Communicated on 30 January 2014
SECOND SECTION
Applications nos. 29084/07 and 1191/08
Ayetullah AY against Turkey
lodged on 27 June 2007 and 13 December 2007 respectively
STATEMENT OF FACTS
1. The applicant, Mr Ayetullah Ay, is a Turkish national, who was born in 1980 and is currently serving an aggravated life sentence in the Adana F‑Type Prison.
The circumstances of the cases
2. The facts of the cases, as submitted by the applicant, may be summarised as follows.
1. Background to the cases
3. On 30 August 2004 Diyarbakır police force received intelligence that the PKK (the Kurdistan Workers’ Party, an illegal organisation) was planning a bomb attack on the Victory Day parade scheduled for that day, which would be attended by high-level State officials. A search conducted in the vicinity of the parade route managed to locate a mobile phone operated bomb set-up which was wrapped in a black plastic bag. The bomb was deactivated on the spot and the phone was sent to a criminal laboratory for further investigation. The owner of the SIM card found inside the phone was identified as a certain M.Ç.
4. On the same day, the Criminal Laboratory at the Diyarbakır Security Directorate issued a report regarding the phone found earlier that morning. The report indicated that the model of the phone was a Nokia 3310 and its serial number (also known as the “IMEI number”), which was partially legible, was 350101/91/25042(3 or 5)/5. The report further noted that only one fingerprint had been detected on the black plastic bag containing the bomb.
5. On 1 September 2004 the Diyarbakır police questioned the owner of the shop where the SIM card used in the set-up had been purchased, to ascertain the date of purchase and the identity of the purchaser. The invoice furnished by the owner of the shop established that the SIM card in question had been sold to M.Ç. on 28 August 2004, i.e. two days prior to the attempted attack. However, the shop owner had no recollection as to who the purchaser was, and was not able to identify M.Ç.
6. At an unspecified time on the same day M.Ç. was taken into custody at the Diyarbakır Security Directorate for interrogation. M.Ç. told the police officers that he was a farmer. He claimed that approximately one month before, while returning from his orchards, he had been stopped by four armed men dressed as guerrillas, who said they were with the PKK. After questioning him, one of them took his identity card (ID) and mobile phone, together with the SIM card inside. This man was blond, with a moustache and beard, and well built, approximately 1.75 metres tall. He was around 25 to 27 years old and spoke Kurdish with a Diyarbakır accent. M.Ç. claimed that he had not mentioned this incident to anyone, nor had he officially reported it to the police, out of his fear of reprisal from the guerrillas. He stated that he had nothing to do with the attempted attack of 30 August, and suggested that the same guerrillas who had robbed him might have planned the bombing by using his ID and SIM card.
7. On 2 September 2004 M.Ç. was questioned by the Diyarbakır Public Prosecutor, where he continued to deny his involvement with any terrorist organisations. He repeated his previous account of events, but this time did not provide a physical description of the guerrilla who had spoken to him. During the questioning M.Ç.’s lawyer also stated that the signature on the SIM card invoice did not match M.Ç.’s signature, which corroborated his argument that the SIM card used in the bomb set-up must have been purchased with the identity card stolen from him.
8. On 9 September 2004 M.Ç. was indicted for aiding and abetting terrorists.
9. At the first hearing of his trial (2004/387 E.), held on 12 October 2004 before the Diyarbakır Assize Court, the trial court requested Turkcell, the network provider of the SIM card in question, to report on the cellular service call detail in July and August for the phone with the serial no. 350 10 19 12 60 42 63, which was identified as the serial number of the mobile phone allegedly stolen from M.Ç. This serial number virtually matched the number identified on the phone recovered from the bomb set-up on 30 August 2004.
10. According to the information in the case-file, the response sent by Turkcell on 3 November 2004 reported on the call details for phone serial no. 350 10 19 12 60 42 60, as opposed to 350 10 19 12 60 42 63 as requested. The report indicated the numbers called, the places where the calls were made from and the duration of the calls, but not the identity of the caller or of the persons contacted.
2. The applicant’s detention in police custody
11. On 29 October 2004 at 5.15 pm, while distributing some commercial flyers in the street, the applicant was taken into police custody by officers from the Anti-Terrorism Branch of the Istanbul Security Directorate, in the context of an operation carried out against the illegal organisation PKK/KONGRA GEL. At the time of his apprehension, the applicant was in possession of a false identity card bearing the name of a certain M.M.K. The arrest protocol did not indicate the applicant’s real name so it is not clear whether the police were aware of the applicant’s identity at the time of his apprehension.
