CASE OF DAŞTAN v. TURKEY
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-d - Examination of witnesses)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
5. The applicant was born in 1975 and is detained in Turkey. 6. On 22 August 2004 the applicant was arrested on suspicion of membership of an illegal organisation, namely the PKK (the Kurdistan Workers’ Party). The following day, on 23 August 2004, he was questioned by the gendarmerie, at which time he was reminded of his rights, including the right to benefit from legal assistance. He refused the assistance of a lawyer and gave a statement of forty-nine pages in length in which he admitted his membership of the PKK and gave detailed information about the organisation and its members. According to transcripts of that statement, the applicant read its content and signed every page of it. 7. On 26 August 2004 the applicant was brought before the Tunceli public prosecutor and he was again reminded of his right to benefit from legal assistance. He indicated that he did not wish to be assigned a lawyer and that he would make a statement without assistance. He confirmed his membership of the PKK and his support for that illegal organisation, however maintaining that he had never been involved in an armed operation. The applicant was placed in detention pending trial on the same day. 8. On 3 December 2004 the Malatya public prosecutor filed an indictment with the Malatya Assize Court, charging the applicant under Article 125 of the former Criminal Code with seeking to destroy the constitutional order and unity of the Turkish State and to remove part of the country from the State’s control. The public prosecutor claimed that the applicant: - had exploded a remote-controlled land mine in Ovacık province in November 2003 that had caused the injury of one soldier, - had exploded a time bomb in Ovacık province on 28 October 2003 that had caused the injury of two soldiers. In its assessment report (tensip zaptı) dated 10 December 2004 the Malatya Assize Court ordered a copy of the police statements of D.T., M.A., A.Ç., S.G., H.B. and V.D. The trial court further ordered that the whereabouts of D.T. be ascertained. 9. M.A. was tried in another set of criminal proceedings concerning the same organisation. On 17 February 2004 M.A. lodged an application to benefit from the Reintegration of Offenders into Society Act (Law no. 4959), which had come into force on 6 August 2003. 10. On 30 December 2004, at the first hearing, the applicant gave evidence in the presence of his lawyer and accepted the contents of his police statement. In other words, the applicant once again admitted his membership of the PKK while insisting that he had not been involved in any armed activity. He further stated that his statement had not been read back to him by the police and asked the trial court not to take it into consideration in case it had any incriminatory remarks in respect of himself or third persons in so far as they concerned participation in armed activities. When asked about his statement before the public prosecutor, the applicant essentially confirmed it, whilst insisting that he had not given any statement concerning the attacks in Tunceli, a city in the east of Turkey, and adding that he had signed it without reading it. Lastly, the applicant stated that he had received training in bomb-making and that he had been planning to carry out bomb attacks in major cities in accordance with the instructions of the PKK. His lawyer submitted that he had nothing to add to the applicant’s statements. 11. During the same hearing the trial court questioned several witnesses, namely A.Ç., M.A. and K.A. A.Ç. testified that he knew the applicant but that they had not carried out any armed attack together. M.A. stated that he had not known the applicant’s real name, but he had known him as “Hamza”. M.A. further testified that he had no knowledge of the applicant’s position and activities within the illegal organisation. K.A. testified that he did not know the applicant. 12. At a hearing on 25 November 2005 the trial court noted that D.T. was in Kırklareli Prison and it issued a letter of request to the Kırklareli Assize Court, requesting that the latter obtain his statements. 13. On 14 December 2005 D.T.’s statement was taken by the Kırklareli Assize Court, pursuant to the letter of request by the trial court. According to the transcript of the hearing at the Kırklareli Assize Court, D.T. was detained in Kırklareli E-type Prison at the time his statement was taken. D.T. stated that he had known the applicant as “Zafer” and that he had knowledge of the attack in Ovacık province, adding that he had heard such information from the member with the code name “Serhildan”. 14. On 15 March 2006 the applicant asked the trial court to hear evidence from D.T. in person. The trial court rejected this request on the basis that hearing D.T.’s testimony in person would not contribute to its assessment since his statement given before another court had been considered sufficient for a conviction. 15. On 10 May 2006 the Malatya Assize Court found the applicant guilty pursuant to Article 125 of the former Criminal Code and sentenced him to life imprisonment. The court took account of the variety of evidence and witness statements, including those of D.T., which had been taken by the Kırklareli Assize Court at the trial court’s request. The relevant parts of the trial court’s reasoned judgment read as follows: “...