PROCEDURE

The case originated in an application (no. 12047/05) 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 Baykal Kuveydar (“the applicant”), on 18 March 2005.

The applicant was represented by Mr S. Dursun, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

The applicant alleged that he had not had a fair trial, in that the domestic court had refused his request to have witnesses on his behalf examined. He also complained about his alleged ill-treatment during his time in police custody, the court’s use of his police statements, which, according to him, had been taken under duress, and its reliance on evidence obtained through third persons’ telephone conversations.

On 31 August 2010 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1973 and is currently serving a prison sentence in Edirne.

On 8 February 2001 a certain İ.Y. and his son M.Y., filed a complaint with the Bursa Public Prosecutor’s office, claiming that they had been threatened by members of a criminal organisation, including the applicant, who had acted under his boss, O.K., and that they had had to give them a substantial amount of money and property as a result.

On 20 March 2001 the Public Prosecutor at the Istanbul State Security Court requested the Bursa Security Directorate to investigate the matter within the context of an investigation concerning a bigger criminal organisation.

On 21 March 2001 police officers from the Bursa Security Directorate conducted a search at the applicant’s house, during which they found an unlicensed semi-automatic weapon. The applicant was immediately arrested after the search.

Subsequently, he was taken to the Bursa Directorate of Forensic Medicine, where he was examined by a doctor who noted that there were no signs of ill-treatment on his body. He was placed in police custody on the same day.

On 23 March 2001, following the extension of his police custody by two days, the applicant underwent another medical examination. The report drawn up after that examination noted the names of several persons who had also been arrested as part of the same investigation and indicated that no injury could be found on any of them.

On 24 March 2001 the applicant gave his police statements. He described the course of the events in detail and stated that he and certain people that he worked with had visited İ.Y. and M.Y. at their homes several times in order to obtain money by threatening them.

On 25 March 2001 the applicant’s police custody was extended and he was medically examined once again together with twenty-five others. The doctor who conducted the examination simply noted that there were no traces of ill-treatment on any of the persons he had examined. The day after, 26 March 2001, another doctor issued a report in respect of the same people, stating that none of them had any complaints and that he could find no signs of injury on their bodies.

On 28 March 2001 the applicant went through a final medical examination before he was detained on remand. This time, a report specific to him was drawn up, stating that he had not put forward any physical or psychological complaints during the examination and that there was no indication of ill-treatment on his body. In his application form, the applicant maintained that the doctor had taken account of his submissions and examined his genitals, but had not been able to find any traces of the electric shocks administered to him.

On the same day the applicant gave his statements before the Public Prosecutor at the Istanbul State Security Court. He reiterated his account of the events, but denied certain parts of his police statements, whereby he had admitted to being a member of a criminal organisation and having threatened İ.Y. He did not indicate anything with regard to his alleged ill‑treatment.

On 21 June 2001 the Public Prosecutor filed an indictment with the Istanbul State Security Court, accusing the applicant of armed robbery, membership of a criminal organisation and illegally carrying weapons. After having explained in detail the composition and acts of a criminal organisation, the Public Prosecutor indicated that the applicant was a member of another organisation, which had threatened and extracted money from İ.Y., a member of the first one. In his recapitulation of the events, the Public Prosecutor mentioned a certain A.V.O., who he claimed to have been involved in the money transactions at issue and to have been threatened by that second criminal organisation. He requested the opening of criminal proceedings against a total of thirty-one people, accusing them of being members of two separate criminal organisations.

On 13 September 2001, at the first hearing before the Istanbul State Security Court, İ.Y. stated in the absence of the applicant (who was unrepresented) that he had asked for help from the applicant’s boss, O.K., to sell some of his property in order to pay his debts and that he had paid him a certain amount in return. He claimed that after the transaction, the applicant had threatened him to obtain more money.

At the second hearing, held on 6 December 2001, the applicant stated before the court that the indictment had not been served on him and that he had not fully understood the charges against him. After having described the events, he maintained that he and his boss had helped İ.Y. pay his debts and that he had just asked him to pay their share, without making any threats. He further retracted the previous statements he had made before the police and the Public Prosecutor. Finally, he argued that he had been subjected to ill-treatment while in police custody, without giving any details about his allegation.

During the same hearing, M.Y. submitted that his father, İ.Y., had been threatened by the applicant. The applicant was not given an opportunity to comment on these submissions.

On 9 April 2002 the Public Prosecutor submitted his written opinion to the Istanbul State Security Court. He stated that the telephones of two of the accused had been intercepted and that the conversations between them and with the applicant had revealed that the latter had threatened İ.Y. upon an order from O.K. In describing the events at issue, the Public Prosecutor once again maintained that A.V.O. had been involved in the transactions and had been threatened by fellow members of the applicant’s criminal organisation. He further indicated that the unfolding of the events had been corroborated by the statements of all of the accused, but that they had all denied having threatened İ.Y. and M.Y. Finally, relying on the telephone recordings and the statements of the other accused, the Public Prosecutor proposed that the applicant should be found guilty as charged.

Subsequently, the applicant submitted his statements to the court, requesting the examination of two witnesses, A.V.O., who had been mentioned in the Public Prosecutor’s written opinion, and a certain İ.D.

At the hearing on 3 September 2002 the Istanbul State Security Court rejected the request, finding that the examination of the witnesses called by the applicant would have no effect on the outcome of the proceedings. After making a summary of all of the defendants’ statements, the court found the applicant guilty as charged, and sentenced him to twenty years and ten months’ imprisonment and a judicial fine. In its reasoning, it stated that the applicant’s guilt had been established on the basis of an overall assessment of the evidence at its disposal, without specifying which particular evidence it relied on.

The applicant appealed against the judgment, arguing that the court had failed to hear any witnesses on his behalf and that it had restricted his right to defend himself during the course of the proceedings, in that it had not taken account of any of his submissions.

On 12 April 2004 the Court of Cassation upheld the judgment after holding a hearing, during which the applicant was not present.

The applicant was not represented by a lawyer at any stage of the proceedings, including the appeal proceedings before the Court of Cassation.

On 11 October 2004 a committal order concerning the execution of the applicant’s sentence was prepared. It was notified to the applicant by the prison administration on 13 October 2004.