12. The applicant was subsequently taken to the Istanbul Security Directorate, where he was informed of his rights as a detainee, including the right to request the assistance of a lawyer. Upon the applicant’s demand for legal assistance, the police contacted the Istanbul Bar Association for the appointment of a lawyer. They also conducted a preliminary interview with him in the absence of his lawyer, where it appears that the applicant revealed his address but not his real identity. There are no records in the case-file as to the content of this interview.
13. Between 9.30 and 10.15 p.m. on the same day the applicant was escorted to his apartment for a house search, without waiting for the arrival of the lawyer assigned by the Bar association. There was no prior court order authorising the search, but only a search and seizure warrant issued by the Deputy Director of the Istanbul Security Directorate Anti-Terrorism Branch. The warrant in question indicated that postponing the search pending a court order would be prejudicial to the investigation in view of the risk of tampering with evidence.
14. Two successive searches were conducted in the applicant’s apartment that night. The initial search was done by the police, who also used a sniffer dog, in the applicant’s presence and was completed without any findings. The result was notified to a superior officer over the phone and permission was requested to leave the premises. However, as the applicant was being escorted out of the apartment, he saw three other officers coming in, dressed in plain clothes, who announced that there would be a new search. A second search was therefore conducted while the applicant was kept outside the apartment. After a short while, one of the newly arrived officers emerged from the apartment with a mobile phone in his hand. The applicant denied ownership of the phone right away and refused to sign any records indicating that such a phone had been found in his house.
15. According to the search and seizure record issued subsequent to the search, the police had seized one Nokia 3310 mobile phone (serial no. 351342/80/413945/0), one camera and one phone card from the applicant’s apartment as evidence. The applicant refused to sign this record, claiming that the phone in question did not belong to him and that it had been planted in his house by the officers who had conducted the second search. In response, upon their return to the security directorate, the police drew up another record, which made no mention of evidence found and seized in the apartment and which the applicant therefore accepted to sign. According to the applicant, however, this revised report was never included in the case file.
16. On 30 October 2004 at 5.00 a.m. the applicant was handed over to officers from the Anti-Terrorism Branch of the Diyarbakır Security Directorate, on the ground that he had committed the suspected terrorist offences under their jurisdiction. It appears that the applicant’s real identity was known at the time of his transfer to Diyarbakır.
17. The applicant did not meet with a lawyer during his detention in Istanbul. There are two conflicting reports in the case-file to account for this: the first report prepared on 29 October 2004 at 9.10 p.m. states that the lawyer assigned by the Istanbul Bar Association had reported to the security directorate around 9.00 p.m. but was not able to see the applicant, who was at the house search at that time. The second report drawn up on 30 October 2004 at 5.00 a.m., however, indicates that despite the request, the Bar Association had not dispatched a lawyer to provide legal assistance to the applicant.
18. Later on 30 October 2004, Istanbul Assize Court upheld the house search and seizure warrant issued earlier by the Deputy Director of the Istanbul Security Directorate Anti-Terrorism Branch as lawful. The decision, however, noted that no “crime or criminal element” had been detected in the apartment and did not refer to the mobile phone and the other items seized from the applicant’s house.
3. House searches conducted in Diyarbakır
19. Parallel to the applicant’s detention in Istanbul, searches were conducted, upon the public prosecutor’s order, in the houses of some of the applicant’s relatives in Diyarbakır, who were suspected of having an “organisational connection” with the applicant.
20. Accordingly at 4.30 a.m. on 30 October 2004 the Diyarbakır police raided the house of Y.Y., the applicant’s cousin, and found some money, three cartridge clips, some eighty cartridges, handwritten notes on bomb making, as well as other training and meeting notes from the training camps of the PKK and photos of some members of that organisation as well as a photo of the applicant’s late father, hidden in various places in the house and on the chicken coop in the garden. The material confiscated from the house as evidence was sent to the police criminal laboratory for fingerprint and handwriting examination.
21. Later on the same day the Diyarbakır Assize Court upheld the house search as lawful.
22. According to a report issued by the Criminal Laboratory at the Diyarbakır Security Directorate on 2 November 2004, the handwriting in some of the documents confiscated from Y.Y.’s house matched those of the applicant. The content of those documents, however, was not specified in the report.
