ŞEDAL v. TURKEY
Inadmissible
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
1. The applicant, Ms Mahsume Şedal, is a Turkish national, who was born in 1977 and is currently serving a prison sentence in İzmir. She was represented before the Court by Mr K. Bayazıt, a lawyer practising in Hakkari, Turkey. The Government were represented by their Agent. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 28 August 2004, at around 4 p.m., the applicant was arrested on suspicion of involvement in the armed operations of the PKK (the Kurdistan Workers’ Party), an illegal armed organisation. 4. Following her arrest, at 6 p.m., she underwent a medical examination at the Istanbul Forensic Medicine Institute. The report drawn up there noted no injuries on her body. 5. Later on the same day, the applicant was taken to the AntiTerrorist Branch of the Istanbul Security Headquarters, where she was placed in custody. 6. According to the records held, that day the applicant met with her lawyer. The document was signed by both the applicant and her lawyer. 7. The next day, on 29 August 2004, the applicant was questioned by the police. Before the questioning, she was reminded of her rights, including the right to benefit from legal assistance. According to the official statement, she refused legal assistance and proceeded to give certain information about her training within the PKK and the structure of the illegal organisation. She signed both the official statement and an additional document indicating her refusal of legal assistance. 8. On 30 August 2004 the applicant consulted with her lawyer in person once again. Both the applicant and her lawyer signed the police records noting that meeting. 9. On 1 September 2004 the applicant underwent a second medical examination at the Forensic Medicine Institute. She complained that during her police custody she had been slapped, had her hair pulled, been pushed to the ground and been deprived of sleep. The report drawn up following the examination noted no indication of physical violence on the applicant’s body. 10. On the same day the applicant was brought before the Istanbul public prosecutor, when she gave her statements in the presence of a lawyer. She reiterated her allegations of ill-treatment and denied her previous statements, indicating that they had been taken under duress. The applicant’s lawyer also maintained before the public prosecutor that he had not been allowed to see the applicant at the Anti-Terrorist Branch. 11. Subsequently, the applicant was brought before the investigating judge at the Istanbul Assize Court. There, once again in the presence of her lawyer, she repeated the statements she had made before the public prosecutor. She further maintained that she had been beaten while in police custody. At the end of the questioning, the investigating judge ordered the applicant’s detention on remand. 12. On 29 September 2004 the Istanbul public prosecutor filed an indictment with the Istanbul Assize Court, accusing the applicant of membership of the PKK, an offence under Article 168 § 2 of the Criminal Code in force at the time (Law no. 765). 13. At various hearings before the Istanbul Assize Court, the applicant stated that she had left the PKK on account of her health problems and of her own free will, and had never been involved in any armed acts carried out by the illegal organisation. She also reiterated her allegations of illtreatment in police custody before the court. During the course of the proceedings, the applicant was represented by a lawyer. 14. At a hearing on 25 December 2006 the Istanbul public prosecutor submitted his observations, further accusing the applicant of carrying out activities with the aim of bringing about the secession of part of the national territory, under Article 125 of the former Criminal Code. 15. On 7 May 2007, on the basis of various pieces of evidence, including the applicant’s statements before the public prosecutor and the investigating judge, the findings of two searches conducted in her residence, telephone records and several witness statements, the Istanbul Assize Court sentenced the applicant to life imprisonment under Article 125 of the former Criminal Code. The court also relied on the applicant’s police statements and maintained that they were corroborated by evidence obtained subsequently from the Şırnak Gendarmerie Command. In response to the applicant’s submissions about the use of those statements, taken in the absence of a lawyer, the court indicated that she had waived her right to legal assistance before being questioned. The court did not make any comments with regard to the applicant’s allegations of ill-treatment. 16. On 13 February 2008 the Court of Cassation upheld the judgment of the first-instance court, again with no mention of the alleged ill-treatment. 17. A description of the relevant domestic law can be found in Yoldaş v. Turkey, no. 27503/04, §§ 24-27, 23 February 2010.