Article 6§§1 and 3(c) (Right to a Fair Trial and Right to Legal Assistance of Own Choosing) of European Convention on Human Rights in the Light of Case of Girişen V. Turkey

Girişen/Türkiye Davası Işığında AİHS m.6/1 ve 6/3-c

Atakan KÖKEN

It is a lawsuit which was initiated by a Turkish national Deniz Girişen (“the applicant”) against Turkey or the Turkish Government (“the Government”) before the European Court of Human Rights (“the Court”). The applicant alleged violations of Article 3 (prohibition of torture), Article 5§3 (a reasonable period of detention), Article 5§4 (effective domestic remedy to challenge the lawfulness of the detention), and Article 6 (right to a fair trial) of the Convention before the Court. The alleged violations have been rejected except for the violation regarding Article 6 by the Court on the ground that Article 35§1 and 4 of the Convention for non-exhaustion of domestic remedies. Since the trial proceeding is not finalized in a reasonable period and that the applicant has not been allowed to enjoy the right to legal assistance, the Court held that there has been a violation of Article 6 of the Convention. Therefore, the Court held that the Government has to afford just satisfaction to the applicant in light of Article 41. Besides, the case contains comparisons on abrogated Code of Criminal Procedure for Criminal Trials (Law no. 1412) and the effective Code of Criminal Procedure (Law no. 5271) on account of the length of trials.

Article 6 of the ECHR, Right to a Fair Trial, Length of the Criminal Proceedings, Non-Exhaustion of Domestic Remedies, Access to a Lawyer.

Bu dava, Türk vatandaşı Deniz Girişen’in (“başvurucu”) Avrupa İnsan Hakları Mahkemesinde (“mahkeme”) Türkiye ya da Türk hükümeti (“hükümet”) aleyhine açtığı bir davadır. Başvurucu Mahkeme önünde Sözleşmenin 3. maddesinin (işkencenin yasaklanması), 5/3. maddesinin (makul tutukluluk süresi), 5/4. maddesinin (tutukluluğun yasallığına itirazda etkili bir iç hukuk yolu) ve 6. maddesinin (adil yargılanma hakkı) ihlal edildiğini iddia etmiştir. 6. madde ile ilgili ihlal dışında iddia edilen ihlaller mahkeme tarafından Sözleşmenin 35/1. ve 35/4. maddelerinde yer alan iç hukuk yollarının tüketilmemesi sebebiyle reddedilmiştir. Yargılama makul bir sürede sonuçlandırılmadığından ve başvuranın hukuki yardım alma hakkından yararlanmasına izin verilmediğinden Mahkeme, Sözleşmenin 6. maddesinin ihlal edildiğine karar vermiştir. Bu nedenle, Mahkeme, 41. madde ışığında başvurucu lehine adil bir tazminat verilmesine hükmetmiştir. Ayrıca, dava, 1412 s. mülga Ceza Muhakemeleri Usulü Kanunu ve yürürlükteki 5271 s. Ceza Muhakemesi Kanunu ile yargılama sürelerinin uzunluğuna ilişkin karşılaştırmalar içermektedir.

AİHS m.6, Adil Yargılanma Hakkı, Ceza Yargılamalarının Uzunluğu, İç Hukuk Yollarının Tüketilmemesi, Avukata Erişim Hakkı.

Introduction

The case deals with Article 6 relating to access to a lawyer during police custody and the length of criminal proceedings. The applicant complained that he had been deprived of legal assistance during the preliminary investigation phase, as he was accused of committing a crime that fell within the jurisdiction of the State Security Courts.¹ After the abolishment of the State Security Courts, Diyarbakır Assize Court started to hear the case. On 12 June 2008 the Assize Court upheld that the applicant had committed an offence, and, therefore sentenced him to life imprisonment. However, the sentence was reduced to twenty-year imprisonment since the applicant was a minor at the time of the offence. The Court of Cassation quashed the judgement of the Assize Court because of procedural reasons after two years. The applicant asked the Assize Court for his release, however the Court dismissed his application and issued a decision of lack jurisdiction and the case was transferred to Diyarbakır Juvenile Court,² since the applicant was a minor at the time of the offence. The applicant was sentenced to 16-year imprisonment by the decision of the Juvenile Court. The judgement of the Juvenile Court was upheld by the Court of Cassation. The application was communicated to the Court on 16 November 2007 pursuant to the Article 34 of the Convention.

The Facts and Domestic Law

The applicant was arrested and taken into the police custody on the charge of being a member of a terrorist organization, namely Hizbullah. During the custody, the applicant alleged that he was subjected to ill-treatment by the police officers in the police department. The applicant, therefore, stated that, the government is responsible for the offences of the police officers pursuant to Article 3 of the Convention. On 26 December 2001, Mr Girişen was brought before to the public prosecutor and was interrogated in the absence of a legal assistance. Diyarbakır Public Prosecutor filed a bill of indictment against the applicant charging him undermining the constitutional order of the State pursuant to the Article 146 of the abrogated Turkish Penal Code. The first hearing on the merits of the case was conducted by State Security Court on 19 March 2002.

The applicant filed a criminal complaint with public prosecutor against the police officers regarding the alleged ill-treatment and denied his statement which was given in the police custody. In that regard, a medical report was issued by a healthcare organization was submitted to the public prosecutor. The report stated that electric shocks were administrated to the applicant’s testicles. However, a decision was issued by the public prosecutor concerning the discontinuation of the criminal proceedings against the police officers on account of a lack of evidence on 25 June 2008. Upon the closure of the State Security Courts, the criminal case was started to carry out by the Assize Court. Based on the final judgement of the Diyarbakır Assize Court, the applicant was sentenced to life imprisonment. However, the sentence was reduced to twenty-year imprisonment since the applicant was a minor at the time of the offence. On 18 January 2010, the Court of Cassation quashed the judgement of the first instance court because of the procedural reasons. Upon the decision of the Court of Cassation, the applicant asked for his release. However, on 9 April 2010, the applicant was dismissed by the Assize Court on his request for the termination of his detention. On 30 September 2010, the Assize Court issued a decision of non-jurisdiction³ on the ground that the applicant is under the age of eighteen. According to the CCP, the Juvenile Court of Assizes are competent to hear the cases relating to the minors as mentioned above. Therefore, the case was transferred to Diyarbakır Juvenile Court.