PROCEDURE

The case originated in an application (no. 3042/05) 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 Nihat Konak (“the applicant”), on 19 November 2004.

The applicant was represented by Mr M. A. Kırdök, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

On 20 January 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant, who was born in 1964, is currently serving his prison sentence in the Tekirdağ Prison.

On 26 March 1998, following a house search and the seizure of certain items, the applicant was taken into police custody on suspicion of being a member of the TKP/ML-TIKKO (Communist Party of Turkey//Marxist‑Leninist Turkish Workers and Peasants’ Liberation Army), an illegal organisation.

According to the applicant’s statements, he was questioned by police officers on an unspecified date but exercised his right to remain silent. During the questioning, he was not provided with a lawyer.

In the meantime, on 29 March 1998, a certain co-accused L.L. was confronted with the applicant, in the absence of a lawyer, and identified him as the secretary of the Marmara District and the person responsible for the Istanbul branch of the organisation.

On 1 April 1998, the applicant and twenty-two other accused persons were examined by a doctor who noted that none of them showed signs of physical violence apart from three of them, including L.L. According to the medical report, L.L. had a three-centimetre ecchymosis on her back and face.

On the same day, the applicant was brought before the public prosecutor and the investigating judge at the Istanbul State Security Court where he denied the allegations, in the absence of his lawyer. In his statements, the applicant also mentioned that he had not been provided with a lawyer during his police custody despite his request to that effect. He also denied the confrontation and identification records in his statements made to the public prosecutor. After the questioning was over, the investigating judge remanded the applicant in custody.

On 21 April 1998 the Istanbul Public Prosecutor issued an indictment, charging the applicant under section 168 of the former Turkish Criminal Code with being a leader of an armed organisation.

On 6 July 1998 the applicant was released pending trial.

On 26 October 2001 the first-instance court convicted the applicant as charged.

On 19 November 2001 the applicant was detained to serve his prison sentence.

On 14 February 2002 the Court of Cassation quashed the conviction for lack of reasoning.

On 26 December 2003 the Istanbul State Security Court once again convicted the applicant as charged and sentenced him to eighteen years and nine months’ imprisonment. It noted that, according to the confrontation and identification records, certain of his co-accused, namely M.Ş., L.L., T.Ö. and M.Ş., had identified the applicant as the district leader of the organisation. It further found it established that he had taken part in a number of the organisation’s activities such as hanging illegal banners, throwing Molotov cocktails and participating in illegal demonstrations. The court concluded that the applicant had acted as district leader of the organisation in Istanbul.

On 25 May 2004 the Court of Cassation upheld the conviction.