SECOND SECTION

Application no. 38907/09 Bayram KOÇ against Turkey lodged on 15 July 2009

STATEMENT OF FACTS

The applicant, Mr Bayram Koç , is a Turkish national, who was born in 1980 and lives in Diyarbakır. He is represented before the Court by Mr I. Akmeşe , a lawyer practising in Istanbul.

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

On 17 January 2003 the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation.

On 18 January 2003 his statements were taken by the police in the absence of a lawyer. The applicant confessed to being a member of an illegal organisation. He gave a detailed account of its structure and his acts within the illegal organisation.

On 19 January 2003 the applicant was examined at the Forensic Medicine Institution. The applicant stated to the doctor that he was forced to do push-ups and there was pain in his muscles. It was concluded in the medical report that there was no sign of physical violence.

On 20 January 2003 the applicant was once again examined at the Forensic Medicine Institution. He complained to the doctor that he suffered from pain in his arms and legs, he had muscular weakness and watery red eyes. The report indicated that there was no lesion on his body but there was hyperaemia in the applicant ’ s eyes.

On the same day, the applicant was heard by the public prosecutor and the investigating judge respectively. In his statements he denied his police statement and argued that it had been taken under duress.

Following his questioning, the investigating judge ordered the applicant ’ s detention on remand.

A. Criminal proceedings against the applicant

On 28 January 2003 the public prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicant under Article 146 of the former Criminal Code.

On 3 July 2003 the applicant was released pending trial.

Later on, the state security courts were abolished by Law no. 5190 of 16 June 2004 and the case was transferred to the I stanbul Assize Court.

On 10 June 2008, on the basis of the applicant ’ s statements before the police, the public prosecutor and the investigating judge, the I stanbul Assize Court found that he had committed the offence under Article 314 of the Criminal Code and sentenced him to two years and one month ’ s imprisonment. It further accepted his request to benefit from Law no. 4959 as he had provided significant information about the illegal organisation.

On 27 May 2009 the applicant ’ s lawyer appealed against the judgment, arguing that the applicant had been convicted on the basis of statements taken under duress.

On 3 March 2010 the Court of Cassation upheld the judgment of the first-instance court.

A. Criminal proceedings against the police officers

Upon the applicant ’ s submissions made before the prosecutor and investigating judge, on an unspecified date, the public prosecutor at the Istanbul State Security Court initiated an investigation into his allegations of ill-treatment. The public prosecutor subsequently declared lack of jurisdiction and transferred the case file to the Fatih Public Prosecutor ’ s Office.

On 4 March 2003 the Fatih Public Prosecutor took the applicant ’ s statements. The applicant complained that when he was in police detention he was forced to do push-ups, his hair was pulled, he was hit over the head and he was hosed.

On the same day, the Fatih Public Prosecutor filed an indictment with the Istanbul Criminal Court, accusing four police officers of misconduct in office pursuant to Article 230 of the former Criminal Code (Law no.765).

On 20 December 2005 the Fatih Criminal Court acquitted the police officers of the charges against them due to lack of evidence.

COMPLAINTS

Relying on Article 6 §§ 1 and 3 (c) of the Convention, the applicant argues that he was denied legal assistance during the preliminary investigation stage.

QUESTION TO THE PARTIES

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)?