Press Release Nr: Individual Application 46/16
27.12.2016

PRESS RELEASE CONCERNING THE JUDGMENT OF YUSUF KARAKUŞ AND OTHERS ON THE RIGHT TO A FAIR TRIAL WITHIN A REASONABLE TIME

On 8/12/2016, the First Section of the Constitutional Court held with regard to the individual application lodged by Yusuf Karakuş and Others (application no. 2014/12002) that there has been a breach of the right to a fair trial within a reasonable time within the scope of the right to a fair trial which is guaranteed in Article 36 of the Constitution.

The Facts

The İstanbul Security Directorate carried out operations against the Hezbollah terrorist organization on 17/1/2000. The organization leader was captured dead in the operation conducted by the security officers in a house. In the course of the search conducted in that house, many hard disks containing information about the organization were found.

On 6/5/2000, the applicants were taken into custody within the scope of the investigation initiated upon the information obtained during the above-mentioned operation. The applicants’ statements were taken in the Anti-Terror Branch of the İstanbul Security Directorate in the absence of their defence counsels. On 7/5/2000, the applicants were sent to Ankara.

Hasan Kılıç, one of the applicants, denied the accusations in his statement taken in the absence of his defence counsel in the Anti-Terror Branch of the İstanbul Security Directorate. He then made detailed confessions in the course of his statement taken in the Anti-Terror Branch of the Ankara Security Directorate on 12/5/2000. He subsequently admitted the accusations against him before the State Security Court (the SSC).

Similarly, the applicant, Yusuf Karakuş, gave statements incriminating himself and the other suspects in his statements taken in the Anti-Terror Branch of the İstanbul Security Directorate on 7/5/2000, in the absence of his defence counsel. He also made detailed confessions in the course of his statements taken in the Ankara Security Directorate in the absence of his defence counsel and showed certain places pertaining to the imputed offence and evidence thereof.

The applicant Mehmet Şahin explained his life, his joining into the Tevhid-Selam group and his activities in detail during his statement taken in the Anti-Terror Branch of the İstanbul Security Directorate, in the absence of defence counsel. He also made detailed confessions in his statements taken by the Ankara Security Directorate in the absence of his defence counsel. The applicant subsequently declared before the Public Prosecutor’s Office of the Ankara SSC and the judge of the SSC that he had been associated with the Tevhid-Selam group but he had not got involved in any violent acts.

A criminal case was filed before the Ankara SSC no. 2 against the applicants for breach of the Constitution by the bill of indictment of the Chief Public Prosecutor’s Office at the Ankara SSC dated 11/7/2000.

During the hearings, the applicants denied the accusations against them by maintaining that their statements taken at the investigation stage and amounting to confessions had been taken under duress.

The applicants were sentenced to imprisonment by virtue of the decision dated 7/1/2002 at the end of the trial held over the case-file of the Ankara SSC no. 2 no. E.2000/102. The applicants, Mehmet Şahin and Yusuf Karakuş, were sentenced for being a member of an armed gang aiming to change the constitutional order by force of arms while the other applicant, Hasan Kılıç, was sentenced for being a head having special authority in this armed gang.

This decision and the decision of 28/7/2005 which was rendered by the 11th Chamber of the Ankara Assize Court (closed) continuing to handle the proceedings were quashed by the 9th Criminal Chamber of the Court of Cassation.

The conviction decision of 17/1/2013, which relied on the applicants’ confessions and statements incriminating each other at the investigation stage, was upheld by the judgment of the 9th Criminal Chamber of the Court of Cassation dated 31/3/2014.

The Applicants’ Allegations

The applicants maintained that the trial had not been conducted fairly; and that they had been convicted mainly on the basis of their statements which had been taken in the course of the police custody during which they had been denied legal assistance and which had been signed under duress and torture but the content of which had not been admitted.

The Court’s Assessment

In brief, the Constitutional Court has made the following assessments within the scope of this allegation:

a. The Alleged Violation of the Right to a Fair Trial in conjunction with the Right to Legal Assistance

With respect to the offences falling into the jurisdiction of the state security courts, it is possible, in principle, for the applicants to obtain the assistance of a defence counsel while being in custody only after a certain stage. The legislation which was in force at the time when the applicants were in custody did not provide the opportunity for obtaining assistance of a lawyer during the police custody. It has been observed that the applicants were held in custody under the mentioned conditions for a period between 8 and 13 days.

It has been observed that in the assessment concerning the acts within the scope of the offences imputed on the applicants, it has been observed that the applicants’ and the other accused persons’ statements alleged to be taken in the police custody in the absence of their defence counsels and under duress were considered as evidence. It has been revealed that the applicants conviction were ordered for the imputed offence as they were found established to have performed the acts in question on the basis of their statements which had been taken in the absence of a defence counsel and had not been subsequently confirmed before the court as well as the other evidence; that these statements taken in custody were significantly relied on as evidence for the applicants’ conviction; and that the legal assistance and the other procedural guarantees provided at the subsequent stages failed to indemnify the damage caused to the applicants’ right to defence at the outset of the investigation.

Article 148 of the Law no. 5271, which subsequently entered into force (during the proceedings), is capable of ensuring the investigation to be effective at the prosecution stage with respect to the statements which are taken by the law-enforcement officers in the absence of a defence counsel and which are not confirmed before a judge or a court. However, this question was not discussed in the court’s decision and could not be redressed at the appellate stage. The failure to provide the opportunity for access to legal assistance in the police custody and taking these statements at this stage as a basis for the conviction decision led to the breach of the right to a fair trial in conjunction with the right to legal assistance.

The Constitutional Court has consequently held that there was a breach of the right to a fair trial in conjunction with the right to legal assistance within the scope of the right to a fair trial guaranteed in Article 36 of the Constitution.

b. Alleged Violation of the Right to a Trial within a Reasonable Time

Having regard to the principles concerning the criminal proceedings and the judgments rendered by the Constitutional Court in similar applications, it has been concluded that the period of proceedings lasting for approximately 13 years, 10 months and 25 days in the present case was not reasonable.

The Constitutional Court has consequently held that there was a breach of the right to a trial within a reasonable time guaranteed in Article 36 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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