Legal summary
June 2025
Bülent Bekdemir v. Türkiye - 42881/18
Judgment 17.6.2025 [Section II]
Article 6
Article 6-1
Fair hearing
Article 6-3-c
Defence through legal assistance
Statutory restriction of the applicant’s right of access to a lawyer in police custody and the domestic courts’ reliance on statements obtained in the absence of a lawyer to convict him: violation
Facts – On 13 March 1998 the applicant was stopped, searched and arrested by the police after being found to be in possession of a pistol, cartridges, “a donation receipt”, part of a handwritten document, and a banner affiliated to the Communist Party of Turkey/Marxist-Leninist/Turkish Workers and Peasants’ Liberation Army (“TKP‑ML/TIKKO”). On 18 and 20 March the applicant made statements to the police and the public prosecutor respectively, in the absence of a lawyer as permitted under section 31 of Law no. 3842 in force at the time, imposing a statutory ban restricting his right of access to a lawyer.
In April 2009 a trial court convicted the applicant of being a member of an armed terrorist organisation and sentenced him to twelve years and six months’ imprisonment. Upon appeal the Court of Cassation quashed the conviction, holding that the applicant had committed an act of extortion by asking for money from business owners – “a grave act” committed on behalf of the terrorist organization – and concluded that his acts constituted the more serious offence of attempting to subvert the constitutional order. Subsequently, the trial court convicted the applicant of that more serious offence and sentenced him to life imprisonment. In doing so the trial court relied on the statements the applicant had made to the police and the public prosecutor in the absence of a lawyer.
All the applicant’s appeals were unsuccessful. The Constitutional Court, examining his individual application, found there had been no violation of the applicant’s right to a fair trial in conjunction with his right to legal assistance.
Law – Article 6 §§ 1 and 3 (c):
(a) Whether there was a restriction on the right of access to a lawyer – The applicant had been denied access to a lawyer from 13 March to 20 March 1998 as a result of the statutory ban laid down in section 31 of Law no. 3842. As a result, he had been without legal assistance when he had made his statements to the police and the public prosecutor.
(b) Whether there were compelling reasons for the restriction – There had been no compelling reasons justifying the restriction placed on the applicant’s right of access to a lawyer.
(c) Fairness of the proceedings as a whole – Neither the trial court nor the Court of Cassation had carried out any assessment of the impact the absence of a lawyer might have had on the rights of the defence or on the overall fairness of the proceedings. Article 148 § 4 of the Turkish Code of Criminal Procedure expressly provided that a statement taken in the absence of a lawyer could not form the basis of a conviction, unless the suspect or the accused confirmed that statement before a judge or a court. The applicant had consistently retracted the statements he had made to the police when later giving statements to the public prosecutor and the investigating judge, and when giving evidence during the trial. The domestic courts failed to apply Article 148 § 4 and accordingly did not exclude the impugned statements. Moreover, the Constitutional Court failed to apply the principles in the Court’s case-law when it assessed the applicant’s complaint. It concluded that the applicant’s statement made in the absence of a lawyer had not constituted the sole nor the decisive basis for his conviction on the grounds that (i) there had been other evidence in the case file, (ii) some of the business owners had confirmed their identification of the applicant at the trial, and (iii) there had been no indication of any sign of ill-treatment inflicted on the applicant while in police custody.
Regarding the “strength of other evidence”, the applicant had been initially convicted of, among other offences, membership of an armed terrorist organisation. That conviction had been based, among other evidence, on the items found in his possession and the statements that he had made to the police and the public prosecutor in the absence of a lawyer. The acts and activities underpinning his conviction had corresponded to those he had described in his statement to the police. However, the Court of Cassation quashed that conviction and concluded that the acts attributed to the applicant should, taken as a whole, be regarded as giving rise to the more serious offence of attempting to subvert the constitutional order. Subsequently, the trial court followed the Court of Cassation’s judgment, convicted the applicant of the more serious offence and sentenced him to life imprisonment, again relying, among other evidence, on the statements he had made to the police and the public prosecutor in the absence of a lawyer.
In view of the above, the crucial element of the offence of attempting to subvert the constitutional order hinged on the acts of extortion that the applicant had been found to have committed by asking for money from certain business owners on behalf of the TKP‑ML/TIKKO. On that basis, the evidence found in the applicant’s possession at the time of his arrest could not remedy the procedural shortcoming impacting on the overall fairness of the criminal proceedings. Regarding the acts of extortion, the first time the domestic authorities had learnt of the numerous incidents in which the applicant had asked for money from business owners had been when he had made his statement to the police in the absence of a lawyer. In fact, it had not been until a couple of days after that police interview that officers had taken statements from the owners of those establishments, incriminating the applicant and identifying him from the photographs shown to them.
Accordingly, the applicant’s statement in the absence of a lawyer carried significant probative value, as it provided the authorities with the narrative of what had happened and, in so far as the offence of attempting to subvert the constitutional order was concerned, appeared to have framed the process of evidence-gathering in the criminal proceedings against him. As a result, neither the further identification of the applicant by some of the business owners during the trial, nor the absence of any sign of ill-treatment of the applicant during his time in police custody could suffice to ensure the overall fairness of the proceedings. Therefore, the overall fairness of the criminal proceedings had been irretrievably prejudiced by the statutory restriction placed on the applicant’s right of access to a lawyer and the subsequent use of his statements in the absence of a lawyer.
Conclusion: violation (unanimously).
Article 41: EUR 3,000 in respect of non-pecuniary damage. The Court further considered that the most appropriate form of redress would be the retrial of the applicant, in accordance with the requirements of Article 6.
(See Salduz v. Turkey [GC], 36391/02, 27 November 2008, Legal Summary; Ibrahim and Others v. the United Kingdom [GC], 50541/08 et al., 13 September 2016, Legal Summary; Beuze v. Belgium [GC], 71409/10, 9 November 2018, Legal Summary; Mehmet Zeki Çelebi v. Turkey, 27582/07, 28 January 2020)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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