CASE OF PİROĞLU AND KARAKAYA v. TURKEY
Violation of Art. 6-1;Violation of Art. 10;Violation of Art. 11;Remainder inadmissible;Pecuniary damage - claim rejected;Non-pecuniary damage - finding of a violation sufficient;Non-pecuniary damage - award
Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
4. The applicants were born in 1974 and 1962, respectively, and live in Izmir. They were members of the executive board of the Izmir Branch of the Human Rights Association (“the Association”) at the time of lodging their applications to the Court. There were two different sets of criminal proceedings brought against the applicants; however, it should be noted that the first applicant's case concerned only the first set of proceedings, regarding the Association members with prior convictions. 5. On 10 July 2001 the Izmir Governor sent a letter to the Association requesting that the membership of thirteen persons, including the second applicant, be annulled as they were considered to be involved in illegal activities. In this letter it is said that, although the second applicant had been taken into police custody on 30 April 1999, she had subsequently been released as it had not been established that she had any connection with the illegal TKP/ML-TIKKO (the Turkish Communist Party / Marxist-Leninist–Turkish Workers' and Peasants' Liberation Army). 6. On 6 August 2001 the Association replied to the Governor that they would not comply with the request since none of these thirteen persons had prior convictions which would ban them from founding or becoming a member of an association, as provided by section 4 §§ 2 and 3 and section 16 of the Associations Act (Law no. 2908). 7. On 17 October and 31 October 2001 respectively, the Izmir Public Prosecutor informed the applicants that a prosecution had been initiated against them for non-compliance with section 4 of Law no. 2908, but that no court proceedings would be initiated if they paid a fine of 142,366,000 Turkish liras (TRL) per person within ten days. The applicants did not pay the fine within ten days as required by the payment order. 8. Subsequently, on 3 December 2001 the Izmir Public Prosecutor filed a bill of indictment against the applicants and the other members of the Board. The public prosecutor requested that the accused be fined under Section 75 of the Associations Act and Article 119 of the Criminal Code for their failure to comply with the Izmir Governor's request. The bill of indictment was not notified to the applicants. 9. On 26 December 2001 the Izmir Magistrates' Court, without holding a hearing, found the applicants and the other co-accused guilty as charged and, by a penal order (ceza kararnamesi), fined them TRL 213,548,400 per person. In doing so, the court relied on the “simplified procedure” stipulated in Article 386 of the Code of Criminal Procedure for relatively minor offences. 10. The applicants and the other co-accused lodged an objection with the Izmir Criminal Court against the decision of 26 December 2001. 11. On 6 February 2002 the Izmir Criminal Court dismissed the objection without a hearing. 12. The applicants paid the amounts due. 13. Subsequently, on 16 December 2002 one of the co-accused, Mr N.B., applied to the Ministry of Justice, requesting the Minister to refer the case to the Court of Cassation by way of a written order (yazılı emir). 14. On 29 January 2003 the Minister of Justice issued a written order and instructed the Chief Public Prosecutor at the Court of Cassation to ask the Court of Cassation to set aside the judgment concerned. 15. On 14 April 2003 the Court of Cassation quashed the judgment of the Izmir Criminal Court dated 6 February 2002 and the case file was remitted to the Izmir Magistrates' Court. 16. On 14 May 2003 the Izmir Magistrates' Court held a preparatory hearing and included the case in its list. It further decided to summon all of the defendants, including the applicants, to its next hearing. 17. On 14 July, 7 August and 22 October 2003 respectively, the court held three hearings. 18. At its last hearing, held on 22 October 2003, the Magistrates' Court held that it lacked jurisdiction to hear the case because, following the promulgation of Law no. 4854 on 24 April 2003, the sentence imposed on the applicants for not complying with the Izmir Governorship's order had been classified as an administrative fine. During the proceedings, none of the defendants made submissions to the court. 19. On 25 February 2004 the Court of Cassation upheld the decision of the Izmir Magistrates' Court. The case file was sent to the Governorship of Izmir. 20. On 9 October 2001 the Association, together with several local non-governmental organisations (NGOs), took part in a civil society movement called the “Platform of Conscientious Objectors to War” and made a collective press declaration in protest against the military operations of the United States of America (USA) in Afghanistan. 