SECOND SECTION

Application no. 38740/09 Mehmet DUMAN against Turkey lodged on 6 July 2009

STATEMENT OF FACTS

The applicant, Mr Mehmet Duman , is a Turkish national who was born in 1975 and lives in Erzurum .

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

On 12 September 1994 the applicant was arrested on suspicion of membership of an illegal organisation, namely Hizbullah .

He was questioned by the police officers at the Diyarbakır Security Directorate and subsequently the Diyarbakır Public Prosecutor took statements from the applicant in the absence of a lawyer, concerning his involvement in the activities of Hizbullah . In his statements, the applicant admitted his membership of the illegal organisation and he mentioned certain activities in which he had participated.

On 4 October 1994 the applicant was questioned by the investigating judge in the absence of a lawyer, when he retracted his statements made to the police and the prosecutor. The applicant alleged that he had given these statements under duress. The investigating judge ordered the applicant ’ s detention on remand. Owing to a lack of penitentiary availability, the applicant was not put into prison and was kept at the anti-terrorism branch of the Diyarbakır Security Directorate for three days, during which he was allegedly subjected to torture.

On 24 October 1994 the Diyarbakır Public Prosecutor issued an indictment charging the applicant under Article 146 of the former Turkish Criminal Code. The criminal proceedings commenced before the Diyarbakır State Security Court and were later transferred to the Diyarbakır Assize Court following the abolishment of the state security courts in July 2004. In 2001, 2003 and 2004 the Diyarbakır Public Prosecutor issued four different indictments against the applicant and all the cases were joined by the Diyarbakır State Security Court due to the link between them.

On 26 February 2007 the Diyarbakır Assize Court convicted the applicant under Article 146 § 1 of the former Criminal Code and sentenced him to life imprisonment. It is understood from the judgment that the medical report drawn up on 4 October 1994 revealed no sign of physical violence. In 2010 the applicant requested a copy of the medical report prepared on 4 October 1994 from the Diyarbakır Public Prosecutor ’ s Office. On 5 February 2010 he was informed that all the documents prepared in 1994 had been destroyed in 2004. The first-instance court based its decision on several items of evidence, such as the applicant ’ s statements to the police, public prosecutor and investigating judge, the organisation ’ s documents which had been found and seized in the course of the police operation, the testimonies of victims and the statements of certain co-accused.

The applicant appealed and on 16 April 2009 the Court of Cassation upheld the judgment. It is understood from the decision of the Court of Cassation that the applicant ’ s request for correction of his age had been dismissed by the Diyarbakır Assize Court .

COMPLAINTS

Relying on Article 3 of the Convention, the applicant complains that he was ill-treated during his detention in police custody. He maintains that the national authorities failed to conduct an investigation into his allegations of ill-treatment.

Relying on Article 5 §§ 1, 2, 3 of the Convention in substance, the applicant contends that his detention was unlawful as there was no reasonable suspicion to justify his detention on remand. He also complains about the length of his detention pending trial. He further contends that his family was not informed about his detention in police custody.

Under Article 6 of the Convention, the applicant contends that he was denied access to a lawyer during the preliminary investigation and that his statements were extracted under duress. He also complains that the first-instance court violated his right to be presumed innocent, as it ordered the continuation of his detention pending trial in the absence of sufficient evidence. The applicant further alleges that the first-instance court convicted him on the basis of police statements which had been extracted from him under duress; furthermore, he contends in general that the Assize Court ignored certain evidence and failed to hear several witnesses who were allegedly in his favour. He also complains of the lack of impartiality and independence of the State Security Courts. H e further complains that although throughout the criminal proceedings the composition of the court changed several times, the case file was not re-examined after every change. Finally, he complains that despite the fact that the medical reports showed that he was a minor at the material time, he could not benefit from the advantages of being a minor.

QUESTIONS TO THE PARTIES

1. 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 stage (see Salduz v. Turkey [GC], no. 36391/02, §§ 45-63, 27 November 2008)?

2. Did the applicant have a fair trial in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular, was the admission in evidence of the statement taken from the applicant in police custody – which he claims was taken from him under duress – in violation of his rights under Article 6 of the Convention (see, for example, Örs and Others v. Turkey , no. 46213/99, § 59, 20 June 2006)? In this connection, what weight was given by the trial court to the applicant ’ s allegations that the statement in question had been taken from him by force?

3. Did the applicants 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) ?

The Government are requested to submit a copy of the complete case file pertaining to the criminal proceedings, including in particular the medical reports referred in the judgment of the Diyarbakır Assize Court dated 26 February 2007.