CASE OF EKİNCİ v. TURKEY
(Application no. 25148/07)
12 May 2020
This judgment is final but it may be subject to editorial revision.
In the case of Ekinci v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Valeriu Griţco, President,
Peeter Roosma, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 24 March 2020,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 25148/07) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Mehmet Emin Ekinci (“the applicant”), on 5 June 2007.
2. The applicant was represented by Mr İ. Akmeşe, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3. The applicant alleged, in particular, that he had been subjected to ill-treatment while in police custody and that he had been denied the right to a fair trial on account of the use by the trial court of his police statements and the evidence he had given during the crime-scene reconstruction, both of which took place without a lawyer present.
4. On 26 June 2017 notice of the above-mentioned complaints concerning were given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
5. The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
6. The applicant was born in 1986 and lives in Tekirdağ.
7. On 28 July 2004 at approximately 10.15 a.m. the applicant was arrested by security forces within the scope of intelligence and operational activities carried out in respect of a terrorist organisation, namely the PKK (the Workers’ Party of Kurdistan). According to the arrest report, the applicant’s bag contained five copies of the book entitled “To defend the people” (Halkı savunmak)signed by Abdullah Öcalan.
8. Subsequently, the applicant was medically examined at the Fatih branch of the Forensic Medicine Institute. The doctor who examined the applicant observed a hyperaemia of 2 cm and two 0.5 cm-long skin-deep lesions on the applicant’s left wrist, adding that the applicant had told him that it had been the result of the handcuffs. That report also contained the applicant’s statement that he had been subjected to psychological pressure by the police. Although the report does not contain any information as to its time of issuance, it appears to be a report on the first medical examination carried out following his arrest.
9. On the same day the applicant’s statement was taken in the Istanbul Security Directorate and they were transcribed on printed forms, the first page of which was filled in to indicate, inter alia, that the applicant was suspected of acting on behalf of the PKK. The same page also included a printed message which stated, inter alia, that the person being questioned had the right to remain silent and the right to a lawyer of his or her choosing. It appears from the form that the applicant refused legal assistance, since the first page of the record includes a printed phrase stating “No lawyer sought” and a box next to it that is marked with a printed “X”. Moreover, according to the record, he also stated that he did not want a lawyer and that he waived his right to silence. In his statement, which was five pages long, the applicant admitted that he had thrown a Molotov cocktail at a police vehicle on 9 July 2004 with S.B., F.A. and another person known to him only as Mehmet. He further stated that he had been frequenting the Beyoğlu branch of the People’s Democratic Party (DEHAP).Lastly, the statement form does not contain any information as to its time of issuance.
10. According to a separate document dated 28 July 2004, the applicant had been informed of his rights under Article 135 of the Code of Criminal Procedure as in force at the material time and stated that he would like to give his statements without a lawyer present. This was also a printed form that bore the applicant’s signature and the indication that a copy of a form explaining his rights had been given to him. On another form explaining arrested people’s rights, which was also undated and which the applicant duly signed, he was reminded of his right to remain silent and to have access to a lawyer. However, those forms do not contain any information as to their time of issuance.
11. Again on 28 July 2004, at 10.05 p.m., the applicant was required to participate in a crime-scene reconstruction (yer gösterme). According to the record drafted by police officers and signed by the applicant, the latter told the police officers that he had thrown a Molotov cocktail at a police car on 9 July 2004 on Dolapdere Street in Istanbul. Subsequently, the police officers brought the applicant to the crime scene, where he made further statements. According to the report, the applicant stated that he and two other accused – S.B., F.A. and another person known to him as Mehmet – had decided to hold a demonstration in order to protest the detention in isolation of Abdullah Öcalan and that they had all met in the Dolapdere district and started waiting on the street for a police car. When they had seen the police car approach, the applicant and Mehmet had thrown one Molotov cocktail each at the police car and then had run away. This report did not indicate any information as to whether the applicant had been advised of his rights prior to or during the crime-scene reconstruction.
12. Also on 28 July 2004 the Incident Scene Investigation and Identification Branch of the Istanbul Security Directorate drew up a report in which it concluded that one of the fingerprints found on the blue plastic shopping bag containing three Molotov cocktails seized in the crime scene belonged to F.A.
