ALAT v. TURKEY

Communicated on 4 November 2016

SECOND SECTION

Application no. 39513/11
Yaşar ALAT
against Turkey
lodged on 24 March 2011

STATEMENT OF FACTS

The applicant, Mr Yaşar Alat, is a Turkish national who was born in 1981 and is currently serving a life sentence in the Bolu F-Type Prison.

The circumstances of the case

The facts of the case, as submitted by the applicant and as they appear from the documents pertaining to the criminal proceedings against him, may be summarised as follows.

1. Background to the case

On 23 September 2006 a car bomb exploded outside the Iğdır police guesthouse in south-eastern Turkey, causing the death of one person and injury to eighteen others, including police officers, as well as property damage. The bomb was remotely detonated from a stolen minivan with a false number plate bearing the registration number 34 PEM 60. Samples collected from the crime scene contained, inter alia, metal parts from the gas cylinder used in the bombing, and earth and tissue collected from under the minivan. The Erzurum Forensic Laboratory report identified that the samples contained nitrocellulose.

On the basis of police intelligence, the applicant was identified as one of the suspects. At the material time he worked as a taxi driver.

It appears that the applicant’s mobile telephone conversations were recorded, pursuant to a warrant dated 18 October 2006 issued by the Iğdır Magistrate’s Court. The warrant was not made available to the Court.

On 28 October 2006 the police took a decision, based on intelligence which apparently indicated that the applicant would be meeting with members of a terrorist organisation, to follow the applicant’s taxi. During the surveillance, the applicant was seen to pick up an unidentified person from the side of a road and drive towards Gürbulak, a town in south-eastern Turkey. Shortly before reaching the location of a routine police checkpoint, the applicant changed course; soon afterwards, he crashed his taxi into a wall and ran away. The unidentified person, subsequently alleged by the applicant to be H.Ş., also ran away. The police searched the applicant’s taxi (which bore the registration number 04 D 1633), seized a mobile telephone, and extracted a list of the calls made and SMS messages sent and received prior to 18 October 2006.

The same day, police officers conducted another search of the applicant’s taxi, where they took fingerprints and collected, inter alia, twelve cigarette butts dispersed throughout the taxi, as evidence for further analysis. They also found a hand grenade and a gun in the general area of the taxi during the search, which was carried out under a search warrant. No fingerprints or DNA evidence were found on the hand grenade or the gun.

Following this search, an arrest warrant was issued for the applicant on 16 November 2006 on account of his allegedly being a member of an armed organisation, and having committed a murder and acts against the security and the integrity of the State.

On 24 July 2007 the applicant contacted the authorities by telephone and asked to be allowed to surrender himself to them. He surrendered himself, together with a gun, several hand grenades, ammunition and a camera, which contained photographs of him and alleged members of the PKK (Workers’ Party of Kurdistan, an illegal armed organisation).

At Ağrı Police Station (hereinafter “the police station”) a lawyer was appointed for the applicant and his statement was taken in that lawyer’s presence. In his statements to the police and later to the public prosecutor, the applicant denied having taken part in the Iğdır bombing. He explained that his involvement with the PKK had been against his will and that he had been forced to transport goods and persons to PKK premises. He had been forced to join the PKK under the threat of death; he had not wanted to be killed, like other taxi drivers who had refused to aid the illegal organisation. On the night on which he had crashed his taxi, he had been forced to bring a PKK member, alleged by the applicant to be H.Ş., to the location of a meeting. H.Ş. had forced him to change course after spotting the checkpoint and had threatened to detonate the hand grenade that he had been holding unless the applicant changed course. The applicant had complied, but had later panicked, crashing his taxi into a wall, before running away. PKK members had taken him into the mountains and later to Iran, where he had been held for nine months. It was during this time that he had discovered the identities of the PKK members who had taken part in the Iğdır bombing. As soon as he had been brought back to Turkey he had found a chance to run away and surrender himself. In his statement the applicant also gave the names of certain PKK members and identified them using photographs taken with his camera, and gave details of past and planned terrorist attacks.

At the police station the applicant gave his consent to blood samples being taken from him. It was established in the tests conducted that the twelve cigarette butts found in the applicant’s taxi on 28 October 2006 matched the applicant’s DNA. After giving his statement the applicant was taken into detention; later his pre-trial detention was ordered by a single judge on 27 July 2007.

2. Criminal proceedings against the applicant

During his detention the applicant asked the office of the public prosecutor that copies of the statements he had given to the police and subsequently to the prosecutor be given to him so that he could prepare his defence and formulate his objections. The applicant wrote three such letters on 26 September, 14 November and 6 December 2007. On 12 December 2007 the applicant was allowed to read his statements but could not take copies of them.

