CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 octobre 2020

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margin-bottom:0pt } .s5362FFEB { width:4.87pt; display:inline-block } .sFBD04F88 { width:191.44pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s3133A7C8 { font-family:Arial; color:#0069d6 }   SECOND SECTION         CASE OF AYETULLAH AY v. TURKEY   (Applications nos. 29084/07 and 1191/08)         JUDGMENT   Art 6 § 1 (criminal) and Art 6 § 3 • Fair hearing • Rights of defence • Adversarial trial • Criminal proceedings against applicant relating to terrorism, with allegations of planted evidence and other procedural shortcomings • No assistance of lawyer during police custody or house search • Inconsistencies in house search findings, conducted in the absence of witnesses and based on vaguely worded warrant • Contested findings of search of applicant’s person and house during pre-trial detention • Inconsistencies in evidence relating to mobile phones • Absence of procedural safeguards as regards crucial pieces of evidence • Failure of domestic courts to give sufficient reasons for conviction and to properly examine the submissions of the parties • Inability of the applicant to effectively challenge authenticity, veracity and quality of evidence   STRASBOURG   27 October 2020     FINAL   08/03/2021   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ayetullah Ay v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Marko Bošnjak,   Egidijus Kūris,   Ivana Jelić,   Arnfinn Bårdsen,   Saadet Yüksel,   Peeter Roosma, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 29 September 2020, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos.   29084/07 and   11091/08) 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 Ayetullah Ay (“the applicant”), on 27 June 2007 and 13 December 2007 respectively. 2.     The applicant was represented by Ms S. Coşkun, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 3.     The applicant alleged, in particular, that he had not had a fair trial as a result of various breaches of Article 6 of the Convention. 4.     On 30 January 2014 notice of the complaints concerning the alleged unfairness of the proceedings against the applicant was given to the Government and the remaining parts of applications nos.   29084/07 and   1191/08 were declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1980 and is detained in Kırıkkale. Background to the cases 6.     On 30 August 2004 the Diyarbakır police force received intelligence that the PKK (the Kurdistan Workers’ Party, an illegal organisation) was planning a bomb attack on the Victory Day parade scheduled for that day, which would be attended by high-level State officials. A search conducted in the vicinity of the parade route managed to locate a mobile telephone-operated bomb, which was wrapped in a black plastic bag. The bomb was deactivated on the spot and the telephone was sent to a police criminal laboratory for further investigation. The owner of the SIM card found inside the telephone was identified as a certain M.Ç. 7.     On the same day, the criminal laboratory at the Diyarbakır Security Directorate issued a report regarding the telephone found earlier that morning. The report indicated that the model of the telephone was a Nokia   3310 and its IMEI number [1] , which was partially legible, was 350101/91/25042   (3 or 5)/5 (hereinafter referred to as “telephone no.1”). The report furthermore noted that only one fingerprint had been detected on the black plastic bag containing the bomb. 8.     On 1 September 2004 the Diyarbakır police questioned the owner of the shop where the SIM card used in the apparatus had been purchased, in order to ascertain the date of purchase and the identity of the purchaser. The invoice furnished by the owner of the shop established that the SIM card in question had been sold to M.Ç. on 28 August 2004 – that is to say two days before the attempted attack. However, the shop owner had no recollection as to who the purchaser was, and was not able to identify M.Ç. 9 .     At an unspecified time on the same day M.Ç. was taken into custody at the Diyarbakır Security Directorate for questioning. M.Ç. told the police officers that he was a farmer. When the police informed him that the mobile telephone (telephone no.1) and the SIM card found on the deactivated bomb on 30 August 2004 had belonged to him, M.Ç. asserted that approximately one month before, while returning from his orchards, he had been stopped by four armed men, dressed as militants, who had said that they were with the PKK. After questioning him, one of them had taken his identity card and mobile telephone, together with the SIM card inside. That man had been blond (with a moustache and beard), well built, and approximately 1.75   metres tall, and had been carrying a Kalashnikov rifle, two hand grenades and four magazines. He had been around 25 to 27 years old and had spoken Kurdish with a Diyarbakır accent. M.Ç. asserted that he had not mentioned this incident to anyone, nor had he officially reported it to the police, for fear of reprisal by the militants. He stated that he had had nothing to do with the attempted attack of 30 August 2004 and suggested that the same militants who had robbed him might have planned to use his identity card and SIM card in carrying out the bombing. 