REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

FIRST SECTION

JUDGMENT

YUSUF KARAKUŞ

Application no. 2014/12002

8 December 2016

            III. THE FACTS

[7-61]. The İstanbul Security Directorate carried out operations against the Hezbollah terrorist organization on 17 January 2000. The organization leader was captured dead in the operation conducted by the security officers in a house. In the course of the search conducted in that house, many hard disks containing information about the organization were found.

On 6 May 2000, the applicants were taken into custody within the scope of the investigation initiated upon the information obtained during the above-mentioned operation. The applicants’ statements were taken in the Anti-Terror Branch of the İstanbul Security Directorate in the absence of their defence counsels. On 7 May 2000, the applicants were sent to Ankara.

Hasan Kılıç, one of the applicants, denied the accusations in his statement taken in the absence of his defence counsel in the Anti-Terror Branch of the İstanbul Security Directorate. He then made detailed confessions in the course of his statement taken in the Anti-Terror Branch of the Ankara Security Directorate on 12 May 2000. He subsequently admitted the accusations against him before the State Security Court (the SSC).

Similarly, the applicant, Yusuf Karakuş, gave statements incriminating himself and the other suspects in his statements taken in the Anti-Terror Branch of the İstanbul Security Directorate on 7 May 2000, in the absence of his defence counsel. He also made detailed confessions in the course of his statements taken in the Ankara Security Directorate in the absence of his defence counsel and showed certain places pertaining to the imputed offence and evidence thereof.

The applicant Mehmet Şahin explained his life, his joining into the Tevhid-Selam group and his activities in detail during his statement taken in the Anti-Terror Branch of the İstanbul Security Directorate, in the absence of defence counsel. He also made detailed confessions in his statements taken by the Ankara Security Directorate in the absence of his defence counsel. The applicant subsequently declared before the public prosecutor’s office of the Ankara SSC and the judge of the SSC that he had been associated with the Tevhid-Selam group but he had not got involved in any violent acts.

A criminal case was filed before the Ankara SSC no. 2 against the applicants for breach of the Constitution by the bill of indictment of the chief public prosecutor’s office at the Ankara SSC dated 11 July 2000.

During the hearings, the applicants denied the accusations against them by maintaining that their statements taken at the investigation stage and amounting to confessions had been taken under duress.

The applicants were sentenced to imprisonment by virtue of the decision dated 7 January 2002 at the end of the trial held over the case-file no. E.2000/102 of the Ankara SSC no. 2. The applicants, Mehmet Şahin and Yusuf Karakuş, were sentenced for being a member of an armed gang aiming to change the constitutional order by force of arms while the other applicant, Hasan Kılıç, was sentenced for being a head having special authority in this armed gang.

This decision and the decision of 28 July 2005 which was rendered by the 11^th Chamber of the Ankara Assize Court (closed) continuing to handle the proceedings were quashed by the 9th Criminal Chamber of the Court of Cassation.

The conviction decision of 17 January 2013, which relied on the applicants’ confessions and statements incriminating each other at the investigation stage, was upheld by the judgment of the 9th Criminal Chamber of the Court of Cassation dated 31 March 2014.

V. ASSESSMENT AND GROUNDS      

62. The Constitutional Court, at its session of 8 December 2016, examined the application and decided as follows.

A. Alleged Violation of the Right to a Fair Trial in conjunction with the Right to Legal Assistance

1. The Applicants’ Allegations and the Observations of the Ministry

63. The applicants maintained that the trial had not been conducted fairly; and that they had been convicted mainly on the basis of their statements which had been taken under the police custody during which they had been denied legal assistance and which had been signed under duress and torture but content of which had not been admitted.

64. In its observations, the Ministry, with reference to the judgments of Dağdelen and others v. Turkey (no. 1767/03), indicated that use of confessions obtained through torture and maltreatment would undermine the fairness of trial; however, there existed no investigation documents at the Ankara Chief Public Prosecutor’s Office in spite of the applicant’s allegation that he had filed a criminal complaint with regard to being subjected to torture. 

