Events
Within the scope of the investigation carried out on the charge of being a member of the Fetullahist Terrorist Organisation/Parallel State Structure, the defence of the applicant was taken in the presence of the defence counsel at the police, at the chief public prosecutor’s office and at the interrogation to which he was referred for a judicial control decision; as a result of the completed investigation, an indictment was issued against the applicant for the imputed crime. During the interrogation, the applicant did not request the appointment of a compulsory defence counsel. At the end of the hearing, the court stated that the applicant’s spouse was being tried in a different file of the same court and decided to consolidate the case against the applicant with the case against the applicant’s spouse on the grounds that there was a legal connection between the two cases. The court did not ask the applicant whether he wished to be assigned a defence counsel, and the applicant expressed his defence without making such a request. At the end of the trial, the court sentenced the applicant to imprisonment for the imputed offence.
The applicant filed an appeal against the aforementioned judgement, claiming that he was unable to hire a lawyer due to financial constraints and that he was not assigned a defence lawyer by the judicial authorities throughout the proceedings. The regional court of appeal rejected the applicant’s appeal on the merits after examining the file. Upon the applicant’s appeal, the Court of Cassation upheld the decision of the regional court of appeal.
Allegations
The applicant claimed that his right to assistance of defence counsel was violated due to the non-appointment of a compulsory defence counsel in the criminal case.
Court’s Assessment
In the concrete case, the court reminded the applicant of his rights -without specifying the content of all of them- by listing them in articles; regarding the right to benefit from the assistance of a defence counsel, the court did not explicitly mention this right and stated that the amount specified in the tariff would be taken from him as the costs of the proceedings in case he was wrong in the future in his request for a lawyer other than compulsory defence counsel. The applicant was not reminded of his rights again in the proceedings that continued after the consolidation decision, and the applicant merely stated that he would make his defence in person at the first hearing and expressed his defence and objections at all hearings without the assistance of a defence counsel. On the other hand, the applicant complained in his legal remedy application petitions that he should be appointed a defence counsel. For these reasons, the first issue to be determined is whether the applicant has expressly waived his right to the assistance of defence counsel.
In the three hearings that continued after the consolidation decision, the applicant was interrogated without being reminded of any rights, it was sufficient to list the articles in the law regarding legal rights, and the possible future financial responsibility for the collection of trial expenses was emphasised in relation to the right to the assistance of defence counsel without clearly stating what their content and scope were. Therefore, it is considered that the applicant was not explicitly reminded of his right to the assistance of a defence counsel. On the other hand, although the applicant defended himself in all hearings without requesting the appointment of a defence counsel, after the verdict of conviction was rendered, he stated that he could not afford a lawyer due to financial reasons and clearly asserted his objections that a defence counsel should be appointed for him. In this case, it is not possible to conclude that the applicant explicitly waived his right to the assistance of a defence lawyer.
However, the regional court of appeal rejected the appeal on the merits as a result of the examination on the file without making an evaluation regarding this objection, even though the applicant had expressed his request for compulsory defence counsel in the appeal application and could have been given the opportunity to benefit from this right by opening a hearing during the appeal examination. In this case, the regional court of appeal did not conduct a procedure that provided sufficient counterbalancing safeguards to compensate for the unfavourable situation raised by the applicant. The Court of Cassation also upheld the decision of the regional court of appeal without any explanation despite the appeal request containing similar objections.
For the reasons explained above, the Constitutional Court held that the right to the assistance of a defence counsel within the scope of the right to a fair trial was violated.
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