Individual Application

The Facts

The applicants were sentenced to life-imprisonment sentence by the decision of the 6^th Chamber of the Diyarbakır Assize Court (authorised by Article 250 of the Code of Criminal Procedure and subsequently abolished) for having engaged in armed actions so as to withdraw the whole or a part of the territory from the State's administration. Upon appellate review by the Court of Cassation, the first instance court decision became final.

The applicants lodged an application with the European Court of Human Rights (“ECHR”), which found a violation of the right of access to a lawyer in their case. Invoking the ECHR’s judgment finding a violation, the applicants requested a retrial. However, the 6^th Chamber of the Diyarbakır Assize Court rejected their request. The applicants’ challenge was also dismissed by the 7^th Chamber of the Diyarbakır Assize Court.

The Applicants’ Allegations

The applicants maintained that their right of access to a lawyer had been violated due to the rejection of their request for a retrial, despite the violation judgment issued by the ECHR.

The Court’s Assessment

The case brought by the applicants before the ECHR concerned their being deprived of the opportunity to access to a lawyer during their police custody on the ground that they could be, in principle, entitled to a lawyer only after a certain stage as the offences imputed to them fell into the scope of the jurisdiction of the state security courts. In the assessments as to the imputed actions, the applicants’ statements allegedly taken in the absence of a defence counsel during their custody were accepted as evidence.

The ECHR states that the cases involving incriminating statements against an accused during a police interview without access to a lawyer would, in principle, cause irreparable harm to the rights of the accused.

Referring to its similar judgments, the ECHR held in the applicants’ case that the systematic denial of access to a lawyer in case of offences falling under the jurisdiction of the state security courts pursuant to the legislation in force at the material time was per se sufficient to reach the conclusion that the requirements set forth in Article 6 of the European Convention on Human Rights had not been fulfilled. It also noted that if requested by the applicants, a retrial would be an appropriate way to redress the violation.

In the present case, the applicants were convicted of the imputed offence on the basis of, inter alia, their statements which had been taken in the absence of a lawyer and had not been subsequently confirmed at the hearing. It is thus evident that the impugned statements taken during the applicants’ police custody were relied on as decisive evidence for their conviction. For the redress of the violation found established by the ECHR, these statements should not have been used as a basis for their conviction. Therefore, it has been concluded that the ECHR’s judgment finding a violation was not enforced and thus, the violation of the right of access to a lawyer was not redressed in the present case.

Consequently, the Court has found a violation of the right of access to a lawyer.