23. According to a further fingerprint report dated 8 December 2004, none of the fingerprints found on the confiscated articles belonged to Y.Y., his wife or the applicant. However, the fingerprints found on a six-page document titled “meeting notes” were identified as belonging to a certain R.T.
4. The interrogations of the applicant, Y.Y. and R.T. at the Anti‑Terrorism Branch of the Diyarbakır Security Directorate
24. On 2 November 2004 the applicant was interrogated at the Anti-Terrorism Branch of the Diyarbakır Security Directorate in the presence of a lawyer appointed by the Diyarbakır Bar Association. The applicant, who at that point had confirmed his real identity, did not respond to the question as to why he had been using a false ID. He similarly refused to answer any questions regarding the phone found in his apartment, except for denying its ownership. He was then given a list of the material confiscated from Y.Y.’s house, but not presented with the material itself physically, and was asked whether any of it belonged to him. He denied any organisational connection with Y.Y., but admitted on several occasions that the notes and the other material found in Y.Y.’s house, except for the money and the cartridges, were his. He further acknowledged that it was him who had placed these documents in the chicken coop in Y.Y.’s garden. When asked about his relationship to R.T., whose fingerprints had been detected on one of the suspect documents recovered from Y.Y.’s house, he stated that he had known R.T. from his home village, but had not seen him in the past six years. The police also told the applicant about the arrest and interrogation of M.Ç. in connection with the attempted bomb attack of 30 August 2004, and explained to him that the mobile phone seized from his apartment bore the same serial number as the phone stolen from M.Ç. in early August by some PKK guerrillas. He was asked whether he was one of the four guerrillas who had allegedly robbed M.Ç. The applicant responded that the phone allegedly recovered from his apartment did not belong to him and that he had nothing to do with the said attack.
25. In the meantime, on 1 November 2004 Y.Y. was also interrogated at the Anti-Terrorism Branch of the Diyarbakır Security Directorate. Y.Y., who was accompanied by a lawyer, denied any connection with the PKK. He opted to remain silent in response to questions on the material recovered from his house and garden. However, he later stated before the Diyarbakır Public Prosecutor and the Diyarbakır Assize Court that he did not know how this material had found its way into his house.
26. Similarly, on 1 November 2004 the Diyarbakır police sought to interrogate R.T. with regard to his connection to the material seized from Y.Y.’s house. R.T. refused to answer any questions put to him. Subsequently before the Diyarbakır Public Prosecutor and the Diyarbakır Assize Court, however, he admitted that he had seen and briefly read these meeting notes at the applicant’s parents’ house when he was there for a family visit a couple of months ago, which he said explained the fingerprints. He further stated that the applicant was not in the premises at the time of his visit.
27. On 2 November 2004 the applicant, accompanied by his lawyer, was interrogated by the Diyarbakır Public Prosecutor, to whom he largely reiterated his previous statements before the police. He was asked again whether he was one of the guerrillas who had robbed M.Ç. In response, he admitted that he slightly fitted the description of the person who had taken M.Ç.’s phone and ID, but repeated that he had no involvement in that incident or with the PKK for that matter.
28. Later on the same day, the applicant was brought before the Diyarbakır Assize Court for questioning. The judge asked the applicant whether he had used his right to remain silent during police interrogation, which the applicant confirmed. The applicant added that he had been using a fake ID on account of being a draft evader. When he was shown the documents recovered from Y.Y.’s house, which he had claimed ownership of previously, he stated that he had no recollection of them. Thereafter, the applicant’s lawyer requested the court to terminate the questioning, as the applicant was acutely sleep-deprived, not having been allowed to sleep for the past four days in police custody. The lawyer repeated that the applicant denied all the accusations against him. The judge thus ended the questioning and also ordered the applicant’s pre-trial detention.
29. An expert report dated 3 January 2005 indicated that the applicant’s fingerprints did not match the sole fingerprint detected on the bomb set-up deactivated on 30 August 2004.
30. On 8 March 2005 the Diyarbakır Public Prosecutor interrogated M.Ç. once again. This time, M.Ç. stated that on 30 August 2004, while he was returning from collecting grapes and figs, he had come across four armed men in the woods. After questioning him about who he was and what he was up to, the men took his mobile phone and ID. When M.Ç. had inquired about their identities, they had told him to mind his own business and threatened to kill him and his children if he told anyone about their encounter. The public prosecutor then showed M.Ç. the applicant’s picture and asked if he was amongst the four armed men who had seized his phone and identity card. M.Ç. responded that as he had been too scared to look any of the men in the face, he would not be able to identify the applicant.
