PROCEDURE

The case originated in an application (no. 22922/03) 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 Halil Kaya (“the applicant”), on 4 February 2003.

The applicant was represented by Mr K. Derin, a lawyer practising in Adana. The Turkish Government (“the Government”) were represented by their Agent.

On 28 September 2006 the Court declared the application partly inadmissible and decided to communicate to the Government the complaint concerning the lack of legal assistance to the applicant during his police custody. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

The applicant was born in 1983 and lives in Adana.

On 31 December 2000 at about 00.15 a.m. the applicant, who was seventeen years old at the time, was taken into police custody in Adana on suspicion of aiding and abetting an illegal organisation by way of chanting slogans in favour of that organisation and by burning tyres in the streets. The same day he was interrogated by the police and the public prosecutor respectively, in the absence of a lawyer. According to the information in the file, the applicant was released on the second day of custody.

On 10 January 2001 the Public Prosecutor at the Adana State Security Court filed an indictment accusing the applicant and three others of aiding and abetting an illegal organisation, an offence under Article 169 of the Criminal Code and Section 5 of the Prevention of Terrorism Act (Law no. 3713).

Between 10 January and 13 August 2001, the court held thirty-four hearings, during which the applicant was not represented by a lawyer. A lawyer was assigned to the applicant for the hearing of 3 September 2001.

On 3 December 2001 the State Security Court delivered its judgment. It convicted the applicant as charged and sentenced him to two years and six months’ imprisonment. In convicting the applicant, the court had regard to the applicant’s statements to the police and the public prosecutor, which were taken in the absence of a lawyer. On 8 July 2002 the Court of Cassation dismissed the applicant’s appeal, without holding a hearing on the merits. The decision dated 8 July 2002 was deposited with the registry of the Adana State Security Court on 21 August 2002. Subsequently, on 11 September 2002 the applicant was sent to prison to serve his sentence.

In the meantime, on 30 July 2003 Law no. 4963 entered into force, which amended Article 169 of the Criminal Code. Relying on the fact that the new law provided more favourable provisions for the applicant, on 29 August 2003 the applicant’s lawyer requested the re-opening of the proceedings. On 15 September 2003 the Adana Criminal Court decided to re-open the case and ordered the applicant’s release from prison. The matter was accordingly re-examined by the Adana Criminal Code and, in view of the new wording of Article 169 of the Criminal Code, on 7 October 2004 the court held that the applicant should not be convicted under Article 169 but under Article 312. As a result, he was sentenced to three months and ten days’ imprisonment and his sentence was converted to a fine. Furthermore, in accordance with Law no. 647, the execution of his sentence was postponed. On 7 October 2004 the applicant appealed.

On 19 December 2005 the Principal Public Prosecutor at the Court of Cassation decided that the case file should be remitted to the Adana Criminal Court for re-examination. In his decision, the prosecutor referred to new legislation which had entered into force on 12 October 2004, amending the Criminal Code once again. The Prosecutor drew further attention to another new amendment which had been made on 31 March 2005 to Law no. 5326 concerning misdemeanours.

The applicant’s case was once again examined by the Adana Criminal Court in view of the recent legislative amendments. Finally, on 8 May 2006 the court found the applicant guilty under Article 215 of Law no. 5326 and sentenced him to twenty five days’ imprisonment. The court further converted the sentence to a fine and, pursuant to Law no. 5395 on Juvenile Protection, it decided to defer adjudication of the sentence. This decision was upheld by the Adana Assize Court on 20 June 2007.