Events
Within the scope of the investigation carried out on the charge of being a member of the Fetullahist Terrorist Organization/Parallel State Structure, the applicant’s defense was taken in the presence of a lawyer at the police, at the chief public prosecutor’s office and at the interrogation where 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 mandatory defense counsel. At the end of the hearing, the court noted 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 defense counsel, and the applicant expressed his defenses without making such a request. As a result of the trial, the court sentenced the applicant to imprisonment for the imputed offense.
The applicant filed an appeal against the aforementioned judgment, claiming that he was unable to hire a lawyer due to financial constraints and that he was not assigned a defense counsel 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.
Allegations
The applicant claimed that his right to the assistance of a defense counsel was violated due to the failure to appoint a mandatory defense counsel in the criminal case.
Assessment of the Court
In the concrete case, the court reminded the applicant of his rights -without specifying the content of all of them- by listing them in bullet points; regarding the right to benefit from the assistance of a defense counsel, the court did not explicitly mention this right and stated that the amount specified in the tariff would be taken from him as a trial expense in case he was wrong in the future in his request for a lawyer other than compulsory defense counsel. The applicant was not reminded of his rights again in the proceedings that continued after the consolidation decision, and the applicant sufficed to say that he would make his defense in person at the first hearing and expressed his defenses and objections at all hearings without the assistance of a defender. On the other hand, the applicant complained in his legal remedy application petitions that he should be appointed a defense counsel. For these reasons, the first issue to be determined is whether the applicant has expressly waived his right to the assistance of 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 emphasized the possible financial responsibility that may arise in the future regarding the collection of trial expenses in relation to the right to benefit from the assistance of counsel, without clearly stating what their content and scope are. Therefore, it is considered that the applicant was not explicitly reminded of his right to have the assistance of a defense counsel. On the other hand, although the applicant defended himself in all hearings without requesting the appointment of a defender, after the verdict of conviction, he stated that he could not afford a lawyer due to financial reasons and clearly raised his objections that he should be assigned a defender. In this case, it is not possible to conclude that the applicant explicitly waived his right to the assistance of counsel.
However, the regional court of appeal rejected the appeal on the merits as a result of its examination on the file without making an evaluation regarding this objection, even though the applicant had expressed his request for compulsory defense counsel in his 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 unfavorable situation raised by the applicant. The Court of Cassation upheld the decision of the regional court of justice without any explanation despite the appeal request containing similar objections.
For the reasons explained, the Constitutional Court ruled that the right to the assistance of counsel under the right to a fair trial had been violated.
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