SECOND SECTION

Application no. 32867/09 Seyfettin KÄ°NAY against Turkey lodged on 18 May 2009

STATEMENT OF FACTS

The applicant, Mr Seyfettin Kinay , is a Turkish national, who was born in 1970 and is currently serving a prison sentence in the Mardin Prison.

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

On 10 September 1994 the applicant was taken into police custody on suspicion of membership of an illegal organisation, namely the Hizbullah .

On an unspecified date, the applicant was questioned by the police, allegedly under duress. In his statement, the applicant confessed to being a member of the Hizbullah and gave a detailed account of his acts within the illegal organisation.

On 30 September 1994 the applicant was further questioned by the public prosecutor, and he repeated the statement he had given to the police.

On 4 October 1994 the applicant was further heard by the investigating judge. In his statement, he denied his previous statements, maintaining that he had been under psychological pressure. On the same day, he was placed in detention on remand.

On 24 October 1994 the public prosecutor at the Diyarbakır State Security Court filed an indictment with that court, accusing the applicant under Article 146 of the former Criminal Code of membership of an armed illegal organisation and of involvement in activities which undermined the constitutional order of the State.

The trial commenced before the Diyarbakır State Security Court , c omposed of three judges, including a military judge.

On an unspecified date, criminal proceedings were instituted against police officers, who had questioned the applicant during his police custody. According to the submissions of the applicant, a non-prosecution decision was delivered. It appears that this decision was never served on the applicant.

In the meantime, while the criminal proceedings against the applicant were pending, on 18 June 1999 the Constitution was amended and the military judge sitting on the bench of the Diyarbakır State Security Court was replaced by a civilian judge.

During the proceedings, the applicant consistently denied the accusations against him and maintained that he had been ill-treated during his police custody. He also stated that his police statement should not be taken into account by the trial court, as it had been extracted from him under duress.

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 26 February 2007 the Diyarbakır Assize Court found the applicant guilty as charged and sentenced him to life imprisonment. In convicting him, the first-instance court relied on the police statement of the applicant.

On 29 April 2009 the Court of Cassation upheld the judgment of the first-instance court.

COMPLAINTS

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

2. He maintains under Article 6 of the Convention that he was convicted on the basis of unlawful evidence in that the domestic court relied on his police statement which had been taken under duress.

3. The applicant further submits under Article 6 § 1 of the Convention that the Diyarbakır State Security Court, which had examined his case, lacked independence and impartiality.

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

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

2. Did the applicant receive a fair trial by an independent and impartial tribunal as required by Article 6 § 1 of the Convention (see Ceylan v. Turkey ( dec. ), no. 68953/01, 30 August 2005)?

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 requested to submit a full copy of the criminal investigation initiated against the police officers for ill-treating the applicant, including medical reports taken during the applicant ’ s police custody. The Government are further invited to submit a copy of the transcripts of the hearings that took place before the Diyarbakır State Security Court between 24 October 1994 and 1 8 June 1999.