ELCI AND OTHERS v. TURKEY JUDGMENT
51
with the stamp “ERNK” was found on Mehmet Selim Kurbanoğlu. A note
addressed to “Comrade Fuat Demir” with an “ERNK” stamp on it was
found in Fuat Hayri Demir's office. A note addressed to “Comrades Mesut
and Meral” were found in the possession of Mesut and Meral Beştaş. These
notes were written by PKK members.
360. A report in Hüsniye Ölmez' possession was addressed to
“Mr President”. A document was found in Sabahattin Acar's possession
signed by the “Union of Patriotic Intellectuals of Kurdistan”, regarding the
work and activities of the PKK's congress. Four receipts from the “ERNK”
to be passed on to lawyers handling PKK cases were found in the
possession of Arif Altinkalem. Mr Haney considered that the applicants'
denial of the authenticity of these documents was another mere defence
tactic.
361. The reference to European institutions in the indictment concerning
Mr Elçi, Mr Demırhan and Mr and Mrs Şahin, related to the PKK campaign
to discredit Turkey in the eyes of foreign Governments and to weaken it, in
order to further their separatist objectives. In no way were these references
to the European Commission of Human Rights, to whom individuals were
entitled to complain, and the State had not put any obstacles in the
applicants' way.
362. Mr Haney was involved in the initial court proceedings, during
which the applicants denied the charges against them and were released.
Perhaps the fact that the cases were still pending [in December 1998] was
caused by the complexity of the case, involving a large number of suspects
and numerous prison establishments.
363. Article 10 of Law No. 2845 on the establishment and judicial
practice of the State Security Courts gave State Security Court Prosecutors
powers to investigate the offences within that court's jurisdiction under
Articles 154 and 156 of the Code of Criminal Procedure. This overrode the
special jurisdictional protection given to the prosecution of lawyers for
ordinary criminal offences under Articles 58 and 59 of Law No. 1136 on
Advocates. This was also made explicit in Article 9 (a), (b) and (c) of Law
No. 2845:
“Those who commit and who are accessories to the above mentioned crimes,
regardless of their title and the nature of their official duty, must be prosecuted by the
State Security Court”.
364. In other words the procedures in the present case were carried out
in accordance with Articles 9 and 10 of Law No. 2845 and Articles 154 and
156 of the Code of Criminal Procedure.