Decisions On The Right To Benefit From The Assistance Of Counsel
Events
The applicant Özgür Uyanık was sentenced to life imprisonment for attempting to overthrow the constitutional order by force and the other applicant Ruşen Bayar was sentenced to life imprisonment for attempting to separate a part of the territory under the sovereignty of the State from the State administration. Aforementioned judgements were finalised by the Court of Cassation.
The applicants applied to the European Court of Human Rights (ECtHR) regarding the conviction and claimed that their right to assistance of defence counsel had been violated. In both applications, the ECtHR ruled that the applicants’ right to assistance of defence counsel within the scope of the right to a fair trial was violated. The applicants requested a retrial based on the aforementioned judgement; the court rejected the request for retrial for the applicant Özgür Uyanık and decided that there was no need to amend the previous judgement for the applicant Ruşen Bayar. The applicants appealed against these judgements and the heavy penal court rejected the applicants’ appeal.
Allegations
The applicants claimed that their right to a fair trial was violated due to the rejection of their request for renewal of the proceedings based on the ECtHR’s judgement of violation.
The Court’s Assessment
1. Regarding Application No. 2020/9524
Upon the applicant’s application to the ECtHR on 16/1/2009, the Government of the Republic of Turkey sent a declaration on this case to the ECtHR (TTD/declaration). With its decision dated 28/5/2019, the ECtHR examined the complaint within the scope of the said declaration. Accordingly, the ECtHR decided to dismiss the application in terms of the allegation of violation of the aforementioned right on the grounds that the fulfilment of the conditions and commitments in the text of the TTD, and in this context, a retrial upon request would be the most appropriate way for an effective remedy for the remedy of the violation, therefore, there is no reason justifying the continuation of the examination of the application.
Moreover, the ECtHR, taking into account its subsidiary role, pointed out that it is primarily for the national authorities to remedy any violation of the European Convention on Human Rights and stated that the application may be re-registered if the conditions set out in the text of the TCC are not complied with.
The applicant requested a retrial based on this decision; the court rejected the applicant’s request for retrial. Thereupon, the applicant appealed the decision, stating that the ECtHR judgment had found a violation of the right to the assistance of a defence counsel during the investigation phase and pointed to the renewal of the proceedings as an appropriate remedy; this request of the applicant was also rejected.
.
In the concrete case, the issue to be discussed is whether the requirements of the ECtHR’s decision to strike out the declaration and the rules regarding the fulfilment of the commitments set out therein have been fulfilled. İn other words, whether the violation of the right to benefit from the assistance of defence counsel, which is accepted to have been violated within the scope of the commitments stated in the declaration and which is guaranteed under Article 36 of the Constitution – in connection with the right to a fair trial – has been eliminated.
In subparagraph (f) of paragraph (1) of Article 311 of the Law No. 5271, “the fact that it has been determined by the finalised decision of the European Court of Human Rights that the criminal sentence was imposed in violation of the Convention for the Protection of Human Rights and Fundamental Freedoms or its annexed protocols and that the sentence was based on this violation” is regulated as a reason for renewal of the trial in favour of the convict.
As a result of the addition of the phrase “the decision of dismissal as a result of friendly settlement or unilateral declaration regarding the application made to the European Court of Human Rights against the criminal judgement” with Article 16 of the Law Amending Certain Laws and Decree Laws No. 7145, which entered into force on 31/7/2018, this decision, in addition to the violation decision specified in the subparagraph, is also envisaged as a reason that enables the applicant to apply to the legal remedy of renewal of the trial.
.
In the face of the aforementioned regulation, it is clear that in cases where the violation accepted with the TTD is related to the criminal judgement, accordingly, there is a possibility of a different decision in case the consequences of the accepted violation are eliminated and the violation can be eliminated as a result of a retrial, it is clear that the decision of deregistration will require a retrial in accordance with subparagraph (f) of paragraph (1) of Article 311 of Law No. 5271, if the applicant requests it. Moreover, in the ECtHR judgment, it is emphasised that the text of the declaration guarantees the applicant’s right to apply to the legal remedy of retrial upon request.
Accordingly, the court must evaluate the request for renewal of the trial made pursuant to subparagraph (f) of paragraph (1) of Article 311 of the Law No. 5271 by taking into account the nature of the violation accepted in the text of the declaration. In the event that the violation accepted in the text of the declaration arises from a procedural omission, transaction or other deficiency during the trial, the matter in question must be remedied in a way that will not lead to a new violation. Deficiencies in the violation recognised may necessitate the reopening of the proceedings with a hearing.
.
In the case of the violation acknowledged in the text of the Declaration, it appears that the applicant’s statement taken – inter alia – during the investigation phase without the presence of a defence counsel was used as evidence in the conviction. In such cases, the relevant judicial authorities must act in such a way as to eliminate the violation and its consequences, taking into account the nature of the violation recognised. However, the court rejected the request for renewal of the trial by conducting an examination on the file. The court decided that the defendant’s statement at the investigation phase was excluded from the reasoning of the decision and that the other evidence was sufficient for the conviction of the imputed offence.
It is not clear from the judgement whether the applicant had the opportunity to raise his claims and objections to the other evidence on which the conviction was based. In order to fulfil the requirements of the ECtHR’s striking out decision within the framework of the above-mentioned principles, the court must first decide on the renewal of the proceedings. Therefore, it is understood that the evaluations made by the court do not coincide with the ECtHR judgement, do not contain an examination to the extent and with the care required by Article 36 of the Constitution, and the violation accepted in the declaration text has not been eliminated.
For the reasons explained, the Constitutional Court ruled that the right to the assistance of a defence counsel was violated.
2. Regarding Application No. 2020/33709
It is understood that the applicant’s statements were taken by the law enforcement officers without the presence of his defence counsel during the investigation phase of the case before the court subject to the ECtHR’s violation judgment and that the statements taken without the presence of his defence counsel were referred to in the conviction verdict.
In the concrete case, it is understood that the applicant’s statements obtained during the investigation phase without the presence of his defence counsel were taken as a basis for the conviction. In such cases, the relevant judicial authorities must act in a way to eliminate the violation and its consequences, taking into account the nature of the violation recognised. However, the court made an assessment by analysing the file. As a result of the evaluation made on the file, the Court decided that there was no need to exclude the applicant’s confession during the investigation phase from the reasoning of the conviction decision and that there was no need to amend the final judgement of conviction against the applicant. However, it is not clear from the reasoned decision whether the defence side had the opportunity to express its claims and objections to the evidence other than the statement.
.
In order to fulfil the requirements of the violation judgement given by the ECtHR, the court must firstly decide to renew the proceedings and to hold a hearing, taking into account the nature of the violation. Therefore, it is understood that the evaluations made by the court do not coincide with the ECtHR judgement, do not include an examination to the extent and with the care required by Article 36 of the Constitution, and the violation of the right to benefit from the assistance of defence counsel cannot be eliminated.
For the reasons explained above, the Constitutional Court ruled that the right to the assistance of defence counsel was violated.
You can access our other article examples and petition examples by clicking here.