CEDH · CASELAW;COMMUNICATEDCASES;ENG — 28 mai 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .sDD7CB8CD { margin-top:36pt; margin-bottom:12pt; text-align:center; font-size:7pt } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase }     Communicated on 28 May 2014   SECOND SECTION Application no. 22382/07 Adil YILDIRIM against Turkey lodged on 9 May 2007 STATEMENT OF FACTS The applicant, Mr Adil Yıldırım, is a Turkish national, who was born in   1972 and is currently serving a prison sentence in the Midyat Prison. He is represented before the Court by Mr M. Tanrıkulu, a lawyer practising in Diyarbakır. The facts of the case, as submitted by the applicant, may be summarised as follows. On 29 September 2003 the applicant was taken into police custody on suspicion of being a member of the PKK, an armed illegal organisation. In his statements before the police, the public prosecutor and the investigating judge respectively, the applicant denied the allegations against him. Subsequently, on 1 October 2003 the investigating judge ordered the applicant’s detention on remand. On 3 November 2003 the public prosecutor at the Izmir State Security Court filed an indictment with that court against the applicant and a co ‑ accused, namely M.A.T. Accusing them of carrying out activities for the purposes of bringing about the secession of part of the national territory, under Article 125 of the Criminal Code, and of being members of the illegal organisation under Section 5 of the Prevention of Terrorism Act (Law   no.   3713 of 12 April 1991), the prosecutor alleged that in 1992 the applicant, who was a member of the PKK, had shot K.G. upon the orders of the illegal organisation. The prosecutor submitted that K.G.’s brother, who was killed during a clash with the security forces, was a PKK member and that following the latter’s death, K.G. had had a relationship with the widow of his brother. The applicant, together with M.N.A and M.A.T., had accordingly been ordered to kill K.G. The proceedings commenced before the Izmir State Security Court. In his statements to the police, the prosecutor and the investigating judge, the applicant’s co-accused, M.A.T., admitted to his involvement in the PKK and explained in detail that he had shot K.G. upon the orders of the illegal organisation. In this connection, he stated that he had received orders from a certain B.Ç, and then planned the crime together with S.K. and M.N.A. He also stated that M.N.A. had secured the area while he and the applicant shot K.G. However, before the trial court he denied the accusations and stated that he did not know the applicant. According to the information in the file, another set of proceedings had been initiated against B.Ç., S.K. and M.N.A. in connection with K.G.’s wounding (no. 1996/9 E., 1997/142 K, delivered by the Izmir State Security Court). The statements taken from the accused persons in that set of proceedings were also included in the case-file. On 29 June 2004, S.K. appeared before the İzmir State Security Court and denied the statements that he had given in 1995 in connection with the criminal proceedings which had been instituted against him. He maintained that he had been subjected to ill-treatment during his police custody and had signed his statement under duress. In the meantime, by Law no. 5190 of 16 June 2004, published in the Official Gazette on   30   June 2004, State Security Courts were abolished. The case against the applicant was therefore transferred to the Izmir Assize Court. During the proceedings, M.N.A’s statement was taken on commission by the Siirt Assize Court. In his statement, M.N.A. explained that in 1992, together with the applicant, he had received instructions from the PKK to shoot K.G. Upon this order, while he secured the area, the applicant had gone to shoot K.G. He had heard gunshots but had not seen how K.G. was shot. He further identified the applicant from his photo. The applicant challenged the statement of M.N.A. before the trial court, referring to a medical report issued by the Elazığ Mental Hospital, dated 3   September 2002, which noted that M.N.A. suffered from depression. However, the trial court accepted the impugned statements. On 11 August 2005 K.G. appeared before the İzmir Assize Court and stated that he had not been shot by the applicant and his co-accused M.A.T. However, the court observed that in his initial statements, taken immediately after the incident, he had stated that he had not been able to see the faces of the people who had attacked him. Subsequently, in the other set of proceedings, he had identified Ş.E. and B.A. from their photos as the persons who had shot him. The court concluded that due to the lapse of time, K.G. was trying to hide the truth. As a result, it decided not to include K.G.’s statements in the file. On 4 October 2005 the Izmir Assize Court found the applicant guilty as charged and convicted him under Article 125 of the former Criminal Code of carrying out activities with the aim of bringing about the secession of part of the national territory. It sentenced him to life imprisonment. In convicting the applicant, the court relied on the statements of M.N.A. as well as the other relevant evidence collected during the criminal proceedings against M.N.A., B.Ç. and S.K. (no. 1996/9 E., 1997/142   K, delivered by the Izmir State Security Court). On 14 February 2006 the Court of Cassation quashed the judgment of the first-instance court in order to determine whether the new Criminal Code, which had entered into force on 1 June 2005 (no. 5237), provided more favourable provisions for the applicant. The case was thus once again examined by the Izmir Assize Court in view of the recent legislative changes. On 13 June 2006 the Izmir Assize Court once again found the applicant guilty as charged under Article 125 of the Criminal Code and sentenced him to life imprisonment. On 19 December 2006 the Court of Cassation rejected the applicant’s appeal. COMPLAINT The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that he was not able to question the people whose statements had played an essential part in his conviction. In this connection, he alleges that in convicting him, the Izmir Assize Court relied on a witness statement, which was taken on commission, without taking into account that the witness suffered from a mental disorder.   QUESTION TO THE PARTIES Did the applicant have a fair hearing in the determination of the criminal charges against him in accordance with Article 6 § 1 of the Convention? In that connection, was the applicant provided with an adequate opportunity to exercise his defence rights within the meaning of Article 6 § 3 (d) of the Convention in respect of the evidence given by M.N.A?