Last Updated on May 11, 2020 by LawEuro
SECOND SECTION
DECISION
Application no. 59241/10
Mehmet Emin YILDIZ
against Turkey
The European Court of Human Rights (Second Section), sitting on 14 January 2020 as a Committee composed of:
Valeriu Griţco, President,
Arnfinn Bårdsen,
Peeter Roosma, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 26 August 2010,
Having regard to the partial decision of 24 March 2016,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Mehmet EminYıldız, is a Turkish national, who was born in 1978 and is detained in Siirt. He was represented before the Court by Ms N. Paşa, a lawyer practising in İzmir.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 24 March 2007 the Antalya public prosecutor ordered the search of a construction site within the scope a criminal investigation into an illegal organisation, namely PKK-KONGRA/GEL[1], pursuant to Article 119 § 1 of the Code of Criminal Procedure (Law no. 5271).
4. On 25 March 2007 at around 3 a.m. the applicant was arrested, along with two other suspects, on suspicion of membership of PKK‑KONGRA/GEL in the vicinity of the construction site where the search was being carried out. His mobile phone and two memory cards were seized as evidence.
5. Following the medical examination, the applicant was taken to the anti-terrorism branch of the Antalya Security Directorate. It appears from the documents in the case file that the applicant was reminded of his rights in accordance with Article 135 of the Code of Criminal Procedure, which also included the right to a lawyer. He was, however, informed that the Antalya Bar Association had stopped the appointment of ex officio lawyers due to being on strike. The applicant refused to give statements at the police station.
6. On the same day the applicant was brought before the Antalya public prosecutor and subsequently the investigating judge, both of whom repeated the Antalya Bar Association’s decision to stop the appointment of ex officio lawyers. In his statements before both authorities given in the absence of a lawyer, the applicant denied all connection with the organisation. The investigating judge remanded the applicant in detention.
7. On 18 June 2007 the İzmir public prosecutor filed an indictment accusing the applicant and four others of membership of an illegal organisation and possession of explosive devices.
8. On 8 October 2007 the İzmir Assize Court held its first hearing. At this hearing, the applicant gave evidence in person and pleaded not guilty in the absence of a lawyer.
9. On 23 January 2008 the İzmir Assize Court held its second hearing. According to the minutes of this hearing, the applicant had a legal representative at that stage of the proceedings.
10. In the course of the proceedings, on 28 January, 18 March and 28 March 2008 witness statements were taken on commission by the Antalya Assize Court at the request of the trial court. As it transpires from the hearing records in the case-file, at the hearing on 18 March 2008 the court heard police officer C.T., who had effected the applicant’s arrest. In his statement C.T. repeated his account of the applicant’s arrest and maintained that the applicant and the two other suspects who were arrested along with the applicant had tried to escape at the time. The applicant’s lawyer did not attend this hearing; however, the minutes of the hearing reveal that the legal counsel of the two other co-accused was present and put questions to the witness C.T.
11. On 26 December 2008 the İzmir Assize Court acquitted the applicant of the charges listed in the indictment; however, it convicted him of aiding and abetting an illegal organisation and sentenced him to six years and three months’ imprisonment.
12. On 29 December 2008 the applicant’s lawyer lodged an appeal against the trial court’s judgment arguing that the applicant’s conviction had been unlawful and contrary to the procedure and had asked the Court of Cassation to quash it. In this one page long appeal, the lawyer also stated that she would submit more detailed appeal submissions following the notification of the trial court’s reasoned judgment on her. Nevertheless, according to the documents submitted by the parties, it appears that no such appeal submissions were lodged with the Court of Cassation.
13. On 18 February 2010 the Court of Cassation upheld the judgment of the first-instance court. According to the information obtained from the official website of the Court of Cassation by the Registry, on 2 March 2010 the case file was sent to the Registry of the first-instance court.
B. Relevant domestic law
14. A description of the relevant domestic law concerning the right of access to a lawyer may be found inHarun Gürbüz v. Turkey, (no. 68556/10, § 48, 30 July 2019).
THE LAW
15. The applicant complained under Article 6§§1 and3 (c) of the Convention that he did not benefit from legal assistance during his police custody, as well as before the public prosecutor and the investigating judge. Relying on Article 6 §§1 and 3 (d) of the Convention, he further argued that he could not cross-examine the witnesses who had testified against him before another court, namely the Antalya Assize Court.
16. The Government raised a plea of non-exhaustion of domestic remedies on account of the applicant’s failure to raise his complaints either before the trial court or the Court of Cassation.
17. The applicant’s lawyer, without providing any specific submissions in respect of the Government’s plea of non-exhaustion, objected to the Government’s observations and stated that she reiterated the complaints in the application form.
18. The Court observes that according to the documents in its possession, neither the applicant nor his lawyer aired the complaints which they now raise before the Court at any stage of the proceedings before the national courts.
19. In view of the above and taking into account the Government’s preliminary objection, the Court concludes that these complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the remainder of the application inadmissible.
Done in English and notified in writing on6 February 2020.
Hasan Bakırcı Valeriu Griţco
Deputy Registrar President
__________
[1]. The Kurdistan Worker’s Party/The Kurdistan People’s Congress.
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