CASE OF BAYTAR v. TURKEY
Remainder inadmissible;Violation of Article 6+6-1 - Right to a fair trial (Article 6-3-e - Free assistance of interpreter) (Article 6 - Criminal proceedings;Right to a fair trial;Article 6-1 - Fair hearing);Non-pecuniary damage - award
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
5. The applicant was born in 1949 and lives in Van. 6. On 30 April 2001 the applicant went to Muş prison during visiting hours to see her brother, who was being held there in connection with a case related to the PKK, an illegal armed organisation. 7. The staff responsible for body searches found on the applicant “close to the left side of her abdomen”, a piece of paper that had been folded several times and wrapped in tape. It was an unsigned letter dated 24 April 2001, written by a member of the PKK and addressed to another member. 8. The applicant was taken into police custody on the same day and questioned in Turkish by the gendarmes the following day. During the interview she stated that she had picked up the object in question in Van at the bus stop where she was waiting for the bus to Muş. She had thought that the object might have some value and had intended to remove the wrapping once she was alone. 9. On 1 May 2001 she gave a statement to the same effect before the public prosecutor and then before the District Court. As she was illiterate, she signed the statements with her fingerprint. 10. She was remanded in custody after being examined and was released on 5 July 2001. 11. On 27 September 2001 the State Security Court of Van acquitted the applicant, considering her version of events to be credible. 12. On 17 December 2001 the applicant visited her brother again in Muş prison during a religious festival. After the visit she was taken into police custody. 13. The police report drawn up that same day stated that the staff responsible for body searches had discovered, hidden in the lining of the applicant’s dress, a sixteen-page document consisting of rolled-up onionskin paper protected by adhesive tape. According to the report, the document contained, in particular, information about the PKK’s strategy and its activities in prisons, about the conduct to be adopted vis-à-vis the prison authorities and about prison staff. 14. She was questioned in Turkish by two gendarmes on 18 December 2001. The report stated that she had been reminded of her right to the assistance of a lawyer but had waived that right. As to the facts, she had stated that she had seen a wrapped object in the prison waiting room and had picked it up out of mere curiosity, placing it in her bra. She added that, during the search, the prison officers had discovered the object and had unwrapped it. She had noticed pieces of paper covered in writing. During her visit to her brother she had told him about the incident but he had not said anything about it. The gendarmes had then arrested her as she was leaving the prison. 15. In response to a question about her personal status, she replied that she was married to G.I. on the basis of a religious marriage, not a civil one, and that they had had five children together. Her husband had another partner with whom he had had six children. 16. When asked whether she worked for the PKK, she replied in the negative. She added that, on the first occasion, she had picked up the object thinking it might contain gold and that it was with the same thought in mind that she had taken the paper in the waiting room. 17. In response to a question about ten pieces of gold discovered on her during the search, she stated that half of them belonged to her daughter and the other half were hers. 18. After she had been questioned, the public prosecutor called for her to be remanded in custody. As a result she was brought before the District Court judge. 19. Finding that she did not speak Turkish with sufficient fluency, the judge asked a member of the applicant’s family who was waiting in the corridor outside the courtroom to act as interpreter. The relative accepted. 20. The applicant stated once again that she had found the document in question in the waiting room. Immediately afterwards, she claimed that this statement, and the one previously taken by the gendarmes, concerned events that had occurred seven months earlier; that no document had been discovered on her person when she last visited the prison; that she had thought the gendarmes were questioning her about earlier events; and that, not being able to read or write, she had signed the police report with her fingerprint without knowing what it said. When she was informed of the report’s content she disputed its veracity. 21. On 18 December 2001, after the hearing, the applicant was remanded in custody and criminal proceedings were brought against her before the State Security Court of Van for membership of an illegal armed organisation and, in the alternative, for aiding and abetting such an organisation. 22. At the various hearings before that court the applicant was assisted by a lawyer and an interpreter. 23. In the course of the proceedings, the defence disputed the prison officers’ version of events. Counsel argued that no document had been found on the applicant, adding that, according to her, a document had certainly been found on a female visitor during the search carried out on entering the premises and that person had nevertheless been authorised to visit on the grounds that it was a public holiday. The prison officers had failed to arrest her when she left the prison on account of the large number of visitors that day. Having realised that the visitor in question had evaded their control, the officers had decided to arrest the applicant instead, because they knew that a similar accusation had already been made against her. In addition, the defence stated that in her statement to the gendarmes the applicant had said that the impugned object had been found in her bra, whereas the record of the incident indicated that it had been found in the lining of her dress. 24. On 12 May 2002 two female prison officers were interviewed on the basis of a warrant. The first, C.A., stated that she had personally found the impugned document in the lining of the applicant’s dress during the body search. The second, F.A., confirmed this version and stated that she had been called immediately by her colleague after the discovery. 25. Testimony was also taken from a number of defence witnesses. Two women who were visiting the prison on the day of the incident stated that they did not know if the applicant had been searched on entering the prison. Another testified that she had entered the prison at the same time as the applicant but not had seen her being searched. One of the applicant’s brothers testified that he had arrived at the prison with her but that they had become separated during the body search before coming together again to visit their brother. In their conversation with the latter, the applicant had never mentioned any incident during her body search. 26. On 29 May 2002 the applicant was given a prison sentence of three years and nine months for aiding and abetting an illegal armed organisation. In its reasoning, the State Security Court observed that, in the first case, the applicant had claimed to have found the impugned document at a bus stop in Van, and that, in the second, she had stated during the investigation that she had found the document in the prison waiting room. It noted that the applicant had reiterated this statement to a district judge before claiming that she had been talking about the first case and that no document had in fact been found on her during the body search of 17 December 2001. The court took the view that there were some serious inconsistencies in the applicant’s explanations. It noted that if she had really believed that the questioning by the gendarmes and the district judge concerned the events of 30 April 2001 she should logically have stated that she had found the impugned document not in the waiting room of Muş prison but in Van. It concluded that the version of events given by the applicant and the defence witnesses was not credible, and it accepted the testimony of the two prison officers, which confirmed the findings in the relevant police report. The court thus found the applicant guilty as charged. 27. On 7 October 2002 the Court of Cassation quashed that judgment on a procedural ground. 28. On 18 April 2003 the State Security Court convicted the applicant again and handed down the same sentence. Moreover, taking into account the time she had already served, it ordered her release. 29. That judgment was quashed on 19 January 2004 on an appeal on points of law by the applicant. The Court of Cassation took the view that the offence with which she was charged had been incomplete and had remained at the attempt stage. It dismissed the applicant’s other grounds of appeal on points of law, including the question of the absence of an interpreter in police custody. 30. On 3 May 2004 the State Security Court sentenced the applicant to one year and three months’ imprisonment for attempting to aid and abet an illegal armed organisation. It adopted the same reasoning as that of its previous judgments. 31. On 6 June 2005 the Court of Cassation referred the case back to the first-instance court stating that, in accordance with Law no. 5252, setting out the rules and procedures for the application of the new Criminal Code which had recently entered into force, the case had to be re-examined in the light of that new code to determine whether the applicant could be granted the benefit of a more lenient provision. 32. On 19 September 2005 the Van Assize Court (formerly the State Security Court) convicted the applicant once again, adopting the same reasoning as that of its previous judgments, and specifying that the provisions of the former code were more lenient. 33. The applicant appealed on points of law against that judgment, submitting in particular that she had not been assisted by an interpreter while in police custody. 34. Her appeal was dismissed on 31 October 2006.