65. The applicant, Mehmet Şahin, reiterated his allegations included in the application form.

2. The Court’s Assessment

66. The Constitutional Court is not bound by the legal qualification of the facts by the applicants and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). The Court decided to examine the applicants’ allegations within the scope of the right to legal assistance, which is one of the manifestations of the right to a fair trial.

67. Article 36 § 1 of the Constitution is as follows:

“Everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures.”

a. Admissibility

68. The alleged violation of the right to a fair trial was declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

b. Merits

i. General Principles

69. Securing the rights of defence in criminal proceedings is one of the basic principles of a democratic society (see Erol Aydeğer, no. 2013/4784, 7 March 2014, § 32). Defence ensures the fair functioning of the criminal justice system. Unless a person is provided with the opportunity to put forward his defence against an allegation, it is not possible to carry out a trial in accordance with the principles of equality of arms and of adversarial proceedings and to reveal the material truth.  

70. The “safeguards” ensured by the right to defence are essentially incorporated within the right to a fair trial. As the right to defence is one of the requirements of a state of law and one of the significant safeguards of the right to a fair trial, it is explicitly stated in Article 36 of the Constitution. The aforementioned article prescribes that everyone has the right to defence so long as they utilize legitimate means and procedures. Taking punitive action against persons without vesting them with the right to defence is not in compliance also with the presumption of innocence guaranteed by Article 38 of the Constitution. Therefore, a trial where the right to defence is not secured cannot be deemed to be fair.

71. The defence counsel is defined as the lawyer defending the suspect or the accused in criminal proceedings. The defence counsel, who serves in cases where the suspect or the accused has the opportunity to make a choice regarding his defence through the agency of a defence counsel, is a voluntary defence counsel while the one, who serves in cases where his/her appointment does not rest upon the will of the suspect or the accused, is an obligatory defence counsel (see judgment of the General Assembly of Criminal Chambers of the Court of Cassation no. E.2011/10-182, K.2011/204, 11 January 2011).

72. It is not sufficient to provide the suspect or the accused merely with the right to defence. The suspect and the accused must also avail of the “legitimate means and procedures” specified in Article 36 of the Constitution in making his1 defence. The opportunity to draw upon the know-how and experience of lawyers are among the legitimate means and procedures to be resorted in making defence. The most significant one of the legitimate means and procedures referred to in Article 36 of the Constitution for the suspect and the accused is the exercise of the right to legal assistance. In other words, the right to legal assistance falls within the scope of the notion of “legitimate means and procedures” specified in Article 36 of the Constitution. In this respect, it is clear that the right to legal assistance is included within the scope and context of the right to a fair trial and is a natural consequence of this right. Hence, under the right to a fair trial, the person accused of an offence has the right to personally defend himself or to benefit from the legal assistance of a defence counsel of his own choice.  

73. On the other hand, in the legislative intention for the addition of the phrase “a fair trial” in Article 36 of the Constitution, it is stressed that the right to a fair trial, which is also guaranteed by the international conventions to which Turkey is a party, was incorporated into the legal text. In fact, Article 6 § 3 (c) of the European Convention on Human Rights (the Convention) stipulates that everyone charged with a criminal offence has the right to defend himself in person or through legal assistance of a defence counsel of his own choosing or, if he has not sufficient means to pay for legal assistance to be given it free when the interests of justice so require.

74. So as to prevent the defence from being in a disadvantage position compared with the prosecution, it may be required to provide legal assistance for the suspect and the accused, along with the opportunity of defending himself personally (in person). The need for legal assistance of the person accused of a criminal offence may arise from overcoming difficulties in having an access to the evidence, lack of legal knowledge or the psychological state in which he is. Within this context, the right to legal assistance, ensuring the effective exercise of the right to defence, is also a requirement of the principle of “equality of arms”, which constitutes another element of the right to a fair trial. In other words, the right to legal assistance ensures not only the effective exercise of the right to defence, but also functionality to the principle of equality of arms.