10.     On 2 September 2004 M.Ç. was questioned by the Diyarbakır public prosecutor, when he continued to deny his involvement with any terrorist organisations. He repeated his previous account of events, but this time did not provide a physical description of the militant who had spoken to him. During the questioning M.Ç.’s lawyer also stated that the signature on the invoice for the SIM card did not match M.Ç.’s signature, which corroborated M.Ç.’s argument that the SIM card used in the bomb apparatus must have been purchased with the identity card stolen from him. 11.     On 9 September 2004 M.Ç. was indicted for aiding and abetting terrorists. 12.     At the first hearing of his trial (2004/387 E.), held on 12   October 2004 before the Seventh Division of the Diyarbakır Assize Court, the trial court requested Turkcell, the network provider of the SIM card in question, to give details of calls made over the cellular network in July and August in respect of the telephone which had allegedly been extorted from M.Ç. by the terrorists. 13.     According to the information in the case file, the response sent by Turkcell on 3 November 2004 gave details in respect of telephone serial no.   350 10 19 12 60 42 60 (hereinafter referred to as “telephone no.2”). The report indicated the numbers called, the places where the calls had been made from, and the duration of the calls, but not the identity of the caller or of the persons contacted. According to that document, the number “8090” was called on 29 August 2004 from that mobile telephone using the SIM card belonging to the number 0537 551 59 35, and the duration of the call was twenty-three seconds. 14.     Following the permanent closure of the Seventh Division of the Diyarbakır Assize Court, the case file was transferred to the Sixth Division of the same court. At the second hearing held on 14 April 2005 before that court, the trial court noted that the third incident noted in the bill of indictment against the applicant before the Fifth Division of the Diyarbakır Assize Court also concerned the handing over of a mobile telephone by M.Ç. to the terrorists and that the indictment stated that that mobile telephone had been extorted from M.Ç. (see paragraphs 53 and 76 below) Accordingly, the trial court decided to obtain the opinion of the Fifth Division of the Diyarbakır Assize Court regarding whether the two cases should be joined in the light of the factual and legal link between the two cases. 15.     On 10 May 2005 the trial court decided to join the criminal proceedings initiated against M.Ç. to the applicant’s case (case no.   2005/24   E. before the Fifth Division of the Diyarbakır Assize Court) on account of the interrelationship between the two cases. The applicant’s detention in police custody 16.     On 29 October 2004 at 5.15 pm, while distributing some commercial flyers in the street, the applicant was taken into police custody by officers from the Anti-Terrorism Branch of the Istanbul Security Directorate, within the context of an operation carried out against the illegal organisation PKK/KONGRA GEL. At the time of his apprehension, the applicant was in possession of a false identity card bearing the name of a certain M.M.K. and a Nokia 6220 telephone (hereinafter referred to as “telephone no.3). 17.     The arrest report did not indicate the applicant’s real name, so it is not clear whether the police were aware at the time of his apprehension of the applicant’s identity. According to the arrest report, the applicant was reminded of his rights (that is to say, the officer read them out to him at the time of his apprehension). 18.     At 6 p.m. the applicant was examined by a doctor at the Istanbul branch of the Forensic Medicine Institute. The doctor noted no signs of ill-treatment, although he did observe redness on both of his cheeks. The report gave the applicant’s name as M.M.K. 19.     The applicant was subsequently taken to the Istanbul Security Directorate, where he was informed of his rights as a detainee, which included the right to request the assistance of a lawyer. Upon the applicant requesting legal assistance, the police contacted the Istanbul Bar Association in order to secure the appointment of a lawyer. They also conducted a preliminary interview with him in the absence of a lawyer, during which it appears that the applicant divulged his address but not his real identity. There are no records in the case file regarding the content of that interview. 20.     Between at least 9 p.m. and 10.15 p.m. on the same day police officers escorted the applicant to his apartment for a house search, without waiting for the arrival of the lawyer assigned by the Istanbul Bar Association. No prior court order authorising the search was issued, but only a search-and-seizure warrant issued by the deputy director of the Istanbul Security Directorate Anti-terrorism Branch. The warrant, which was issued at 9.30 p.m., was a printed one-page-long document that had been filled in by hand to indicate the applicant’s name and the address of the place to be searched; the reason for the search was indicated as “to carry out a search of the home of Ayetullah AY, a member of the terrorist organisation PKK/KONGRA-GEL”. The part entitled “Risk in postponing the search and seizure [pending a court order]” was entered by hand as “Tampering with evidence”. 