SECOND SECTION

Application no. 20564/10 Nurettin IRMAK against Turkey lodged on 24 March 2010

STATEMENT OF FACTS

The applicant, Mr Nurettin Irmak, is a Turkish national, who was born in 1977 and lives in Diyarbakır . He is represented before the Court by Ms A. Pamukçu Yördem, a lawyer practising in Diyarbakır .

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

On 11 January 1996 the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation, namely the Hizbullah.

On 24 January 1996 his statements were taken by the police. The applicant confessed to being a member of the Hizbullah and gave a detailed account of his acts within the illegal organisation. According to his submissions, he did not benefit from the assistance of a lawyer while he made those statements.

On 2 February 1996 the applicant was heard by the public prosecutor and was subsequently brought before the Batman Magistrates ’ Court. In his statements before both the public prosecutor and the investigating judge, the applicant denied his police statements and maintained that they had been taken under duress.

On the same day the applicant was placed in detention on remand.

On 29 February 1996 the public prosecutor at the Diyarbakır State Security Court filed an indictment with that court, accusing the applicant with several others of carrying out activities with the aim of bringing about the secession of part of the national territory, pursuant to Article 125 of the Criminal Code in force at the time.

On 13 June 1996 the applicant was released pending trial.

While the proceedings were pending before the Diyarbakır State Security Court , on 21 February 2002 the applicant was arrested once again, on suspicion of his involvement in certain armed acts of the illegal organisation.

On 24 February 2002 the applicant gave his statements to the police in the absence of a lawyer, explaining in detail the structure of the illegal organisation and his role as a member.

The following day, 25 February 2002 he was heard by the investigating judge at the Batman Magistrates ’ Court, who ordered his detention on remand. The applicant, without any legal assistance, denied his police statements and alleged that he had been forced to sign them.

On 13 March 2002 the public prosecutor at the Diyarbakır State Security Court issued another indictment. Relying on Article 146 of the former Criminal Code, he accused the applicant of membership of an armed illegal organisation and of involvement in activities which undermined the constitutional order of the State.

On 16 May 2002 the case initiated by the public prosecutor ’ s second indictment was joined to the previous one, where the applicant was being tried pursuant to Article 125 of the former Criminal Code.

During the course of the proceedings, on 16 January 2004 the applicant filed a request with the Diyarbakır State Security Court in order to benefit from the Reintegration of Offenders into Society Act (Law no. 4959).

On 8 April 2004, at the hearing following the applicant ’ s request to benefit from Law no. 4959, the applicant confirmed the accuracy of his police statements and stated that he had been a member of the illegal organisation. He maintained, however, that he had never been involved in any armed acts.

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

On 10 June 2008, on the basis of various evidence, including the applicant ’ s statements before the police, the public prosecutor and the investigating judge, the Diyarbakır Assize Court found that the applicant had committed the offence under Article 146 of the former Criminal Code and sentenced him to life imprisonment. The court acquitted the applicant of the charges brought in the initial indictment. It further rejected his request to benefit from Law no. 4959 as he had not provided information which could contribute to the dissolution of the illegal organisation or brought out certain facts unknown to the authorities .

In its judgment, the Diyarbakır Assize Court also referred to four medical reports drawn up in respect of the applicant, but did not state anything as to his allegations of ill-treatment. According to the court ’ s findings, the first two reports, which had been issued in 1996, did not indicate any sign of ill-treatment, whereas the others, drawn up on 21 and 25 February 2002 respectively, before and immediately after the applicant ’ s police custody, mentioned trauma and cuts on the applicant ’ s body and a cut on his left ear.

On 12 June 2008 the applicant ’ s lawyer appealed against the judgment, arguing that the applicant had been convicted on the basis of statements taken under duress.

On the same day the applicant filed another request to benefit from Law no. 4959 and requested the reduction of his sentence in that he had been a minor at the time of the offence.

On 8 October 2009 the Court of Cassation upheld the judgment of the first-instance court.

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to ill-treatment during his time in police custody. He further argues that the national authorities failed to conduct an investigation into his allegations of ill-treatment despite the medical reports indicating several bruises and cuts on his body.

Relying upon Article 5 § 1 and 2 of the Convention, the applicant contends that there was no reasonable suspicion to justify his detention on remand and that he was not promptly informed of the charges against him.

He argues under Article 5 § 3 of the Convention that his police custody and his pre-trial detention lasted too long.

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

He maintains 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.

The applicant further submits under Article 6 § 1 of the Convention that the Diyarbakır State Security Court lacked independence and impartiality. He also complains about the fact that he could not benefit from Law no. 4959 pertaining to the reintegration of offenders into the society.

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

He contends under Article 6 § 2 of the Convention that the first-instance court violated his right to be presumed innocent in that it ordered the continuation of his detention on remand in the absence of sufficient evidence.

Finally, relying upon Article 8 of the Convention, the applicant maintains that the excessive length of his detention on remand violated his right to respect for private and family law.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to ill-treatment in breach of Article 3 of the Convention?

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 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)?

5. 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) ?

6. 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 criminal proceedings, including in particular the medical reports which the Diyarbakır Assize Court referred to in its judgment of 10 June 2008.