Events
As part of the investigation conducted on the charge of being a member of the Fetullahist Terrorist Organization / Parallel State Structure, the applicant’s defense was taken before the police, the prosecutor general’s office and the interrogation to which he was referred for a judicial review decision; as a result of the completed investigation, an indictment was issued against the applicant for the crime he was accused of. The applicant did not request the appointment of a mandatory defense attorney during the interrogation.
At the end of the hearing, the Court stated that the applicant’s wife was tried in a different file of the same court and decided to combine the case against the applicant with the case against the applicant’s wife on the grounds that there was a legal Decoupling between the two files. The court did not ask the applicant whether he wanted to appoint a defense attorney, the applicant submitted his defense without making such a request. At the end of the trial, the court sentenced the applicant to imprisonment for the crime attributed to him.
The plaintiff filed an appeal against this decision, claiming that he could not hire a lawyer due to financial difficulties and that he was not assigned a defense lawyer by the judicial authorities during the trial. The regional court of appeal rejected the plaintiff’s appeal on the merits after reviewing the file. Upon the plaintiff’s appeal, the Supreme Court upheld the decision of the district court of appeal.
The Allegations
Applicant claimed that his right to benefit from defense assistance had been violated due to the failure to appoint a mandatory defense attorney in the criminal case.
The Court’s Assessment
In the concrete case, the court reminded the applicant of his rights by listing them in articles – without specifying the content of them all; as for the right to benefit from defense assistance, the court did not explicitly mention this right and stated that if the request for a lawyer other than mandatory defense was unfair in the future, the amount specified in the tariff would be charged to him as a trial expense.
During the trial, which continued after the unification decision, the applicant was not reminded of his rights again, the applicant stated that he would personally defend himself only at the first hearing, and expressed his defense and objections without the assistance of a defense lawyer at all hearings. On the other hand, the applicant claimed that he should be assigned a defense attorney in his petitions to apply for legal remedies. For these reasons, the first issue that needs to be determined is whether the applicant has explicitly waived his right to benefit from defense assistance.
After the unification decision, the applicant was questioned without being reminded of any rights in the three ongoing hearings, it was sufficient to count the articles of the law related to legal rights, it was emphasized that he might be put under financial responsibility in the future for collecting trial expenses related to the right to benefit from defense assistance, their content and scope were not clearly stated.
For this reason, it is considered that the applicant was not clearly reminded of his right to benefit from defense assistance. On the other hand, although the applicant defended himself at all hearings without requesting the appointment of a defense lawyer, he stated that he could not hire a lawyer for financial reasons after the conviction decision was made and openly raised his objections that he should be assigned a defense lawyer. In this case, it is not possible to conclude that the applicant has explicitly waived his right to benefit from defense assistance.
However, the regional court of justice rejected the request for compulsory defense on the basis of the examination conducted on the file without making an assessment of this objection, despite the fact that the applicant had expressed the request for compulsory defense in the appeal petition and had the opportunity to benefit from this right by opening a hearing during the examination of the appeal. In this case, the regional court of justice did not take an action that provided sufficient balancing guarantees to compensate for the negative situation that the applicant had raised. Despite the appeal petition containing similar objections, the Court of Cassation upheld the decision of the district court of justice without making any explanation.
For the reasons explained, the Constitutional Court decided that the right to benefit from defense assistance within the scope of the right to a fair trial had been violated.
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