21.     According to the applicant, two successive searches were conducted in the applicant’s apartment that night. The initial search was carried out by the police, in the applicant’s presence, and was completed without any findings being reached. A superior officer was notified of the result over the telephone, and the officers requested permission to leave the premises. However, as the applicant was being escorted out of the apartment, he saw three other officers coming in, dressed in plain clothes, who announced that there would be a new search. A second search was therefore conducted while the applicant was kept outside the apartment. After a short while, one of the newly arrived officers emerged from the apartment with a mobile telephone in his hand. The applicant immediately denied ownership of the telephone and refused to sign any records indicating that such a telephone had been found in his house. 22.     According to the search-and-seizure record issued after the search at 10.15   p.m., the police seized one Nokia 3310 mobile telephone (IMEI no.   351342/80/413945/0) (hereinafter referred to as “telephone no.4”), one camera and one SIM card from the applicant’s apartment as evidence. The same record also indicated the applicant’s name as “Ayetullah Ay, with a false identity card bearing the name M.M.K.” and that the applicant had given the address of his apartment when interviewed by the police before the search (mülakat). The applicant refused to sign the record, asserting that the telephone in question did not belong to him and that it had been planted in his house by the officers who had conducted the second search. In response, upon their return to the Security Directorate, the police drew up another record, which made no mention of evidence found and seized in the apartment and which the applicant therefore agreed to sign. According to the applicant, however, this revised report was never included in the case file. The parties did not produce a copy of this second document in the proceedings before the Court. 23.     The applicant did not meet with a lawyer during his detention in Istanbul. There are two conflicting reports in the case file to account for this: according to the first report, prepared on 29 October 2004 at 9.10   p.m., the lawyer assigned by the Istanbul Bar Association reported to the Security Directorate at around 9 p.m. but was not able to see the applicant, who was at the house search at that time; according to the second report, which was drawn up on 30 October 2004 at 5 a.m., however, despite the request, the Bar Association did not dispatch a lawyer to provide legal assistance to the applicant. The reports were drawn up and signed by the same two officers. According to a document entitled “Suspects’ and accused persons’ rights form”, which was drawn up at 3.20 a.m. on 30 October 2004 and signed by the applicant, he was apprised of his rights, and a copy of that document was given to him. However, the part of the report dedicated to the offence on the basis of which the applicant was arrested and the facts related thereto was left blank. 24.     On 30 October 2004 at 5 a.m. the applicant was examined by a doctor at the Istanbul branch of the Forensic Medicine Institute, who noted no signs of ill-treatment. In the doctor’s report, the applicant’s name was given as Ayetullah Ay; the doctor noted that he had been brought before him earlier, at 6 p.m., with an identity card belonging to M.M.K. Subsequently, the applicant was handed over to officers from the Anti-terrorism Branch of the Diyarbakır Security Directorate, on the grounds that he was suspected of having committed the terrorist offences within its territorial jurisdiction. It appears that the applicant’s real identity was known, at the latest, at the time of his transfer to Diyarbakır because the report recording the applicant’s handover to the police officers gave his name as “Ayetullah Ay, with a false identity card bearing the name M.M.K.”. 25.     Later on the same day the Istanbul Assize Court upheld as lawful the search-and-seizure warrant issued earlier by the deputy director of the Istanbul Security Directorate Anti-terrorism Branch. The decision, however, noted that no “crime or criminal element” had been detected in the apartment and did not refer to the mobile telephone and the other items allegedly seized from the applicant’s house. House searches conducted in Diyarbakır 26.     Concurrently with the applicant’s detention in Istanbul, searches were conducted, on the order of the Diyarbakır public prosecutor, in the houses of some of the applicant’s relatives in Diyarbakır, who were suspected of having an “organisational connection” with the applicant. 27.     At 4.30 a.m. on 30 October 2004 the Diyarbakır police raided the house of Y.Y., the applicant’s cousin, and found some money, three cartridge clips, some eighty cartridges, handwritten notes on bomb-making –   as well as other training notes and meeting notes from PKK training camps and photos of members of that organisation, together with a photo of the applicant’s late father   – hidden in various places in the house and in the chicken coop in the garden. The items confiscated from the house as evidence were sent to the police criminal laboratory for fingerprint and handwriting examination. 