CASE OF GÜNEŞ 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)
Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens
5. The applicant was born in 1974 and is detained in Diyarbakır. 6. On 8 March 1995 the applicant was taken into police custody on suspicion of membership of Hizbullah, an illegal organisation. The applicant’s right of access to a lawyer was restricted during his police custody according to the now defunct Law no. 3842. On the same day he was examined by a doctor at his own request. The doctor noted, in a police document, that there was no sign of physical violence on the applicant’s body. 7. On 16 March 1995 the applicant was taken part in “an identification parade with statements (ifadeli yüzleştirme tutanağı)” with other accused persons and identified, in the absence of a lawyer, certain persons as members of the said organisation and confessed to committing a murder. 8. On 26 March 1995 the applicant further participated in the reconstruction of the events (olay ve yer gösterme) in the course of which he had confessed, in the absence a lawyer, having carried out an arson attack. 9. On 29 March 1995 the applicant was questioned by the police officers in the absence of a lawyer. In his statement, the applicant gave a detailed description about his involvement in Hizbullah. 10. On 5 April 1995 the applicant was brought before the public prosecutor and the investigating judge respectively, again in the absence of a lawyer. Before the public prosecutor and the investigating judge, the applicant denied his police statements claiming that he had been subjected to torture. The investigating judge ordered the applicant’s detention on remand. On the same day and before his statements were taken, he had been examined by a doctor at the request of the police. The doctor noted, in a police document, that there was no sign of physical violence on the applicant’s body. 11. On 12 April 1995 he was examined by a doctor at his own request claiming that he had been subjected to torture while in police custody. The doctor noted that there was no sign of physical violence on the applicant’s body. 12. On 2 May 1995 the applicant gave evidence as complainant before the public prosecutor and stated that the had been subjected to various forms of torture, which included beatings, electric shock treatment, blindfolding, hosing with cold water, and being stripped naked. 13. On 23 May 1995 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and several other persons. The applicant was accused of carrying out activities for the purpose of bringing about the secession of part of the national territory, proscribed by Article 125 of the former Criminal Code. 14. On 19 October 1995 the State Security Court held the first hearing in the case. 15. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was transferred to the Diyarbakır Assize Court. 16. On 31 March 2005 the Diyarbakır Assize Court convicted the applicant of attempting to undermine the constitutional order, proscribed by Article 146 § 1 of the former Criminal Code, and sentenced him to life imprisonment. 17. On 11 December 2006 the Court of Cassation quashed the judgment of 31 March 2005 in respect of some of the accused, including the applicant, and remitted the case to the Diyarbakır Assize Court. 18. On 9 November 2007, the Diyarbakır Assize Court convicted the applicant of attempting to undermine the constitutional order, proscribed by Article 146 § 1 of the former Criminal Code, and sentenced him to life imprisonment again. 19. On 19 January 2009 the Court of Cassation upheld the first-instance court’s judgment.