CASE OF MÜDÜR DUMAN v. TURKEY
Remainder inadmissible;Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano;Ksenija Turković
5. The applicant was born in 1956 and lives in Istanbul. 6. The applicant was the director of the Eminönü district branch of HADEP (Halkın Demokrasi Partisi – the People’s Democracy Party) in Istanbul at the time of the events giving rise to the application. 7. On 24 June 2000 a number of trade unions organised a demonstration in Istanbul. During the demonstration, some participants carried signs and chanted slogans in support of Abdullah Öcalan, the leader of the PKK (Kurdistan Workers’ Party), an illegal armed organisation. These demonstrators were identified by the police as members of HADEP. 8. On 26 June 2000 the public prosecutor at Istanbul State Security Court applied for a warrant to search the offices of four branches of HADEP to obtain incriminating evidence concerning the PKK. 9. On the same date the Istanbul State Security Court issued a search warrant. 10. That same evening police officers from the Istanbul police headquarters conducted a search of the Eminönü branch office of HADEP. The search protocol, which was signed by the applicant, indicated that illegal publications and flags and symbols of the PKK had been found there, together with pictures, articles and books pertaining to Mr Öcalan. 11. On the same date the applicant was taken to the Istanbul police headquarters for questioning. The police officers informed the applicant of his right under Article 135 (3) of the former Code of Criminal Procedure to request a lawyer. However, the applicant did not ask for a lawyer. In his statement, the applicant contended that, although he was the director of the Eminönü district office of HADEP, he was not always present at the office and that he had not been aware of the existence of the pictures and symbols regarding Mr Öcalan and the PKK found in the office. He similarly denied responsibility for the illegal publications and books which had been found on the premises, which he claimed had been brought in by publishers or other persons visiting the office without his knowledge. He claimed that whenever he came across similar pictures and symbols, he requested their removal. This statement was signed by the applicant. 12. On 27 June 2000 the applicant was questioned by the Istanbul public prosecutor, to whom he repeated the statement he had previously made to the police. The applicant also waived his right to request a lawyer before the public prosecutor. 13. On 30 June 2000 the Istanbul public prosecutor filed a bill of indictment against the applicant, charging him with praising and condoning acts punishable by law under Article 312 § 1 of the former Criminal Code. 14. On 19 January 2001 the Istanbul Criminal Court held the first hearing. At the end of the hearing, to which the applicant attended, the court decided to hold the next hearing on 15 June 2001. 15. On 15 June 2001, at the second hearing, the Istanbul public prosecutor presented his opinion (esas hakkında mütalaa) to the firstinstance court in the absence of the applicant. In his opinion, the public prosecutor advised that the court should find the applicant guilty as charged. The Istanbul Criminal Court accordingly convicted the applicant at the end of the hearing, and sentenced him to six months’ imprisonment and a fine of 91,260,000 old Turkish liras (TRL). In its judgment the domestic court held that the applicant’s defence lacked credibility and that the display of symbols and pictures pertaining to the PKK and Mr Öcalan in the party building amounted to the offence of praising and condoning acts punishable by law. 16. Through his lawyer the applicant appealed against this judgment. He claimed that he had not been duly reminded of his right to request a lawyer under Article 135 of the Code of Criminal Procedure during his questioning. He further argued that he had missed the hearing as he was delayed in traffic and the firstinstance court had taken its decision in his absence without giving him the opportunity to defend himself against the allegations of the public prosecutor. 17. On 5 June 2002 the Court of Cassation quashed the fine imposed, but upheld the remainder of the judgment. On 11 July 2002 this decision was deposited with the registry of the first-instance court. 18. On 31 January 2003 the applicant started serving his sentence. On 13 April 2003 he was released on parole.