Violation Of The Right To A Fair Trial Due To Failure To Fulfil The Constitutional Court’s Violation Decision
Events
12th Assize Court stated that it was understood from the statements of the defendants at the police and prosecutor’s office, the Identification and Locator Reports, the captured weapons and organisational documents and all other available evidence in the file that the applicant, together with the other defendants, was a senior officer of an armed terrorist organisation and that they had carried out actions in line with the decisions they had taken together on behalf of the organisation, and sentenced the applicant to life imprisonment for the crime of attempting to overthrow the constitutional order by force as the command and control executive of an armed terrorist organisation. This judgement was upheld by the Court of Cassation.
In his individual application, the applicant claimed that the trial was not conducted in accordance with fairness and that he was convicted on the basis of statements signed under duress while in custody without access to a lawyer, but the content of which was not accepted.
The Constitutional Court ruled that the applicant’s right to a fair trial was violated in connection with his right to the assistance of a defence lawyer. Upon the Constitutional Court’s violation judgement being sent to the 12th Assize Court, the Court handled the file without a request for the purpose of renewal of the trial. With the additional decision of the aforementioned Court, an evaluation was made and it was decided to reject the request for renewal of the trial on the file. The applicant’s objection to this decision was definitively rejected by the 13th Assize Court as a result of the examination on the file.
Allegations
Applicant claimed that his right to a fair trial was violated in connection with his right to assistance of defence counsel due to the failure to fulfil the requirements of the Constitutional Court’s violation judgment.
The Court’s Assessment
The Constitutional Court has previously determined that it is a practice arising from the legislation that suspects are not allowed to benefit from the assistance of a defence counsel for offences falling within the jurisdiction of the State Security Courts, but has given violation decisions on the grounds that the right to benefit from the assistance of a defence counsel was not compensated afterwards.
It is possible to remedy the violations determined in the violation decision of the Constitutional Court without a hearing, depending on the circumstances of the case. However, in the concrete case, in order to fulfil the requirements of the violation decision of the Constitutional Court, the court of first instance must first decide to renew the proceedings and – considering the nature of the violation – to open the hearing. In such cases where the Constitutional Court finds a violation and orders the elimination of the violation and its consequences, the relevant judicial authorities must act in a way to eliminate the violation and its consequences, taking into account the nature of the violation decision.
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However, the court of first instance decided to reject the request for renewal of the proceedings on the grounds that there would be no change in the judgement even if the applicant’s statement in the statement taken at the police station during the investigation phase was disregarded, that the applicant was caught with a long-barreled gun and documents belonging to the organisation as a result of the location of the other defendant who was arrested, and that the applicant made a tacit confession during the prosecution phase, in violation of his legal obligation.
It is not possible to question whether the applicant’s inability to benefit from the assistance of a lawyer in detention and the damage caused to the right to defence prevented the fairness of the proceedings as a whole without a hearing. The issue of whether the statement obtained from the applicant during the investigation phase was given under ill-treatment and torture, whether it can be used as evidence for conviction, and whether the statements of the other defendant, whose identification and location procedures were carried out without the presence of the defence counsel, can be taken as a basis for the verdict can only be possible with the decision to renew the trial and to hold a hearing.
It is understood that the interpretation made by the Assize Court when rejecting the request for renewal of the trial does not coincide with the violation decision of the Constitutional Court, and although the nature of the violation necessitates the opening of a hearing, it is not to the extent and with the care required by Article 36 of the Constitution, and therefore the violation and its consequences identified by the Constitutional Court in its decision on the applicant have not been eliminated by the courts of first instance.
For the reasons explained, the Constitutional Court decided that the right to a fair trial was violated.
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