CASE OF DÜLEK v. TURKEY
Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)
Helen Keller;Paulo Pinto De Albuquerque
4. The applicant, Ms Gazal Dülek, is a Turkish national who was born in 1979 and lives in Istanbul. She is represented before the Court by Ms G. Tuncer, a lawyer practising in Istanbul. 5. On 25 April 2000 the applicant was arrested on suspicion of aiding and abetting an illegal organisation, namely the PKK. 6. On 26 April 2000 she was arrested for interrogation at the AntiTerrorism Branch of the Istanbul Security Directorate (“the Anti-Terrorism Branch”). In her statement, taken in the absence of a lawyer, the applicant declared that she had worked as a secretary at a local branch of HADEP for approximately five months and that she had been a member of the youth branch of HADEP since 1999. She also admitted that she was a member of the PKK, that on one occasion she had hidden a bomb in her house upon the request of another PKK member, that she had assisted in sending a number of persons to PKK camps in eastern Turkey and Iran and that she had acted as a messenger for some PKK members detained at the Ümraniye prison. The applicant duly signed her statement. 7. At 11.20 a.m. on 30 April 2000 the applicant was examined by a doctor, who stated that there were no traces of ill-treatment on her body. 8. Subsequently, on the same day, the applicant was brought before the Public Prosecutor at the Istanbul State Security Court, again in the absence of a lawyer. The applicant alleged that at the Anti-Terrorism Branch, she had been forced to sign a statement which had been prepared by the police officers and stated that she did not even know the content of the statement. When her police statement was read out to her, she denied any involvement in the activities mentioned therein, apart from her membership of the youth branch of HADEP and her work experience there. 9. On the same day, the applicant was further interrogated by a single judge at the Istanbul State Security Court, in the absence of a lawyer. She denied all the accusations against her, reiterating the statement she had made before the public prosecutor. At the end of the questioning, the judge ordered her pre-trial detention. 10. On 4 May 2000 the Public Prosecutor at the Istanbul State Security Court filed an indictment with that court against the applicant and four other persons, accusing the applicant of membership of an illegal organisation under Article 168 (2) of the former Criminal Code (Law no. 765). 11. On 7 August 2000 the Istanbul State Security Court, composed of three civilian judges, held its first hearing. The applicant made her defence statement at the fourth hearing held on 18 April 2001, and denied all the charges against her. The applicant also denied her police statement, alleging that she had been forced to sign it without knowing its content. At the end of the hearing the Istanbul State Security Court ordered the applicant’s release. 12. On 3 September 2003 the Istanbul State Security Court convicted the applicant under Article 169 of the former Criminal Code of aiding and abetting an illegal organisation. Accordingly it sentenced her to three years and nine months’ imprisonment. In convicting her, the State Security Court mainly relied on the applicant’s police statement, and the statements made by her co-defendants. 13. On 19 October 2004 the Court of Cassation quashed the judgment of the Istanbul State Security Court. 14. In the meantime, by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was accordingly transferred to the Istanbul Assize Court. 15. On 14 April 2008 the Istanbul Assize Court convicted the applicant of membership of an illegal organisation under Article 314 (2) of the new Criminal Code (Law no. 5237) based on the evidence in the file and sentenced her to six years and three months’ imprisonment. 16. On 27 October 2009 the Court of Cassation upheld the judgment of the first-instance court. It expressly held that the assize court had correctly classified the offence committed by the applicant as membership of an illegal organisation. 17. The relevant domestic law and practice in force at the material time, as well as recent developments, can be found in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008).