KARAKAYA proti Turecku

SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37581/02 Application no. 36370/02
by Mihriban KARAKAYA by Ecevit PİROĞLU
against Turkey

The European Court of Human Rights (Second Section), sitting on 2 May 2006 as a Chamber composed of:

Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs E. Fura-Sandström,
Ms D. Jočienė,
Mr D. Popović, judges,
and Mr S. Naismith, Deputy Section Registrar,

Having regard to the above applications lodged on 18 and 17 August 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Mihriban Karakaya and Mr Ecevit Piroğlu are Turkish nationals who were born in 1962 and 1974 respectively and they live in İzmir. They are represented before the Court by Mr Z. Kaya and Ms E. Yıldız, lawyers practising in İzmir.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants are the regional administrators of the Human Rights Association in İzmir. Two different sets of criminal proceedings have been initiated against the applicants and they have been convicted under two different sections of the Associations Act.

The contravention for contributing to the establishment of the Platform of Conscientious Objectors to War, which is an organisation that lacks legal foundation

On 9 October 2001 the applicants participated in a collective press statement in protest against the military operations of the United States in Afghanistan.

By an indictment filed on 3 December 2001, the İzmir Chief Public Prosecutor instituted criminal proceedings against the applicants and five other leaders and members of the İzmir Human Rights Association for contributing to the establishment of the Platform of Conscientious Objectors to War on 9 October 2001, which is an organisation that lacks legal foundation. The public prosecutor relied in particular on section 34 of the Associations Act. Subsequently, the İzmir Public Prosecutor imposed a fine of 142,365,600[1] Turkish Liras (TRL) on the applicants for the contravention.

On 31 December 2001 the İzmir Criminal Court found the applicants and five other co-defendants guilty as charged and, by issuing an order (ceza kararnamesi), sentenced them to an increased fine of TRL 213,548,400[2] per person. As the applicants did not have previous criminal records, the court suspended the execution of this fine pursuant to Article 6 of Law No. 647.

On 18 February 2002 the applicants filed an objection with the İzmir Assize Court, against this order. In their written submissions, they alleged that their convictions violated their right to freedom of expression and, in particular, that “a collective statement to the press” could not be classified as a contribution to the establishment of an illegal organisation, within the meaning of section 34 of the Associations Act. They further alleged that the indictment was not communicated to them, the court did not obtain their statements and they were not able to submit counter evidence to defend themselves. They maintained that this constituted a breach of the fair trial guarantees of Article 6 of the Convention. Finally, the applicants requested a hearing of the matter.

On 20 February 2002 the Assize Court dismissed the applicants’ objection against the order issued by the criminal court, holding that it complied with the law and rules of procedure.

The contravention for not dismissing members who were either previously convicted or taken into custody

On 10 July 2001 the Governorship of İzmir notified the applicants and five other leaders and members of the İzmir Human Rights Association that the membership of thirteen people, including the applicants’, must be annulled as they had previously been convicted or sentenced to imprisonment. For this reason, their membership of the association was contrary to Sections 4 and 75 of the Associations Act.

On 6 August 2001 the applicants responded to this notification, stating that they were only aware of prison sentences being imposed on two members who were subsequently acquitted. Two official documents stating that another two members had no previous criminal records were attached to this response.

By an indictment filed on 3 December 2001, the İzmir Public Prosecutor instituted criminal proceedings against the applicants and five other leaders and members of the İzmir Human Rights Association for not dismissing certain members. The public prosecutor relied in particular on section 4 of Law No. 2908. Subsequently, the public prosecutor imposed a fine of TRL 142,365,600[3] on the accused.

On 26 December 2001 the İzmir Criminal Court found the applicants and five other co-defendants guilty as charged and, by issuing an order (ceza kararnamesi), sentenced them to an increased fine of TRL 213,548,400[4] per person.

On 29 January 2002 the applicants filed an objection with the İzmir Assize Court against this order. In their written submissions, they alleged that section 4 of the Associations Act requires the dismissal of a member pursuant to a conviction endorsed by an appeal court, which was not their case. The first applicant alleged in particular that she had only ever been taken into custody and then released. She had never been convicted. The applicants further alleged breaches of Article 6 § 3 (a), (b), (c) and (d) of the Convention and requested a hearing.

On 6 February 2002 the Assize Court dismissed the applicants’ objection to the order issued by the criminal court, holding that it complied with the law and rules of procedure.

On 13 February 2002 the İzmir Public Prosecutor issued a final payment order against the applicants for the relevant amounts. The applicants were warned therein that, should they failed to pay, the fine would be converted into a prison sentence.

The fine has been paid by the applicants.

B. Relevant domestic law

The Associations Act

Section 4 (2) and (3)
(at the material time)

“...Even if they were pardoned by amnesty laws, people who were convicted for embezzlement, bribery, corruption, fraud, theft, burglary, fraudulent bankruptcy, having incited the committal of one of the crimes laid down in the second chapter of the Criminal Code, incited hatred by augmenting religious, racial, linguistic, regional and class differences in public, pursuant to Article 312 of the Criminal Code, counterfeiting pursuant to Articles 316, 317 and 318 of the Criminal Code, or having committed the crimes laid down by Articles 536 and 537 for political and ideological aims, cannot become founder members of any association.

