CASE OF KABASAKAL AND ATAR v. TURKEY
No violation of Art. 6-1 (composition of state security court);Violation of Art. 6-1 (non-communication of prosecutor's observations);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
8. The applicants were born in 1979 and 1977 respectively and were serving their prison sentences in Ordu prison at the time of their applications to the Court. 9. On 11 November 1998 the applicants were arrested and taken into custody by police officers at the Anti-terror branch of the Sivas Security Directorate on suspicion of membership of an illegal organisation, namely the TDP. 10. On 18 November 1998 they were brought before a judge who ordered their remand in custody. 11. On 31 December 1998 the public prosecutor at the Erzurum State Security Court filed a bill of indictment with the latter charging the applicants under Article 168 § 2 of the Criminal Code with membership of an illegal organisation. 12. The first hearing, held before the Erzurum State Security Court on 12 January 1999, in the applicants’ absence, was taken up with procedural matters, such as the measures to be taken for securing the presence of the accused. 13. On 5 February 1999 the court heard the applicants. The first applicant stated that he accepted in part the accusations against him. In this respect he maintained, inter alia, that he had wanted to join the armed forces of the TDP and that he was apprehended, together with the coaccused, on his way to the rural area. The second applicant also stated, inter alia, that he was apprehended, together with the coaccused, before he had joined the rural cadre of the organisation. He maintained that he was a sympathiser of the organisation and not a member. Both applicants also repudiated the statements they had given to the police, claiming that they had been made under duress. 14. In the next hearing held on 2 March 1999 the applicants stated that they had nothing to say. On 23 March 1999 the court heard a witness and one of the coaccused. The witness stated that he knew only one of the accused and that he had loaned his car to him. The applicants maintained that, in view of the judgment of the European Court on Human Rights concerning State Security Courts, they were boycotting the court and were not going to give any statements. 15. In the next hearing held on 20 April 1999, the first applicant submitted that he was neither a member nor a participant in any activity of the organisation in question and that he had been apprehended prior to attending a meeting with members of the organisation. 16. In the hearings held on 18 May 1999 and 15 June 1999 the second applicant stated that he had nothing to say. The first applicant requested the rectification of some of his words contained in the previous minutes of the hearings. 17. In a hearing held on 13 July 1999 the civilian judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. At this hearing and the next one held on 10 August 1999, the court took some procedural decisions and heard several of the co-accused, including the second applicant who maintained that he had nothing to say. 18. In a hearing held on 8 September 1999 the applicants submitted their written submissions in which they challenged, in particular, the veracity of their statements given in police custody. 19. On 5 October 1999 before the court two persons filed petitions to intervene as third-parties in the proceedings. The applicants reiterated their previous submissions. 20. At a hearing held on 12 October 1999 the court accepted the request for the third-party intervention of two persons. On the same day, the public prosecutor read out his observations on the merits. The public prosecutor, relying on the submissions of the applicants, the co-accused and the materials found during the applicants’ arrest, requested that the applicants be convicted and sentenced under Article 168 § 2 of the Criminal Code and Article 5 of Law no. 3713. The applicants’ request for an extension of time to submit their observations on the merits was granted by the court. 21. At each hearing, the court examined and dismissed the requests of the applicants to be released. 22. On 26 October 1999 the court heard the submissions of the applicants on the merits. The applicants also submitted four pages of written submissions. On the same day the Erzurum State Security Court convicted the applicants as charged and sentenced them to twelve years and six months’ imprisonment. 23. On 6 December 1999 the applicants appealed to the Court of Cassation against the judgment of the State Security Court. In their petition the applicants submitted arguments based on domestic law and, in particular, challenged the veracity of their statements to the police. 24. Following a hearing held on 5 June 2000, the Court of Cassation dismissed the applicants’ appeal and upheld the judgment of the firstinstance court. This decision was pronounced, in the absence of the applicants’ representative, on 14 June 2000. 25. On an unspecified date, the applicants were released from prison. 26. The relevant domestic law and practice in force at the material time are outlined in the following judgments: Özel v. Turkey, no. 42739/98, §§ 20-21, 7 November 2002; Öcalan v. Turkey [GC], no. 46221/99, §§ 54, ECHR 2005-...; and Göç v. Turkey [GC], no. 36590/97, § 34, ECHR 2002V. 27. On 2 January 2003 Article 316 of the Code of Criminal Procedure Law was amended to provide that the written opinion of the principal public prosecutor at the Court of Cassation be notified to the parties. 28. By Law no. 5190 of 16 June 2004, published in the Official journal on 30 June 2004, State Security Courts were abolished.