Incidents
An investigation was initiated by the Ağrı Chief Public Prosecutor’s Office against the applicant on suspicion of being a member of the Fetullahist Terrorist Organization/Parallel State Structure (FETÖ/PDY). 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 E.Ö., an ex officio appointed lawyer 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 organization.
Incidents
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 institution, stating that he was unable to meet with the defense counsel appointed by the Ağrı Bar Association as he had to testify via SEGBİS. Appointment of a defense counsel from the Izmir Bar Association. Upon the court’s request to appoint a new defense counsel for the prosecution phase, lawyer ANK was appointed as defense counsel by the Ağrı Bar Association. The applicant attended the first session of the hearing via SEGBİS from the penal institution.
During the session, the applicant claimed that he could not meet with his defense lawyer during the investigation phase and that his statement at the prosecutor’s office was taken under adverse conditions at the detention center under the direction of the police. In the second session of the hearing, the applicant could not be present as the connection of SEGBİS with the penal institution could not be established, and the applicant’s defense counsel did not attend the hearing with an excuse. At the session in question, the prosecution submitted its closing statement on the merits, which was served to the applicant and the defense counsel. In the last session of the hearing, which the applicant attended via SEGBİS from the penal institution, the applicant was convicted of being a member of an armed terrorist organization.
After the Regional Court of Appeals rejected the appeal, the Court of Cassation also rejected the appeal and the decision became final.
Allegations
The applicant claimed that his right to the assistance of a lawyer was violated due to his inability to meet with the ex officio appointed defense counsel in the penal institution, and his right to be present at the hearing was violated due to his attendance at the hearing by means of audio and video transmission.
Assessment of the Court
In the concrete case, it was observed that the applicant and his ex officio appointed defense counsel were in distant provinces during the investigation phase. statement and interrogation minutes do not contain any statement that the applicant was given the opportunity to meet with his defense counsel without the supervision of a third party by taking measures to protect the confidentiality of the exchange of information. The Court did not make any assessment of the applicant’s written and oral requests for defense counsel at the prosecution stage.Court did not make any assessment of the applicant’s request for the appointment of a defense counsel from the bar association of the place where he was detained, nor did it resort to an alternative method to eliminate the difficulty created for the defense by the presence of a lawyer. The applicant and the defense counsel are in different locations.
In this context, it should be noted that although the court had the possibility to have the applicant present in person at the hearing, it made no effort to do so and took all the defenses of the applicant in the sessions he attended. Via SEGBİS. It is also evident from the minutes of the hearing and the records of the National Judicial Network Information System (UYAP) that the court did not provide the applicant, who was allowed to attend the hearing via SEGBİS, with the opportunity to meet with his defense counseling without the supervision of a third party, taking measures to protect the confidentiality of the exchange of information. However, it should be noted that SEGBİS does not allow the defense
Assessment of the Court
The purpose of the appointment of a defender is to ensure that the suspect/accused can effectively exercise his/her defense rights. It is only possible for the suspect/accused to make an effective defense without being disadvantaged against the prosecution, which is legally equipped, if he/she can actually benefit from the legal assistance of a defender. In this context, it is expected that the appointment of a defense counsel should not be formal, but should be of a nature to ensure the right to benefit from the assistance of a defense counsel in a concrete and effective manner. In the concrete case, it is concluded that the applicant, who was detained throughout the trial and did not have the financial means to choose a defense counsel, was not provided with the opportunity to effectively benefit from the legal assistance of the defense counsel. .
For the reasons explained above, the Constitutional Court ruled that the right to the assistance of a lawyer was violated.
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