13. The police also contacted Turkcell (a mobile-telecommunications provider) with a view to obtaining the telephone records of the mobile telephones used by the applicant, F.A., S.B. and Mehmet. The results showed that the applicant and S.B. had been present at the crime scene on the date and time the offence had taken place; that S.B. had left the crime scene within a short time and that S.B. had called the applicant three times within the period between the time of the incident and the following fifteen minutes. Moreover, approximately one hour after the incident, the applicant called F.A. three times.
14. On 1 August 2004 at 7.10 a.m., at the end of his time in police custody, the applicant was once again examined by a doctor in the Forensic Medicine Institute. According to the report drawn up in respect of the applicant, there were no new marks on the applicant’s body other than those mentioned in the medical report dated 28 July 2004. However, as the applicant told the doctor that the police had hit him on the ear and that they had beaten him up in order to force him to sign the statement record, the doctor decided that a conclusive report could only be drawn up after a detailed medical examination in a fully equipped hospital.
15. Subsequently, the applicant was transferred to Şişli Etfal Research Hospital, where he was examined by a doctor who ordered the applicant’s transfer to the ear, nose and throat department of the hospital. Following examination there, the applicant was given another medical examination by a different doctor, who concluded that the applicant’s auricles (right and left ears), external auditory canals and ear drum were normal (mutat) and his nasal pyramid and facial nerve functions were natural.
16. On the same day at 10.30 a.m. the applicant was given another medical examination at the Şişli Directorate of Forensic Medicine Institute by a specialist doctor, who concluded that the findings did not put the applicant’s life at risk but rendered him unfit to carry out daily activities for one day. The applicant told the doctor that the police had beaten him up.
17. On the same day, the applicant was brought before the public prosecutor where he gave statements in the presence of his lawyer. Denying the content of his police statements, the applicant submitted that he had had to sign those statements as the police had forced him to do so. Moreover, the applicant stated that he had been to Kağıthane Sanayidistrict to see the public school in which he had sat the university entrance exam on 10 July 2004. The applicant once again denied having thrown a Molotov cocktail at a police car. The applicant’s lawyer stated on the lawyer‑client-meeting form that the applicant had stated that he would not give any statements without his lawyer present. As such, the applicant did not make any statements but the police had forced him to sign the statements prepared by them.
18. Again on the same day, the applicant was brought before the investigating judge. He gave statements in the presence of his lawyer, and accepted his prior statements to the public prosecutor, while denying once again his statements to the police, alleging that the police had made him sign the statement record without allowing him to read it first. The applicant’s lawyer stated that the applicant had been subjected to ill‑treatment starting from his time in police custody and that no lawyer had been appointed in respect of him despite his requests to have the aid of counsel. He also argued that the evidence had been collected unlawfully. After the questioning was over the investigating judge remanded the applicant in custody, referring to the nature of the offence and the state of the evidence.
19. On the same day, another suspect, S.B., also made statements before the public prosecutor. He stated that on the date of the incident, F.A. had come to Dolapdere Street with a bag containing Molotov cocktails; that there had been four people at the scene of the incident and that these people had had Molotov cocktails in their hands; that the applicant and another person called only Mehmet had been at the side of the police car, which had been burning, and that they had thrown away a plastic bag when they had run away. According to his statement form, he did not ask for a lawyer when making those statements.
20. On 4 August 2004 the Istanbul public prosecutor’s office filed a bill of indictment, charging the applicant, F.A. and S.B. with being members of an illegal terrorist organisation under Article168 § 2 of the now defunct Criminal Code and of using explosive materials under Article 264 § 6 of the same code.
21. On 11 November 2004, at the first hearing in the case, the applicant gave evidence in person, submitting that he had been arrested because of the books he had had in his bag. He pleaded not guilty and denied all the accusations against him. When asked about his statements before the police, the public prosecutor and the investigating judge, the applicant did not accept his statements to the police, but told the trial court that he had nothing to say about the statements he had made to the public prosecutor and the investigating judge. When asked about the crime-scene-reconstruction report, he did not accept them, alleging that he had been taken to a place at night and had repeated certain things in order not to become a victim of an extrajudicial killing.