28.     Later on the same day the Diyarbakır Assize Court upheld the house search as lawful. 29.     According to a report issued by the criminal laboratory at the Diyarbakır Security Directorate on 2 November 2004, the handwriting in some of the documents confiscated from Y.Y.’s house matched those of the applicant. Although their content was not specified in the report, notes that were later accepted by the applicant as belonging to him contained, inter alia , information on bomb-making. 30.     According to a further fingerprint report dated 8 December 2004, none of the fingerprints found on the confiscated articles belonged to Y.Y., his wife or the applicant. However, fingerprints found on a six ‑ page document entitled “meeting notes” were identified as belonging to a certain R.T. The questioning of the applicant, Y.Y. and R.T. at the Anti-terrorism Branch of the Diyarbakır Security Directorate 31.     On 2 November 2004 the applicant was questioned at the Anti-terrorism Branch of the Diyarbakır Security Directorate in the presence of a lawyer appointed by the Diyarbakır Bar Association. The applicant, who by that point had confirmed his real identity, did not respond when asked why he had been using a false identity card. He likewise refused to answer any questions regarding the telephone found (telephone no.4) in his apartment, except for denying that he was its owner. He was then given a list of the material confiscated from Y.Y.’s house (but not presented with the material itself physically) and was asked whether any of it belonged to him. He denied any organisational connection with Y.Y., but admitted on several occasions that the notes and the other items found in Y.Y.’s house, except for the money and the cartridges, were his. He furthermore acknowledged that it was he who had placed those documents in the chicken coop in Y.Y.’s garden. When asked about his relationship with R.T., whose fingerprints had been detected on one of the documents recovered from Y.Y.’s house, he stated that he knew R.T. from his home village, but had not seen him in the previous six years. The police also informed the applicant of the arrest and questioning of M.Ç. in connection with the attempted bomb attack of 30 August 2004, and explained to him that telephone no.4 seized from his apartment bore the same IMEI number as the telephone stolen from M.Ç. in early August by PKK militants. He was asked whether he was one of the four militants who had allegedly robbed M.Ç. The applicant responded that the telephone allegedly recovered from his apartment (telephone no.4) did not belong to him and that he had had nothing to do with the said attack. 32.     In the meantime, on 1 November 2004 Y.Y. was also questioned at the Anti-terrorism Branch of the Diyarbakır Security Directorate. Y.Y., who was accompanied by a lawyer, denied any connection with the PKK. He chose to remain silent in response to questions about the material recovered from his house and garden. However, he later stated before the Diyarbakır public prosecutor and the Diyarbakır Assize Court that he did not know how that material had found its way into his house. 33.     Similarly, on 1 November 2004 the Diyarbakır police sought to question R.T. with regard to whether he had any connection with the material seized from Y.Y.’s house. R.T. refused to answer any questions put to him. However, before the Diyarbakır public prosecutor and the Diyarbakır Assize Court he subsequently acknowledged that he had seen and briefly read those meeting notes at the house of the applicant’s parents when he had been there for a family visit a couple of months previously, which he said accounted for the fingerprints. He furthermore stated that the applicant had not been on the premises at the time of his visit. 34.     According to a report drawn up and signed by the police officers on 2   November 2004 at 9 a.m., the applicant admitted being the sole perpetrator of the murder of two security officers on 7 September 2004 and stated that he could show them where the incident had taken place. However, the same report, which was not signed by the applicant, also stated that he had changed his mind on the way to the scene of the incident and had decided not to participate in the reconstruction of events. 35 .     The applicant underwent a medical examination in Diyarbakır at 3.32   p.m. at the end of his period in police custody on 2 November 2004; the doctor who examined him concluded that that there were no signs of ill-treatment on his body. The doctor noted the applicant’s name as “Ayetullah Ay (according to his statement) (M.M.K.)” and opted to record his physical assessment of the applicant in the section of his report entitled “Medical description of the person examined”, which was the part to be filled in in cases of persons not holding a valid identity card. According to that description, the applicant was around 1.74 cm tall, weighed about 65 to 70 kilograms, and had green eyes, a “wheat” complexion ( buğday tenli ) and light chestnut brown/caramel brown ( kumral ) hair and stubble. 