Communicated on 5 September 2014
SECOND SECTION
Application no. 45202/07
Fevzi GÜÇLÜ
against Turkey
lodged on 8 October 2007
STATEMENT OF FACTS
The applicant, Mr Fevzi Güçlü, is a Turkish national, who was born in 1981 and is currently serving a prison sentence in Afyon. He was represented before the Court by Mr M. Güçlü, a lawyer practising in İzmir.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 24 August 2005, H.G. and E.A. filed a complaint against the applicant and Y.G. at the Tatarlı Gendarmerie Station. They alleged that the applicant and Y.G. had kidnapped and threatened them, and then forced them to sign a bill of bonds.
Following the complaint, the applicant and Y.G. were questioned by the gendarmerie on the same day. Prior to his questioning at the gendarmerie station, the applicant was reminded of his rights, including the right to be assisted by a lawyer. According to the statement record, the applicant waived his right to have free legal assistance and gave his statement in the absence of a lawyer. Before the gendarmerie, the applicant denied the allegations against him. He maintained that the complainant, H.G., was his friend and on that day they had met to have lunch together. They were also accompanied by E.A. and Y.G. According to the applicant’s submissions, on the way the applicant had argued with H.G. and subsequently H.G., E.A. and Y.G. had got out of the car. Meanwhile, the applicant had received a telephone call from home informing him that his child was ill and he had driven straight back to İzmir. The other co-accused, Y.G., gave a similar statement to the gendarmerie on the same day. He also denied kidnapping and threatening the complainants.
On 30 January 2006 the Dinar public prosecutor took the statement of O.U., who had received a text message from H.G. on the day of the incident. According to his statement, at first he had not paid attention to the message he had received around 3.00 p.m. About one and a half hours later, H.G. and E.A. had come to his office. They were exhausted and could hardly talk. They seemed very frightened and told him that they had been kidnapped. O.U. maintained that he had subsequently learned about the bill of bounds signed under duress.
On 23 March 2006 the public prosecutor at the Dinar Assize Court filed an indictment with that court accusing the applicant and Y.G. of kidnapping and qualified plundering under Articles 109 and 149 of the Criminal Code, and further accused the applicant of illegal possession of firearms in breach of Article 13 of Law No. 6136 on firearms.
On 29 May 2006 the Dinar Assize Court conducted a crime scene inspection in the presence of the applicant and Y.G.
On 6 June 2006, an expert report was submitted to the case file which displayed the crime scene sketch and a reconstruction of the kidnapping by measuring the time and distance in comparison with the itemized GSM records of the applicant and H.G.
On 19 July 2006 the Dinar Assize Court acquitted the applicant of the charge of illegal possession of firearms in breach of Article 13 of the Law No. 6136 on firearms, but convicted him of kidnapping and qualified plundering under Articles 109 and 149 of the Criminal Code. The trial court based the conviction of the applicant on the expert reports, crime scene inspection report and the GSM records which displayed the applicant’s and the complainants’ whereabouts at the material time. According to the GSM records it appeared that the applicant and his accomplice were at the places which corresponded to the complainants’ kidnapping allegation. Furthermore, the trial court took the statements of the applicant and his co‑accused into account. The applicant was accordingly sentenced to a total of eleven years and eight months’ imprisonment.
The applicant appealed. On 17 April 2007 the Court of Cassation upheld the applicant’s conviction without holding a hearing.
COMPLAINT
Invoking Article 6 § 3 (c) in conjunction with Article 6 § 1 of the Convention, the applicant complained about the lack of legal assistance at the time his statement was taken by the gendarmerie and during the investigation of the crime scene. He alleged that it was mandatory for the Government to provide free legal assistance according to Article 150 § 3 of the Criminal Procedure Code.
QUESTIONS TO THE PARTIES
1. Was the applicant’s waiver of his right to a lawyer established in an unequivocal manner and attended by minimum safeguards?
2. Has there been a breach of Article 6 § 3 (c) of the Convention as a result of the lack of legal assistance to the applicant during his police custody, which is mandatory pursuant to Article 150 § 3 of the Criminal Procedure Code?
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