31. On an unspecified date the applicant lodged several complaints with the Diyarbakır Public Prosecutor, one of which was that the police had not shown him any warrant authorising the search of his house on 29 October 2004.
32. On 6 April 2005 the Diyarbakır Public Prosecutor interrogated the lawyer appointed by the Diyarbakır Bar Association to represent the applicant during the course of his interrogations in Diyarbakır. The lawyer indicated that the applicant had looked extremely tired and sleep-deprived, and had had a very hard time collecting his thoughts, for which reasons he had requested the Diyarbakır Assize Court to end his interrogation prematurely.
5. The applicant’s body search in the prison and the ensuing investigation
33. On 5 April 2005 the applicant, who at that point was in pre-trial detention at the Diyarbakır High Security Prison, was subjected to a routine body search prior to being taken to the prison visiting area to see his mother. According to the applicant, the search was conducted without any problems and he was allowed to proceed to the visiting area.
34. However, approximately nine days after the visit, he was informed by the prison administration that a disciplinary decision had been taken against him for carrying coded notes to the visiting area. The two small hand-written notes found on his person before the visit had been confiscated and handed over to the prosecutor.
35. According to the limited information in the case file, which does not include the full transcriptions, the notes started and ended as follows, respectively:
“Hello: Burn this note after reading it ... Read this note alone, and if possible, ask the “Hoca” to read it too”.
“Do not let anyone else read this note ... For this reason, you have to be very crafty and careful”.
36. In the meantime, on the basis of the information in these notes, a court order was obtained to conduct another search of the applicant’s apartment on 6 April 2005. Neither the applicant, nor his lawyer was notified of this search, which was moreover not supervised by the public prosecutor. The following material was found and seized during that search: 830 gr. plastic explosives (C4) hidden at the bottom of a box of diet food products; a handgun, a cartridge clip and approximately 30 cartridges sewn inside a sofa bed; some handwritten notes hidden inside the sofa bed; four electric detonators tucked inside a table leg; a 5-metre copper wire and copper coil; a 2-metre soldering wire and soldering machine; fourteen tablets of potassium permanganate; one alarm-clock; and a box of thumbtacks. The search and seizure record bore the signatures of the mayor of the neighbourhood (muhtar) and the locksmith. The search was apparently recorded on video and photographed.
37. According to the reports of the Criminal Laboratory at the Diyarbakır Security Directorate dated 7, 8 and 12 April 2005, no fingerprints were detected on the material seized from the applicant’s apartment. Moreover, the ballistic examination of the handgun suggested that it had not been used in any prior incidents. The criminal laboratory also confirmed that the potassium permanganate found in the applicant’s house was a disinfectant that could also be used in manufacturing bombs.
38. On 12 April 2005 the Criminal Laboratory at the Diyarbakır Security Directorate issued another report indicating that the writing on the confiscated notes matched the applicant’s handwriting. The examination was made on the basis of the handwriting samples obtained from the applicant at the time of his detention in police custody.
39. On 19 September 2005 the applicant was questioned for the first time by the Diyarbakır Public Prosecutor in relation to the notes found in prison and the illicit material subsequently recovered from his house. The applicant denied the allegation that any notes had been found on him by the prison guards. He requested the interrogation of the guards who had searched him on the relevant date and the examination of the video recordings of the search. When asked to comment on the police criminal laboratory’s report matching his handwriting to the writing on the notes, he stated that he did not know how the criminal laboratory had made the comparison as they had not demanded any handwriting samples from him. He requested the relevant notes to be submitted to the Forensic Medicine Institute for an examination. He moreover denied any connection to the material recovered from his house and underlined that none of it had beene found to bear his fingerprints. He added that his apartment had already been thoroughly searched by the police on 29 October 2004, which search had not revealed any such illicit material. He confirmed that no one else had stayed in his apartment in the meantime and that the only set of keys to his apartment was kept in the safe in the prison.
40. On 21 September 2005 the Diyarbakır Public Prosecutor interrogated two prison guards who had witnessed the applicant’s body search on 5 April 2005. They both confirmed that the notes in question had been found on the applicant’s person and that the incident had been recorded on the security cameras. It is not clear from the documents in the case-file whether the prison guard who had actually conducted the search was interrogated by the public prosecutor.
