ELCI AND OTHERS v. TURKEY JUDGMENT
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Courts, before which the Special Procedure Law for the Prosecution of Civil
Servants did not apply so, a fortiori, neither did the Law on Advocates.
Again as a matter of interpretation, the offences for which the applicants
were being investigated were not deemed to be part of their professional
activities and, therefore, they were not protected by the Law on Advocates.
662. The serious allegations which had been made against the applicants
had to be seen in the context of intense PKK terrorist activities at the time.
The Government referred to the background state of emergency in southeast Turkey, the virulent terrorist campaign and the Turkish Government's
declaration under Article 15 of the Convention, derogating from Article 5
rights to meet this emergency. The applicants acknowledged that they had
defended PKK suspects and had had contacts with PKK prisoners, including
Abdülhakim Güven, who was one of the main prosecution witnesses against
them and whose evidence was confirmed by intelligence sources. Searches
of the applicants, their homes and their offices revealed incriminating
materials. The evidence showed that they had acted as couriers or contact
persons for the PKK, and that some of them had been involved in more
serious criminal activities. They thus drew upon themselves grave
suspicions which justified their arrest and detention.
663. Accordingly, the competent authorities had decided that the charges
against the applicants had nothing to do with the applicants' professional
activities, and that, therefore, as a matter of interpretation, Articles 58 and
59 of this Law were inapplicable. Furthermore, the applicants were able to
raise the alleged irregularity of their detention before the Diyarbakır State
Security Court.
664. Criminal proceedings were subsequently initiated against the
applicants, starting with the Prosecutor's indictment of 22 December 1993,
followed by the criminal prosecutions against them before the State Security
Court.
665. The Government rejected the suggestion that the applicants were
detained because of their involvement in criminal defence or human rights
work. They denied that Bekir Selçuk, the Chief State Prosecutor for the state
of emergency region, had informed a Norwegian Bar Association
representative whom he had met that certain applicants were also charged
with making false and unwarranted applications to the European
Commission of Human Rights (cf. paragraph 561 with paragraph 565
above). Making applications to the Convention organs is a constitutional
right, but these applicants had been disseminating pro-PKK propaganda
through various non-governmental human rights associations in Europe,
which obviously was not a reference to the European Commission of
Human Rights at the time. In any event, Mr Selçuk had not been the
Prosecutor in the applicants' case. It had been Mr Ünal Haney.
666. The applicants' detention was therefore wholly justified and any
claim to the contrary was without foundation.