75. Another significant aspect of the right to legal assistance with regard to the right to a fair trial, which is enshrined in Article 36 of the Constitution, is the acknowledgement that the State has the positive obligation to ensure the person accused of a criminal offence to enjoy this right. Article 36 of the Constitution also prescribes that if the person accused of a criminal offence has not sufficient means to pay for legal assistance or when the interests of justice so require, he must be provided with a defence counsel to be appointed ex officio. It may be required to appoint a defence counsel for the person accused of a criminal offence so as to ensure the fair functioning of the criminal justice system by considering the gravity of charges in conjunction with the specific circumstances of the suspect’s/accused’s case (e.g. being a foreigner), the complexity of the matter in dispute and the severity of the accusation. Therefore, it is impossible to demand the person accused of a criminal offence to defend himself/herself in person. If it is compulsory to appoint a defence counsel for the suspect/accused for the fair functioning of criminal justice system, the positive obligation to appoint a defence counsel must be fulfilled. On the other hand, the competent judicial authorities must take the necessary actions– as required by the duty of care– should they determine that the assigned defence counsel failed to provide an effective legal assistance (abstained from performing his duties).

76. The aforementioned right should be, in principle, afforded from the first interrogation of the suspect by the law enforcement officers. It is essential that the suspect be provided with right to legal assistance by the law enforcement officers from the first interrogation for, in general, the right to a fair trial to ensure an effective protection, in addition to the privilege against self-incrimination and the right to remain silent. That is because the evidence obtained at this stage determines the framework in which the offense in question shall be dealt with during the trial. Most particularly, as the legislation on criminal proceedings increasingly becomes more complex at the stage of evidence collection and utilization, the suspects may find themselves in a vulnerable state at this phase of the criminal procedures. The aforementioned state of vulnerability may be duly redressed only through the legal assistance of a defence counsel (see Aligül Alkaya and Others, [GC], no. 2013/1138, 27 October 2015, §§ 118, 135; and Sami Özbil, no. 2012/543, 15 October 2014, § 64).

77. Some of the above-mentioned requirements of the right to legal assistance are also specified in the relevant rules of procedure. Within this context, it is set forth in the Code of Criminal Procedure no. 5271 (Law no. 5271) that there exists an obligation to appoint a defence counsel, even if the suspect or the accused does not make a formal request for it or explicitly expresses of his will for non-appointment of a defence counsel, in cases where the suspect or the accused without a defence counsel is a minor, is disabled or deaf and mute to the extent to which he cannot defend himself; where the punishment for the offence, subject to investigation or prosecution, requires a minimum prison sentence of over five years; where there shall be a decision to keep the suspect or the accused under surveillance so as to inquire into his imputability in an official institution; where the suspect or the accused is sent to the court for being detained on remand; where a hearing is held in absentia due to the fact that the accused undermines the orderly conduct of the hearing with his actions; and where a hearing is held with regard to a fugitive suspect (see the judgment of the General Assembly of Criminal Chambers of the Court of Cassation, E.2011/10-182, K.2011/204, 11 January 2011). Pursuant to Article 150 § 1 of Law no. 5271, if the suspect or the accused states to be in no position to retain a defence counsel, a defence counsel shall be appointed upon request. According to Article 151 § 1 of the aforementioned Law, if the court-appointed defence counsel does not attend the court hearing, withdraws from the hearing or abstains from performing his duties, the judge or the court are to immediately take necessary action for appointment of another defence counsel.

