SECOND SECTION

Application no. 31226/09 Ayhan AYKAÇ against Turkey lodged on 16 April 2009

STATEMENT OF FACTS

The applicant, Mr Ayhan Aykaç , is a Turkish national, who was born in 1964. He is currently serving his prison sentence in the Mardin Prison.

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

On 8 February 2000 the applicant was arrested by police officers and taken into custody on suspicion of being a member of an illegal organisation.

On 10 February 2000 police officers at the Istanbul Security Directorate took a statement from the applicant in the absence of a lawyer. He confirmed his membership and support for the illegal organisation and gave detailed information about his illegal activities.

On 16 February 2000 the applicant was further questioned by the gendarmerie, still in the absence of a lawyer. He repeated his statement of 10 February 2000 and gave a detailed account of his illegal activities within the illegal organisation.

On 17 February 2000 the applicant was heard by the Tunceli Public Prosecutor and the Investigating Judge at the Tunceli Magistrates ’ Court (in criminal matters) respectively, again in the absence of a lawyer. In his statements before the public prosecutor and the investigating judge, the applicant accepted his statements taken by the police and gendarmerie. Upon the order of the investigating judge, the applicant was subsequently placed in pre-trial detention.

On 9 March 2000 the public prosecutor filed an indictment with the Malatya State Security Court, charging the applicant under Article 125 of the former Criminal Code with being a member of an illegal organisation and being involved in separatist activities against the Republic of Turkey.

In 2004, following a change in the legislation during the proceedings, state security courts were abolished and the case was transferred from the Malatya State Security Court to the Malatya Assize Court.

On 22 November 2007 the Malatya Assize Court convicted the applicant as charged and sentenced him to life imprisonment. The first-instance court based its decision on several items of evidence, such as the applicant ’ s statements to the police, gendarmerie, public prosecutor and the investigating judge. It further took into consideration identification parade records and statements of several co-accused persons who had been heard on commission.

On 16 October 2008 the Court of Cassation upheld the judgment.

COMPLAINTS

Relying on Article 6 §§ 1 and 3 (c) of the Convention, the applicant complains that he was denied the assistance of a lawyer during his police custody and that his police statement which was taken in the absence of a lawyer was used in his conviction by the trial court.

Relying on Article 6 § 3 (d) of the Convention, the applicant submits that his right to examine the witnesses against him was violated by the Malatya Assize Court, as he was not given an opportunity to cross-examine several witnesses, whose statements were taken on commission .

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair trial within the meaning of Article 6 of the Convention? In particular, 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 his detention in police custody (see Salduz v. Turkey [GC], no. 36391/02, §§ 45 ‑ 63, 27 November 2008)?

2. Was the applicant able to examine the co-accused persons and to submit his counter-arguments, as required by Article 6 § 3 (d) of the Convention? If not, has there been a breach of his right to a fair trial provided for by Article 6 §§ 1 and 3 (d) of the Convention?