Article 6 European Convention on Human Rights (Right to Fair Trial) in the Light of the Case Aydın Çetinkaya v. Turkey ECtHR 02.02.2016, application no. 2082/05
AHİS m.6 (Adil Yargılanma Hakkı) Işığı Altında Aydın Çetinkaya / Türkiye Davası
Burcu DÖNMEZ
On 02.02.2016 the European Court of Human Rights (Court) decided against the country Turkey in the case of Aydın Cetinkaya v. Turkey. Aydın Çetinkaya had been sentenced to 24 years imprisonment of murder in 1993. He has been released conditionally on 8 March 2002. On 23 March 2002 he was arrested at his home on suspicion of leading a criminal organisation and involvement in the attempted abduction by Istanbul Security Directorate. Beyond the applicant six other person were also arrested. There have been reported several injuries on the bodies of the applicant and the six other person in Forensic Medical Institute examinations during the period of detention. The applicant lodged a petition with the Public Prosecutor’s office and alleged that he had been subjected to ill-treatment during his detention in police custody. Fatih Public prosecutor launched an inquiry against police officers and filled an indictment with the Fatih Criminal Court accusing six police officers of ill- treatment on the applicant and his co-accused. But before the case against police officers completed, the criminal court based its judgement on the statements of both applicant and the others which alleged obtained as a result of ill-treatment and used the transcripts of telephone conversation which allegedly he had not held; and sentenced the applicant to imprisonment and the decision uphold by the Court of Cassation. Court held that there has been a violation of Article 6 § 1 of the Convention on account of the use by the Istanbul State Security Court of the applicant’s police statements allegedly obtained as a result of ill-treatment, found no need to examine the other issue.
Art. 6 ECHR, Right to Fair Trial, Forbidden Evidences, Right to Defence.
02.02.2016 tarihinde Avrupa İnsan Hakları Mahkemesi (Mahkeme) Aydın Çetinkaya Türkiye davasında Türkiye aleyhinde karar vermiştir. Aydın Çetinkaya, 1993 yılında kasten öldürme suçundan 24 yıl hapis cezasına mahkum edilmiştir. 8 Mart 2002’de şartlı salıverilmiştir. 23 Mart 2002’de evinden İstanbul Organize Suçlar Şube Müdürlüğü tarafından alınarak örgüt liderliği ve adam kaçırmaya teşebbüsten gözaltına alınmıştır. Başvuran dışında 6 kişi daha gözaltına alınmıştır. Başvuran ve diğerlerinin gözaltı sürecinde gerçekleştirilen adli muayenelerinde çeşitli yaralanmalar rapor edilmiştir. Başvuran polis memurları hakkında işkence yapmaktan dolayı suç duyurusunda bulunmuştur. İlgili polis memurları hakkında Fatih Cumhuriyet Başsavcılığınca soruşturma başlatılmış ve kamu davası açılmıştır. Ancak bu dava sonuçlanmadan başvuran hakkında açılmış olan davada işkence altında alındığı iddia edilen ve dava konusu olan başvuran ve diğer kişilerin ifadesi esas alınmış, başvuranın kendisine ait olmadığını iddia ettiği telefon kayıtları herhangi bir inceleme yapılmadan delil kabul edilmiş ve başvuran aleyhine mahkumiyet kararı verilmiş ve kesinleşmiştir. Mahkeme, işkence altında alındığı iddia edilen delilleri, polisler hakkında açılan dava sonuçlanmadan hükme esas alınmasını Sözleşmenin 6.maddesinin 1.paragrafına aykırı bulmuş, diğer husus bakımından ayrıca değerlendirme yapmaya gerek olmadığına karar vermiştir.
AİHS md. 6, Adil Yargılanma Hakkı, Delil Yasakları, Savunma Hakkı.
1. Preface
The assessment of the case should be made limited to Article 6. The legal issue of the case focusses on two points. The first one is the use of the evidence obtained allegedly as a result of ill-treatment in criminal proceedings infringed the fairness of such proceeding even if the admission of such evidence was not decisive in securing the conviction. And the second one is the using the transcripts of the telephone conversations allegedly held by the applicant by the court. In this study, these points should be detailed under related titles.
