Communicated on 24 March 2014

SECOND SECTION

Application no. 41504/08 Ä°smail ERDOÄžAN against Turkey lodged on 19 August 2008

STATEMENT OF FACTS

The applicant, Mr Ä°smail ErdoÄŸan , is a Turkish national, who was born in 1958 and is currently serving a prison sentence in Ankara Prison. He is represented before the Court by Mr Åž. Vural , a lawyer practising in Ankara .

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

On 16 October 2003, a gendarmerie officer found a burned out car in Ankara, Temelli village. According to the scene investigation, three empty bullet shells around the car and burned human body remains inside the car were found. The victim was sitting in the driver ’ s seat and on his right side at seatbelt level a half burned 9 mm Beretta, which had its safety clip on, was also found. There was a bullet hole in the boot which had been caused by a shot from the inside of the car and another empty bullet shell fell out when the front door on the driver ’ s side was opened; the car keys were not found inside the car or around the scene.

On the same day the public prosecutor launched a criminal investigation into the incident and the doctor who examined the body at the crime scene stated that the cause of death could not be determined, therefore further examination should be conducted by the forensic institute.

F ollowing the autopsy conducted on 16 October 2003 by the Ankara Forensic Institute , it appeared that the body inside the car was that of H.C. There was no bullet entry on the burned body and the exact cause of death could not be determined. On 7 January 2004 the Ankara Forensic Institute sent the body to the Istanbul Forensic Institute for further examination. In the report dated 25 June 2004, the Istanbul Forensic Institute stated that although the cause of death could not be determined with certainty, the death of the victim was not an accident but probably a murder.

On 5 May 2004, H.C . ’ s brother comp lained against the applicant, M.E. and O.C. On 7 June 2004, the applicant and his co-accused were arrested and taken into custody at Temelli gendarmerie headquarters.

On 9 and 10 June 2004 the applicant, O.C. and M.E. were taken to Polatlı State Hospital, where they were examined by a doctor and two medical reports were issued which indicated that there were no signs of ill-treatment on their bodies. However, the applicant alleges that those medical reports did not reflect the truth, as the gendarmerie officers intervened and told the doctor not to report any trace of ill ‑ treatment.

The applicant furthermore alleges that he was forced to waive his right to the assistance of a lawyer during his gendarmerie custody, however he insisted, and according to the annotation on the custody record the “not requested legal assistance” option was crossed out and replaced by “requested legal assistance”. The applicant saw his lawyer on 8 June 2004 for a short time. Nevertheless, while his statements were being taken by gendarmerie officers and during the reconstruction of the crime the applicant was deprived of his right to the assistance of his lawyer.

On 10 June 2004 the applicant and his co-accused gave their statements to the gendarmerie, allegedly under duress. The applicant consistently rejected the accusations against him before the gendarmerie, the public prosecutor and the trial court. However, M.E. and O.C. made incriminating statements in respect of the applicant, which they later retracted before the public prosecutor and the investigating judge.

M.E. gave the following statements to the gendarmerie.

On 4 October 2003, he went to a wedding dinner with the applicant and consumed large amounts of alcohol. At the end of the wedding M.E. had a fight with H.C. and he was beaten by a group of people including H.C. On 16 October 2003, the applicant invited M.E. and O.C. to go out for drinks. M.E. and O.C. went to meet the applicant in O.C. ’ s car; they consumed a large amount of alcohol together. On their way b ack to the village, around 4.00 a.m., they parked the car near the village cemetery and continued drinking alcohol inside the car. A car approached and they saw that the driver was H.C. M.E. went to talk to him and stayed in the front passenger seat. An argument started between them and while they were arguing the applicant approached the car and intervened in their argument. According to M.E. ’ s statement, H.C. took out his gun from the glove compartment and was swearing at the applicant. M.E. tried to take the gun from H.C. ’ s right hand but H.C. changed the gun to his left hand. The applicant was hitting H.C. on the head and trying to take the gun when suddenly the gun went off and H.C. ’ s head fell on to the steering wheel. M.E. also stated that, at that moment, he got out of the car and saw that the applicant took the gun and fired a second shot at H.C. from the open driver ’ s window.