78. The right to legal assistance is not absolute. It is possible to limit this right in exceptional cases. The present right may be limited in cases of compulsory grounds. Even in cases where compulsory grounds are indicated as a justification for  denial of legal assistance, such limitations must not encroach upon the rights of the suspect/accused that are guaranteed within the context of the right to a fair trial (see Aligül Alkaya and Others, §§ 118, 137). What is essential in terms of the right to legal assistance is the suspect’s/accused’s ability to have effectively benefitted from legal assistance given the prosecution process as a whole. However, the right to defence shall not be considered to have been violated if the restrictions on the right to legal assistance are redressed in the subsequent stages of the trial.

79. The accused possesses direct and immediate information on the incident. Hence, it is clear that the statements of the accused are tremendously significant in terms of clarifying the matter. In this respect, in any and all substantial cases, it is imperative to examine whether the person imputed with criminal offence issued self-incriminating statements in the absence of a defence counsel, whether the aforementioned confessions were held against him/her, whether the court drew negative conclusions from his/her silence and whether he/she was oppressed in any way. Within the course of criminal proceedings, the privilege against self-incrimination and the right to refuse to give evidence indicate the obligation to prove the accusations without resorting to evidence obtained by force or against the will of the accused. In the event that the confession issued by the accused under the supervision of law enforcement without having access to an attorney is used in the verdict of conviction, this shall lead to an irredeemable infringement of the right to defence. In the event that the confession, obtained during the investigation, is disaffirmed on the basis of having been obtained under torture and maltreatment, use of this confession as a basis by the court without examining the aforementioned disaffirmation points to a significant absence of due diligence.

80. In the examination of individual applications, the Constitution shall be based on; no review shall be made as to the compliance with the law. Hence, the practice of limiting access to an attorney on the basis of laws cannot be said to be in compliance with the Constitution. In assessing whether or not the right to legal assistance violates Article 36 of the Constitution, the particular circumstances of the present case must be taken into consideration within the integrity of the proceedings. The Constitutional Court determined that the reason why the suspects were not previously given access to legal assistance in terms of the offences within the jurisdiction of state security courts was a practice arising from the legislation (see Aligül Alkaya and Others, § 144, Sami Özbil, § 71; and Güllüzar Erman, no. 2012/542, 4 November 2014, § 48); however, the Court found violations on the grounds that the right to legal assistance was not subsequently compensated (see Aligül Alkaya and Others, §§ 127-145, Sami Özbil, §§ 56-76; Aynur Avyüzen, no. 2014/784, 27 October 2016, §§ 37-58; and Veli Özdemir, no. 2014/785, 27 October 2016, §§ 39-62).

ii. Application of the Principles to the Present Case

81. In the present case, with respect to the offences falling into the jurisdiction of the state security courts, it is possible, in principle, for the applicants to obtain the assistance of a defence counsel while in custody only after a certain stage. Additional Article 31 of Law no. 3842 stipulates that the new regulations concerning detention procedures and provision of access to legal assistance shall not be applied to the offences falling within the jurisdiction of state security courts and that the provisions of Law no. 1412 prior to its amendment shall be implemented with regard to above-mentioned matters. The legislation which was in force at the time when the applicants were in custody did not provide the opportunity for obtaining assistance of a lawyer during the police custody. It has been observed that the applicants were held in custody under the mentioned conditions for a period between 8 and 13 days.

82. It has been observed that in the assessment concerning the acts within the scope of the offences imputed to the applicants, it has been observed that the applicants’ and the other accused persons’ statements alleged to have been taken in the police custody in the absence of their defence counsels and under duress were considered as evidence. It has been revealed that the applicants’ conviction were ordered for the imputed offence on the basis of their statements which had been taken in the absence of a defence counsel and had not been subsequently confirmed before the court as well as the other evidence; that these statements taken in custody were significantly relied on as evidence for the applicants’ conviction; and that the legal assistance and the other procedural guarantees provided at the subsequent stages failed to redress the damage caused to the applicants’ right to defence at the outset of the investigation.