36.     On 2 November 2004 the applicant, accompanied by his lawyer, was questioned by the Diyarbakır public prosecutor, to whom he largely reiterated the statements that he had previously given to the police. He was asked again whether he was one of the militants who had robbed M.Ç. In response, he acknowledged that he loosely fitted the description of the person who had taken M.Ç.’s telephone and identity card, but repeated that he had had no involvement in that incident (or with the PKK, for that matter). 37.     Later on the same day, the applicant was brought before the Diyarbakır Assize Court for questioning. The judge asked the applicant whether he had availed himself of his right to remain silent during police questioning; the applicant replied that he had done so. The applicant added that he had been using a fake identity card because he was trying to avoid being conscripted to serve in the army. When he was shown the documents recovered from Y.Y.’s house, which he had acknowledged ownership of previously, he stated that he had no recollection of them. Thereafter, the applicant’s lawyer requested the court to terminate the questioning, as the applicant was acutely tired, not having been allowed to sleep for the past four days in police custody. The lawyer repeated that the applicant denied all the accusations against him. The judge then ended the questioning and ordered the applicant’s pre-trial detention. 38 .     The deputy director of the Anti-terrorism Branch of the Diyarbakır Security Directorate drew up a three-page-long document entitled “Criminal file” and sent it to the public prosecutor in charge of the case. In that document, which was dated 2 November 2004, it was specified that the mobile telephone forcibly taken by the applicant from M.Ç. must have been the same as that (telephone no.4) found in the search of the applicant’s house in Istanbul, given the fact that the IMEI number pertaining to each of those telephones had been one and the same. 39.     An expert report dated 3 January 2005 indicated that the applicant’s fingerprints did not match the sole fingerprint detected on the bomb apparatus deactivated on 30 August 2004. 40.     On an unspecified date the applicant lodged several complaints with the prosecution authorities, one of which was that the police had not shown him any warrant authorising the search of his house on 29   October 2004. 41.     On 6 April 2005 the Diyarbakır public prosecutor took statements from the legal-aid lawyer appointed by the Diyarbakır Bar Association to represent the applicant during the course of his questioning in Diyarbakır. The lawyer stated that the applicant had looked extremely tired and sleep ‑ deprived, and had had a very hard time collecting his thoughts, for which reasons he had requested the Diyarbakır Assize Court to end his questioning prematurely. The applicant’s body search in the prison and the ensuing investigation 42.     On 5 April 2005 the applicant, who at that point was being held in pre-trial detention at Diyarbakır High Security Prison, was subjected to a routine body search prior to being taken to the prison visiting area to see his mother. According to the applicant, the search was conducted without any problems and he was allowed to proceed to the visiting area. 43 .     However, approximately nine days after the visit, he was informed by the prison administration that a disciplinary decision had been taken against him for carrying coded notes to the visiting area. The two small hand-written notes found on his person before the visit had been confiscated and handed over to the prosecutor. The first note read as follows: “Hello: Burn this note after reading [it]. Be very careful when you go with ‘Hoca’ to return the materials. They will be following you. But you will not be [aware of it]. Don’t panic, act naturally, just do your job; this is not an offence. They can’t do anything to you. 1)     Check all the materials, they opened some of them – separate the ones that are open. 2)     Check one of the open ones, [one of] the big ones that has [the word] ‘vanilla’ on it (act very secretly, be alert and do not trust anybody). It has a chocolate thing on top; underneath, however, it has a dough-like substance. Destroy that dough by throwing it into the toilet in small pieces. This is the first and the most important thing you need to do. Do it as soon as you go to the house. Keep calm thereafter; act calmly. 3)     Everything will be ruined if you have anybody else with you when doing this. 4)     If it is possible, get this finished in one day. 5)     Before going home, Hoca must resign by means of a notarised document and hand the letter of resignation over to the company. The necessary information about this subject is written in the booklet. The company may not accept the resignation, [in which case] force them to give reasons. There must be an invoice at home – bring the purchase invoice [which is at home]; if the invoice has been taken away, you may return the items [indicated] on the invoice [at home]. The invoice was [issued] under the name of “Hatice”. Ask whether she needs to be present or not and try not to be seen by her; especially you – you should never be seen by her. In the event that you are seen by her, you may tell her that you are returning the products in exchange for the money you loaned me. You shouldn’t tell [her] that I am your brother. 