41. Upon an inquiry from the Diyarbakır Public Prosecutor’s Office, on 23 September 2005 the director of the Diyarbakır High Security Prison informed the latter that no other prison officer or prisoner had witnessed the applicant’s body search. Moreover, he stated in a subsequent letter dated 27 September 2005 that the video surveillance record of the body search was no longer available as the tapes were recorded over every five months due to scarcity of resources.
42. On 12 October 2005 the Diyarbakır Public Prosecutor’s Office sent the notes in question, together with some sample writings taken from the applicant, to the Diyarbakır Forensic Medicine Institute for further examination. On 21 December 2005 the Diyarbakır Forensic Medicine Institute informed the public prosecutor that for an accurate examination, it needed more samples of the applicant’s handwriting, preferably from personal letters, petitions, exams etc., as well as the originals of the samples already provided in photocopies. Moreover, they requested that the notes in question be dictated to the applicant from beginning to end. It appears from the documents in the case-file that the requests of the Forensic Medicine Institute were not met.
43. On an unspecified date the applicant lodged a criminal complaint with the Diyarbakır Public Prosecutor against the personnel of the Diyarbakır High Security Prison, whom he accused of misconduct for falsely accusing him of carrying encrypted notes. On 16 January 2008 the public prosecutor decided not to prosecute the accused personnel on the ground of lack of evidence suggesting the commission of the alleged offence. On 17 April 2008 the Siverek Assize Court dismissed the applicant’s objection to that decision.
6. Criminal proceedings against the applicant
44. On 9 February 2005 the Diyarbakır Public Prosecutor filed a bill of indictment against the applicant with the Diyarbakır Assize Court, charging 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. The applicant was accused of three specific incidents: the killing of two police officers at a police checkpoint on 7 September 2004 (incident 1); an armed attack against a battalion command post in Hani, Diyarbakır on 7 June 2004 (incident 2); and the forcible seizure of M.Ç.’s phone and ID in early August 2004 (incident 3).
45. At this first hearing held on 3 May 2005 the applicant denied his self‑incriminating statements before the Anti-Terrorism Branch of the Diyarbakır Security Directorate, in particular the ones where he had accepted ownership of certain notes found in Y.Y.’s house. The applicant argued in this regard that despite the presence of a lawyer during the questioning, his statements had been misrepresented, which he had failed to notice at the time due to his serious sleep deprivation. He also repeated his allegations regarding the conduct and the outcome of the house search on 29 October 2004, including the claim that two contradictory search and seizure records had been prepared that night.
46. At the same hearing, the applicant’s lawyer requested the handwritten notes found in Y.Y.’s house to be sent to the Forensic Medicine Institute for an examination as to whether they belonged to the applicant. The trial court rejected this request on the ground that the criminal laboratory’s report of 2 November 2004 had sufficiently established that fact. The applicant’s lawyer also brought to the trial court’s attention the paradoxical fact that only a couple of months prior to his arrest, the mobile phone allegedly seized from the applicant’s house had been identified as having been used in a bomb set-up.
47. On 10 May 2005 the Diyarbakır Assize Court decided to join the criminal proceedings initiated against M.Ç. to the applicant’s case (case no. 2005/24 E.) on account of the interrelation between the two cases.
48. At the hearing on 28 June 2005 M.Ç. was confronted with the applicant. M.Ç. was not able to identify the applicant as one of the guerrillas who had stolen his phone and ID, as he said he had been too scared to check their faces closely at the time.
49. At the same hearing the applicant’s lawyer challenged the second search conducted in the applicant’s house on 6 April 2005 and alleged that had the material obtained during that search really belonged to the applicant, it would have been discovered during the initial search conducted thoroughly on 29 October 2004.
50. On 19 January 2006 the Diyarbakır Public Prosecutor filed another indictment against the applicant with the Diyarbakır Assize Court (case no. 2006/10 E.) in connection with the notes found on him in the prison and the material seized from his apartment in the ensuing house search.
51. On 27 January 2006 the Diyarbakır Assize Court decided to join the two cases against the applicant under the initial case no. 2005/24 E.
