CASE OF ÇARKÇI v. TURKEY (No. 2)
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);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
4. The applicant was born in 1973 and is currently serving a sentence in Kandıra Prison. 5. On 17 July 1996 the applicant was wounded by a gunshot in the vicinity of a jewellery shop, which had been robbed by a group of people, allegedly including him. During the incident, shots were fired and the owner of the shop was shot dead. The applicant was unconscious when admitted to the emergency department of the hospital. 6. On 18 July 1996 the gendarmerie took statements from the applicant, which he did not sign. They noted that as the applicant’s hands were wounded and bandaged, he was unable to sign them. In these statements, the applicant admitted that he had been involved in the armed robbery. He stated, inter alia, that he had had a gun in his possession, which he had used during the robbery after the shop owner had begun firing. He also stated that he had committed the offence with two other people. 7. On 22 July 1996 the officers took further statements from the applicant and the applicant’s fingerprint was added in lieu of a signature. On the same day, he was discharged from the emergency department of the hospital. According to a document drafted and signed by a doctor, the applicant had undergone a thoracotomy and laparotomy while there. 8. On 23 July 1996 the applicant was taken to the gendarmerie for questioning. According to a document drafted by three officers, the applicant’s doctors had authorised his transfer to custody. On the same day, he was asked to identify the guns allegedly used in the incident. He was also asked to identify two other people who had been arrested in connection with the same robbery. According to reports drawn up by the officers on the same day, the applicant’s condition deteriorated at around 11 p.m. and he was therefore taken back to hospital. 9. On 25 July 1996 the applicant was brought before the public prosecutor and the investigating judge. According to a document containing his statements to the judge, the applicant did not ask to be represented by a lawyer. He once again admitted that he had been involved in the armed robbery, but denied the accusation that he had killed the owner of the shop. The applicant’s fingerprint was added at the end of the statements. On the same day, the investigating judge ordered his pre-trial detention. 10. While being questioned in custody and subsequently by the public prosecutor and the judge, the applicant was not represented by a lawyer. 11. On 9 August 1996 the public prosecutor at the Bakırköy Assize Court filed an indictment against the applicant and three other people, charging them with armed robbery and murder. 12. On 21 February 1997 the public prosecutor at the Istanbul State Security Court filed a second indictment against the applicant and eight other people, accusing them of being members of the THKP-C (Turkish People’s Liberation Party/Front) and of attempting to undermine the constitutional order by force. 13. On 27 September 1996 the applicant told the Bakırköy Assize Court that he had not been involved in the armed robbery in question. He submitted that he had been in possession of a firearm as he had enemies, and had used the gun as he had heard gunshots when he was in the vicinity of the incident. He had thought that he had been attacked by his enemies, and had therefore opened fire. 14. On 13 May 1997 in his defence submissions to the Istanbul State Security Court, the applicant challenged the veracity of his statements taken between 17 and 22 July 1996 and claimed that they had been taken by the gendarmerie while he was unconscious in hospital. 15. In decisions of 23 October 1997 and 29 April 1998 respectively, the Istanbul State Security Court and the Bakırköy Assize Court decided to join the two sets of criminal proceedings against the applicant with another case before the Istanbul State Security Court on the ground that there was a factual and legal link between the cases (1996/180E). 16. In a petition dated 18 June 1998 to the Istanbul State Security Court, the applicant’s representative contended that the applicant had been seriously injured on 17 July 1996, and that when his statements drafted by the security officers had been taken on 18 July 1996, he had been in such a state that he could not even sign them. The lawyer alleged that the security forces had made up a scenario implicating the applicant in the armed robbery and in terrorist-related activities. 17. On 28 June 1998 the applicant’s representative told the Istanbul State Security Court that the applicant had not known the people whose names had been mentioned in his statements and had denied their veracity, as their contents had been concocted by the security forces. 18. On 18 June 1999 Article 143 of the Constitution was amended, excluding military members from State Security Courts. As a consequence, the military judge sitting on the bench of the Istanbul Security Court was replaced by a civilian judge. Following the abolition of State Security Courts by Law no. 5190 of 16 June 2004, the case against the applicant was transferred to the Istanbul Assize Court. 19. On 20 March 2007 the applicant’s representative told the Assize Court that the applicant’s statements had been taken by the gendarmerie under torture. 20. On 30 May 2008 the Istanbul Assize Court convicted the applicant under Article 146 § 1 of the former Criminal Code of attempting to undermine the constitutional order by force and sentenced him to “aggravated” life imprisonment (without the possibility of parole). Basing its decision on ballistic, autopsy and other expert reports, statements taken from the accused, the shop owner’s cousin, who had intervened in the proceedings as a civil party, witnesses and all other evidence available in the case file, the court established that the applicant and three other people were accomplices in the armed robbery on behalf of the THKP-C and in murder. 21. On 11 March 2009 the Court of Cassation upheld the judgment of the first-instance court. 22. The relevant domestic law and practice in force at the material time can be found in the case of Salduz v. Turkey ([GC], no. 36391/02, §§ 27-31, 27 November 2008).