Events
The Ağrı Chief Public Prosecutor’s Office (Chief Public Prosecutor’s Office) initiated an investigation against the applicant on suspicion of being a member of the Fetullahist Terrorist Organisation/Parallel State Structure (FETO/PDY) and upon the request of the Chief Public Prosecutor’s Office, the criminal judge of peace issued an arrest warrant for the applicant. The applicant was arrested in Uşak and his statement was taken via Audio and Video Information System (SEGBİS) and in the presence of ex officio appointed lawyer E.Ö., who is registered at the Ağrı Bar Association. After the interrogation, it was decided to arrest the applicant on the charge of being a member of an armed terrorist organisation.
As a result of the investigation, a lawsuit was filed at Ağrı Heavy Penal Court. Before the first session of the hearing, the applicant sent a petition to the court through the penal execution institution, stating that he had no opportunity to meet with the defence counsel appointed by the Ağrı Bar Association as he had to testify via SEGBİS and requested the appointment of a defence counsel from the Izmir Bar Association. Upon the court’s request to appoint a new defence counsel for the prosecution phase, the Ağrı Bar Association appointed lawyer A.N.K. as defence counsel. The applicant attended the first session of the hearing via SEGBİS from the penal institution. In the said session, the applicant claimed that he could not meet with his defence counsel during the investigation phase and that his statement at the prosecutor’s office was taken with the guidance of the police under adverse conditions in the detention centre. In the second session of the hearing, the applicant could not be present since the SEGBİS connection with the penal institution could not be established, and the applicant’s defence counsel did not attend the hearing with an excuse. In the session in question, the prosecution presented its closing statement on the merits and the said statement was served to the applicant and his defence counsel. In the last session of the hearing, which the applicant attended via SEGBİS from the penal execution institution, the applicant was convicted on the charge of being a member of an armed terrorist organisation.
Upon the rejection of the appeal application on the merits by the Regional Court of Appeal, the Court of Cassation rejected the appeal application and the judgement was finalised.
Allegations
The applicant claimed that his right to benefit from the assistance of a defence counsel was violated as he could not meet with the ex officio appointed defence counsel in the penal institution and his right to be present at the hearing was violated as his participation in the hearing was ensured through audio and video transmission.
Court’s Assessment
In the concrete case, it was observed that the applicant and his ex officio appointed defence counsel were located in distant provinces during the investigation phase. The statement and interrogation minutes do not contain any statement that the applicant was given the opportunity to meet with his defence counsel without the supervision of a third party, by taking measures to protect the confidentiality of the exchange of information. At the prosecution stage, the court did not make any assessment of the applicant’s written and oral requests for a defence lawyer. The court did not make any assessment of the applicant’s request for the appointment of a defence counsel from the bar association of the place where the applicant was detained, nor did it apply any alternative method to eliminate the difficulty caused for the defence by the presence of the applicant and the defence counsel in different places. In this context, it should be taken into consideration that although the court had the opportunity to have the applicant present in person at the hearing, it did not make any effort in this regard and that the applicant took all his defences in the sessions he attended via SEGBİS. Moreover, it is also understood from the hearing minutes and National Judicial Network Information System (UYAP) records that the court did not provide the applicant, whose attendance to the hearing was provided via SEGBİS, with the opportunity to meet with his defence counsel without the supervision of a third party, by taking measures to protect the confidentiality of the exchange of information. However, it should also be stated that SEGBİS does not provide the defence counsel with the opportunity to communicate with the suspect or defendant in private.
The purpose of appointing a defence counsel is to ensure that the suspect/accused can effectively exercise his/her defence rights. It is only possible for the suspect/accused to make an effective defence without being in a disadvantageous position vis-à-vis the prosecution, which is legally equipped, if he/she can actually benefit from the legal assistance of the defence counsel. In this context, it is expected that the appointment of a defence counsel should be of a quality that can provide the right to benefit from the assistance of a defence counsel in a concrete and effective manner, not formally. In the concrete case, it has been concluded that the applicant, who was detained for the entire trial and did not have the financial means to choose a defence counsel, was not provided with the opportunity to effectively benefit from the legal assistance of the defence counsel.
For the reasons explained above, the Constitutional Court held that the right to the assistance of a defence counsel was violated.
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