6)     If Hoca tells you that he can’t [return the products] on the grounds that the invoice has been issued under somebody else’s name, you may tell him that I am your sponsor. If that doesn’t work, you must have Hatice present. She owes me 200 million [Turkish liras]. If you see her, you will get it. Don’t defer to them; be stubborn, because they are devious people. 7)     At most, 10% of the purchase price will be withheld. This amounts to something between 500 to 600 million. Do your sums and make the calculation too. 8)     When you are done with the products, it would be good if you bring my television, sandals, bags, shoes, clothes and all my stuff here. If you bring them, keep the keys. If they ask you why, tell [them] that I have my stuff at home. Do not give the key to anybody else. 9)     Be very careful – point 2 is secret and must stay between you and me until death. Destroy [the dough-like material] and I will be at peace. 10)     I am handing the products that are here to Hoca. [Hoca] will get the rest [himself]. It is Hoca’s business to decide whether to sell them or give them away for free. [Hoca] should take them all away. [Hoca] should take the ones you have too. Read this note alone. Do not let anyone else see [you]. If available, Hoca should also read [it]. Burn [this note] after reading it.” 44 .     The second note read as follows: “(Nobody except you should read this). Only you should read this. Then burn and destroy it. You should be very careful. Do not trust anybody easily. You should gradually establish control over the family. Everybody should get instructions from you. But consult the people around you before doing something. If you do so, they will draw closer to you and they will confide in you. Do not undertake official dealings and transfer the assets under your name or Murat’s – it is dangerous. You may do so under the name of other members of the family (who are trustworthy). [This way] you will be managing everything, although they are in official records under somebody else’s name. I am going to tell you a secret now. But you shouldn’t go against what I am going to tell you, or else my plans will be turned upside down. It is necessary that you act wisely. I had suspected Fahri before I was arrested. I didn’t take into account [the fact that] he would give me away this quickly. I did actually take precautions, but... 1)     His chief did not do what I had told [him or her to do]; I was shocked when I heard that my materials had been seized – I was confused. 2)     In reality, Fahri did not know where I was staying. I went to Adana three days before my arrest. Although I told Murat not to tell Fahri that I had come to Adana, he (Murat) called Fahri in without my knowledge. I was pissed off at Murat at that time, but it was too late. I was arrested two or three days after that. In fact, had they not caught me that day, they would never have caught me, because I was about to change my location [around that time]. I am angrier with Murat than with Fahri. Every time he wangles words out of me, he passes them on to somebody else (for example to Şaziye or Fahriye). You are going to enquire into this issue, but without showing your true colours. I think Fahri is certain, but I suspect Murat too. I don’t know whether [Murat acted] deliberately or not. I am going to clarify this with the information you will pass on to me. Because I am the one who knows these issues the best. The only thing we need to do is to wangle words out of them without showing your true colours. Keep their words in your mind, even if they seem meaningless to you. Don’t rush, be silent like you used to be, but try to worm information out of them. For that [to work], you have to be very canny. Don’t go against what I am telling you. I wasn’t able to figure Murat’s situation out; from my own viewpoint, it is because of his foolishness. As I see it, I don’t think he is [a] malicious [person]. But I have to approach [this issue] scientifically. For me, everybody is a suspect until the situation is uncovered. Enquire within the family too – learn who is who and what they are up to. For example, Şahabettin. Even if you reveal that Fahri is an agent, don’t let on; act like you used to [act]. In fact, get close to [Şahabettin] and sometimes talk to him negatively about me or curse me with a view to sounding him out. See who says what. Even if one of them curses me, keep silent and report what they say to me. I only want to know what is being talked about. Look, be careful. Even if one of them is an agent, he or she shouldn’t know that you know that he or she is an agent. Because they will become very dangerous once they know you know who they are. You and I, we will both get hurt. They wouldn’t hesitate [for even a second] to even kill. Do not think of them as relatives or brothers; you don’t know about these issues. That is why you have to be very crafty and careful.” 45 .     