Case of European Court of Human Rights, May 12, 2020 (case EKİNCİ v. TURKEY)

Defense:TURKEY
Resolution Date:May 12, 2020

SECOND SECTION

CASE OF EKİNCİ v. TURKEY

(Application no. 25148/07)

JUDGMENT

STRASBOURG

12 May 2020

This judgment is final but it may be subject to editorial revision.

In the case of Ekinci v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Valeriu Griţco, President,Arnfinn Bårdsen,Peeter Roosma, judges,and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 24 March 2020,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 25148/07) 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 Mehmet Emin Ekinci (“the applicant”), on 5 June 2007.

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

  3. The applicant alleged, in particular, that he had been subjected to ill-treatment while in police custody and that he had been denied the right to a fair trial on account of the use by the trial court of his police statements and the evidence he had given during the crime-scene reconstruction, both of which took place without a lawyer present.

  4. On 26 June 2017 notice of the above-mentioned complaints concerning were given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

  5. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

    THE FACTS

    1. Criminal proceedings against the applicant

  6. The applicant was born in 1986 and lives in Tekirdağ.

  7. On 28 July 2004 at approximately 10.15 a.m. the applicant was arrested by security forces within the scope of intelligence and operational activities carried out in respect of a terrorist organisation, namely the PKK (the Workers’ Party of Kurdistan). According to the arrest report, the applicant’s bag contained five copies of the book entitled “To defend the people” (Halkı savunmak) signed by Abdullah Öcalan.

  8. Subsequently, the applicant was medically examined at the Fatih branch of the Forensic Medicine Institute. The doctor who examined the applicant observed a hyperaemia of 2 cm and two 0.5 cm-long skin-deep lesions on the applicant’s left wrist, adding that the applicant had told him that it had been the result of the handcuffs. That report also contained the applicant’s statement that he had been subjected to psychological pressure by the police. Although the report does not contain any information as to its time of issuance, it appears to be a report on the first medical examination carried out following his arrest.

  9. On the same day the applicant’s statement was taken in the Istanbul Security Directorate and they were transcribed on printed forms, the first page of which was filled in to indicate, inter alia, that the applicant was suspected of acting on behalf of the PKK. The same page also included a printed message which stated, inter alia, that the person being questioned had the right to remain silent and the right to a lawyer of his or her choosing. It appears from the form that the applicant refused legal assistance, since the first page of the record includes a printed phrase stating “No lawyer sought” and a box next to it that is marked with a printed “X”. Moreover, according to the record, he also stated that he did not want a lawyer and that he waived his right to silence. In his statement, which was five pages long, the applicant admitted that he had thrown a Molotov cocktail at a police vehicle on 9 July 2004 with S.B., F.A. and another person known to him only as Mehmet. He further stated that he had been frequenting the Beyoğlu branch of the People’s Democratic Party (DEHAP). Lastly, the statement form does not contain any information as to its time of issuance.

  10. According to a separate document dated 28 July 2004, the applicant had been informed of his rights under Article 135 of the Code of Criminal Procedure as in force at the material time and stated that he would like to give his statements without a lawyer present. This was also a printed form that bore the applicant’s signature and the indication that a copy of a form explaining his rights had been given to him. On another form explaining arrested people’s rights, which was also undated and which the applicant duly signed, he was reminded of his right to remain silent and to have access to a lawyer. However, those forms do not contain any information as to their time of issuance.

  11. Again on 28 July 2004, at 10.05 p.m., the applicant was required to participate in a crime-scene reconstruction (yer gösterme). According to the record drafted by police officers and signed by the applicant, the latter told the police officers that he had thrown a Molotov cocktail at a police car on 9 July 2004 on Dolapdere Street in Istanbul. Subsequently, the police officers brought the applicant to the crime scene, where he made further statements. According to the report, the applicant stated that he and two other accused – S.B., F.A. and another person known to him as Mehmet – had decided to hold a demonstration in order to protest the detention in isolation of Abdullah Öcalan and that they had all met in the Dolapdere district and started waiting on the street for a police car. When they had seen the police car approach, the applicant and Mehmet had thrown one Molotov cocktail each at the police car and then had run away. This report did not indicate any information as to whether the applicant had been advised of his rights prior to or during the crime-scene reconstruction.

  12. Also on 28 July 2004 the Incident Scene Investigation and Identification Branch of the Istanbul Security Directorate drew up a report in which it concluded that one of the fingerprints found on the blue plastic shopping bag containing three Molotov cocktails seized in the crime scene belonged to F.A.

  13. The police also contacted Turkcell (a mobile-telecommunications provider) with a view to obtaining the telephone records of the mobile telephones used by the applicant, F.A., S.B. and Mehmet. The results showed that the applicant and S.B. had been present at the crime scene on the date and time the offence had taken place; that S.B. had left the crime scene within a short time and that S.B. had called the applicant three times within the period between the time of the incident and the following fifteen minutes. Moreover, approximately one hour after the incident, the applicant called F.A. three times.

  14. On 1 August 2004 at 7.10 a.m., at the end of his time in police custody, the applicant was once again examined by a doctor in the Forensic Medicine Institute. According to the report drawn up in respect of the applicant, there were no new marks on the applicant’s body other than those mentioned in the medical report dated 28 July 2004. However, as the applicant told the doctor that the police had hit him on the ear and that they had beaten him up in order to force him to sign the statement record, the doctor decided that a conclusive report could only be drawn up after a detailed medical examination in a fully equipped hospital.

  15. Subsequently, the applicant was transferred to Şişli Etfal Research Hospital, where he was examined by a doctor who ordered the applicant’s transfer to the ear, nose and throat department of the hospital. Following examination there, the applicant was given another medical examination by a different doctor, who concluded that the applicant’s auricles (right and left ears), external auditory canals and ear drum were normal (mutat) and his nasal pyramid and facial nerve functions were natural.

  16. On the same day at 10.30 a.m. the applicant was given another medical examination at the Şişli Directorate of Forensic Medicine Institute by a specialist doctor, who concluded that the findings did not put the applicant’s life at risk but rendered him unfit to carry out daily activities for one day. The applicant told the doctor that the police had beaten him up.

  17. On the same day, the applicant was brought before the public prosecutor where he gave statements in the presence of his lawyer. Denying the content of his police statements, the applicant submitted that he had had to sign those statements as the police had forced him to do so. Moreover, the applicant stated that he had been to Kağıthane Sanayi district to see the public school in which he had sat the university entrance exam on 10 July 2004. The applicant once again denied having thrown a Molotov cocktail at a police car. The applicant’s lawyer stated on the lawyer‑client-meeting form that the applicant had stated that he would not give any statements without his lawyer present. As such, the applicant did not make any statements but the police had forced him to sign the statements prepared by them.

  18. Again on the same day, the applicant was brought before the investigating judge. He gave statements in the presence of his lawyer, and accepted his prior statements to the public prosecutor, while denying once again his statements to the police, alleging that the police had made him sign the statement record without allowing him to read it first. The applicant’s lawyer stated that the applicant had been subjected to ill‑treatment starting from his time in police custody and that no lawyer had been appointed in respect of him despite his requests to have the aid of counsel. He also argued that the evidence had been collected unlawfully. After the questioning was over the investigating judge remanded the applicant in custody, referring to the nature of the offence and the state of the evidence.

  19. On the same day, another suspect, S.B., also made statements before the public prosecutor. He stated that on the date of the...

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