CASE OF GİRİŞEN 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;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
5. The applicant was born in 1979 and is detained in Diyarbakır. 6. On 23 December 2001 the applicant was arrested and taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. During his detention in police custody, the applicant was allegedly subjected to ill-treatment by police officers. In particular, electric shocks were administered to his testicles. 7. On 25 December 2001 the applicant was interrogated by the police in the absence of a lawyer. During his interrogation, he confessed in detail to his involvement in the activities of the illegal organisation and gave detailed information about the organisation and its members. 8. On 26 December 2001 the applicant gave a statement to the public prosecutor in the absence of a lawyer in which he denied the statements he had given to the police. 9. On the same day the applicant was brought before the investigating judge at the Diyarbakır State Security Court, who questioned him in the absence of a lawyer. The applicant again denied his statements to the police. During his questioning, the applicant alleged to the investigating judge that he had been subjected to ill-treatment while in police custody and that his statements had been taken under duress. However, a medical report issued by Bağlar Health Clinic dated the same day stated that there was no sign that he had been subjected to violence. At the end of the hearing, the court ordered that the applicant be placed in pre-trial detention. 10. On 9 January 2002 the Diyarbakır public prosecutor filed a bill of indictment, charging the applicant under Article 146 of the former Turkish Criminal Code with attempting to undermine the constitutional order of the State. 11. On 19 March 2002 the Diyarbakır State Security Court held the first hearing on the merits of the case. During the hearing, the applicant repeated his allegations of having been subjected to ill-treatment in police custody and denied his statements to the police. 12. On 27 January 2004 the applicant lodged a criminal complaint with the Diyarbakır public prosecutor’s office against the police officers who had allegedly ill-treated him. He stated that electric shocks had been administered to his body through his testicles and that his testicles had been squeezed, which had caused serious harm. He attached a medical report dated 20 September 2002 from Fırat University on the state of his testicles. The report stated that the applicant had a dilation of the veins in his left testicle of up to 2.6 mm, which had resulted in a varicocele. 13. State Security Courts were abolished by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004. The case against the applicant was transferred to the Diyarbakır Assize Court. 14. On 25 June 2004 the Diyarbakır public prosecutor issued a decision to discontinue the criminal proceedings against the police officers on account of a lack of evidence. 15. During the criminal proceedings against the applicant, the first-instance courts examined the applicant’s continued detention at the end of the hearings, either on their own motion or at the applicant’s request. The courts ordered that he be kept in detention owing to the nature of the offence, the state of the evidence and the contents of the file. 16. On 12 June 2008 the Diyarbakır Assize Court convicted the applicant as charged and sentenced him to life imprisonment. The sentence, however, was reduced to twenty years of imprisonment as the applicant was a minor at the time of the offence. 17. On 18 January 2010 the Court of Cassation quashed the decision for procedural reasons. 18. On 2 April 2010 the applicant asked the Diyarbakır Assize Court for his release pending trial. On 9 April 2010 the court dismissed his application for release on the grounds of the nature of the offence. 19. On 30 September 2010 the Diyarbakır Assize Court issued a decision of lack of jurisdiction (görevsizlik kararı), pursuant to section 8 of Law no. 6008, which provided that juveniles could not be tried before assize courts, which had special jurisdiction to try a number of aggravated crimes enumerated under Article 250 § 1 of the Code of Criminal Procedure at the material time. The case was thus referred to the Diyarbakır Juvenile Court. 20. On 2 November 2010 the applicant was released pending trial. 21. On 5 June 2012 the Diyarbakır Juvenile Court found that, inter alia, on the basis of the applicant’s statements to the police, the applicant had committed the offence under Article 146 of the former Turkish Criminal Code and sentenced him to sixteen years and eight months’ imprisonment. 22. On 17 June 2014 the Court of Cassation upheld the Diyarbakır Juvenile Court’s judgment.