According to O.C. ’ s statement, he was sitting in his car from where he could see and hear the incident. Both M.E. and O.C. witnessed the applicant killing H.C. and he requested them to help him to burn the car while H.C. ’ s body was inside. They also stated that the applicant threatened them and offered money to cover up the murder.

The applicant told the gendarmerie officers that, on the night of the incident, after having been out drinking with M.E. and O.C., he left them in front of the village café and walked home around 4.10 a.m. He explicitly denied all the accusations against him.

On 11 June 2006, the applicant, M.E. and O.C. were brought before the public prosecutor. M.E. and O.C. retracted their statements given to the gendarmerie officers and stated that those statement had been extracted under duress. The applicant denied the accusations before the public prosecutor. On the same day, the applicant, M.E. and O.C. were brought before the judge and gave their statements, in which they all rejected the accusations and reiterated that their statements taken by gendarmerie officers had been obtained under duress.

The criminal proceedings commenced before the Ankara Assize Court and during the trial the applicant submitted a letter, dated 21 December 2004, to the trial court giving details of the ill-treatment he had been subjected to during his gendarmerie custody. Likewise, his co-accused O.C. and M.E. submitted letters dated 15 September 2004 and 31 January 2005 respectively to the trial court also giving details about the ill ‑ treatment they had been subjected to.

During the trial the Ankara Assize Court requested an expert report concerning the inconsistency of O.C. ’ s and M.E. ’ s statements before the gendarmerie and the public prosecutor as well as the trial judge. The statements taken by the gendarmerie officers and the reconstruction of the crime had been filmed. Those records were examined by a committee of three experts. In their report, dated 21 October 2004, the experts stated that O.C. and M.E. were very comfortable and did not show any kind of stressed behaviour neither that they were being intimidated while giving their statements to the gendarmerie officers or during the reconstruction of the crime and concluded that they had not been subjected to ill-treatment. The Ankara Assize Court did not initiate proceedings concerning their ill ‑ treatment allegations.

On 29 July 2005 the Ankara Assize Court, after having heard many witnesses, including defence witnesses, and taking into account the expert report which had been obtained from the committee of experts, found the applicant, M.E. and O.C. guilty as charged and sentenced them to aggravated life imprisonment under Article 450 of the Turkish Criminal Code, Law No. 776 . On 7 July 2006 the Court of Cassation quashed the judgment on the ground that the exercise of the court ’ s discretion while determining the nature of the offence was not appropriate and the first instance court ha d not take n into consideration grievous provocation. On 20 October 2006, the Ankara Assize Court, following the Court of Cassation ’ s judgment, convicted the applicant, M.E . and O.C of aggravated murder according to Article 82/1 of the Turkish Criminal Code, Law No. 5237 , and, by the application of provocation according to Article 62 of the Law No. 5237 sentenced them to 20 years of imprisonment. On 13 March 2008 the Court of Cassation upheld the judgment.

COMPLAINT

The applicant complains under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 that he was deni ed legal assistance when he gave his statements to the gendarmerie officers and during the reconstruction of the murder.

The applicant further maintains under Article 6 of the Convention that he was convicted on the basis of unlawful evidence . In this connection, he maintains that in convicting him, the domestic court relied on M.E. ’ s and O.C. ’ s statement s which had been extracted under duress.

QUESTIONS TO THE PARTIES

1 . Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, did the use of statements taken under alleged duress from the co-accused violate the applicant ’ s right to a fair hearing (see Örs and others v. Turkey , no. 46213/99 , §§ 53-61, 20 Ju ne 2006 )?

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 applicant during the preliminary investigation (see Salduz v. Turkey [GC], no. 36391/02, §§ 45-63, 27 November 2008)?

The Government are requested to submit a copy of the camera records as regards the interrogation and reconstruction of the crime.