83. Article 148 of the Law no. 5271, which subsequently entered into force (during the proceedings), is capable of ensuring the investigation to be effective at the prosecution stage with respect to the statements which are taken by the law-enforcement officers in the absence of a defence counsel and which are not confirmed before a judge or a court. However, this question was not discussed in the court’s decision and could not be redressed at the appellate stage. The failure to provide the opportunity for access to legal assistance in the police custody and taking these statements at this stage as a basis for the conviction decision led to the breach of the right to a fair trial in conjunction with the right to legal assistance.

84. The Constitutional Court consequently held that there was a breach of the right to a fair trial in conjunction with the right to legal assistance within the scope of the right to a fair trial guaranteed in Article 36 of the Constitution.

B. Alleged Violation of the Right to a Trial within a Reasonable Time

85. The applicants maintained that there was a breach of their right to a trial within a reasonable time.

1. Admissibility

86. The allegation regarding the violation of the right to a trial within a reasonable time is not manifestly ill-founded and there exists no ground to declare it inadmissible, therefore it must be declared admissible.

2. Merits

87. In determining the duration of criminal proceedings, while the starting point (dies a quo) is taken as the date on which the person is notified by competent authorities of the imputed crime or the date on which the person is first affected by the imputation through the employment of certain measures such as search and detention; the end date (dies ad quem) is taken as the date of the final judgment on criminal charges or the date on which the Constitutional Court renders a judgment on the complaint concerning reasonable time for on-going proceedings (see B.E., no. 2012/625, 9 January 2014, § 34).

88. In assessing whether or not the duration of the criminal proceedings is reasonable, the complexity and the levels of the proceedings, the conduct of the parties and relevant authorities within the course of the proceedings and the quality of the applicant’s interest in the speedy conclusion of the proceedings shall be taken into account (see B.E., § 29).

89. Having regard to the aforementioned principles and the judgments rendered by the Constitutional Court in similar applications, it has been concluded that the duration of proceedings lasting for approximately 13 years, 10 months and 25 days in the present case was not reasonable.

90. Consequently, the Constitutional Court held that there was a breach of the right to a trial within a reasonable time guaranteed in Article 36 of the Constitution.

C. Other Alleged Violations within the Scope of the Right to a Fair Trial

91. The applicants maintained that there was a breach of their right to a fair trial guaranteed in Article 36 of the Constitution, stating that they were tried in special courts, that the organization referred to in the decision was fabricated, that their presumption of innocence was violated and that the outcome of the proceedings was not fair.

92. Having regard to the above-mentioned conclusion finding a violation of the applicants’ right to a fair trial, it has been concluded that it is not required to render a separate decision on the admissibility and merits of further complaints within the scope of the right to a fair trial guaranteed in Article 36 of the Constitution.

D. Alleged Violation of the Right to Personal Liberty and Security

93. The applicants maintained that the maximum period of detention was exceeded and they were unduly detained. The applicant, Yusuf Karakuş, also maintained that his rights were not read and his relatives were not notified while he was in custody; that certain acts imputed on him were not subject to the conviction and that he was unduly detained for these acts.

94. Pursuant to Provisional Article 1 § 8 of the Code no. 6216 dated 30 March 2011 on Establishment and Rules of Procedure of the Constitutional Court, the Constitutional Court’s jurisdiction ratione temporis commences on 23 September 2012, and the Court shall examine the individual applications to be lodged against the last actions and decisions that were finalized after 23 September 2012 (see Zafer Öztürk, no. 2012/51, 25 December 2012, § 18). In the present case, it has been understood that while the applicants’ custody period came to an end when they were detained on 14 May 2000 and 19 May 2000, the applicant Yusuf Karakuş’s detention on remand on the basis of an imputed offence ended with his release on 28 July 2005.

95. Consequently, the Constitutional Court held that this section of the application was inadmissible due to lack of jurisdiction ratione temporis.

E. Alleged Violation of the Prohibition of Torture

1. As to the Applicants Hasan Kılıç and Yusuf Karakuş

96. The applicants maintained that their statements were taken by law-enforcement officers under torture and thus there was a breach of the prohibition of torture.

