Communicated on 9 February 2017
SECOND SECTION
Application no. 16294/08
Sezai ORAK
against Turkey
lodged on 5 March 2008
STATEMENT OF FACTS
1. The applicant, Mr Sezai Orak, is a Turkish national, who was born in 1975 and is serving a life sentence in Kahramanmaraş. He is represented before the Court by Mr H. Taş and Mr V. Taş, lawyers practising in Elazığ.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant and as they appear from the documents submitted by him, may be summarised as follows.
3. On 8 February 2000, the applicant was taken into police custody on suspicion of being a member of Hizbullah, a proscribed organisation in Turkey.
4. On 15 February 2000 the applicant was questioned in the absence of a lawyer by police officers, who asked him about his affiliation to Hizbullah and a number of Hizbullah-related activities in which he was alleged to have taken part. According to the statement drawn up by the police, the applicant admitted to having been a member of Hizbullah but denied taking part in any activity, including killings and wounding of certain individuals. The end of the statement which contained the applicant’s signature read:
“I was arrested on 8 February 2000 and brought here to be questioned. Except for those that concerned my identity, I have not answered any questions that were put to me. And I did not make any other comments to the police ...”
5. On 16 February 2000 the applicant was brought before the public prosecutor for his statement to be taken. The applicant denied all allegations against him and stated that he had been ill-treated while he was detained in police custody. He went on to add that he had been blindfolded when he was forced to sign his statement.
6. The same day the applicant was arrested and his pre-trial detention was ordered.
7. On 8 March 2000 criminal proceedings against him were started before the Diyarbakır State Security Court on the charge of attempting to undermine the constitutional order, an offence proscribed by Article 146 § 1 of the former Criminal Code. The applicant was remanded in custody during the entire course of the criminal proceedings.
8. At the hearing on 2 May 2000, the applicant gave his testimony to the court, where he denied all allegations against him and repeated the statement he had given to the public prosecutor, including the alleged ill-treatment in police custody.
9. It appears that on 23 April 2004 the Diyarbakır State Security Court delivered its judgment in the case and convicted the applicant of attempting to undermine the constitutional order by force and sentenced him to a term of imprisonment. The applicant has not provided the Court with a copy of the relevant judgment of the Diyarbakır State Security Court.
10. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. Therefore, the Diyarbakır Assize Court acquired jurisdiction over the case.
11. On unspecified dates the proceedings against the applicant were joined with several other cases against the applicant and co-accused which had a common factual and legal background.
12. On 19 October 2007 the Diyarbakır Assize Court delivered its judgment and convicted the applicant of membership of an outlawed organisation, Hizbullah, and for his involvement in the murders of two persons and injury of two others as well as for his involvement in activities attempting to undermine the constitutional order by force under Article 146 of the former Criminal Code, and sentenced him to life imprisonment. It acquitted the applicant of injuring two persons and the murder of one individual for lack of evidence.
13. In convicting the applicant, the Diyarbakır Assize Court relied on the applicant’s statements – without specifying which ones –, the statements of the co-accused which had been obtained during police custody without the assistance of a lawyer, the statements of co-accused in other Hizbullah trials who were heard as witnesses benefiting from the Reintegration of Offenders into Society Act (Law no. 4959) in the applicant’s trial, and finally on the basis of the resume (i.e. the applicant’s short biography) found saved in a computer confiscated by the police during an operation against Hizbullah.
14. The judgment of 19 October 2007 became final on appeal on 16 May 2008.
15. On 16 June 2013 the applicant lodged a complaint with the Diyarbakır public prosecutor about the ill-treatment to which he had allegedly been subjected during his police custody.
16. On 30 October 2014 the Diyarbakır public prosecutor took a decision not to prosecute anyone in connection with the applicant’s allegations. He based his decision on the fact that the applicant’s medical reports dated 8 and 16 February 2000 issued during his police custody did not mention any injuries on the applicant’s body.
17. The objection lodged by the applicant against the decision of 30 October 2014 was dismissed by the Diyarbakır Magistrate’s Court on 23 February 2015.
B. Relevant domestic law
18. A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 27‑31, 27 November 2008).
19. The relevant law concerning admission in evidence in a criminal trial of confessions made during police custody can be found in Musa Karataş v. Turkey (no. 63315/00, § 52-53, 5 January 2010).
20. Section 4 of the Reintegration of Offenders into Society Act (Law no. 4959) in so far as relevant provides as follows:
“c) Those who have been arrested after the entry into force of this Act, but who have committed offences on behalf of a terrorist organisation before its entry into force may nevertheless take advantage of the Act by providing relevant information and documents on the structure and activities of the terrorist organisation. Provided that they assist the authorities with such information:
1) Before the judgment becomes final, they shall receive... sixteen years of imprisonment in lieu of imprisonment for life converted from the death penalty; fourteen years of imprisonment in lieu of imprisonment for life, and all other sentences shall be reduced by a third.
2) After the judgment becomes final, they shall receive... twenty-two years of imprisonment in lieu of imprisonment for life (converted from the death penalty); nineteen years of imprisonment in lieu of imprisonment for life, and all other sentences shall be reduced by half.”
COMPLAINTS
The applicant complains under Article 6 of the Convention that he was unable to consult a lawyer while he was detained in police custody and when he was brought before the prosecutor and the judge. He further argues under the same provision that all the statements of the co-accused admitted in the trial as evidence, some of which incriminated the co-accused and the applicant, were also drawn up without a lawyer being present during questioning.
QUESTIONS TO THE PARTIES
Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (c) of the Convention, given his submissions that the domestic courts convicted him on the basis of, inter alia, the statements that he and his co-accused had made in the absence of a legal representative? In particular, was the applicant’s right to a lawyer restricted and if so, on what basis and what were the compelling reasons thereof (Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 258‑259, ECHR 2016)? If there were no compelling reasons, were the rights of the applicant irretrievably prejudiced considering the overall fairness of the proceedings (ibid. § 265 and 274)?
The Government are requested to submit a copy of the complete investigation file as well as a copy of the case-file concerning the criminal proceedings brought against the applicant.
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