In the meantime, on the basis of the information in the above notes, a court order was obtained on 6 April 2005 for another search to be conducted of the applicant’s apartment in Istanbul. Neither the applicant nor his lawyer was notified of that search, which was, moreover, not supervised by the public prosecutor. The following material was found and seized during that search: 830 grams of plastic explosives (C4) hidden at the bottom of a box of diet food products; a handgun, a cartridge clip, and approximately thirty cartridges sewn inside a sofa bed; some handwritten notes hidden inside the sofa bed; four electric detonators tucked inside a table leg; a 5-metre copper wire and copper coil; a 2-metre soldering wire and soldering machine; fourteen tablets of potassium permanganate; one alarm clock; and a box of thumbtacks. The search-and-seizure record bore the signatures of the mayor of the neighbourhood ( muhtar ) and the locksmith who had secured entry to the apartment. The search was apparently recorded on video and photographed. 46.     According to reports provided by the criminal laboratory at the Diyarbakır Security Directorate dated 7, 8 and 12 April 2005, no fingerprints were detected on the material seized from the applicant’s apartment. Moreover, a ballistic examination of the handgun suggested that it had not been used in any prior incidents. The police criminal laboratory also confirmed that the potassium permanganate found in the applicant’s house was a type of disinfectant that could also be used in manufacturing bombs. 47.     On 12 April 2005 the criminal laboratory at the Diyarbakır Security Directorate issued another report indicating that the writing on the confiscated notes matched the applicant’s handwriting. The examination was made on the basis of the copies of the handwriting samples obtained from the applicant at the time of his detention in police custody. 48.     On 19 September 2005 the applicant was questioned for the first time by the Diyarbakır public prosecutor in charge of the investigation regarding the notes found in prison and the illicit material subsequently recovered from his house. The applicant denied the allegation that any notes had been found on him by the prison guards. He requested that the guards who had searched him be questioned regarding the relevant date and that the video recordings of the search be examined. When asked to comment on the police criminal laboratory’s report matching his handwriting to the writing on the notes, he stated that he did not know how the criminal laboratory staff had been able to make the comparison as they had not asked for any samples of his handwriting. He requested that the relevant notes be submitted to the Forensic Medicine Institute for examination. He moreover denied any connection to the material recovered from his house and emphasised that none of it had been found to bear his fingerprints. He added that his apartment had already been thoroughly searched by the police on 29   October 2004, and that that search had not located any such illicit material. He confirmed that no one else had stayed in his apartment in the meantime and that the only set of keys to his apartment was kept in the safe in the prison. 49.     On 21 September 2005 the Diyarbakır public prosecutor took evidence from the two prison guards, namely H.A. and F.Y., who had witnessed the applicant’s body search on 5 April 2005. They both stated that they had been present at the place where the search had taken place and that another prison guard, namely S.Ç., had told them that he had found the notes in question on the applicant’s person and that the incident had been recorded on security cameras. On an unspecified date S.Ç. gave evidence to the Diyarbakır public prosecutor, to whom he stated that he had searched the applicant’s person and had found the impugned notes. 50 .     In response to an enquiry from the Diyarbakır public prosecutor, on 23   September 2005 the governor of Diyarbakır High Security Prison informed the latter that no other prison officer or prisoner had witnessed the applicant’s body search. Moreover, in response to an enquiry from the public prosecutor on 22 September 2005, the prison governor stated in a letter dated 27 September 2005 that the video surveillance record of the body search was no longer available, as the prison’s tapes were recorded over every five months owing to a scarcity of resources. 51.     On 12 October 2005 the Diyarbakır public prosecutor’s office sent the notes in question, together with some samples of the applicant’s handwriting taken from the school at which he had studied, to the Specialised Chamber of the Forensic Medicine Institute ( Adli Tıp Kurumu Fizik İhtisas Dairesi ) for further examination. On 21 December 2005 the Forensic Medicine Institute, despite having in its possession the writing samples of the applicant that had been examined by the police criminal laboratory, informed the public prosecutor that in order to be able to conduct an accurate examination it needed samples of the applicant’s previous “sincere” handwriting ( samimi yazılarını içeren belgeler ), such as that he had used in exams, petitions, or personal letters. Likewise, it furthermore held that the applicant should be required to rewrite the impugned notes quickly and without having previously been shown them. It appears from the documents in the case file that the requests of the Forensic Medicine Institute were not met. 52.     