of the congress, as well as those involved in the pro-PKK actions. The applicant was taken to the anti-terror branch of the Ankara Security Directorate, where he was allegedly kept in a cell with four other persons and subjected to verbal abuse. On 4 July 1996 the applicant was brought before the Ankara State Security Court and subsequently placed in detention on remand. On 23 August 1996 the public prosecutor at the Ankara State Security Court filed an indictment with the court. He accused the applicant of being a member of an illegal organisation, namely the PKK. He referred to the events that had taken place during the HADEP congress. The prosecutor considered that as the applicant had been acting as secretary of the board during the congress, he could have stopped the masked persons from pulling down the Turkish flag and from displaying the PKK banner and posters of Abdullah Öcalan. The prosecutor called for the applicant to be sentenced pursuant to Article 168 § 2 of the Criminal Code for aiding and abetting a terrorist organisation. On 23 October 1996 the applicant was released pending trial. During the trial, the applicant maintained that he was not a member of the group which had pulled down the Turkish flag. He denied any responsibility for the impugned acts and requested to be acquitted. On 4 June 1997 the Ankara State Security Court delivered its decision. In the first place, the court found it necessary to distinguish the case from a simple case of insult to the Turkish flag. It took into consideration the statement of one of the accused persons who had pulled down the flag during the congress. In his statement, this accused person had explained that he had been acting on the instructions of HADEP officials. He stated that several university students had been brought to Ankara by bus to participate in the congress and had been instructed to shout slogans in support of the PKK and to hang posters of Öcalan and PKK banners on the walls. The court further noted that this was the first time that such a big Turkish flag had been hung in a congress building. According to the court, this act was planned by the HADEP officials in order to provoke a reaction. The court further examined video footage taken during the congress and concluded that the applicant, who was acting as secretary of the board during the congress, could have stopped the masked individuals from carrying out their acts. The court stated, inter alia, “...All the accused persons are competent and responsible persons in the HADEP. They had therefore the possibility of interrupting or even suspending the congress. By doing so, they could have helped the police force to capture the PKK militants who had taken down the Turkish flag and put up posters of Abdullah Öcalan instead... On the contrary the accused persons hid the PKK militants by forming groups and they assisted them in performing their activities...” In delivering its decision, the State Security Court further referred to sections 2 and 3 of the United Kingdom Prevention of Terrorism Act 1989, which concerned the membership of, support for and meetings of proscribed organisations and display of support to such organisations in public. The State Security Court convicted the applicant of aiding and abetting the members of a proscribed organisation and sentenced him to four years and six months' imprisonment pursuant to Article 169 of the Criminal Code and Article 5 of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991). The applicant appealed. The Court of Cassation quashed the judgment of the Ankara State Security Court on the ground that the case file lacked relevant information and documents. The case was sent back to the Ankara State Security Court. While the proceedings were pending before the Ankara State Security Court, on 21 December 2000 new legislation (Law No. 4616), which governed the conditional release, suspension of proceedings or execution of sentences in respect of offences committed before 23 April 1999, came into force. The court accordingly suspended the proceedings against the applicant. According to Law No. 4616, these proceedings would be resumed only if the applicant were to commit an offence of the same or more serious kind within five years of the court's decision to suspend the proceedings. Pursuant to Article 4 of Law No. 4758, it was open to the applicant to request the Ankara State Security Court to continue the proceedings against him. However, he did not make such a request.