SECOND SECTION
Application no. 6675/10
Abdullah GÜNAY and Metin YAMALAK
against Turkey
lodged on 8 November 2009
STATEMENT OF FACTS
The applicants, Mr Abdullah Günay and Mr Metin Yamalak, are Turkish nationals, who were born in 1979 and 1980 respectively. The applicants are currently detained at the Kırıkkale and Bolu Prisons respectively. They are represented before the Court by Mr M. Erbil, a lawyer practising in Istanbul.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 25 April and 30 March 1999, respectively, Mr Günay and Mr Yamalak were arrested and placed in police custody on suspicion of membership of an illegal organisation and of attacking a shopping mall (Mavi Çarşı) with molotov cocktails, killing thirteen persons.
On 26 and 4 April 1999, respectively, police officers at the Istanbul Security Directorate took statements from Mr Günay and Mr Yamalak in the absence of a lawyer. They both confessed that they were members of the illegal organisation and admitted to starting a fire by throwing molotov cocktails at the shopping centre in March 1999.
On 30 and 6 April 1999, respectively, the Istanbul Public Prosecutor took the statements of Mr Günay and Mr Yamalak.
Subsequently, they were also questioned by the investigating judge, still in the absence of a lawyer. The investigating judge then ordered the applicants’ detention on remand.
On 6 May 1999 the Istanbul Public Prosecutor issued an indictment, charging the applicants under Article 125 of the former Criminal Code.
On 14 July 1999 criminal proceedings commenced before the Istanbul State Security Court, which was later replaced by the Istanbul Assize Court following the abolition of the state security courts in July 2004.
On 7 May 2007 the Istanbul Assize Court convicted the applicants as charged and sentenced them to aggravated life imprisonment for being members of an illegal organisation and for the murder of thirteen persons. The first-instance court based its decision on several items of evidence, such as the applicants’ statements to the police, the public prosecutor and the investigating judge, video recordings and written records of the crime scene visits, autopsy reports, eyewitness identification, ballistic reports and the statements of some of the accused persons.
On 7 May 2009 the Court of Cassation upheld the judgment. This decision was deposited with the Registry of the first-instance court on 8 July 2009.
COMPLAINTS
1. The applicants complain that the sentence of aggravated life imprisonment was, by its nature, against the principles of Article 3 of the Convention. In this connection, they maintain that the Turkish legislation does not provide for a review of the aggravated life sentence that has been imposed on them.
2. Relying on Article 6 § 3 (c) of the Convention, the applicants complain that they were denied access to a lawyer while in police custody.
QUESTIONS TO THE PARTIES
1. Have the applicants been subjected to inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention? In particular, is their sentence of life imprisonment without commutation, and without a possibility of review, compatible with the requirements of that provision (see Vinter and Others v. the United Kingdom ([GC], nos. 66069/09, 130/10 and 3896/10, § 121)?
2. Has there been a breach of Article 6 § 3 (c) of the Convention as a result of the lack of legal assistance available to the applicants during their detention in police custody (see Salduz v. Turkey [GC], no. 36391/02, §§ 45‑63, ECHR 2008)?
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