PROCEDURE

The case originated in an application (no. 28439/03) 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 Hakan Duman (“the applicant”), on 12 May 2003.

The applicant was represented by Mrs N. Bener, a lawyer practising in Bursa. The Turkish Government (“the Government”) were represented by their Agent.

On 9 January 2009 the President of the Second Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1983 and lives in Bursa.

The applicant had been previously convicted of burglary on 21 March 2001 and his prison sentence had been commuted to a fine.

On 11 January 2002 at approximately 12.40 a.m. the applicant was arrested, together with a friend, and taken into custody on suspicion of having committed several burglaries. The arrest was effected on the basis of incriminating information received regarding the applicant and his friend.

Later, at approximately 2.40 a.m., the applicant was examined by a doctor, who noted a 2 x 2 cm graze on his left shoulder and a graze under his right knee.

It appears that at some point the applicant and his friend confessed to committing a number of burglaries and, as a result, on 11 and 12 January 2002, were required to participate in a number of reconstructions of events. According to the record drafted by police officers and signed by the applicant, the latter indicated one by one the houses and other premises he had broken into, the times of the incidents, the methods used to enter the buildings and the exact amount of goods which had been stolen from each place.

On 11 January 2002 the police heard evidence from the applicant's father. It appears from Mehmet Duman's police statement and the seizure report drafted on that day that the applicant's father helped the police recover two stolen guns, one from his own basement and another near a bus stop, on the basis of information he had received from a certain Mr H.P., who had participated in burglaries with his son.

On 12 and 13 January 2002 the police heard evidence from the owner of one of the guns and the person to whom the suspects had sold it.

In the meantime, on an unspecified date, the applicant signed a pre‑printed form explaining the rights of arrested persons, including the right to remain silent and the right to legal assistance.

On 13 January 2002 the applicant was questioned by two police officers in respect of five incidents he had confessed to during the reconstruction of events. According to the verbatim records signed by the applicant, he was reminded of his legal rights, including his right to remain silent and his right to legal assistance.

On the same day the applicant's friend was also questioned. He admitted committing two offences with the applicant. The statements provided by him regarding these incidents were worded in similar fashion to the applicant's statements.

Between 11 January and 14 January 2002, the police heard evidence from the owners of the houses and businesses which had been robbed. It appeared that some of the owners had not made any prior complaints to the police about the burglaries committed in their houses.

On 14 January 2002 the police returned a watch found on the applicant's friend to its owner.

On 14 January 2002, on the release of the applicant from police custody, the Bursa Forensic Medicine Institute issued a medical report indicating that no signs of beating or violence had been observed on his body and that the applicant did not have any complaints.

On the same date the Bursa Magistrates' Court heard evidence from the applicant. According to the minutes of the hearing he was reminded of his legal rights and his statements to the police were read out to him and accepted by him. He further stated that, at that juncture, he did not remember with whom and where he had committed the burglaries. The reports and other documents in the case file were read out to him. The applicant did not contest their veracity.

On 21 February 2002 the Bursa public prosecutor filed a bill of indictment against the applicant with the Bursa Criminal Court, accusing him of having committed five burglaries.

At the hearing held on 28 February 2002, the applicant retracted his earlier statements, claiming that when he had given evidence to the Bursa Magistrates' Court he had been in custody for more than six days, during which time he had been electrocuted, hosed and beaten with a stick in order to force him to confess to the offences. The applicant claimed that he did not remember how he had been brought before the Bursa Magistrates' Court and that before the judge he had just sat there while the verbatim record was written, which he had not signed. The court heard evidence from the other accused and five complainants, who all stated that the accused had accepted the accusations during the reconstruction of events.

In the hearing held on 25 April 2002, the prosecutor submitted his opinion on the merits. The applicant's legal representative submitted that some of the evidence in the case file had been unlawfully obtained.

At the hearing held on 2 May 2002, the applicant reiterated that he did not accept the charges against him. When asked about the medical reports, the reports of the reconstruction of events and the arrest and seizure form, the applicant submitted that he had nothing to say.

On 9 May 2002 the Bursa Criminal Court, relying on the evidence in the case file and, in particular, on the statements made by the applicant and Mr I.Ö. before the police and the Magistrates' Court, found the applicant guilty as charged and sentenced him in total to nine years, two months and five days' imprisonment.

On 27 May 2002 the applicant appealed against the trial court's judgment. In particular, he claimed that there was no evidence to demonstrate his guilt and that his statements to the police had been written in accordance with the complainants' testimonies. The applicant submitted that he had not been reminded of his legal rights under Article 135 of the Code of Criminal Procedure and that his statements before both the police and the Magistrates' Court had not been given of his own free will. In part of his appeal petition the applicant submitted that he had not been in a fit condition to give a statement before the Magistrates' Court since he had been exhausted from the torture, coercion and duress he had been subjected to in police custody.

On 26 September 2002 the Court of Cassation, relying on Article 318 of the Code of Criminal Procedure, dismissed the applicant's request for an oral hearing and upheld the judgment of the first-instance court. The opinion of the principal public prosecutor submitted to this court was not communicated to the applicant.

On 16 December 2002 the decision of the Court of Cassation was returned to the registry of the Bursa Criminal Court.

A request by the applicant dated 26 December 2002 for a rectification of the Court of Cassation's judgment was dismissed by the principal public prosecutor at the Court of Cassation on 19 February 2003.

On 17 December 2004 the Bursa Criminal Court, taking into account the relevant provisions of the new Criminal Code (Law no. 5237), ordered the applicant's release from prison. By an additional judgment dated 29 June 2005 the first-instance court adjusted the applicant's sentence in accordance with the provisions of the new Criminal Code (Law no. 5237).