PROCEDURE

The case originated in an application (no. 35392/04) 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 three Turkish nationals, Mr Yunis Bolukoç, Mr Ferhat Kıyak and Mr Ayhan Ateş (“the applicants”), on 9 July 2004.

The applicants were represented by Mr M. Filorinali and Ms Y. Başara, lawyers practising in İstanbul. The Turkish Government (“the Government”) were represented by their Agent.

On 16 September 2008 the Court declared the application partly inadmissible and decided to communicate to the Government the complaints concerning the lack of legal assistance during detention in police custody, the length of the criminal proceedings against the first applicant, and the lack of independence and impartiality of the State Security Court which tried the first applicant. It 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 applicants were born in 1962, 1978 and 1980 respectively and were in Kandıra prison at the time of the lodging of the application.

On 11 March 1998 the first applicant, Mr Bolukoç was arrested and taken into police custody on suspicion of membership of an illegal armed organisation, namely the DHKP-C (Revolutionary People's Liberation Party- Front).

According to a report drafted on 14 March 1998 by a police officer, the first applicant had stated that he was a member of DHKP-C and that, in line with that organisation's directives, he would not make statements to the police.

On 14 March 1998 the first applicant, Mr Bolukoç was brought before a judge at the Istanbul State Security Court (hereinafter “the ISCC”), who ordered his remand in custody.

On 30 March 1998 the prosecutor at the ISCC filed a bill of indictment accusing the applicant of membership of an illegal armed organisation. The charges were brought, inter alia, under Article 168 § 2 of the Criminal Code and Section 5 of Law no. 3713.

On 13 April 1998 criminal proceedings against the first applicant commenced before the 5th Chamber of the ISSC (no. 1998/128). At the next hearing, held on 28 July 1998, the court decided to join these proceedings to another case (no. 1997/543) pending before the 6th Chamber of the ISSC. In the course of these proceedings, the applicant was released pending trial.

On 11 July 2000 the first applicant was again arrested and taken into police custody on the same grounds as before, but in respect of acts which he had allegedly committed after he had been released pending trial.

On the same day, the second and the third applicants were arrested and taken into police custody on the same grounds as the first applicant.

On 14 July 2000 the third applicant was questioned by two police officers and made a number of statements incriminating both himself and others.

On 15 July 2000, following authorisation from the prosecutor, the second applicant met with his lawyer between 3 and 3.15 p.m. On the same day, the third applicant met with his lawyer between 3.30 and 3.45 p.m.

On the same day, the police showed photographs of suspected members of the organisation to the second applicant, who recognised one person who had procured for him guns and a photocopying machine. The second applicant was also questioned by two police officers and made a number of statements incriminating both himself and others.

On 16 July 2000 the second and the third applicant took part in a reconstruction of events where they admitted, inter alia, to throwing a Molotov cocktail at a building in Istiklal on 30 March 2000.

According to a verbatim record drafted by the police on 16 July 2000, the first applicant refused to make a statement to the police and stated that he was on hunger strike until his transfer to judicial authorities. According to another report drafted on 17 July 2000 by a police officer the first applicant had stated that he was a member of DHKP-C and that he would not make statements to the police or sign any documents.

On 17 July 2000 the applicants were bought before the prosecutor at the ISSC, where they denied the accusations against them. The second and the third applicants retracted their police statements. The first applicant stated that he had refused to make a statement to the police because he did not accept the accusations against him.

On the same day the applicants were brought before a judge at the ISSC where they reiterated the statements they had made to the prosecutor. The legal representative of the second and the third applicants was present at the hearing. The court ordered the applicants' continued detention.

On 24 July 2000 the prosecutor at the ISCC filed a bill of indictment accusing the applicants of membership of an illegal armed organisation. The second and the third applicants were also accused of throwing Molotov cocktails on various dates. The charges were brought, inter alia, under Articles 168 § 1 (for the first applicant), Article 168 § 2 and 264 (for the second and the third applicant) of the Criminal Code and section 5 of Law no. 3713.

On 1 August 2000 the criminal proceedings against the applicants commenced before the 2nd Chamber of the ISSC. The applicants were tried together with ten co-accused.

On 20 June 2001 the 6th Chamber of the ISSC heard the prosecutor's final observations on the merits. The accused, including the applicants, were given a time-limit to submit their final observations on the merits. On the same day, the court dismissed the 2nd Chamber of the ISSC's request for the proceedings to be joined before it, on the ground that the accusations were not related.

On 28 August 2001 the 2nd Chamber of the ISSC, after several requests by the first applicant, decided to join his case before the 6th Chamber (no. 1997/543) to the proceedings before it (no. 2000/207).

On 28 November 2002 the ISSC convicted the applicants as charged and sentenced them to twelve years and six months' imprisonment for membership of an illegal organisation. It further sentenced the second and the third applicants to five years, six months and twenty days' imprisonment and to a fine for throwing Molotov cocktails. In so doing, they took into account the evidence in the case file, including the verbatim records of the reconstruction of the events, the arrest and search protocols and the statements of the accused, particularly in police custody.

On 12 January 2004 the Court of Cassation held a hearing and upheld the judgment of the first-instance court in respect of the applicants.

Following the adoption of the new Criminal Code, the Istanbul Assize Court, by an additional judgment, reduced the applicants' original sentences to six years and three months' imprisonment on account of their membership of an illegal armed organisation and, for the second and the third applicants to two years and six months' imprisonment and a fine for throwing Molotov cocktails. According to the documents in the case file, the case was still pending before the Court of Cassation on 10 November 2008.