2. The Case of Aydın Çetinkaya v. Turkey (Application No. 2082/05)
The applicant was born in 1964. In 1993 the applicant was convicted of murder and sentenced to 24 years’ imprisonment. On 8 March 2002 the applicant was conditionally released from prison. On 23 March at 8.40 p.m. the applicant was arrested at his home on suspicion of leading a criminal organisation and involvement in the attempted abduction of a certain Ş.H. and his son H.H. he was subsequently placed in custody by the organised crime division of the Istanbul Security Directorate.
On March 2002 at 8 p.m. the applicant and six other persons were examined at Istanbul Haseki Hospital by a doctor who recorded on a single sheet of paper that there was no sign of violence on the bodies of these seven persons. On the same day at 10.30 p.m. the applicant was once again examined at the same hospital by a doctor who noted that he had been told that the applicant had hit his head against a wall. The doctor considered that the applicant should also be examined by a neuro surgeon. Neurosurgeon concluded that the applicant did not show any signs of pathology.
The applicant has been examined totally four times more. On 25 March 2002, 26 March 2002 and 27 March 2002 (twice on this date). At the last examination, the doctor concluded that there are some injuries which did not put the applicant’s life at risk but rendered him unfit to carry out daily activities for three days.
According to the applicant, he was subjected to ill-treatment throughout his detention in police custody.
According to the Government, the applicant sustained his injuries as a result of his own conduct. In support of their submissions, Government provided video footage from the surveillance camera monitoring the room in which the applicant was detained, recorded between 9.11 p.m. and 9.16 p.m. on 24 March 2002.
On 26 and 27 March 2002 statements were taken from the applicant by two police officers. According to the document drafted at 00.35 a.m. on 27 March 2002 and signed by the applicant, the police told the applicant that he had been in possession of a mobile phone whilst in prison and that the conversations that he had held using this telephone had been intercepted by the police. The police officers alleged that he had given instructions for the abduction of a number of persons by phone and that it was considered that he had been the leader of a criminal organisation. The applicant denied the allegations that he had made the phone calls in question and that he had been involved in criminal activities. In his statements to the police, the applicant accepted that he knew some of the persons who had been arrested on the same day as him and that he knew that two other arrestees had attempted to abduct Ş.H. He stated that he knew Ş.H. personally, but that he had not been involved in his abduction attempt.
On 27 March 2002 the applicant appeared before the public prosecutor at the Istanbul State Security Court. He denied the allegations against him and submitted that he had been subjected to torture in police custody. On the same day he was remanded in detention by a judge.
The six persons who had been taken into police custody on the same day as the applicant also made statements to the police. According to some of these statements, the applicant had been the leader of a criminal organisation and had given the instructions for the abduction. Some of them were found to have sustained injuries to various parts of their bodies when they examined medically.
3. Criminal Proceedings Against the Police Officers
On 3 April 2002 the applicant lodged a petition with the Fatih public prosecutor’s office and alleged that he had been subjected to ill-treatment during his detention in police custody.
On 22 May 2002 the applicant made statements to the Fatih Public Prosecutor in which he complained about his alleged ill-treatment while in police custody. The applicant also provided the names of several persons who had allegedly witnessed his ill-treatment in police custody and asked the public prosecutor to take their statements as witnesses.
On 29 July and 6 and 22 August 2002 the Fatih public prosecutor took statements from İ.E., N.K., S.G. and M.G., the police officers who had been on duty at the time of the applicant’s detention in police custody. They all denied the veracity of the applicant’s allegations of ill-treatment.
Public prosecutor has examined the video footages and expert reports (which has been given by the doctors). Also requested examination from the Forensic Medicine Institute.
On 15 October the Fatih public prosecutor filled a bill of indictment with the Fatih Criminal Court accusing six police officers of ill-treatment on the applicant and one of his co-accused, Ö.Ç.
At the end of the trial against the police officers, on 27 December 2005 Istanbul Assize Court acquitted the accused police officers of the charges of torture. On 22 May 2013 the Court of Cassation upheld the decision.
