PROCEDURE

The case originated in an application (no. 42104/02) 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 Turkish nationals, Mr Kemal Kahraman and Mr Ali Kahraman, on 21 October 2002.

The applicants were represented by Mr H. Tuna, Mr S. Kar, and Mr M.E. Kaya, lawyers practising in Istanbul. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

On 8 April 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1967 and 1972 respectively. They are serving sentences in Eskişehir Prison, Turkey.

On 17 November 1999 the applicants, who were detained in Niğde Prison for being members of the IBDA-C (Great East Islamic Raiders-Front), allegedly incited an insurrection against the prison administration. The prison officers together with soldiers intervened in the uprising in order to bring it to an end. During the incident the applicants and the security forces both sustained injuries which were recorded in medical reports. The security forces drew up an incident report after the operation.

On 18 November 1999 the public prosecutor, prison director and prison officers drew up a damage-assessment report concerning the incident.

On 22 November 1999 the public prosecutor asked the applicants for their statements. The applicants declared that they wished to make their statements in the presence of their lawyers.

On 18 and 23 November 1999, the public prosecutor took statements from ten complainants who were prison officers and one complainant who was a soldier.

On 7 December 1999 the applicants gave their statements to the public prosecutor with their lawyer present. The prosecutor asked the applicants whether they had any arguments against the damage-assessment report. The same day, an on-site investigation was conducted inside the prison.

On 28 December 1999 the public prosecutor filed an indictment with the Niğde Criminal Court, accusing the applicants of insulting an officer and of insurrection against the prison administration.

On 3 January 2000 the Niğde Criminal Court held the first hearing and demanded the presence of the complainants and the four accused, including the applicants, at the following hearing.

At the second hearing on 21 March 2000, the Niğde Criminal Court ascertained the applicants' identities and asked them to submit their defence. The applicants maintained that they wished to make their statements in the presence of their lawyers. Accordingly, the court sent a letter to the public prosecutor's office requesting that lawyers from the Niğde Bar Association be assigned to the applicants. At the same hearing, the court took statements from the prison officers who were involved in the incident.

On 29 May 2000, two lawyers who were members of the Niğde Bar were assigned to represent the applicants. However, they did not attend any of the ensuing hearings.

On 30 May 2000 the court noted that the applicants had been sent to Bandırma Prison for administrative reasons. The court issued a rogatory letter to the Bandırma Criminal Court, requesting that the latter obtain the applicants' statements.

On 2 November 2000 the Bandırma Criminal Court, acting under powers delegated to it by the Niğde Criminal Court, pursuant to Article 226 § 4 of the Code of Criminal Procedure, took statements from the applicants. According to the minutes of the Bandırma Criminal Court, the applicants were reminded of their rights in accordance with Article 135 of the Code of Criminal Procedure, which also included the right to a lawyer. The applicants stated that they were aware of their rights and would defend themselves.

The Niğde Criminal Court held six further hearings in the absence of the applicants.

On 24 October 2000 the Niğde Criminal Court noted that the applicants' statements had been sent to it by the Bandırma Criminal Court.

On 22 November 2001 the Niğde Criminal Court, in absentia, acquitted the applicants of insulting the prison officer, but convicted them of insurrection against the prison administration. The court relied on the applicants' statements, the statements of the complainants, the on-site investigation report, the witness statements and the experts' opinions. The applicants were each sentenced to four years' imprisonment.

On 14 March 2002 the applicants appealed against the judgment to the Court of Cassation. In their appeal petitions, they stated that they were only brought before the Niğde Criminal Court once, at the beginning of the proceedings, when the court had only ascertained their identities. They further maintained that the public prosecutor's indictment had not been previously served on them, thus preventing them from submitting their defence, and that they had requested legal representation, which had not been forthcoming. They finally submitted that they were not asked to submit their final statements and the judgment was pronounced in their absence.

On 25 June 2002 the Court of Cassation upheld the judgment of the Niğde Criminal Court.

On 1 June 2005 the new Criminal Code came into force. Consequently, the Nigde Assize Court has scheduled a hearing for 20 March 2007 with a view to adjusting the applicants' sentences, pursuant to the provisions of the new Criminal Code.