At the same hearing, S.B. also gave evidence in person without a lawyer being present and rejected the statements he had made during the pre‑trial stage of the proceedings.
22. At a hearing held on 31 August 2005, the public prosecutor read out his observations on the merits of the case (esas hakkında mütalaa) to the trial court and advised that the trial court find the applicant guilty as charged, but under the relevant articles of the new Criminal Code.
23. On 15 February 2007 the Istanbul Assize Court rendered its judgment in the case and found that on the basis of the police statements of the applicant and S.B., the expert report showing that the fingerprints found on the bag which had been seized from the crime scene belonged to F.A., the other reports and the content of the case file as a whole that the applicant had thrown a Molotov cocktail at a police car on 9 July 2004. The trial court also held that the applicant had committed that offence on behalf of the PKK. Accordingly, it sentenced him to six years and three months’ imprisonment for membership of the PKK and to one year and eight months imprisonment for criminal damage to property.
24. On 27 March 2007 the applicant’s lawyer lodged an appeal against the trial court’s judgment, arguing that the applicant had been subjected to torture while in police custody and had been forced by the police to sign statements. In that connection, he referred to Article 148 of the Code of Criminal Procedure, pursuant to which statements that had been obtained through such methods could not be used in evidence. Moreover, the applicant’s lawyer argued that Article 148 § 4 of that Code specifically proscribed the use of police statements taken without a lawyer present unless they had been confirmed by the individual before a judge or a court. Thus, the lawyer asked the Court of Cassation to quash the trial court’s judgment on account of the use of the police statements of the applicant and S.B.
25. On 19 September 2007 the Court of Cassation quashed the judgment on the grounds that the trial court had failed to determine whether the new Criminal Code or the old Criminal Code had provided more favourable provisions in respect of the offences of criminal damage to property and using explosive materials. Likewise, the trial court also did not examine whether alternative sanctions or the provisions relating to suspension of sentences had been applicable in the case. Lastly, the Court of Cassation held that the act of throwing a Molotov cocktail at a police car was an aggravating circumstance in respect of the offence of criminal damage to public property using flammable or explosive materials, and thus the trial court ought to have sentenced the applicant only for the offence of criminal damage to property.
26. On 19 June 2008 the Istanbul Assize Court rendered its second judgment on the merits of the case. It endorsed its previous findings and sentenced the applicant to six years and three months’ imprisonment for the offence of membership of an armed terrorist organisation and to one year and eight months’ imprisonment for the offence of criminal damage to property using explosive materials. After quoting the content of the defence submissions made by the three accused, including the applicant, and the information on whether they accepted the attributed offences in their previous statements taken in the course of the pre-trial stage, the trial court went on to hold that the applicant and S.B. had given the description of the incident as they had given in their statements to the police. In the trial court’s judgment, there was no reference either to the content of the case file as a whole or to the public prosecutor’s observations on the merits of the case or to the indictment.
27. On 22 August 2008 the applicant lodged an appeal against his conviction and reiterated his previous appeal grounds.
28. On 21 April 2011 the Court of Cassation upheld the conviction.
B. Criminal investigation concerning the applicant’s alleged ill‑treatment by police officers
29. On 18 May 2007 the applicant lodged a complaint with the Fatih chief public prosecutor’s office against the police officers who had been working in the anti-terror branch of the Istanbul police headquarters between 28 July and 1 August 2004, alleging that he had been subjected to ill‑treatment and that he had had to sign statements under duress.
30. On 21 May 2007 the public prosecutor requested from the anti‑terror branch of the Istanbul police headquarters the following pieces of information: a copy of the medical and forensic reports, the applicant’s statement form, the custody records related to the applicant’ custody period, information concerning other persons who had been in custody with the applicant during the same period, information as to whether any coercive force had been used against the applicant and the names of the police officers who had participated in the investigation in respect of the applicant. On the same day, noting that the applicant was in Tekirdağ Prison, the public prosecutor issued a letter of request to the Tekirdağ chief public prosecutor’s office, requesting that the latter obtain his statements.