97. Owing to the secondary nature of the individual applications, lodging an application with the Constitutional Court requires the exhaustion of ordinary legal remedies. The applicant must first duly submit his complaint, which is subject to the individual application, to the competent administrative and judicial authorities in due time, present the available information and evidence to the these authorities and show due diligence so as to pursue his case and application within this period (see İsmail Buğra İşlek, no. 2013/1177, 26 March 2013, § 17).

98. In the event that the individual has a tenable allegation with regard to an unlawful treatment by a state official in breach of Article 17 of the Constitution, this article – interpreted in conjunction with the general obligation referred to in Article 5 of the Constitution, titled “Fundamental aims and duties of the State” – calls for an investigation. This investigation must be capable of identifying and punishing those responsible (see Tahir Canan, § 25).

99. It is essential to designate the type of investigation required by procedural obligations in a case based on whether or not the obligations with regard to the right to protect and improve one’s corporeal and spiritual existence call for a criminal penalty. In cases pertaining to incidents of death occurring as a result of intentional acts or assault or maltreatment, the State has the liability to conduct criminal investigations capable of identifying and punishing those responsible for the lethal assault or physical injury as per Article 17 of the Constitution (see Serpil Kerimoğlu and Others, no. 2012/752, 17 September 2013, § 55).

100. It is understood that the legal remedy, which would provide a solution and offer reasonable prospects for the ascertainment of the material case and for the identification and punishment of those responsible with regard to the applicants’ complaints, is to conduct an effective criminal investigation (see Zeki Güngör, no. 2013/8491, 31 March 2016, § 40). However, in the present case, no criminal investigation was initiated ex officio or upon the notification of the applicants.

101. Within the scope of the effective investigation liability of the State, it is clear that an ex officio investigation must be initiated where there exists strong indication of torture or maltreatment, even if the interference was made by third parties, or when there is no notification or complaint to this end (see Tahir Canan, § 25). Nevertheless, non-fulfilment of the obligation to initiate an ex officio investigation on the part of the State does not negate the applicants’ obligation to duly submit their allegations to administrative and judicial authorities pursuant to the secondary nature of the individual applications (see Zeki Güngör, § 42).

102. It has been established that the effective remedy for the clarification of the material fact and the identification of potential criminal liability in the face of alleged assault of the applicants by law-enforcement officers is conducting a criminal investigation; however, the applicants lodged no application with the judicial authorities for the purpose of initiating a criminal investigation. The applicants did not submit any evidence refuting the aforementioned conclusion. Accordingly, having regard to the fact that the applicants, who maintained that they were subjected to actions falling into the scope of Article 17 § 3 of the Constitution, did not lodge any application to mobilize judicial authorities, it has been concluded that the present application cannot be examined by the Constitutional Court, pursuant to the secondary nature of the individual applications.

103. In the present case, it is understood that the applicants lodged an individual application without exhausting the legal remedies available to them.

104. Consequently, the Constitutional Court held that the application was inadmissible due to non-exhaustion of domestic remedies, without examining other admissibility criteria.

2. As to the Applicant Mehmet Şahin

105. The applicant maintained that his statements were taken by law-enforcement officers under torture, that this matter was not recorded in medical reports, that the investigation on those concerned resulted in a decision of non-prosecution, and thus there was a breach of the prohibition of torture.

106. Pursuant to Provisional Article 1 § 8 of the Code no. 6216, the Constitutional Court’s jurisdiction ratione temporis commences on 23 September 2012, and the Court shall examine the individual applications to be lodged against the last actions and decisions that were finalized after 23 September 2012 (see Zafer Öztürk, no. 2012/51, 25 December 2012, § 17). 

107. In the present case, it is understood that the decision of non-prosecution, which is subject to the application, was finalized prior to 23 September 2012.