52. At the hearing on 7 February 2006 the applicant denied that any notes had even been found on him during his body search on 5 April 2005. He similarly denied any connection to the material retrieved from his apartment subsequently, and stressed that his house had already been searched on 29 October 2004. The applicant’s lawyer requested a handwriting analysis from the Forensic Medicine Institute on the notes in question. The trial court read out the earlier report of the Forensic Medicine Institute, demanding more handwriting samples from the applicant, and decided that the request for further handwriting analysis would be entertained after viewing the video recordings of the body search in the prison.
53. At the hearing on 7 March 2006, the trial court accepted as evidence coloured copies (i.e. not originals) of two group photographs of PKK guerrillas, holding that one of the men resembled the applicant, despite the applicant’s objection. The applicant claimed that on account of the distance from which the photograph had been taken, it was very hard to make out individual features of the photographed persons.
54. At the hearing on 11 April 2006 the trial court was informed that the video recordings of the applicant’s body search on 5 April 2005 had not been conserved. The court nevertheless found that further handwriting analysis from the Forensic Medicine Institute was not needed.
55. On 9 May 2006 the Diyarbakır Public Prosecutor presented his opinion on the merits of the case. The prosecution claimed that the applicant had left Turkey in 1999 for Russia, from where he had probably gone to Northern Iraq and joined the PKK camps, where he had received training on guns and explosives. This claim was corroborated by the training notes confiscated in Y.Y.’s house bearing the applicant’s handwriting. According to the prosecution, the applicant had subsequently re-entered Turkey in May 2004, from whence on he had carried out activities and organised attacks for the PKK in the Diyarbakır area, such as the armed attack against a battalion command post in Hani, Diyarbakır on 7 June 2004 (“incident 2”); the seizure of M.Ç.’s ID, SIM card (no. 0535 786 91 30) and mobile phone (serial no. 351 342 804 139 450) on 13 August 2004, which phone had later been found in his apartment (“incident 3”); the attempted bombing of the Victory Day parade of 30 August 2004, for which he had used a SIM card (no. 0537 551 59 35) and a phone (serial no. 350 10 19 12 60 42 60) purchased with the identity card taken from M.Ç. (incident not mentioned in the indictment); and the killing of two police officers at a police checkpoint on 7 September 2004 (“incident 1”).
56. Following the delivery by the public prosecutor of his opinion on the merits on 9 May 2006, the applicant was invited to make his final defence statement. On 5 June 2006 the applicant’s lawyer brought the applicant a copy of the case-file, to assist him in the preparation of his defence statement. However, the prison administration retained some of the documents in the file without any justification being given. At the hearing on 6 June 2006 the applicant’s lawyer informed the trial court of this development and on 9 August 2006 the applicant lodged a complaint with the Diyarbakır Public Prosecutor. The public prosecutor referred this matter to the Enforcement Judge, who referred it back to the public prosecutor. It appears that the applicant was never given access to the retained material as the public prosecutor did not take action on this matter.
57. In the meantime, on an unspecified date the applicant submitted his defence statement in response to the public prosecutor’s opinion on the merits. In addition to reiterating his previous arguments, he made the following claims: he was not allowed to see a lawyer during his detention in Istanbul; the house search of 29 October 2004 was unlawful, and it was neither based on a prior search warrant, nor was it authorised ex post facto; the accusations against him were based on false evidence manufactured by the police – in fact he suspected that the plain-clothes policemen who had conducted a second search in his apartment on 29 October 2004 had planted the Nokia mobile phone in his apartment, and to cover this up, they had made him sign a search and seizure record that did not mention that phone; various expert reports relied on as evidence against him had been prepared by the criminal laboratory of the police, who were party to the proceedings; the police criminal laboratory was somehow able to establish that the notes allegedly found in the prison were written by him, whereas the Forensic Medicine Institute, constituted of specialised doctors, was not able to reach the same conclusion on the basis of the same material and the trial court had inexplicably disregarded the Forensic Medicine Institute’s request for further sample material for a conclusive handwriting analysis; interestingly, none of the material allegedly seized from his house on 6 April 2005 had been found during the previous search; that it was against logic and reality that no other prison inmates or officers had witnessed his body search on 5 April 20005, and even more shocking that the video recordings of the search had been deleted; if any notes had been found on him as alleged, his visiting rights would have been suspended immediately, whereas he was allowed to see his mother on the relevant date; the claims of the prosecution that he had been trained by the PKK and that he had been active as a terrorist in the Diyarbakır area were pure speculation; there was no shred of evidence to attribute the attempted bomb attack of the Victory Day parade to him and by holding him responsible for that attack, which was not included in the indictment, the public prosecutor had changed the nature of the accusations without giving him prior warning to submit additional defence arguments; he had witnesses to attest to his presence in Istanbul at the time of M.Ç.’s confrontation with the PKK guerrillas in Diyarbakır; and his right to defend himself had been curtailed by the prison administration which had arbitrarily prevented him having access to certain documents in his case-file. In his closing remarks, the applicant argued that the investigative authorities were overcomplicating the case on purpose.
