SECOND SECTION

Application no. 72174/10 Yüksel YİĞİTDOĞAN against Turkey lodged on 7 October 2010

STATEMENT OF FACTS

The applicant, Mr Yüksel Yiğitdoğan , is a Turkish national, who was born in 1968 and lives in Kocaeli . He is represented before the Court by Ms G. Tuncer , a lawyer practising in Istanbul .

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

On 25 July 1999 the applicant was arrested on suspicion of being a member of an illegal organisation, namely the TIKB (Turkish Revolutionary Communist Union - Türkiye İhtilalci Komünistler Birliği ).

On the same day he went through a medical examination at the İzmir Atatürk Hospital . The report drawn up afterwards indicated that there was no indication of ill-treatment on the applicant ’ s body.

Following the medical examination, the applicant was transferred to Istanbul , where he was placed in police custody. According to his submissions, he was subjected to ill-treatment during his time there.

On 28 July 1999 the applicant was examined by a doctor at the Haseki Hospital , who noted a swelling, a medial ecchymosis and a 1 x 2 cm scratch on the applicant ’ s right elbow as well as another scratch measuring 0,5 x 1 cm on his arm. The doctor suggested that the applicant undergo an orthopaedic examination.

Following the request of the public prosecutor, on 29 July 1999 the Istanbul State Security Court decided to extend the applicant ’ s police custody by three days.

On 30 July 1999 the applicant was examined at the Haseki Hospital once again. This time, two scars on his gluteal region were noted.

On an unspecified date the applicant gave his police statements. According to his submissions, he did not benefit from the assistance of a lawyer while he was heard by the police.

Following his police custody, on 1 August 1999 the applicant underwent another medical examination at the Haseki Hospital . The report issued afterwards indicated a 1 x 1 cm scar on his right elbow. The doctor also noted that the applicant ’ s medical condition was generally good and suggested that he should undergo a urologic consultation.

On the same day the applicant was heard by the public prosecutor at the Istanbul State Security Court . He did not benefit from any legal assistance while he made his statements.

Subsequently, the applicant was brought before the investigating judge at the Istanbul State Security Court , who ordered his detention on remand. In the presence of a lawyer assigned by the bar association, he denied his previous statements and maintained that he had been subjected to ill-treatment during his time in police custody.

According to the applicant ’ s submissions, on 2 August 1999 he was examined by a doctor at the Haydarpaşa Numune Hospital .

On 9 August 1999 the public prosecutor at the Istanbul State Security Court filed an indictment with that court, accusing the applicant of membership of an armed illegal organisation and of involvement in activities which undermined the constitutional order of the State, pursuant to Article 146 of the Criminal Code in force at the time.

At a hearing dated 7 February 2001, the case was joined to another one, where the applicant was being tried together with some others.

During the subsequent hearings, which were conducted in the absence of the applicant, the court heard the submissions of some of the accused and certain witnesses.

On 30 May 2002 the Istanbul State Security Court gave an interlocutory decision, holding that the applicant should be brought before the court for the following hearings and that failure to do so would result in a criminal investigation against those responsible for his absence.

On 24 October 2002 the applicant submitted his defence in writing . He indicated that he had been beaten during his arrest in Ä°zmir and had been subjected to electric shocks and hung by the arms during his seven-day police custody at the Istanbul Directorate of Security. He argued that although his right arm had been broken and he had developed facial paralysis, he had not been taken to the Institute of Forensic Medicine . In that respect, he requested the court to provide the medical reports issued following his examination at the HaydarpaÅŸa Numune Hospital in that they would substantiate his arguments.

Subsequently, on an unspecified date, the applicant ’ s lawyer submitted a letter to the court, arguing that the applicant had not been brought before the court following its interlocutory decision dated 30 May 2002 and that the prison personnel and the police officers concerned should be prosecuted therefor .

It appears from the case file that the applicant attended the subsequent hearings before the Istanbul State Security Court .

During the course of the proceedings, in 2004 the state security courts were abolished following a constitutional amendment and the case was transferred to the Istanbul Assize Court .

On 11 December 2007 the applicant ’ s lawyer reiterated the applicant ’ s allegations of ill-treatment during police custody and requested the court to assess the medical reports drawn up in respect of the applicant. In that connection, she maintained that the applicant had never been taken to the Forensic Medicine Institute and that the court had not provided the reports issued by the Haydarpaşa Numune Hospital despite the applicant ’ s request to that effect. She also claimed that the applicant had not been present at the hearings when the court heard certain key witnesses.

On 11 June 2008 the applicant ’ s lawyer filed a request with the Haydarpaşa Numune Hospital to obtain the medical reports issued in respect of the applicant on 2 August 1999. However, the hospital administration informed her that the records concerning that year had already been destroyed.

On 12 September 2008, on the basis of various evidence, including the applicant ’ s police statements and several guns found at his residence, the Istanbul Assize Court found the applicant guilty as charged and sentenced him to life imprisonment.

The applicant ’ s lawyer appealed against the judgment, arguing that the applicant had been subjected to ill-treatment while in police custody and had been convicted on the basis of statements extracted under duress.

On 18 March 2010 the Court of Cassation upheld the judgment of the Istanbul Assize Court .

Finally, on 7 April 2010 the higher court pronounced the final decision.

COMPLAINTS

The applicant alleges under Article 3 of the Convention that he was subjected to ill-treatment during his arrest in Ä°zmir and while in police custody in Istanbul . He maintains that although he had been subjected to electric shocks, hung by the arms and assaulted sexually, he did not undergo a diligent medical examination. In this connection, he argues that the domestic court failed to provide the medical reports which would prove his allegations and that the authorities did not conduct any investigation into the matter.

Relying upon Article 6 § 1 of the Convention, the applicant complains about the excessive length of the criminal proceedings against him.

He further argues under the same Article that he was convicted on the basis of unlawful evidence in that the domestic court relied on his police statements which had been taken under duress. He also maintains that the court did not take account of his requests to examine certain evidence and failed to assess the case thoroughly.

He submits that the principle of equality of arms was breached in that he was not brought to the hearings and was prevented from making his submissions before the court for the first years of the proceedings.

The applicant further contends under Article 6 § 1 of the Convention that the Istanbul State Security Court lacked independence and impartiality.

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

He submits in conjunction with Article 6 § 3 (d) of the Convention that the court failed to hear certain key witnesses and took the statements of others in his absence, without him having the opportunity to cross-examine them.

Finally, relying upon Article 13 of the Convention, the applicant complains that there was no effective domestic remedy whereby he could challenge the alleged ill-treatment and the length of the criminal proceedings.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to ill-treatment in breach of Article 3 of the Convention during his time in police custody in Istanbul ?

2. Having regard to the procedural protection from inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV), was the lack of an investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

3. Has the length of the criminal proceedings in the present case been in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

4. Did the applicant have at his disposal an effective domestic remedy for his complaint concerning the length of proceedings, as required by Article 13 of the Convention?

5. 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)?

6. Has there been a breach of the applicant ’ s right to a fair trial provided by Article 6 § 1? In particular, was the principle of equality of arms, together with the right to adversarial proceedings, respected as regards the applicant ’ s inability to attend the hearings during the first years of the criminal proceedings against him?

7. 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)?

8. Was the applicant able to examine the witnesses against him as required by Article 6 § 3 (d) of the Convention? If not, has there been a breach of the applicant ’ s right to a fair trial provided by Article 6 §§ 1 and 3 (d) of the Convention due to his inability to examine or have examined the witnesses?