21. On an unspecified date, the prosecutor notified the second applicant that a prosecution had been initiated against her under Section 34 of the Associations Act for her involvement with the “Platform of Conscientious Objectors to War”, an organisation without any lawful status. The prosecutor also informed the applicant that no court proceedings would be initiated if she paid a fine of TRL 142,366,000 within ten days. 22. In the absence of payment, the prosecutor filed an indictment on 3 December 2001, charging the second applicant and five other board members of the Association with a violation of Section 34 of the Act. In the indictment, the prosecutor stated that the platform had no legal basis under Turkish law. The bill of indictment was not served on the second applicant. 23. On 31 December 2001 the Izmir Magistrates' Court, following the simplified procedure and thus without a hearing, convicted the second applicant as charged (case no. 2001/2160). By issuing a penal order, it sentenced her to an increased fine of TRL 213,548,400. However, the court suspended the sentence pursuant to section 6 of Law no. 647 on the execution of sentences. 24. On 18 February 2002 the second applicant lodged an objection with the İzmir Criminal Court against the penal order. She argued that her conviction infringed her right to freedom of expression and that “a collective press declaration” could not be classified as a contribution to the establishment of an unlawful organisation. She further complained that the indictment had not been communicated to her and that the court had not obtained statements or heard counter-evidence from her. 25. On 20 February 2002 the criminal court dismissed her objection, again without holding a hearing. 26. The relevant Articles of the Code of Criminal Procedure which was in force at the time of the events read as follows: “Unless otherwise specifically provided by law, objection proceedings are conducted without a hearing. If necessary, the public prosecutor [may be] heard.” “As regards infringements falling within its jurisdiction, the ... magistrates' court makes its ruling, without holding a hearing, through a penal order. The order can only be given in cases of simple or aggravated fines or in relation to offences carrying a maximum prison sentence of three months ...” “The judge schedules a hearing if he sees an inconvenience in ruling in the absence of one.” “A hearing shall be held if an objection is raised to a prison sentence imposed by a penal order. (...) The suspect can be represented by defence counsel during the hearing. (...) Objections to penal orders (...) are examined by a judge at the criminal court of first instance, in line with the procedure described under Articles 301, 302 and 303. The objection would suspend the execution of the penal order.” 27. In a judgment given on 30 June 2004, the Constitutional Court declared Article 390 § 3 of the Code of Criminal Procedure unconstitutional and a nullity. It held that the lack of a public hearing before the Criminal Court of First Instance which examines objections to penal orders would be a deprivation of the right guaranteed by Article 6 of the Convention, as well as Article 36 of the Constitution. 28. Article 343 § 1 of the Code of Criminal Procedure, concerning references to the Court of Cassation by written order of the Minister of Justice (Yazılı emir ile bozma – “ the reference by written order”) provides: “Where the Minister of Justice has been informed that a judge or court has delivered a judgment that has become final without coming under the scrutiny of the Court of Cassation, he may issue a formal order to the Chief Public Prosecutor requiring him to ask the Court of Cassation to set aside the judgment concerned ...” 29. The relevant provisions of the Associations Act (Law no. 2908), which was in force at the time provided as follows: Section 4 “Everyone over the age of eighteen and qualified to exercise civil rights has the right to establish an association without prior notice. However, the following persons, even if they have benefited from an amnesty, may not found an association: ... 2. a) Persons convicted of any of the following offences: shameful offences such as embezzlement, dishonesty, bribery, theft, fraud, forgery, abuse of religious belief, fraudulent bankruptcy, offences of smuggling other than for manufacturing, supply or consumption, [or] improper interference in official competitive tender procedures, procurements and sales. b) Any person convicted of those offences appearing in the first chapter of Book Two of the Turkish Penal Code, or of open incitement to commit such offences. c) Any person convicted of incitement to enmity and hatred on grounds of differences of class, race, language, religion or region under paragraph two of Article 312 of the Turkish Penal Code, or of counterfeiting under Articles 316, 317 or 318 of the same code. d) Any person convicted of committing, for political and ideological purposes, those actions mentioned in the first, second or third paragraphs of Article 536 of the Turkish Penal Code, or those in the first, second, third, fourth or fifth paragraphs of Article 537 of the same Code ...” Section 16 “Everyone over the age of eighteen and qualified to exercise civil rights has the right to become a member of an association. However, those indicated in the second paragraph of section 4 of this Law may not be members of associations.” Section 34 “Associations may not form organisations other than federations or confederations.”