58. On 17 April 2007 Turkcell submitted a breakdown of the call records of the mobile phone recovered from the applicant’s house, between the dates of 5 August and 11 September 2004, in response to an earlier request from the trial court. The report indicated that the phone had been used by two phone numbers until 13 August 2004, one of them belonging to M.Ç., and by a third number after that date. The owners of the other two numbers, however, were not identified.
7. Judgment of the Diyarbakır Assize Court and the applicant’s appeal
59. On 24 April 2007 the Diyarbakır Assize Court delivered its judgment on the case. It held that there was insufficient evidence in the case file to establish the applicant’s guilt in relation to the incidents nos. 1 and 2 presented in the indictment (i.e. killing of two police officers and armed attack of a battalion command post). However, having regard to the content of the case-file as a whole, it nevertheless concluded that the applicant had committed the crime of attempting to bring about the secession of part of the national territory under Article 125 of the former Criminal Code as charged. The relevant part of the judgment reads as follows:
“ ... [it has been understood] that the defendant has been trained in the organisation in bomb making, arms and explosives; that certain notes and explosives belonging to the defendant have been seized during the search of Y.Y.’s house; that the defendant has entered Turkey in May and has been active in the rural parts of Kulp-Lice-Hani as a combatant; that on 13 August 2004 he forcibly took, in the name of the organisation, [...] M.Ç.’s identity card, his Nokia 3310 mobile phone with IMEI number 351342804139450 and his SIM card with GSM no. 0535 786 91 30 [...] together with three members of the organisation; that in order to avoid being caught he obtained a false identity card on 25 August 2004 from the Adana-Seyhan Civil Registry Office by using the identity information of M.M.K.; that on 28 August 2004 a SIM card with GSM no. 0537 551 59 35 and a Nokia 3310 mobile phone with IMEI no. 350101912604260 have been purchased, a remote controlled bomb [...] has been manufactured by using that phone and the bomb in question has been placed under a stone near the [...] Selahattin Yazıcıoğlu Boulevard on 30 August 2004, where the governor, security director and the military corps commander would be marching; that the search conducted at the defendant’s house revealed one [...] Browning handgun, one cartridge clip, thirty-three cartridges, [...] four electric detonators, 830 gr. explosives, 5-metre copper wire, 3-metre solder wire, one soldering machine, one alarm clock, [...]”.
60. Based on its aforementioned conclusion, the Diyarbakır Assize Court sentenced the applicant to aggravated life imprisonment (ağırlaştırılmış müebbet hapis cezası). It did not respond to any of the challenges brought by the applicant against the evidence on which his conviction was based. In the same judgment, the trial court also convicted Y.Y. of aiding and abetting members of the PKK, but acquitted M.Ç. of the same charge.
61. On 12 January 2008 the applicant appealed against the judgment of the Diyarbakır Assize Court. Largely reiterating his previous allegations and objections, he claimed that his conviction was based on unilateral allegations, which failed to take into account his requests, objections, evidence and witnesses. He lastly contended that the judgment was ambiguous as to whether he was convicted for allegedly robbing M.Ç., for the attempted bombing of the Victory Day parade, or both. In any event, there was no reliable evidence to prove that he had committed either of those offences, or any other offences for that matter.
62. On 11 February 2008 the Court of Cassation upheld the Diyarbakır Assize Court’s judgment, declaring that the applicant’s participation in various activities of the PKK with the aim of bringing about the secession of part of the national territory had been proven, but without responding to his objections.