31. On 4 May 2007 the anti-terror branch of the Istanbul police headquarters sent the relevant documents.
32. On 11 June 2007 the applicant gave a statement to the Tekirdağ public prosecutor’s office in his capacity as a complainant. He stated that the police officers had threatened him when his statement had been taken and that four or five of them had attacked and beaten him. As a result, he had given his statements in line with what the police officers had dictated.
33. On 21 June 2007 the Fatih public prosecutor took the statements of Officer İ.Ö. as a suspect. İ.Ö. stated that the applicant’s allegations had not been true, and that sometimes mentally unwell people stretched their hands in order to make marks on their wrists.
34. On 16 July 2007 the public prosecutor issued a letter of request to the Merzifon chief public prosecutor’s office, requesting that the latter obtain a statement from Officer G.A. On 8 August 2007 a public prosecutor from the Merzifon chief public prosecutor’s office took G.A.’s statement. He stated that he had worked in Istanbul as a police chief in the applicant’s arrest, and added that neither he nor his colleagues had ill‑treated the applicant.
35. On 17 September 2007 the Fatih public prosecutor rendered a decision not to prosecute in respect of the police officers, holding that there was insufficient evidence indicating that the police officers had ill‑treated the applicant. It further held that the applicant’s allegations and the findings on the medical reports did not match up. In that connection, the prosecutor noted that although the applicant had told the doctor on 28 July 2004 that he had had a lesion on his left wrist due to handcuffs, the doctor had noted that the applicant had had a lesion on his right wrist. Likewise, the applicant had told the doctor on 1 August 2004 that he had had a pain in his left ear whereas the doctors had concluded that the findings in relation to his ears had been normal.
36. On 11 December 2007 the applicant’s lawyer lodged an objection (itiraz) against the above-mentioned decision of the Fatih public prosecutor.
37. On 31 December 2007 the Beyoğlu Assize Court dismissed the applicant’s objection.
II. RELEVANT DOMESTIC LAW AND PRACTICE
38. The relevant domestic law in force at the material time, as well as case-law of the Constitutional Court on the issue of waiver of the right to a lawyer, may be found in Ruşen Bayar v. Turkey, (no. 25253/08, §§ 41‑46, 19 February 2019).
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
39. The applicant complained that he had been subjected to ill-treatment while in police custody from 28 July 2004 to 1 August 2004 in violation of Article 3 of the Convention, reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
40. The Government contested that argument.
41. The applicant alleged that the police officers had hit him on his left ear, thereby inflicting ill-treatment upon him.
42. The Government noted at the outset that the applicant had lodged his ill-treatment complaint with Fatih chief public prosecutor’s office in 2007, a long time after his police custody in 2004. More importantly, although the applicant alleged that he had been beaten by four or five police officers, it had been established in the forensic reports there had only been light lesions on his left wrist. There was no other evidence or any other indication supporting or corroborating the applicant’s contention in the instant case.
43. The Government further argued that there is no evidence in the case file requiring a further examination of the medical reports. Likewise, the applicant did not object those reports or asked to be examined by another doctor. Consequently, the Government invited the Court to conclude that there has been no violation of Article 3 of the Convention as the allegations of ill-treatment were not supported with appropriate evidence.
44. The Court reiterates that the general principles concerning the substantive and the procedural limb of Article 3 of the Convention in so far as it concerns the ill-treatment allegations of applicants in custody set out in detail in paragraphs 81-90 and 114-23 of the Court’s judgment in Bouyid v. Belgium ([GC], no. 23380/09, 28 September 2015).
45. The Court notes at the outset that the applicant was arrested on 28 July 2004 and remained in police custody until 1 August 2004, during which time he was allegedly subjected to ill-treatment by the police, who hit him on his left ear. During the same period, although the applicant had been examined by doctors five times prior to and subsequent to his detention (contrast Cangöz v. Turkey, no. 28039/95, § 30, 4 October 2005), the only findings in those reports were a hyperaemia of 2 cm and two 0.5-cm-long skin-deep lesions on the applicant’s left wrist. However, the applicant told the first doctor who had examined him and noted those findings that they had been the result of the handcuffs. Importantly, he did not allege before the Court that they had been the result of his alleged ill-treatment at the hands of the police.