The same applies for anyone who was sentenced to imprisonment for more than five years, except for crimes of negligence.”

Section 75
(at the material time)

“...the administrators of an association will be sentenced to a certain monetary penalty if they do not annul the membership of people who have committed the acts laid down in Section 4 (2) and (3) of this Law.”

Section 34 (3) and (4)
(at the material time)

“...Associations can only be structured as a federation and federations can only be structured as a confederation. Any other structure of organisation is prohibited.

The federations and confederations cannot establish an organisation or open a representational office to function outside their headquarters.”

COMPLAINTS

1. The applicants both complained under Article 6 § 1 of the Convention that they did not receive a fair and public hearing in the determination of the criminal charges against them, namely for contributing to the establishment of an illegal organisation and for not annulling the membership of certain members of their association. They further complained under Article 6 § 3 (a), (b) (c) and (d) of the Convention that they were not informed promptly of the accusations against them as the indictments filed by the public prosecutor were not communicated to them. They submitted that this deprived them of the possibility to submit counter arguments and evidence, and that they did not have adequate time and facilities for the preparation of their defence. They further submitted that it also deprived them of the possibility to defend themselves in person or through a lawyer. Finally in this connection, they claimed that the courts had determined their case without holding any hearing, although it was requested by them.

2. The first applicant, Mihriban Karakaya, invoked Article 10 stating that she had been convicted because of a press statement condemning the military actions of the United States in Afghanistan. This conviction allegedly breached her right to freedom of expression.

3. She further complained that her conviction breached her right to freedom of association, protected by Article 11 of the Convention. Under the same head, she submitted that she had been convicted for not dismissing certain members of the Human Rights Association who, according to the authorities, had previous convictions. As these members were later acquitted, or were only taken into custody and then released, she had not followed the authorities’ instruction.

4. She complained under Article 7 of the Convention that she was convicted under two different sections of the Associations Act which were not drafted with sufficient clarity to enable her to envisage the sanctions that could be imposed on her as a result of her actions.

5. Finally, she complained under Article 14, in conjunction with Articles 6 and 11 of the Convention, that she did not receive a fair trial in the proceedings relating to the membership annulments. She further submitted that in judgments rendered by the same first-instance court, where the facts were almost identical and the accused were being tried for the same crimes, the court handed down acquittals. She maintained that this constituted discrimination against her.

THE LAW

1. The applicants both complained under Article 6 § 1 of the Convention that they did not receive a fair and public hearing in the determination of the criminal charges against them, namely for contributing to the establishment of an illegal organisation and for not annulling the membership of certain members of their association. They further complained under Article 6 § 3 (a), (b) (c) and (d) of the Convention that they were not informed promptly of the accusations against them as the indictments filed by the public prosecutor were not communicated to them. They submitted that this deprived them of the possibility to produce counter arguments and evidence, and that they did not have adequate time and facilities for the preparation of their defence. They further submitted it also deprived them of the possibility to defend themselves in person or through a lawyer. Finally, in this connection, they claimed that the courts had determined their case without holding any hearing, although it was requested by them.

The Court considers that, as the case arises out of the same circumstances, it is appropriate to join the two applications.

However, it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. Relying on Articles 10 and 11 of the Convention, the first applicant, Mihriban Karakaya, complained of a violation of her rights to freedom of expression and peaceful association. She submitted that she was convicted because of a press statement condemning the military actions of the United States in Afghanistan.

However, the Court finds that this complaint is to be examined exclusively under the first of these Convention provisions – Article 10. Moreover, it considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. The first applicant next complained under Article 7 of the Convention that she had been convicted under two different sections of the Associations Act which were not drafted with sufficient clarity to enable her to envisage the sanctions that could be imposed on her as a result of her actions. However, the Court considers it appropriate to examine this complaint under the lawfulness requirement of Article 10 of the Convention, to be communicated to the respondent Government.

4. Invoking Article 11 of the Convention, the first applicant also complains that seven leaders and members from her association, including herself, were convicted, pursuant to sections 4 and 50 of the Associations Act, for not annulling their membership because, according to the authorities, they had previous convictions. The association had not followed the authorities’ instruction as these members were later acquitted or were only taken into custody and then released.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

5. Finally, the first applicant complained under Article 14, in conjunction with Articles 6 and 11 of the Convention, that she did not receive a fair trial on the annulment of membership charge. She further submits that, in similar cases, the same first-instance court had acquitted the accused. She maintains that this constitutes discrimination against her.

However, the Court finds that, as a general rule, different verdicts applied to different accused are insufficient in themselves to disclose unlawful discrimination. Without more, the Court finds the applicant’s complaint unsubstantiated. It follows that this complaint is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Decides to adjourn the examination of the applicants’ complaints of unfair proceedings concerning the charges for contributing to the establishment of an illegal organisation and for not annulling the membership of certain members of their association, and the first applicant’s complaints concerning freedom of expression and freedom of association;

Declares the remainder of the application inadmissible.

S. Naismith J.-P. Costa
Deputy Registrar President

[1]. It is approximately equivalent to 107 euros (EUR), on 3 December 2001.

[2]. It is approximately equivalent to EUR 167, on 31December 2001.

[3]. It is approximately equivalent to EUR 107, on 3 December 2001.

[4]. It is approximately equivalent to EUR 168, on 26 December 2001.