PROCEDURE

The case originated in an application (no. 16047/04) 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 Ali Ümit Alkes (“the applicant”), on 5 April 2004.

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

On 5 February 2009 the President of the Second Section decided to give notice of the application to the Government. It was 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, who was born in 1980, currently resides in Switzerland.

On 28 March 1998 the applicant was taken into police custody on suspicion of membership of an illegal organisation. On 2 April 1998 he was placed in detention on remand.

On 15 April 1998 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, charging him under Articles 168 (2), 497 (2), 522, 55 (3), 33 and 40 of the former Criminal Code with membership of an illegal organisation and armed robbery.

On 28 March 2001 the Istanbul State Security Court convicted the applicant under Articles 168 (2) and 497 (2) of the former Criminal Code, and sentenced him to eight years and four months' imprisonment for the former offence and to eleven years and eight months' imprisonment for the latter offence. The State Security Court further stated that the provisions of Law no. 4616, which governed conditional release, the suspension of proceedings and the execution of sentences in respect of certain offences committed before 23 April 1999, had to be taken into account in the execution of the sentence in relation to the offence under Article 497 (2).

On an unspecified date the applicant appealed against the judgment of the Istanbul State Security Court. The public prosecutor did not lodge an appeal.

On 29 April 2002 the Court of Cassation quashed the judgment of the Istanbul State Security Court, finding that the classification of the applicant's offence had been erroneous. The Court of Cassation further held that the applicant's acquired rights in his former conviction by the decision dated 28 March 2001 had to be safeguarded in the new judgment which would be rendered by the Istanbul State Security Court.

The applicant was consequently tried afresh before the Istanbul State Security Court. On 24 January 2003 the Istanbul State Security Court convicted the applicant under Article 146 (1) of the former Criminal Code for attempting to undermine the constitutional order and sentenced him to sixteen years and eight months' imprisonment. The State Security Court stated in its judgment that the applicant's acquired rights had been observed because in the first judgment the applicant had been sentenced to a total of twenty years' imprisonment, whereas in the new judgment the sentence was reduced.

On 22 October 2003 the applicant appealed against this judgment arguing, inter alia, that his acquired rights had not been protected. He maintained that, although the sentence imposed by the Istanbul State Security Court in its second judgment had been lower than that originally imposed, under the latter he would have been conditionally released pursuant to Law no. 4616 after ten years, thus actually serving a shorter sentence.

On 2 December 2003 the Court of Cassation upheld the reasoning in the judgment of the Istanbul State Security Court, and dismissed the appeal.

Following the entry into force of the new Criminal Code on 1 June 2005, the Istanbul Assize Court reopened the proceedings against the applicant in order to review his sentence, pursuant to the provisions of the new Criminal Code. As an interim measure, on 11 October 2005 the applicant was conditionally released pending the outcome of the proceedings. On 22 December 2006 the Istanbul Assize Court found that the provisions of the former criminal code were more favourable to the applicant and therefore decided not to apply the provisions of the new Criminal Code. On 13 November 2007 the Court of Cassation rejected the applicant's appeal. In the meantime, following his release, the applicant fled to Switzerland, where he currently resides.