BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

SECOND SECTION

Application no. 22744/07
by Mehmet Ali TÜRK
against Turkey
lodged on 18 May 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Mehmet Ali Türk, is a Turkish national who was born in 1968 and is currently serving a prison sentence in Izmir Prison. He is represented before the Court by Mr K. Bilgiç, a lawyer practising in Izmir.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 16 February 2004 the applicant went to the Antalya Security Directorate Headquarters to complete certain procedures regarding the sale of his car and found out that a warrant for his arrest had been issued. He was informed that he was sought for an offence under Law no. 6136 (the Firearms Act), namely allegedly wounding a certain K.G. in 1992. The applicant was consequently arrested. According to the applicant, before his questioning commenced, the police officers informed him that this was just a formality because the statutory time-limit for prosecution for the offence with which he was charged had already expired in 1997. The applicant therefore agreed to give a statement and stated that he did not want the assistance of a lawyer during questioning.

The applicant was questioned at the Anti-Terrorism Department of the Antalya Security Directorate about his involvement in the PKK (the Workers’ Party of Kurdistan, an illegal organisation). In his statement, the applicant admitted to his involvement in the PKK and explained that he had shot a certain K.G. upon the instructions of the illegal organisation.

On 17 February 2004 the applicant was questioned again by the Antalya Public Prosecutor and the investigating judge. Both before the prosecutor and the judge, the applicant stated that he did not want the assistance of a lawyer and repeated the content of his police statement. The investigating judge first ordered the applicant’s release; however, following an objection by the prosecutor, he ordered that the applicant be placed in detention pending trial.

On 10 March 2004, the Public Prosecutor at the Izmir State Security Court filed an indictment with that court and accused the applicant of carrying out activities for the purposes of bringing about the secession of part of the national territory, pursuant to Article 125 of the Criminal Code. In his indictment, the public prosecutor also indicated that the applicant had turned himself in.

The proceedings commenced before the Izmir State Security Court. During the hearings, the applicant was represented by a lawyer and denied the accusations against him.

Subsequently, Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, abolished state security courts. The case against the applicant was therefore transferred to the Izmir Assize Court.

On 19 August 2004 a statement was taken from Mr M.N.A. on commission upon the instructions of the Izmir Assize Court. In his statement, M.N.A. explained that in 1992, together with the applicant and a certain A.Y., he had received instructions from the PKK to shoot K.G. Upon this order, while he secured the area, the applicant and A.Y. had gone to shoot K.G. He heard gunshots but did not see how K.G. was shot.

The applicant challenged the statement of M.N.A before the trial court, referring to a medical report issued by the Elazig Mental Hospital, dated 3 September 2002, which noted that M.N.A. suffered from depression.

On 4 October 2005 the Izmir Assize Court found the applicant guilty as charged and convicted him under Article 125 of the former Criminal Code with carrying out activities with the aim of bringing about the secession of part of the national territory. It sentenced the applicant to life imprisonment.

On 14 February 2006 the Court of Cassation quashed the judgment of the first-instance court in order to determine whether the new Criminal Code, which had entered into force on 1 June 2005 (no. 5237), provided more favourable provisions for the applicant. The case was thus once again examined by the Izmir Assize Court in view of the recent legislative changes.

On 13 June 2006 the Izmir Assize Court once again found the applicant guilty as charged under Article 125 of the Criminal Code and sentenced him to life imprisonment.

On 19 December 2006 the Court of Cassation rejected the applicant’s appeal.

COMPLAINTS

The applicant maintains under Article 6 § 1 of the Convention that he did not have a fair trial. In this connection, he alleges that in convicting him, the Izmir Assize Court relied on a witness statement, which was taken on commission, without taking into account that the witness suffered from a mental disorder.

The applicant also complains about the independence and impartiality of the Izmir State Security Court which tried him.

The applicant alleges under Article 6 § 3 (c) of the Convention that his defence rights were violated, as he did not have the assistance of a lawyer while in police custody.

Lastly, without submitting any document in respect of his complaint, the applicant alleges under Article 14 of the Convention that he faced discrimination on account of the fact that the other co-accused who were previously tried before the Izmir State Security Court in a different set of criminal proceedings were acquitted of the charges against them.

QUESTIONS TO THE PARTIES

1.  Has there been a violation of Article 6 § 3 (c) of the Convention as a result of the lack of legal assistance available to the applicant while in police custody (see Salduz v. Turkey [GC], no. 36391/02, §§ 45-63, 27 November 2008)? In particular, could the applicant be considered to have effectively waived his right to legal assistance in an unequivocal manner, given the circumstances of the present case?

2.  Was the applicant provided with an adequate opportunity to exercise his defence rights within the meaning of Article 6 § 3 (d) of the Convention in respect of the evidence given by Mr M.N.A?