PROCEDURE

The case originated in an application (no. 29724/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Abdurrahman Şiray (“the applicant”), on 6 June 2008.

The applicant was represented by Ms F. Danış, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.

On 6 September 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant, Mr Abdurrahman Şiray, is a Turkish national who was born in 1972 and lives in Siirt.

On 20 June 2003 the applicant, who is of Kurdish origin, was arrested in Mardin and taken into police custody with three other individuals on suspicion of acting as a courier for an illegal armed organisation, namely the PKK/KADEK. The applicant was in possession of a false identity card at the time of his arrest.

On 21 June 2003 F.A., who was arrested with the applicant on suspicion of attempting to participate in the armed activities of the PKK/KADEK, was questioned at the Nusaybin police headquarters, in the absence of a lawyer. F.A. claimed that he had met the applicant the day before in Batman and that at the time they were arrested in Nusaybin the applicant was taking him to the mountains to join members of the PKK/KADEK.

On 22 June 2003 the applicant was taken for questioning at the Nusaybin police headquarters. Before his questioning the applicant signed a form which explained the rights of arrested persons, by which he was informed of the charges against him and his right to remain silent. In his statement, given in the absence of a lawyer, the applicant denied any affiliation with the illegal organisation and contested F.A.’s allegations. He also stated that he was a shepherd and at the time of his arrest he was in the mountains looking for sheep that he had lost. He also explained that he had been carrying a false identity card as he was an army deserter. An interpreter was present during this questioning.

A confrontation was held between the applicant and F.A., without any legal assistance.

On 23 June 2003 the applicant was brought before the Nusaybin Public Prosecutor, where he reiterated the statement he had made to the police.

Later the same day the applicant was also questioned at the Nusaybin Magistrates’ Court in the absence of a lawyer. At the end of that questioning the judge remanded the applicant in pre-trial custody.

On the same day the applicant’s co-accused, F.A., also made statements before the Nusaybin public prosecutor and the Nusaybin Magistrates’ Court, in which he repeated his allegations about the applicant.

On 7 July 2003 the Public Prosecutor at the Diyarbakır State Security Court filed an indictment with that court accusing the applicant of aiding and abetting the PKK/KADEK, and F.A. of membership of that organisation.

On 19 August 2003 the Diyarbakır State Security Court held its first hearing, at which the applicant informed the court that he did not have sufficient knowledge of Turkish to follow the hearings. The court bailiff, who spoke Kurdish, was therefore appointed as interpreter. During the hearing, the applicant denied the charges against him, but confirmed that the statements he had made during his detention in police custody were accurate. He explained that those statements, which he had made in Kurdish, had been translated into Turkish by Kurdish-speaking clerks.

F.A. was also heard by the State Security Court at the same hearing, with the assistance of an interpreter. F.A. also denied all charges against him, as well as retracting the statements he had made before the police, the public prosecutor and the magistrates’ court. He asserted that those statements had been extracted from him under duress. He further argued that he had made his statements in Kurdish and had no way of knowing whether they had been translated into Turkish accurately.

At the sixth hearing, held on 1 April 2004, the applicant’s lawyer requested the applicant’s release, claiming that the only piece of evidence found against him was F.A.’s statements made during the preliminary investigation stage. The applicant’s lawyer further argued that both the applicant’s and F.A.’s statements had been taken unlawfully and without the assistance of an interpreter, despite their inadequate knowledge of Turkish.

State Security Courts were abolished by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004. The case against the applicant was therefore transferred to the Diyarbakır Assize Court.

On 31 August 2004 the Diyarbakır Assize Court found the applicant guilty as charged and convicted him pursuant to Article 169 of the former Criminal Code and Section 5 of the Prevention of Terrorism Act for aiding and abetting the PKK/KADEK. The applicant appealed.

On 14 February 2006 the Principal Public Prosecutor at the Court of Cassation decided that the case file should be remitted to the Diyarbakır Assize Court for examination, to decide whether the new Criminal Code which had entered into force on 1 June 2005 (Law no. 5237) had provisions which would be more favourable for the applicant. The case was thus once again examined by the Diyarbakır Assize Court in view of the recent legislative changes.

On 11 May 2006 the Diyarbakır Assize Court once again convicted the applicant of aiding and abetting the PKK/KADEK, under Article 169 of the former Criminal Code and Section 5 of the Prevention of Terrorism Act, and sentenced him to four years and six months’ imprisonment. The assize court held that under the new Criminal Code the act of aiding and abetting an illegal organisation constituted the offence of membership of an illegal organisation and thus carried a higher sentence. It stated that the applicant was therefore being convicted under Article 169 of the former Criminal Code, which was more favourable to him than the corresponding provisions of the new Criminal Code. In delivering its judgment, the first-instance court mainly relied on the statements made by F.A. in respect of the applicant during the preliminary investigation stage.

On 22 December 2008 the Court of Cassation upheld the judgment of the Diyarbakır Assize Court.