Communicated on 18 March 2014

SECOND SECTION

Application no. 48719/08 İdris ŞİMŞEK against Turkey lodged on 3 September 2008

STATEMENT OF FACTS

The applicant, Mr Ä°dris ÅžimÅŸek , is a Tu rkish national, who was born in 1973 and lives in Sivas.

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

On 19 November 2002 the applicant was taken into police custody on suspicion of membership of an illegal organisation , namely the Hizbullah .

On 22 November 2002 the applicant was questioned by police and , allegedly, sustained both physical and psychological ill-treatment. He was allegedly forced to sign some documents, as well as a declaration to waive his right to have legal assistance. When he wanted to read the documents that he had been made to sign he was threatened with further ill-treatment.

On 23 November 2002 the applicant was taken to the hospital for a medical check and, according to the applicant, during the examination the police officers intervened and ordered the doctor to write that the applicant had some grazes on his wrists and ankles.

He furthermore alleged that before he gave his statements to the public prosecutor and the judge he was intimidated by the police officers and made to admit to being a member of Hizbullah . The police officers threatened him with excessive length of proceedings and told him that if he accepted the charges they would help him and release him from detention. The applicant claimed that he admitted to being a member of the Hizbullah before the public prosecutor and the judge on account of the duress and the intimidation.

The applicant ’ s trial commenced before the Diyarbakir State Security Court and during the proceedings the applicant consistently denied the accusations against him and maintained that he had been ill-treated during his police custody. During his trial he alleged that the trial court did not take his defence into consideration. Even though two witnesses, who were heard by the trial court, stated that they did not know the applicant, the trial court associated him with the illegal organisation along with the other accused in the case.

By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. Therefore, the Diyarbakır Assize Court acquired jurisdiction over the case. On 22 June 2007 the Diyarbakır Assize Cour t found the applicant guilty of being a member of an illegal organisation and being involved in activities which undermined the constitutional order of the State a nd sentenced him to life imprisonment . On 10 April 2008 the Court of Cassation upheld the judgment by which the applicant was convicted.

COMPLAINTS

1. The applicant complain ed under Article 3 of the Convention that he was subjected to ill-treatment during his time in police custody.

2. The applicant maintain ed under Article 6 of the Convention that he was convicted on the basis of unlawful evidence in that the domestic court relied on his statement s which had been taken under duress. He furthermore asserted that the trial court did not hear his witnesses, did not take his statements properly and associated him with his accomplices without evidence, in breach of the fairness of proceedings. He finally submits under Article 6 § 3 (c) of the Convention that he was denied legal assistance during the preliminary investigation stage (see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008) .

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to ill-treatment in breach of Article 3 of the Convention?

2. 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 violate the applicant ’ s right to a fair hearing (see Özcan Çolak v. Turkey , no. 30235/03, §§ 47-50, 6 October 2009)?

3 . 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 further requested to submit a copy of the final decision of the Diyarbakir Assize Court dated 22 June 2007 . The Government are also requested to provide copies of all medical reports issued in respect of the applicant during his police custody and detention period, should there be any .