COMPLAINTS
A. Complaints under application no. 29084/07
63. The applicant claims that he was denied a fair trial and raises the following complaints under Articles 6 §§ 1 and 3 (a), (b) and (c) of the Convention:
- he was denied access to legal assistance during his detention in police custody in Istanbul and a false report was drawn up by the police to cover up this failure;
- he was accused and convicted on the basis of false evidence which was obtained unlawfully or manufactured, in order to frame him for certain crimes committed by unknown persons; he contested in particular the evidence obtained as a result of the searches conducted in his house and that of Y.Y., as well as his body search in the prison on 5 April 2005;
- he was questioned by the police after being tortured and was threatened with death to accept the accusations against him;
- the trial court refused to consider all his requests and objections, including his requests to call witnesses and submit certain evidence to the Forensic Medicine Institute’s examination for unbiased findings, and disregarded all evidence in his favour;
- the factual grounds of his conviction could not be ascertained from the judgment of the Diyarbakır Assize Court;
- he was not promptly informed of the accusations against him;
- the nature and cause of the accusations against him changed during the course of the proceedings, as while he was accused of only three acts in the bill of indictment, the public prosecutor later alleged his responsibility in four criminal acts; moreover, he was not given the opportunity to prepare an additional defence to the new accusation;
- the relevant statements and documents from M.Ç.’s case-file were not read out or otherwise provided to him following the joinder of their cases.
B. Complaint under application no. 1191/08
64. The applicant contends under Articles 6 §§ 1 and 3 (b) and (c) and Article 6 § 2 of the Convention that he was denied adequate facilities to prepare his defence, as well as the right to defend himself in person, on account of the unlawful restriction by the prison administration of his access to certain documents in his criminal case-file.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair trial in the determination of the criminal charges against him, as required by the first and third paragraphs of Article 6 of the Convention? In particular:
a. Did the circumstances in which the evidence against the applicant was obtained and assessed cast doubt on its accuracy or reliability and were there procedural safeguards against arbitrariness in the collection of evidence?
b. Did the Diyarbakır Assize Court conduct a proper examination of the submissions, arguments and evidence before it, and respond to the applicant’s pertinent objections in relation to that evidence?
c. Did the Diyarbakır Assize Court examine the witnesses and evidence proposed by the applicant, within the meaning of Article 6 § 3 (d)?
The Government are requested to respond to these questions in the light of the objections and allegations raised by the applicant during the domestic proceedings and subsequently before the Strasbourg Court in relation to the evidence used against him.
2. Did the Diyarbakır Assize Court provide sufficient reasoning for its verdict, as required under Article 6 § 1 of the Convention? In particular, on what factual grounds was the applicant’s conviction under Article 125 of the former Criminal Code based?
The Government are requested to indicate whether the applicant was found criminally liable for the attempted bombing of the Victory Day parade on 30 August 2004, or whether he was implicated in that attempted attack otherwise.
3. Was the applicant informed of the nature and cause of the accusations against him and did he have adequate time and facilities for the preparation of his defence as required by Article 6 § 3 (a), (b) and (c) of the Convention, particularly in view of his allegations that the prison administration denied him access to certain documents in his case-file and that not all evidence used against him was read out in court? Did the nature or cause of the accusations against the applicant change after the lodging of the bill of indictment? If so, was the applicant given the opportunity to defend himself effectively against the new accusations?
The Government are requested to submit to the Court the documents that the applicant was denied access to and explain the reasons for this restriction. They are further requested to indicate whether the content of M.Ç.’s case-file was made available to the applicant after the joining of their cases.
4. Did the absence of legal assistance to the applicant during his police custody in Istanbul, and particularly during the search of his house on 29 October 2004, constitute a breach of his rights under Article 6 § 3 (c) of the Convention, in conjunction with Article 6 § 1 (see Dayanan v. Turkey, no. 7377/03, §§ 31-32, 13 October 2009)?
The Government are invited to shed light on the contradictory reports prepared by the police at the Istanbul Security Directorate on 29 and 30 October 2004 regarding the arrival of the bar-appointed lawyer. They are also requested to indicate whether the applicant was interviewed by the police while in Istanbul, and if so, to submit the relevant records.
The parties are also requested to submit a copy of the following:
1. Minutes of the criminal proceedings against M.Ç. (2004/387 E.).
2. Details of all the technical and forensic examinations conducted on the two Nokia 3310 phones mentioned in the facts, including the detailed reports obtained from the mobile network operators.
3. Copies of the notes found on the applicant in prison on 5 April 2005, of the relevant disciplinary decision against him, as well as of his statement to the prison authorities.
4. Copies of the photographs and video recording pertaining to the house search of 6 April 2005.
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