PROCEDURE

The case originated in an application (no. 1636/02) 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 two Turkish nationals, Mr Mustafa Tamamboğa and Mr Eyüp Gül (“the applicants”), on 10 October 2001.

The applicants, who had been granted legal aid, were represented by Mr M.A. Altunkalem, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

On 6 June 2006 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

I. THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1973 and 1974 respectively. The first applicant lives in İzmir. By a letter dated 28 August 2006 the Court was informed that the second applicant was purging his sentence in Bolu prison.

The applicants were arrested and taken into police custody on suspicion of membership of an illegal armed organisation, namely the PKK, on 25 and 26 July 1993 respectively. They were remanded in custody on 5 August 1993.

On 31 August 1993 the public prosecutor at the Diyarbakır State Security Court filed an indictment against twenty-one persons, including the applicant. He accused the applicants of membership of an illegal armed organisation and of aiding and abetting that organisation. The charges included, in particular, bombings of various public and private establishments between July 1992 and June 1993.

The first hearing, held before the Diyarbakır State Security Court on 3 September 1993, in the applicants' absence, was taken up with procedural matters such as the measures to be taken for securing the presence of the accused.

Between 3 September 1993 and 23 January 1996, the first-instance court held hearings on a regular basis during which the judges dealt mostly with procedural matters. It also heard the accused and their representatives who were present on the date of the hearings. At the end of each hearing, the court considered releasing the applicants pending trial both ex officio as well as upon their requests. At each hearing, the court, relying on the nature of the offence, the state of the evidence and the content of the case-file, decided to prolong their remand in custody.

During this time the court also heard two witnesses, on 25 November 1993 and 13 January 1994, who stated that they did not know any of the accused or whether they had any organisational link with the armed organisation. On 28 March 1995 the public prosecutor submitted his observations on the merits. On 7 November 1995 the court decided, upon the request of the accused, to hear a witness, Mr O.B. who was being tried before another court. In the hearing held on 19 December 1995, the court heard Mr O.B. who stated, inter alia, that he knew the second applicant from school. He claimed that the applicant used to talk about the PKK but that he did not know anything about him being a member of or participating in the activities of that organisation. Upon this statement the second applicant maintained that he was not a member of the organisation as was confirmed by the witness and that it was normal to talk like that at school. At this hearing the prosecutor reiterated his observations of 28 March 1995.

In a hearing held on 23 January 1996 the first applicant's representative submitted his observations on the merits. The court also heard the accused. On the same day, the Diyarbakır State Security Court convicted the applicants as charged and sentenced them to life imprisonment.

On 14 July 1997 the Court of Cassation quashed the judgment in respect of fourteen of the accused, including the applicants.

The case was sent back to the Diyarbakır State Security Court where the proceedings against the applicants commenced on 29 July 1997.

Between 29 July 1997 and 15 May 2001, the first-instance court held hearings on a regular basis during which the judges dealt with procedural matters and adjourned many hearings, since one of the co-accused could not be found and the statements of another one residing in Germany could not be taken. It also heard the accused and their representatives who were present on the date of the hearings and the public prosecutor, both parties relying on previous submissions. The applicants failed to attend some of the hearings. At the end of each hearing, the court also considered releasing the applicants pending trial both ex officio as well as upon their own requests. At each hearing the court, relying on the nature of the offence, the state of the evidence and the content of the case-file, decided to prolong their remand in custody.

During this time in a hearing held on 7 July 1999 the judge who had been appointed to replace the military judge, sat as a member of the trial court for the first time. On 16 November 1999 the public prosecutor read out his observations on the merits.

On 15 May 2001 the Diyarbakır State Security Court decided to disjoin the case of the two co‑accused who could not be found. On the same day the court convicted the applicants as charged and sentenced them to life imprisonment.

On 7 November 2001 the Court of Cassation quashed the judgment in respect of the first applicant and upheld it in respect of the second applicant.

On 24 January 2002 the principal public prosecutor at the Court of Cassation dismissed the second applicant's request for a rectification of the Court of Cassation's decision.

On 7 February 2002 the case was sent back to the first-instance court where the first applicant was tried alone.

Between 7 February 2002 and 10 September 2002, the first-instance court held hearings on a regular basis.

During this time on 12 March 2002 the applicant repeated his earlier submissions. The prosecutor requested time to prepare his observations on the merits. In the hearing held on 14 May 2002 the prosecutor submitted his observations on the merits of the case. The applicant was given time to prepare his observations on the merits. The court, taking into account the amount of time the first applicant had spent in remand in custody, ordered his release pending trial.

On 10 September 2002 the Diyarbakır State Security Court convicted the first applicant as charged and sentenced him to twelve years and six months' imprisonment. On 17 March 2003 the Court of Cassation upheld this judgment.

By an additional judgment, the first applicant's sentence was reduced to six years and three months' imprisonment on 22 June 2005.