CASE OF BOZKAYA 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);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)
Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano
5. The applicant was born in 1975 and is detained in Kahramanmaraş. 6. On 19 November 2003 the applicant was taken into police custody on suspicion of membership of an illegal organisation, namely the PKK/KADEK (Workers’ Party of Kurdistan/Kurdistan Freedom and Democracy Congress). It appears that at some point the applicant confessed to committing an armed attack on a prison vehicle in Adana and, as a result, on 21 November 2003 at 3 p.m. was required to participate in a reconstruction of the events (yer gösterme). According to the record drafted by police officers and signed by the applicant, the latter described in detail what steps he had taken before the attack on a prison vehicle in Adana and indicated how he had opened fire on that vehicle. 7. On the same day, he was taken to the Dörtyol police station for questioning. The questioning took place between 8.10 p.m. and 11.50 p.m. the same day and 10 a.m. and 3.45 p.m. the following day. The applicant’s statements to the police were transcribed on pre-printed forms, the relevant part of which was filled in to indicate, inter alia, that the applicant was suspected of membership of an illegal organisation and of carrying out armed activities on behalf of that organisation. On the first page of the forms there was a pre-printed message stating, inter alia, that the person being questioned had the right to remain silent and the right to choose a lawyer. It appears from the form that the applicant had refused legal assistance since the first page of the record includes a pre-printed phrase stating “No lawyer sought” with the applicant’s signature underneath. He was thus questioned in the absence of a lawyer. 8. In his statement, the applicant admitted that he was a member of the PKK/KADEK and that he was active in the organisation. In particular, he gave detailed information about, inter alia, an armed attack on a prison vehicle in Adana. He also stated that his code name was “Hüseyin”. 9. On 23 November 2003 he was brought before the Dörtyol public prosecutor, where he partly confirmed and partly denied the content of his statements to the police made in the absence of a lawyer. Prior to this he had been told his rights, including the right to benefit from the assistance of a lawyer. He further stated that he was a member of the PKK/KADEK and had been involved in some of its activities in northern Iraq but had not taken part in any political or armed activities in Turkey. 10. On the same day, an investigating judge of the Adana State Security Court took statements from the applicant. Prior to the interview, the applicant was informed of his rights under Article 135 of the former Code of Criminal Procedure. He did not ask for a lawyer. During the interview, the applicant stated that his statements made to the police and the public prosecutor had been correct. He maintained, in particular, that his statements made to the police in respect of the armed attack in Adana had been entirely correct. The court ordered the applicant’s pre-trial detention. 11. During the applicant’s period in custody, specifically from 19 to 23 November 2003, he was examined six times by doctors. The medical examinations conducted before and at the end of his custody period revealed no signs of ill-treatment on his body. 12. Prior to the applicant’s arrest, on 27 October 2003, a certain H.K., who was a co-accused, had claimed during questioning that he had organised the armed attack, acting with someone whose code name was “Hüseyin”. Later, at the first court hearing, he retracted his statements to the police, alleging that they had been extracted under duress. 13. On 23 December 2003 the Adana public prosecutor lodged an indictment, charging the applicant with the offence of breaking up the unity of the State and seeking to remove part of the national territory from the State’s control, under Article 125 of the former Criminal Code. 14. On 16 March 2004, at the first hearing in the case, the applicant retracted his statements made to the police, the public prosecutor and the investigating judge, alleging that they had been obtained through coercion and death threats by the police. He admitted that he was a member of the PKK/KADEK while denying involvement in the armed attack in Adana. When asked about the reports of the reconstruction of events, the applicant submitted that he had not accepted the evidence against him. 15. State Security Courts were abolished on 16 June 2004 pursuant to Law no. 5190. The case was therefore transferred to the Adana Assize Court. 16. On 10 February 2005 the applicant’s lawyer applied to the court to have a certain F.Y. summoned as a witness and to hold a confrontation with the applicant, as F.Y. had stated in his witness statements dated 16 October 2003 that he had seen the perpetrators of the attack. He also asked the court to enquire of the banks as to whether there had been any money transferred between the applicant’s father and H.K. The court dismissed the application concerning the attendance of a witness, on the grounds that the witness would not remember the incidents given the long time which had elapsed and that he would not tell the truth owing to the nature of the incident. It further dismissed the other request concerning the transfer of money, considering it not to be essential for the purposes of the case. 17. On 11 December 2005 the applicant sent a letter to the trial court in which he explained the threats and coercion he had been subjected to in detail and asked the court not to take his co-accused’s statements into consideration. 18. On 22 December 2005 the Adana Assize Court convicted the applicant as charged. 19. On 28 December 2005 the applicant’s lawyer appealed against that judgment and alleged, inter alia, that the applicant’s statements had been taken without notifying him of his rights and as a result of coercion and death threats by the police. The applicant’s lawyer gave detailed accounts of such treatment and asked the Court of Cassation not to rely on these statements which had been obtained by impairing the applicant’s will. 20. On 12 October 2006 the Court of Cassation quashed the conviction for procedural shortcomings. 21. At a hearing on 22 June 2007, the applicant’s lawyer once again maintained that the applicant’s confessions had taken by coercion and that the applicant had been forced by the police to sign his statements. He asked the trial court not to rely on those statements. At the same hearing, the first-instance court again convicted the applicant under Article 125 of the Criminal Code then in force, and sentenced him to life imprisonment. It relied, inter alia, on the consistent confessions of the applicant and H.K. made during questioning, which were later repeated before the public prosecutor and the investigating judge, and the record of the reconstruction of events. It also took into account the weapons, bullets and explosives seized by the judicial authorities and the organisational documents as well as the incident report, hotel records, an autopsy and expert reports, photographs, witness statements and investigation reports. The trial court’s reasoned judgment did not contain any pronouncements as regards the admissibility of the applicant’s pre-trial statements. 22. On the same day, the applicant’s lawyer appealed against that judgment and alleged, inter alia, that the applicant’s statements had been taken without notifying him of his rights and as a result of coercion and death threats by the police. The applicant’s lawyer gave detailed accounts of such treatment and asked the Court of Cassation not to rely on these statements which had been obtained by impairing the applicant’s will. 23. On 12 February 2009 the Court of Cassation upheld the conviction. 24. On 18 February 2009 the judgment was pronounced in the absence of the applicant and his lawyer.