PROCEDURE

The case originated in an application (no. 15737/02) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ahmet Öngün (“the applicant”), on 3 December 2001.

The applicant was represented by Mr S. Çetinkaya, a lawyer practising in Izmir. The Turkish Government (“the Government”) were represented by their Agent.

On 10 October 2006 the Court declared the application partly inadmissible and decided to communicate the complaint concerning the applicant’s right to a fair hearing by an independent and impartial tribunal to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1976 and lives in Izmir.

On 18 March 1999 the applicant was arrested and taken into police custody on suspicion of involvement in various acts of arson with a view to protesting against the arrest of Abdullah Öcalan, the former leader of the PKK (Workers’ Party of Kurdistan), an illegal armed organisation.

On 21 March 1999 the applicant was questioned by two police officers in the absence of a lawyer. In the verbatim records, signed by the applicant, the latter admitted, inter alia, to taking part in three separate acts of arson together with Mr M.K. and Mr F.D. in order to protest against the arrest of Abdullah Öcalan.

On 22 March 1999 the applicant, Mr M.K. and Mr F.D. were first brought before the prosecutor and later before a judge at the Izmir State Security Court. On both occasions the applicant, who was not represented by a lawyer, repeated his earlier statements and gave details about each set of events. He also accepted the contents of his police statement and verbatim records of a reconstruction of events that had been carried out, and admitted that after each act they had called the television station MED TV to claim responsibility under the name of “Apo’s tigers of revenge”.

On 5 April 1999 the public prosecutor at the Izmir State Security Court filed a bill of indictment with the latter, charging the applicant, Mr M.K. and Mr F.D. under Article 168 § 2 of the Criminal Code with membership of an illegal organisation and under Articles 516 § 7, 517, 522 of the Criminal Code with, inter alia, damaging other persons’ property. They were accused of setting fire to a car on 19 February 1999 and setting fire to two buildings on 13 and 14 March 1999.

On 7 April 1999 the Izmir State Security Court held a preparatory hearing where it decided on procedural matters, such as the measures to be taken for securing the presence of the accused.

On 11 May 1999 the first-instance court held its first hearing, in the presence of the applicant and his lawyer. It heard evidence from the accused and three complainants, Mr A.Ş., Mr I.Ö. and Mr H.K, who had not witnessed the incidents. It also read out the evidence compiled at the pre‑trial investigation stage, including witness statements and the verbatim records of the reconstruction of events. Before the court the applicant retracted his earlier submissions, claiming that he had made them under duress. The co-accused also retracted their earlier statements on the same grounds. He further contested the veracity of the verbatim records of the reconstruction of events and other evidence which incriminated him. The court did not respond to the applicant’s lawyer’s request to make additional defence submissions under Article 169 of the Criminal Code.

On 18 June 1999 the Constitution was amended and the military judges sitting on the bench of the State Security Courts were replaced by civilian judges.

At the second hearing held on 19 August 1999 the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. The court heard another complainant, Mr A.A., and gave a number of procedural decisions. The next hearing was held on 7 October 1999 where the court heard evidence from one complainant, Mr R.G., who had not witnessed the incidents, Ms F.K., the sister of one of the accused who maintained that she and her brother had been subjected to torture in custody, and Ms S.G., an eye-witness to one act of arson who testified that the man she had seen that night might have been one of the accused, namely, Mr M.K. The court further asked the accused whether they had any additional submissions to make under Article 169 of the Criminal Code. The applicant and his lawyer submitted that they repeated their earlier submissions. On the same day, following the parties’ statement that they did not wish any additional investigation (soruşturmanın genişletilmesi) to be carried out, the prosecutor submitted his observations on the merits and the accused were given time to prepare their defence submissions.

At the hearing held on 11 November 1999 the court read out the defence submissions of the accused and heard evidence from them. On the same day, the court, referring particularly to the admissions the applicant made at the pre‑trial stage, convicted the applicant under Articles 169, 516 § 7, 517 and 522 of the Criminal Code.

On 17 August 2000 the Court of Cassation upheld the judgment as regards the applicant’s conviction for arson. It, however, quashed the judgment as regards his conviction under Article 169 of the Criminal Code on the ground that, in view of the statements of the accused, partially accepted before a judge, obtained at the preliminary investigation stage, he should have been tried under Article 168 of the Criminal Code.

On 9 November 2000 the Izmir State Security Court, taking into account the evidence in the case file, in particular, the statements made by the accused, including the applicant, at the pre-trial stage, held that the applicant had acted in the name of an organisation when he took part in arson, convicted him under Article 168 of the Criminal Code and sentenced him to 12 years and six months’ imprisonment.

On 13 June 2001 the applicant appealed. In his petition, he submitted that, apart from evidence obtained under duress at the pre-trial stage, there was no evidence to demonstrate that he had taken part in these acts. He further complained that there was nothing to indicate that he was part of an illegal organisation and that therefore Article 168 should not have been applied to him.

On 29 June 2001 the Court of Cassation upheld the judgment of the first-instance court.

By letter dated 16 June 2008 the applicant’s representative informed the Court that the applicant was no longer in prison.