108. Consequently, the Constitutional Court held that the application was inadmissible due to lack of jurisdiction ratione temporis, without examining other admissibility criteria.

F. Application of Article 50 of Code no. 6216

109. Article 50 §§ 1 and 2 of Code no 6216, is as follows:

“(1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not.   In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled…

(2)If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed.   In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown.   The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

110. The applicants, Hasan Kılıç, Yusuf Karakuş and Mehmet Şahin requested to be awarded respectively 100,000 Turkish Liras (“TRY”), TRY 10,000 and TRY 10,000, for non-pecuniary damages sustained due to the violation of the right to a trial within a reasonable time. The applicants further claimed TRY 500,000 for pecuniary damages (Hasan Kılıç), TRY 100,000 for non-pecuniary damages (Yusuf Karakuş) and TRY 10,000 for non-pecuniary damages (Mehmet Şahin) sustained due to the violation of other rights.

111. It has been concluded that the right to a fair trial in conjunction with the right to legal assistance and the right to a trial within a reasonable time have been violated. 

112. As there exists legal interest in conducting retrial for redress of the consequences of the violation of the right a fair trial in conjunction with the right to legal assistance, it has been concluded that a copy of the judgment must be sent to the (abolished) 11^th Chamber of the Ankara Assize Court (authorized under Article 250 of the Code of Criminal Procedure) in order to conduct retrial.

113. For the purpose of compensating the non-pecuniary damages sustained due to the violation of the right to a trial within a reasonable time, which cannot be compensated solely with the determination of the violation, it has been concluded that the applicants, Yusuf Karakuş and Mehmet Şahin must respectively be awarded TRY 10,000 in line with their request; and the applicant, Hasan Kılıç must be awarded TRY 18,000 for non-pecuniary damages.

114. For the Constitutional Court to award pecuniary damages, a causal relation must be established between the material damage alleged to be suffered by the applicant Hasan Kılıç and the established violation. It has been concluded that the request for pecuniary damages must be rejected due to the fact that the applicant Hasan Kılıç did not submit any document on this matter.

115. The court expense of TRY 2,006.10, which includes the court fee of TRY 206.10 and counsel fee of TRY 1,800 and which is calculated over the document in the case file, must be reimbursed to the applicants respectively.

VI. JUDGMENT

The Constitutional Court UNANIMOUSLY held on 8 December 2016 that

A. 1. The alleged violation of the right to personal liberty and security be DECLARED INADMISSIBLE, for lack of jurisdiction ratione temporis;

2. The alleged violation of the prohibition of torture be DECLARED INADMISSIBLE, for non-exhaustion of legal remedies and for lack of jurisdiction ratione temporis;

3. The alleged violation of the right to a fair trial in conjunction with the right to legal assistance be DECLARED ADMISSIBLE;

4. The alleged violation of the right to a trial within a reasonable time be DECLARED ADMISSIBLE;

B. 1. The right to a fair trial in conjunction with the right to legal assistance within the scope of the right to a fair trial guaranteed in Article 36 of the Constitution was VIOLATED;

2. The right to a trial within a reasonable time guaranteed in Article 36 of the Constitution was VIOLATED;

C. One copy of the judgment be SENT to the (abolished) 11^th Chamber of Ankara Assize Court (E.2006/294, K.2013/8) for holding retrial with a view to redressing the violation of the right to a fair trial in conjunction with the right to legal assistance and the consequences thereof;

D. The applicants Yusuf Karakuş and Mehmet Şahin be PAID TRY 10,000 respectively, the applicant Hasan Kılıç be PAID TRY 18,000 in respect of non-pecuniary damages, and other compensation claims be REJECTED;

E. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and counsel fee of TRY 1,800 be REIMBURSED TO THE APPLICANTS RESPECTIVELY;

F. The payment be made within four months as from the date when the applicants apply to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date; and

G. One copy of the judgment be SENT to the Ministry of Justice.