CASE OF PEHLİVAN v. TURKEY
Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
4. The applicant was born in 1963 and lives in Istanbul. 5. On 5 April 1996 the Diyarbakır provincial gendarmerie command issued an arrest warrant in respect of the applicant, on the basis of which he was arrested and taken into custody on 12 April 1996 by police officers from the Anti-Terrorist Branch of the Istanbul Police Headquarters. Upon his arrest, the applicant signed an arrest report acknowledging the warrant and the authorities’ intention to transfer him to the Diyarbakır provincial gendarmerie command. 6. On 12 April 1996 a house search report was drafted by police officers from the Anti-Terrorist Branch of the Istanbul Police Headquarters which indicated that the applicant had been arrested on suspicion of affiliation to the PKK (the Kurdistan Workers’ Party), an illegal organisation, and of having committed homicide. The report was signed by three police officers and the applicant. 7. After being held for two days in the Istanbul police headquarters, the applicant was transferred to Diyarbakır, where he was held in the custody of the gendarmerie until 25 April 1996. 8. On 22 April 1996 the applicant was questioned by officers from the Diyarbakır provincial gendarmerie command, where he was requested to provide information regarding his affiliation to the PKK and his involvement in the killing of a certain B.C. The applicant stated that he was a member of the PKK and that he had killed B.C. in compliance with orders he had received from that organisation. 9. On 25 April 1996 the applicant was brought before the Diyarbakır public prosecutor, where he alleged that he was not involved in the activities of the PKK. The applicant further contended that in 1992 he had killed B.C. in his village as he had suspected that his partner had had a relationship with him. The applicant stated that the murder was not linked to any terrorist activity. The statements that he had made at the gendarmerie command were read to him. The applicant denied having made them. Furthermore the statements of three other suspects, Ş.B., Ş.C. and S.B., who maintained that the applicant was a member of the PKK, were also read to him. The applicant rejected these statements, claiming that these persons were relatives of B.C. 10. On the same day, the applicant was brought before a single judge at the Diyarbakır State Security Court. He reiterated the statements which he had made before the public prosecutor. Following his questioning, the judge remanded the applicant in custody, holding that there were strong indications that he had committed the offence defined in Article 125 of the former Criminal Code, namely carrying out activities for the purpose of bringing about the secession of part of the national territory. 11. On 10 May 1996 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and six other persons. The applicant was charged under Article 125 of the former Criminal Code, and with killing B.C. 12. On 14 May 1996 the First Division of the Diyarbakır State Security Court held a hearing and ordered the applicant’s continued detention on remand in view of the nature of the offence, the state of evidence and the content of the case file. 13. On 19 August 1996 the applicant made statements before the firstinstance court, denying the charges against him. 14. Between 19 August 1996 and 29 December 1997, the first-instance court postponed the hearings as it was awaiting information and documents from the Lice public prosecutor’s office. 15. On 29 December 1997 the State Security Court requested the Lice gendarmerie command to provide information concerning the killing of B.C. The court subsequently postponed the hearings until 24 December 1998 on account of the failure of the gendarmerie command to submit the relevant information. 16. On 22 November 1999 the First Division of the Diyarbakır State Security Court requested the Third Division of the same court to submit a copy of the file in the case brought against Ş.B., Ş.C. and S.B. Between 22 November 1999 and 4 September 2001, the trial court postponed the hearings as the Third Division failed to submit a copy of the case file. 17. During the trial, the Diyarbakır State Security Court held forty-five hearings. At the end of every hearing the first-instance court considered the applicant’s detention during judicial proceedings, either of its own motion or at the applicant’s request. It ordered the applicant’s continued detention pending trial, having regard to the nature of the offence and the state of the evidence. 18. On 26 March 2002 the Diyarbakır State Security Court convicted the applicant under Article 448 of the Criminal Code of homicide and sentenced him to fifteen years’ imprisonment. The court found no convincing evidence that the offence committed by the applicant was linked to terrorist activities. The court ordered the applicant’s release from prison in view of the length of his detention during judicial proceedings. 19. On 4 July 2002 the Court of Cassation quashed the judgment of 26 March 2002 because the applicant had been unable to examine three witnesses against him during the trial. The case was subsequently remitted to the First Division of the Diyarbakır State Security Court. 20. On 12 August 2002 the first-instance court requested the Istanbul State Security Court to obtain submissions from the applicant on the statements of the witnesses. Between 12 August 2002 and 14 July 2003, the State Security Court held six more hearings whilst awaiting the applicant’s submissions. 21. On 14 July 2003 the first-instance court convicted the applicant once more of homicide and sentenced him to fifteen years’ imprisonment. 22. On 8 April 2004 the Court of Cassation upheld this judgment. 23. Article 104 of the Code of Criminal Procedure in force at the material time provided that a person could be remanded in custody where there was a fear that the accused would abscond, or where there were attempts by the accused to remove evidence or interfere with witnesses. When the offence was a felony, it was presumed that the suspect was planning to escape. The last paragraph of Article 104 provided that detention on remand could not be imposed if another measure was adequate. Articles 117-122 of the Code of Criminal Procedure in force at the material time set out the conditions for release on bail.