Communicated on 11 February 2016
SECOND SECTION
Application no. 15069/05
Osman AYMELEK
against Turkey
lodged on 25 February 2005
STATEMENT OF FACTS
The applicant, Mr Osman Aymelek, is a Turkish national, who was born in 1960 and lives in Sivas. He is represented before the Court by Mr M.K. Koçali, a lawyer practising in Ankara.
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the time of the events, the applicant was serving in the Turkish Army as a lieutenant-colonel. A criminal investigation was initiated by the Prosecution Office of the General Staff and the applicant was interrogated by the military public prosecutor on 8, 10 and 11 May 2000 respectively, in the absence of a lawyer. Subsequently, on 19 June 2000 the applicant was placed in detention on remand. On 26 June 2000 an indictment was filed with the Military Court of General Staff, and the applicant was accused of embezzlement.
On 19 September 2000 the Military Court, composed of a military officer with no legal background and two military judges, found the applicant guilty as charged and sentenced him to thirty-six years’ imprisonment.
On 2 April 2003 the Military Court of Cassation quashed the judgment of the first instance court, and the case file was remitted to the Military Court of General Staff. During the proceedings, the military public prosecutor, who had conducted a part of the investigation, was appointed as a judge to the Military Court and sat on the bench of the court that tried the applicant.
Following a re-examination of the case, on 17 December 2003 the first instance court, composed of a military officer with no legal background and two military judges, convicted the applicant of embezzlement on two counts and sentenced him to twelve years and six months’ imprisonment. In rendering its decision, the court did not specifically rely on the applicant’s statements taken in the absence of a lawyer, but based itself on expert reports, bank account details and witness statements.
On 2 June 2004 the Military Court of Cassation upheld the judgment, and this decision was served on the applicant’s lawyer on 8 September 2004.
COMPLAINTS
The applicant complains that the Military Court which tried and convicted him could not be regarded as an “independent and impartial tribunal” as required by Article 6 § 1 of the Convention. In this respect, he states that the military officer, who sat on the bench of the court, had no legal background and was dependent on the military authorities.
The applicant also maintains that the prosecutor, who had conducted a part of the investigation, was subsequently appointed as a judge to the Military Court and sat on the bench of the court that convicted him.
Finally, the applicant complains that he was denied the assistance of a lawyer during his custody.
QUESTIONS TO THE PARTIES
Did the applicant have a fair trial in the determination of the criminal charges against him within the meaning of Article 6 of the Convention? In particular;
a) Was the Military Court of the General Staff, which tried and convicted the applicant, independent and impartial as required by Article 6 § 1 of the Convention (see Gürkan v. Turkey, no. 10987/10, 3 July 2012)?
b) Did the applicant benefit from the assistance of a lawyer during his time in pre-trial detention, pursuant to Article 6 § 3 (c) of the Convention (see Salduz v. Turkey [GC], no. 36391/02, 27 November 2008)?
c) Did the fact that the public prosecutor, who had conducted the investigation against the applicant, was subsequently appointed as a judge and sat on the bench of the Military Court of the General Staff that tried and convicted the applicant, constitute a breach of Article 6 of the Convention?
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