PROCEDURE

The case originated in an application (no. 24820/05) 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 Fazlı Kaya (“the applicant”), on 13 June 2005.

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

On 18 January 2011 the application was declared partly inadmissible and the complaints concerning the lack of legal assistance during the applicant’s police custody and his inability to question some of the witnesses were 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 was born in 1960 and is currently serving a prison sentence in Edirne.

In June 1999, E.G. and A.S.S. were taken into custody on suspicion of membership of an illegal organisation, namely the TDP (Revolutionary Party of Turkey, Türkiye Devrim Partisi). In their respective police statements, both of them stated that the applicant had been providing logistical support to members in rural areas and E.G. further maintained that the applicant had been one of the leaders of the organisation. Again in 1999, İ.H., who had also been arrested for membership of the illegal organisation, identified the applicant from his photos and stated that the applicant had been providing cell phones for members of the organisation in rural areas.

On 26 March 2001 the applicant was taken into police custody in Istanbul, on suspicion of membership the TDP. He was subsequently transferred to Giresun for interrogation.

On 28 March 2001 the applicant participated in an identification parade and was identified by two persons, namely B.B. and İ.H., as one of the leaders of the said illegal organisation. On 1 April 2001 the applicant was questioned by the police in the absence of a lawyer and denied all the accusations against him.

On 2 April 2001 the applicant was questioned by the Giresun public prosecutor in the absence of a lawyer. Later on the same day, he was further questioned by the investigating judge, still in the absence of a lawyer. Both before the public prosecutor and the investigating judge, the applicant denied the charges against him. At the end of the questioning, the judge ordered his pre-trial detention.

On 27 April 2001 the public prosecutor at the Erzurum State Security Court filed an indictment with that court, accusing the applicant and nine others of membership of an illegal organisation.

During the proceedings the applicant was represented by a lawyer, and in his defence submissions he categorically denied all the accusations against him. Although two of the co-accused, namely B.B. and İ.H., identified him as one of the leaders of the TDP, the applicant denied the allegations and stated that he had never seen them before. The applicant maintained that B.B. and İ.H. had been giving false information about him, in order to be able to benefit from the Reintegration of Offenders into Society Act (Law no. 4959).

At the hearing of 5 June 2001, the police statements of A.S.S., E.G. and İ.H dated June 1999 were read out to the applicant. The applicant contested the allegations, and claimed that he was innocent.

On 14 November 2002 the Erzurum State Security Court found the applicant guilty as charged and sentenced him to twelve years and six months’ imprisonment under Article 168 of the former Criminal Code. In delivering its decision, amongst other items of evidence, the trial court relied on the statements of the co-accused, and also took into consideration the statements of İ.H., E.G. and A.S.S.

On 7 May 2003 the Court of Cassation quashed the judgment of the first-instance court.

The case resumed before the Erzurum State Security Court and on 6 April 2004 the court once again found the applicant guilty of membership of an illegal organisation and sentenced him to twelve years and six months’ imprisonment. In convicting the applicant, the court relied on the statements of E.G., A.S.S., İ.H. and B.B. and found it established that the applicant was a member of the illegal organisation.

On 1 December 2004 the Court of Cassation, after holding a hearing on the merits of the case, rejected the applicant’s appeal. This decision was deposited with the registry of the first instance court on 5 January 2005.