Communicated on 28 May 2015
SECOND SECTION
Application no. 75460/10
Hamdiye AKDAĞ
against Turkey
lodged on 22 November 2010
STATEMENT OF FACTS
The applicant, Ms Hamdiye Akdağ, is a Turkish national, who was born in 1974 and was serving a sentence in İzmit prison at the time of the application. She is represented before the Court by Mr İ. Akmeşe, a lawyer practising in Istanbul.
On 13 November 2003 the applicant was arrested on suspicion of membership of an illegal organisation. She was taken to the Anti-Terrorism Branch of the Istanbul Security Directorate. On 14 November 2003 she was questioned by police in the absence of a lawyer. According to the questioning form dated 14 November 2003 which explained an arrested person’s rights, the applicant was reminded of her right to remain silent and was informed that she could request the assistance of a lawyer. The police stated on this form that she did not want to be represented by a lawyer. In her police statement the applicant gave a detailed account of her involvement in the illegal organisation.
On 17 November 2003 the applicant was brought before the public prosecutor and subsequently the investigating judge. During questioning the applicant was represented by a lawyer. Before the public prosecutor and the investigating judge, the applicant retracted her police statement, stating that it had been taken under duress. After the questioning was over, the investigating judge remanded the applicant in custody, having regard to the nature of the offence and the state of the evidence.
On 4 December 2003 the Public Prosecutor at the Istanbul State Security Court filed a bill of indictment accusing the applicant of being a member of an illegal terrorist organisation under Article 168 of the now defunct Criminal Code, Law no. 765. The proceedings commenced before the Istanbul State Security Court and during the proceedings the applicant was represented by a lawyer and she denied her police statement which she claimed had been taken under duress and claimed that she had been ill-treated in police custody. While the applicant’s trial was pending before the Istanbul State Security Court, these Courts were abolished in accordance with Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004. Therefore, the Istanbul Assize Court acquired jurisdiction over the case. On 13 February 2009 the Istanbul Assize Court found the applicant guilty of being a member of an illegal organisation and being involved in its activities. The Istanbul Assize Court, in sentencing the applicant to six years and three months’ imprisonment, used the applicant’s police statement which had allegedly been extracted from her under duress. On 27 April 2010 the Court of Cassation upheld the conviction. This decision was deposited with the registry of the first instance court on 25 May 2010.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention that she had been convicted on the basis of unlawful evidence in that the domestic court relied on her statement which had been taken under duress. She further submitted under Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention that she had been denied legal assistance during her police custody.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted domestic remedies? In particular, did she raise her complaints concerning the use of her statement taken under duress in her appeal before the Court of Cassation?
2. Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 § 1 of the Convention?
(a) Did the use of her statement taken under alleged duress violate the applicant’s right to a fair hearing (see Özcan Çolak v. Turkey, no. 30235/03, §§ 47-50, 6 October 2009)?
(b) Has there been a breach of Article 6 § 3 (c) of the Convention, in conjunction with Article 6 § 1, as a result of the lack of legal assistance available to the applicant during the preliminary investigation (see Salduz v. Turkey [GC], no. 36391/02, §§ 45-63, ECHR 2008)?
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