Meanwhile, two separate sets of proceedings in respect of different crimes were instituted against the applicant before the Erzurum Assize Court. Although the bill of indictment for the first set of proceedings was not made available to the Court, it appears from the records of six hearings held as part of those proceedings that the applicant was charged following the seizure of the hand grenade and the gun at the scene of the crash on 28 October 2006, with the possession and exchange of hazardous substances under Article 174/1 of the Turkish Criminal Code. It also appears that all the hearings in those first set of proceedings were conducted in the applicant’s absence.

In the second indictment, dated 4 August 2008, the public prosecutor charged the applicant with the offences of carrying out activities against the integrity and the security of the State, within the meaning of Articles 302/1, 314/3 and 220/4 of the Criminal Code. The applicant was accused of carrying out the Iğdır bombing, causing the death of one person and injuries to eighteen other persons, as well as damaging property. The indictment relied on statements given by the applicant’s co-accused, the testimony of witness C.A., a former suspect in the investigation stage, the applicant’s telephone recordings, and SMS messages that contained pro-PKK content, as well as the DNA evidence taken from the applicant’s car on 28 October 2006.

The bill of indictment also referred, without expressly specifying, to other fingerprint and DNA evidence that had apparently implicated the applicant in the Iğdır bombing. Furthermore, during the subsequent criminal proceedings reference was made to a criminal laboratory report which determined that cigarette butts identified as having been found next to the brake pedal in the minivan had not responded to DNA analysis. This report was not included in the case file.

On 11 August 2008 the Erzurum Assize Court held a preliminary session in the second proceedings during which it ordered that a legal-aid lawyer be appointed for the applicant and that a request be sent to the Bar Association to this effect. The subsequent hearing date was set for 9 October 2008.

Meanwhile, in the course of its sixth hearing held on 26 August 2008 during the first set of proceedings, the Erzurum Assize Court noted that a second set of criminal proceedings had been initiated against the applicant and that those proceedings were pending before it. Considering that both cases concerned common facts and legal questions, the Erzurum Assize Court decided to join both proceedings and to continue its examination solely under the second set of proceedings.

On 9 October 2008 the Erzurum Assize Court held its first hearing in the joined proceedings in the presence of some of the applicant’s co-accused but in the absence of the applicant. It noted that no lawyer had yet been appointed for the applicant and that the Bar Association had not responded to the request. At this hearing the co-accused submitted their defence arguments and contested the applicant’s testimony. The court set 20 November 2008 as the date for the second hearing.

Despite the fact that the second hearing date was set for 20 November 2008, the court held two separate hearings before that date, namely on 15 October and 1 November 2008, during which it heard two of the co‑accused. Neither the applicant nor the remaining co-accused or their legal counsel were present. There is no indication in the case file whether the records of these hearings were forwarded to the applicant.

On 20 November 2008, the hearing took place with the applicant and his appointed lawyer present. The applicant was given an opportunity to make his defence submissions, in which he raised the confusion regarding the link between, on the one hand, the DNA evidence taken from his taxi on 28 October 2006 and, on the other hand, the Iğdır bombing event, concerning which no such evidence was available. He also denied his involvement in the latter event. The court set 13 January 2009 as the subsequent hearing date and did not reply to the applicant’s requests.

On 13 January 2009, the hearing took place in the applicant’s absence. The court noted that the applicant’s absence was due to the lack of funding available to the prison authorities for the transportation of the applicant and other co-accused from the prison to the court, a distance of about 170 km. During the hearing one of the co-accused presented evidence which contradicted the applicant’s testimony. The applicant’s lawyer was present but his defence arguments were limited to asking for the applicant’s acquittal.

On 20 January 2009 the applicant submitted a petition to the court in which he asked to be confronted with the witness C.A. who had not been heard by the court in the proceedings and whose pre-trial testimony had been taken in the absence of the applicant.

On 26 March 2009 a hearing was held at which both the applicant and his lawyer were present. The court did not comment on the applicant’s previous request to be confronted with C.A. In this hearing, the applicant asked to be allowed to make his defence submissions in writing.

On 4 June 2009 and 2 July 2009, two further hearings were held in the presence of the applicant. At both hearings, the applicant’s appointed lawyer was absent. He had not presented the court with a letter excusing that absence. The court nevertheless proceeded with the hearings and read out the applicant’s previous written defence submissions.

On 27 August 2009, the court held its last hearing with the applicant and his lawyer present. At this hearing the applicant requested the court, inter alia, that a record of a telephone conversation conducted by him ten minutes prior to his picking up H.Ş. from the side of the road on 28 October 2006 be admitted as evidence.

Without deliberating on the applicant’s request, the court delivered its judgment there and then. No mention in the judgment was made of the applicant’s arguments concerning the assumption during the trial that the DNA evidence relied on had emanated from the crime scene in Iğdır. The applicant was found guilty on the following grounds: testimonies of witnesses C.A and İ.H., who had stated that they had seen the applicant one week before the Iğdır bombing driving a minivan with a license plate starting with 34 and whose back seats were removed; the DNA evidence taken from the applicant’s taxi; the transcripts of the applicant’s telephone conversations and SMS messages. The court sentenced the applicant to life imprisonment.

