SECOND SECTION

Application no. 3094/09 Kadriye ÖZGÜÇ against Turkey lodged on 7 January 2009

STATEMENT OF FACTS

The applicant, Ms Kadriye Özgüç , is a Tu rkish national, who was born in 1985 and is detained in Gebze prison . She is represented before the Court by Mr M. Erbil, a lawyer practising in Istanbul .

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

On 8 March 2007 the applicant was taken into police custody in Istanbul on suspicion of throwing a Molotov cocktail at a city bus during a demonstration which was held on 15 February 2007 in favour of the PKK, an illegal organisation .

On 10 March 2007 a judge at the Istanbul Assize Court ordered the applicant ’ s pre-trial detention having regard to the strong suspicion of her having committed the offence in issue and the fact that the offence fell within the categories listed in Article 100 of the Code of Criminal Procedure.

On 26 March 2007 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court and charged the applicant with membership of an armed criminal organisation , endangering public safety, possessing and using explosives, destruction of public property and violating the Meetings and Demonstration Marches Act (Law no. 2911) during two demonstrations held on 22 January 2006 and 15 February 2007.

On 4 July 2007 the Istanbul Assize Court held the first hearing in the case, during which it ordered the applicant ’ s continued detention on remand.

After 3 October 2007 the court held six more hearings (31 October 2007, 7 March 2008, 13 June 2008, 2 September 2008, 12 November 2008 and 4 March 2009) during which it ordered the applicant ’ s detention on remand relying on similar grounds.

On 11 March 2008 and 18 June 2008 the applicant ’ s lawyer objected to his client ’ s detention and demanded her release. These objections were dismissed on 24 March 2008 and 10 July 2008 respectively.

On 2 September 2008 the first-instance court held a closed-door session during which it heard an anonymous witness in the case (“W itness no. 1”) and ask ed him questions , including those determined by the applicant ’ s representative. The anonymous witness stated in this session that he had known the applicant before the demonstrations and that he had seen her on 15 February 2007 holding a Molotov cocktail in her hand and instructing the crowd to assault a city bus.

On 12 June 2009 the Istanbul Assize Court convicted the applicant of the offences of membership of the PKK as well as destruction of public property, possessing and using dangerous materials on 22 January 2006 and 15 February 2007. The applicant was sentenced to a total of 18 years and 9 months ’ imprisonment. The court decided that it lacked jurisdiction for trying the applicant on the charge of breaching the Meetings and Demonstration Marches Act . The first-instance court based its judgment on crime scene reports, identification reports on the basis of photographs , the statements of Witness no. 1 , statements of a police officer, A.A., who identified the applicant on the images shown on the Roj TV [1] regarding the event and the written statements of R.S., who was a suspected PKK member, tried in another set of proceedings.

On 10 May 2011 the Court of Cassation upheld the judgment of the first-instance court in so far as it concerned the offences of membership of the PKK, destruction of public property and using dangerous materials on 15 February 2007. The high court on the other hand quashed the judgment in so far as it concerned the offences of destruction of public property and using dangerous materials on 22 January 2006, holding that there was insufficient evidence for her conviction.

On 7 October 2011 the Istanbul Assize Court acquitted the applicant of the charges of using dangerous materials and destroying public property on 22 January 2006, in line with the Court of Cassation ’ s decision.

According to the information in the case file, the applicant is currently serving the sentence which was upheld by the Court of Cassation.

COMPLAINTS

The applicant complains under Article 5 § 4 of the Convention that the review procedures of her detention were not in line with the Convention, citing that the reviewing court had obtained the public prosecutor ’ s observations but failed to forward them to her.

The applicant further complains under Article 6 § 3 (d) of the Convention, maintaining that the court heard the anonymous witness without the attendance of her or her lawyer.

QUESTIONS TO THE PARTIES

1. Was the procedure by which the applicant sought to challenge the lawfulness of her detention in conformity with Article 5 § 4 of the Convention? In particular, w ere the public prosecutor ’ s observations on the merits of her request of 18 June 2008 communicated to the applicant?

2. Has there been a violation of Article 6 §§ 1 and 3 (d) of the Convention in the present case on account of the use of the statements by Witness no. 1 in the first-instance court ’ s judgment ? In particular:

a) What was the reason for the non-attendance of the applicant and her lawyer a t the session held on 2 September 2008 by the first-instance court during which W itness no. 1 was heard by the tribunal? Could the authorities envisage other less restrictive measures for the defence of the applicant?

b) W as the applicant ’ s conviction based solely or to a decisive degree on the statements of Witness no. 1?

c) What are the procedural safeguards contained in Turkish domestic law with regard to the use of statements made by anonymous witnesses heard in the absence of defendants? What is the domestic courts ’ practice in this matter?

d) Were there any sufficient counterbalancing factors to compensate for the difficulties to the defence which resulted from the admission of the statements of Witness no. 1 in the present case?

The Government are invited to submit a copy of the file of the case (including video recordings and photographs) brought against the applicant before the Istanbul Assize Court.

[1] . A Kurdish satellite television channel registered in and broadcast from Denmark at the relevant time and which is allegedly linked to the PKK.