CASE OF ŞAMAN v. TURKEY
Violation of Art. 6-1+6-3-c;Violation of Art. 6-3-e;Remainder inadmissible;Non-pecuniary damage - award
András Sajó;David Thór Björgvinsson;Françoise Tulkens;Ireneu Cabral Barreto
4. The applicant was born in 1974 and at the time of lodging her application was serving a prison sentence in Buca Prison. 5. On 19 February 2004 the applicant was taken into police custody by police officers from the Denizli Security Directorate, upon intelligence reports that she was a member of the illegal organisation PKK/KONGRAGEL (the Kurdistan Workers' Party). When she was arrested, the applicant was in possession of a fake identity card. 6. On the same day the applicant was examined by a doctor, who noted that there was no sign of ill-treatment on her body. The applicant was subsequently taken to the Denizli Security Directorate for interrogation. 7. According to a form dated 19 February 2004 which explained an arrested person's rights, the applicant was reminded of her right to remain silent and was informed that she could request the assistance of a lawyer. The applicant marked this form with her fingerprint and stated that she did not want to be represented by a lawyer. Subsequently, a police officer prepared a further report, in which it was stated that although the applicant had been reminded of her right to legal assistance she had expressed her wish to defend herself in person. The applicant marked this report with her fingerprint as well. 8. On 20 February 2004 the applicant was questioned by the police in the absence of a lawyer. Before the questioning commenced the applicant was once again reminded of her right to have legal assistance, but she refused. In her police statement the applicant gave a detailed account of her involvement in the illegal organisation. 9. On 20 and 21 February 2004 respectively, the applicant was examined by a medical doctor. The medical reports indicated that there was no sign of ill-treatment on her body. 10. On 21 February 2004 the applicant was taken before the public prosecutor. During her questioning, the applicant was represented by a lawyer, Mr A.O. from the Denizli Bar Association, and she availed herself of her right to remain silent. The prosecutor questioned the applicant about the fake identity card that had been found on her during her arrest and the applicant accepted that she had been using a fake identity paper. The lawyer left the public prosecutor's office without signing the applicant's statement, stating that although the applicant had expressed her wish to remain silent, the prosecutor had continued asking questions. 11. The same day, the applicant was questioned by the investigating judge, again in the absence of a lawyer. Before the judge, the applicant retracted her police statement, stating that it had been taken under duress. When asked about her involvement in the illegal organisation, the applicant accepted that when she was a teenager she had joined the PKK and moved to Iraq. She denied however having taken part in any terrorist activity. She stated that she had come back to Turkey to benefit from the Reintegration of Offenders into Society Act (Law no. 4959). After the questioning was over, the investigating judge remanded the applicant in custody. 12. On 8 March 2004 the public prosecutor at the Izmir State Security Court filed an indictment with that court, accusing the applicant of membership of an illegal organisation, an offence under Article 168 of the former Criminal Code and Section 5 of the Prevention of Terrorism Act (Law no. 3713). 13. The proceedings commenced before the Izmir State Security Court and during the proceedings the applicant was represented by a lawyer. At the request of the applicant, the State Security Court gave permission to the applicant to have the assistance of an interpreter. In its decision the firstinstance court noted that the applicant was capable of expressing herself in Turkish; however, in order not to hinder her right to defence and to comply with Article 6 § 3 of the Convention, she was given leave to use an interpreter. 14. In her defence submissions before the Izmir State Security Court, the applicant retracted the statements she had made during the preliminary investigation stage. She alleged that she had been forced to fingerprint her statement. According to the applicant, as she was illiterate, she could not understand the content of the document. She went on to deny the accusations against her and explained that when she was a teenager she had escaped to Iraq for family reasons and that she had stayed in a refugee camp there. 15. On 1 October 2004, the applicant's representative brought to the attention of the Izmir State Security Court that the applicant, being of Kurdish origin, had a limited knowledge of Turkish and that during her police custody she had not had the assistance of a lawyer or an interpreter. 16. During the trial, the Izmir State Security Court took into consideration the police statements of three people who had also been charged with membership of the PKK. These three people testified that the applicant was a member of the PKK. 17. In the meantime, Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, abolished State Security Courts. The case against the applicant was therefore transferred to the Izmir Assize Court. 18. On 26 October 2004 the Izmir Assize Court found the applicant guilty as charged and sentenced her to twelve years and six months' imprisonment. In convicting her, the court had regard to the applicant's police statement and the statements of three witnesses who had confirmed that the applicant was a member of the PKK. 19. The applicant appealed. In her appeal, she alleged that her right to legal assistance during police custody had been breached in so far as she had been denied the assistance of a lawyer. 20. On 14 March 2005 the Court of Cassation upheld the judgment of the first-instance court. 21. On 13 June 2005 the Izmir Assize Court re-examined the case in the light of the new Criminal Procedure Code which entered into force in 2005. It found the applicant guilty as charged but reduced her sentence to six years and three months' imprisonment. 22. 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, §§ 2731, 27 November 2008).