Communicated on 19 June 2017

SECOND SECTION

Application no. 8801/10 Ferhan Ç İ ÇEK and others against Turkey lodged on 15 December 2009

STATEMENT OF FACTS

1. A list of the applicants is set out in the appendix.

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. On 17 July 2004 a certain A.A. and S.A. were arrested on suspicion of membership of an illegal organisation, namely the PKK (the Kurdistan Workers ’ Party). In his detailed statements before the police, A.A. gave the names of some people who he claimed to have provided him with supplies. S.A. also mentioned the same names.

4. Subsequently, on 21 and 22 July 2004 five of the applicants, namely, Ferhan Çi ç ek , Abdullah Çiçek , Kasım K ı raç , Re ş it Sa ğı n and Osman Saknak (hereinafter referred to as “the applicants”), and the father of the other applicants, Re ş it Ç ak ı r were arrested on suspicion of aiding and abetting the illegal organisation PKK.

5. On the same day they were interviewed at the Anti-terror Branch of the Cizre Directorate of Security. According to the minutes, the applicants were informed that they had the right to request legal assistance before they made their statements, however; they refused to do so and made their submissions in the absence of a lawyer.

6. During their interviews, the police informed the applicants that A.A. and S.A. had given their names, stated that they had been aiding and abetting the illegal organisation and further identified them when they were brought to the Directorate of Security. The applicants argued that they did not know the said persons.

7. On 23 July 2004 the Public Prosecutor heard the applicants. They maintained that they would make their statements in the absence of a lawyer. The applicants refuted the allegations and stated that they did not know A.A. and S.A.

8. On the same day the Cizre Magistrates ’ Court remanded the applicants in detention. The applicants maintained once again that they would make their statements without legal assistance and repeated their previous submissions.

9. On 6 August 2004 the Diyarbak ı r Public Prosecutor issued an indictment, accusing the applicants of aiding and abetting an illegal organisation.

10. Subsequently, the applicants were tried together with A.A. and S.A. who were accused of membership of the PKK and involvement in armed acts of the illegal organisation.

11. At the hearing dated 22 September 2004 A.A. made his submissions with the assistance of a translator as he did not have sufficient command of Turkish. He retracted his police statements in so far as they concerned the applicants and indicated that he did not know them.              He further argued that his police statements were taken under duress.

12. On the same day the applicants were released pending trial.

13. On 17 November 2005 A.A. ’ s lawyer maintained before the court that A.A. ’ s statements before the police had been taken in the absence of a translator and that it was not possible for him to have given fifty-page long statements in Turkish. The lawyer contended that even assuming he had done so, he could not have possibly read and understood the content of the statements before signing them. He further indicated that A.A. had not benefited from legal assistance while he made his statements and had not been asked whether he wished to appoint one.

14. S.A. also denied his police statements, claiming they had been taken under duress. He did not specify whether he knew the applicants.

15. During the course of the proceedings, the applicants ’ lawyer contested the use of A.A. ’ s statements before the police as evidence.

16. On 2 March 2007 the Diyarbakır Assize Court found the applicants guilty as charged and sentenced them to three years and nine months ’ imprisonment. In convicting the applicants, the court mainly relied on the statements of A.A., who had maintained before the police that the applicants provided him with food and supplies on various occasions. It further noted that S.A. mentioned some of the applicants in his police statements and that both A.A. and S.A. had identified the applicants at the Directorate of Security. The court held that although the applicants had denied the accusations, the consistent statements of A.A. and S.A. and their identification of the applicants proved otherwise.

17. On 18 October 2007 the Court of Cassation quashed the judgment, finding that the first-instance court ’ s reasoning was not sufficient as it failed to clearly indicate its evaluation of evidence.

18. On 17 April 2008 the Diyarbakır Assize Court once again sentenced the applicants to three years and nine months ’ imprisonment for aiding and abetting an illegal organisation, this time clarifying its assessment of evidence for each of the defendants. The court maintained that it relied on the statements of A.A. and S.A. before the police and their identification of the applicants. It stated that although A.A. denied his police statements with regard to the applicants during the subsequent stages of the proceedings, having regard to his detailed description of the applicants and his ability to identify them in person, it considered those statements to be genuine. Finally, the Assize Court discontinued the case in so far as it concerned Re ş it Ç ak ı r , noting that he had died on 28 September 2006.

19. On 4 June 2009 the Court of Cassation upheld the judgment. That final decision was returned to the registry of the Assize Court on 28 September 2009.

COMPLAINTS

20. Relying on Article 6 of the Convention, the applicants argue that their right to a fair trial was violated in that the sole and decisive evidence relied on by the Diyarbakır Assize Court was obtained unlawfully. In that respect, they maintain that A.A. ’ s statements before the police were taken in the absence of legal assistance and that he retracted them later on, arguing that he had been coerced into signing the fifty-page long statements although he could not read and write in Turkish.

21. They further indicate that they did not benefit from legal assistance while they made their statements during the preliminary investigation stage.

QUESTIONS TO THE PARTIES

1. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention?

In particular, could the evidence obtained through third persons ’ statements, which had been taken without the assistance of a translator and a lawyer and which they had later retracted, be considered reliable and accurate? Moreover, did the Diyarbakır Assize Court ’ s use of those statements as the decisive evidence in convicting the applicants violate their right to a fair hearing?

The parties are invited to provide copies of the police statements of A.A. and S.A.

2. Has there been a breach of Article 6 § 3 (c) of the Convention, in conjunction with Article 6 § 1, as a result of the lack of legal assistance available to the applicants during their detention in police custody (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others , ECHR 2016, and Salduz v. Turkey [GC], no. 36391/02, ECHR 2008)? In this connection , could the applicants be considered to have waived their rights to legal assistance in an unequivocal manner (see Yoldaş v. Turkey , no. 27503/04 , 23 February 2010, and Simeonovi v. Bulgaria [GC], no. 21980/04, 12 May 2017 )?

Appendix

Main applicants

Heirs of Re ş it Ç ak ı r