Although the applicant’s appointed lawyer was authorised to represent the applicant in the appeal proceedings, there is no indication in the case file that the lawyer was indeed involved. The applicant lodged a handwritten appeal against the decision of the Erzurum Assize Court.

In his appeal the applicant complained that he had not had a fair trial. He specifically referred to the fact that his presence at certain hearings had not been secured, that he had not benefited from an effective legal representation, and that several lawyers had been appointed for his defence throughout the proceedings without him ever being able to discuss his defence strategy in person with them. He also stated that the Erzurum Assize Court had failed to evaluate the evidence properly because it had confused the DNA evidence that had been taken from his taxi on 28 October 2006 with the criminal analysis report (in which no mention of any DNA evidence was made) pertaining to the Iğdır bombing.

On 1 November 2010 the Court of Cassation upheld, with minor amendments, the Erzurum Assize Court’s judgment and found it established that the applicant’s actions against the integrity and security of the State, his murder of one person and injuring eighteen other persons, and his causing damage to property had been proved. No mention was made in the Court of Cassation’s decision of the objections raised by the applicant.

COMPLAINTS

The applicant complains under Article 6 of the Convention that he was denied a fair trial and raises specifically the following complaints under Article 6 §§ 1 and 3 (b), (c) and (d):

- he was denied his right to take part in certain hearings before the Erzurum Assize Court as he was not transported to them;

- the first hearing before the Erzurum Assize Court took place before a legal-aid lawyer had been appointed;

- he did not have adequate time and facilities to prepare for his defence at the trial and he was not given an opportunity to discuss his defence strategy with his lawyers;

- he was denied his right to effective legal representation: the court-appointed lawyers did not do their duty by defending him because he was not in a position to pay them an extra fee; he had several different lawyers appointed for him over the course of the proceedings without being able to discuss his defence with them in person;

- his requests to call and examine witnesses and test certain evidence submitted by the forensic authorities were denied by the Erzurum Assize Court without reason;

- he was accused and convicted on the basis of evidence unrelated to the Iğdır bombing;

- he was denied his right to an adequately reasoned judgment, both by the Erzurum Assize Court and the Court of Cassation.

Questions to the Government

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, as required by Article 6 of the Convention? In particular:

(a) Was the applicant’s absence from the hearings on 9 and 15 October, 1 November 2008, 13 January and 4 June 2009 compatible with his right to take part in the proceedings and to defend himself in person (Article 6 §§1 and 3 (c))?

(b) Did the fact that the first hearing before the Erzurum Assize Court on 9 October 2008 took place without a lawyer being appointed undermine the applicant’s right to be assisted by a lawyer?

(c) Did the applicant have adequate time and facilities to prepare his defence (Article 6 §§ 1 and 3 (b))?

(d) Did the absence of the applicant’s lawyer from the hearings held on 4 June and 2 July 2009 undermine the applicant’s right to effective legal representation (Article 6 §§1 and 3 (c))? Were there procedural safeguards preventing the absence of a lawyer? If so, were they applied in the applicant’s case?

Did the court-appointed lawyers provide adequate legal assistance to the applicant throughout the proceedings, including before the Court of Cassation (idem)?

The Government are requested to clarify how many lawyers were appointed to the applicant throughout the entire proceedings and to submit the relevant records, including those that may indicate that visits were paid by a lawyer to the applicant during his detention pending trial, and what safeguards, if any, were available to the courts in respect of a legal-aid lawyer who failed in his duty to represent the defendant.

(e) Did the Erzurum Assize Court examine witnesses within the meaning of Article 6 § 3 (d)?

In particular why was the applicant’s request to examine witness C.A. implicitly denied by the court? Was there a good reason for the non-attendance of witness C.A.? (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 122-125, ECHR 2011, and Schatschaschwili v. Germany [GC], no. 9154/10, § 111-113, ECHR 2015)? If not, was there therefore a violation of Article 6 §§ 1 and 3 (d) (see Al‑Khawaja and Tahery, § 120, and Schatschaschwili, § 118)?

(f) Did the Erzurum Assize Court’s examination of the submissions, arguments, witness statements and the evidence before it respect the applicant’s right to a fair trial (Article 6 § 1)?

2. Did the Erzurum Assize Court and the Court of Cassation provide sufficient reasoning for their judgments? In particular, did the courts reply to the applicant’s objections in respect of the existence of a factual basis for his conviction and the use of DNA evidence?

Question to the Applicant

How many lawyers were appointed for the applicant throughout the course of the entire proceedings, including the pre-trial and appeal stages?

The applicant is requested to substantiate his reply with documents.

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