On an unspecified date the applicant lodged a criminal complaint with the Diyarbakır public prosecutor against the staff of Diyarbakır High Security Prison, whom he accused of misconduct on account of their having falsely accused him of carrying coded notes. On 16 January 2008 the Diyarbakır public prosecutor decided not to prosecute the accused staff for lack of evidence indicating the commission of the alleged offence. On 17   April 2008 the Siverek Assize Court dismissed an objection lodged by the applicant against that decision. Criminal proceedings against the applicant 53 .     On 9 February 2005 the Diyarbakır public prosecutor filed a bill of indictment against the applicant with the Diyarbakır Assize Court, charging him under Article 125 of the former Criminal Code with carrying out activities aimed at bringing about the secession of part of the national territory. The applicant was accused of involvement in three specific incidents: the killing of two police officers at a police checkpoint on 7   September 2004 (“incident 1”); an armed attack against a battalion command post in Hani, Diyarbakır on 7 June 2004 (“incident 2”); and the forcible seizure of M.Ç.’s telephone and identity card in early August 2004 (“incident   3”). According to the public prosecutor, the telephone that had been taken from M.Ç. by force was the same one as that seized during the search of the applicant’s house on 29 October 2004 – namely, a Nokia   3310 mobile telephone (telephone no.4 with the IMEI no. 351342/80/413945/0). That indictment did not contain any allegation as regards the applicant’s alleged involvement in the attempted bombing of the 30 August 2004 Victory Day parade. Nor did it mention any other mobile telephone that the applicant was alleged to have used in relation thereto. 54.     By a letter dated 24 February 2005, the applicant’s lawyer asked the trial court to summon M.Ç. to hear him as a witness and to arrange a physical confrontation between him and the applicant. 55.     At the first hearing held on 8 March 2005 the applicant denied giving self ‑ incriminating statements to the Anti-terrorism Branch of the Diyarbakır Security Directorate – in particular statements accepting ownership of certain notes found in Y.Y.’s house. The applicant argued in that regard that despite the presence of a lawyer during the questioning, his statements had been misrepresented, which he had failed to notice at the time owing to the fact that he had been suffering from serious sleep deprivation. He also repeated his allegations regarding the conduct and the outcome of the house search on 29 October 2004, including the claim that two mutually contradictory search-and-seizure records had been drawn up that night. 56.     At the same hearing, the applicant’s lawyer requested that the handwritten notes found in Y.Y.’s house be sent to the Forensic Medicine Institute for an examination aimed at determining whether they had been written by the applicant. The trial court refused that request on the grounds that the police criminal laboratory’s report of 2 November 2004 had already sufficiently established that they did in fact belong to him. The applicant’s lawyer also brought to the trial court’s attention the paradoxical fact that only a couple of months prior to his arrest, the mobile telephone allegedly seized from the applicant’s house (telephone no.4) had been identified as having been used in a bomb apparatus found at the Victory Parade. The trial court also noted that there was a criminal case against M.Ç. pending before another chamber of the Diyarbakır Assize Court that had been initiated on the basis of a bill of indictment dated 9 September 2004 in which it had been alleged that M.Ç. had given to four armed men his mobile telephone (telephone no.2), which had later been used by the latter in the mobile telephone-operated bomb apparatus in the 30 August 2004 Victory Parade. At the end of the hearing, the trial court directed that M.Ç. be heard as a witness. 57.     At the hearing of 3 May 2005 the trial court noted that it had received the evidence collected within the context of the criminal investigation against the applicant initiated on the basis of the two notes found on him in prison on 5 April 2005, and adjourned the hearing to 28   June 2005. 58.     On 10 May 2005 the criminal proceedings against M.Ç. before the Sixth Division of the Diyarbakır Assize Court were joined to those against the applicant and thereafter continued before the trial court (the Fifth Division of the Diyarbakır Assize Court). 59.     At the hearing on 28 June 2005 M.Ç. was confronted with the applicant. M.Ç. was not able to identify the applicant as one of the armed men who had stolen his telephone and identity card, as he said he had been too scared to scrutinise their faces closely at that time. 60.     At the same hearing the applicant’s lawyer challenged the second search conducted in the applicant’s house on 6 April 2005 and alleged that had the material obtained during that search really belonged to the applicant, it would have been discovered during the initial search conducted thoroughly on 29 October 2004. 61 .     On 19 January 2006 the Diy