SECOND SECTION

Application no . 44023/09 Abdulgafur BATMAZ against Turkey lodged on 15 June 2009

STATEMENT OF FACTS

The applicant, Mr Abdulgafur Batmaz , is a Turkish national, who was born in 1973 and is currently serving a prison sentence in the Erzurum Prison .

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

On 12 September 1994 the applicant was taken into police custody on suspicion of membership of an illegal organisation, namely the Hizbullah . When the applicant was arrested, the police found two guns in his car.

On 17 September 1994 the applicant was taken to the Emergency Service of the Diyarbakır State Hospital . A medical examination revealed that the applicant suffered from oedema on the front part of his right arm. An x-ray indicated that his arm was not fractured. It was concluded that he suffered from soft tissue trauma.

On 28 September 1994 his statement was taken by the police. The applicant, who was not assisted by a lawyer during the questioning, confessed to being a member of the Hizbullah and gave a detailed account of his acts within the illegal organisation.

On 4 October 1994 the applicant was further heard by the public prosecutor and the investigating judge. In his statement before the investigating judge, taken in the absence of a lawyer, the applicant denied his police statement, maintaining that it had been taken under duress. 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 9 November 1995 a forensic report issued by a hospital stated that the applicant had 80% disability on his wrist.

In the meantime, the applicant filed a complaint with the public prosecutor, alleging that he had been ill-treated during his police custody. According to the submissions of the applicant, on an unspecified date a non-prosecution decision was delivered in respect of the accused police officers. He did not file an appeal against this decision.

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 the applicant, the first-instance court relied on the police statement of the applicant, the medical report issued on 4 October 1994, which had indicated that the applicant had no signs of ill-treatment on his body, the statements of the other co-accused persons and the ballistic reports which concluded that the guns found in the applicant ’ s car had been used in the killing of two persons and the wounding of four others. The court further took into account the fact that a non-prosecution decision had been delivered by the Diyarbakır Public Prosecutor in respect of the applicant ’ s ill-treatment claims.

On 2 October 2007 the Diyarbakır State Hospital issued a medical report in respect of the applicant and concluded that the applicant had 58% disability.

The applicant appealed. In his petition, he stated that he had been ill-treated during his custody and complained that his police statement which had been taken under duress had been used in his conviction.

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.

5. Finally, he maintains that the first instance court, which convicted him, did not hear his witnesses.

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 copy of the complete case file pertaining to the Diyarbakır Public Prosecutor ’ s investigation into the applicant ’ s ill-treatment allegations.