46. Moreover, when the applicant reiterated his contention that he had been hit by the police on his ear during his medical examination carried out at the end of his police custody on 1 August 2004 at 7.10 a.m., the doctor considered that the applicant should undergo a more detailed medical examination with a view to clarifying the situation with his ear. Subsequently, the applicant underwent an ear nose and throat examination and a further medical examination on the same day which concluded that the findings in respect of his ear were normal. As a result, the doctor held that the applicant had not been exposed to life-threatening risk but certified him unfit to carry out daily activities for one day.
47. The Court further observes that the applicant lodged a criminal complaint with the Fatih chief public prosecutor’s office on 18 May 2007, that is to say approximately two years and ten months after his arrest and just over three months after the trial court’s first judgment convicting him. In this connection, the Court observes that the applicant did not offer any explanation in respect of these delays (see Yerli v. Turkey, no. 59177/10, § 45 in fine, 8 July 2014).
48. Furthermore, the public prosecutor in charge of the applicant’s complaint swiftly reacted to his complaint on 21 May 2007 by sending a letter to the Istanbul police headquarters asking the latter to provide him with the necessary information to shed light on the applicant’s allegations. Likewise, it also sent a letter of request to the Tekirdağ chief public prosecutor’s office with a view to obtaining the applicant’s statements who was in Tekirdağ prison. Lastly, on 17 September 2007, after the collection of the statements of the two police officers, the applicant and the relevant documents, the prosecutor issued a decision not to prosecute, considering the evidence to be insufficient to pursue a criminal case against the police officers. According to the public prosecutor, there was an inconsistency between the applicant’s complaint and the findings in the medical reports given that although the applicant had asserted that he had had a lesion on his left wrist due to handcuffs, the doctors who had examined him had noted that he had had a lesion on his right wrist. Likewise, although the applicant complained of a blow to his ear, the medical reports showed that the findings concerning his ear had been normal.
49. In view of the above, the Court considers it significant that the applicant did not submit to it any complaints in relation to the effectiveness of the investigation carried out by the public prosecutor. Likewise, he did not dispute the authenticity or the veracity of the findings contained in the medical reports before the Court (see Kaytan v. Turkey, no. 27422/05, § 50, 15 September 2015). Nor has he adduced any material which could add probative weight to his allegations.
50. In view of the foregoing considerations and bearing in mind that the
domestic authorities are better placed to assess the credibility of evidence with a view to establishing the facts, the Court concludes that the applicant failed to submit any evidence or argument capable of casting doubt on the conclusions reached by the Fatih public prosecutor in respect of his ill‑treatment allegations.
51. It follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION
52. The applicant complained that he had been denied his right to a lawyer in police custody and that the evidence obtained in the absence of his lawyer had been used by the trial court to convict him. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, provides as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by [a] tribunal …
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance 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.”
53. The Government contested that argument.
54. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
55. The applicant reiterated his claims.
56. The Government indicated that the applicant had not asserted his right to counsel and had stated that he would make his statements himself by his own free will when the police had asked him whether he had wished to have access to a lawyer while in custody. He had also been informed of his rights in detail as well as the offences he had been suspected of having committed. Moreover, the applicant had signed the documents drawn up by the police to that effect and had also received copies of those documents. Having regard to these factors and referring to the Court’s judgment in the case Yoldaş v. Turkey, (no. 27503/04, §§ 51‑54, 23 February 2010), the Government furthermore argued that the applicant’s statement form, which had been signed by him and according to which no lawyer had been requested was sufficient to show that he had validly waived his right to a lawyer when making statements to the police.
57. The Government further argued that in convicting him, the domestic courts had not only relied on the statements the applicant had made to the police, but also on other scattered evidence such as S.B.’s statements to the police, the public prosecutor, and the investigating judge, where he had said, inter alia, that the applicant had participated in the offence; the fingerprint of F.A. on the bag found at the crime scene containing Molotov cocktails; and the telecommunications reports demonstrating that the applicant and the other co-defendants had been at the crime scene on the date and time of the incident.
58. Furthermore, the Government maintained that the applicant had been given the opportunity to challenge the authenticity of the evidence and to oppose its use. In that connection, they submitted that in line with the principle of equality of arms the applicant and his lawyer had had access to any document or information in the case file and that they had been provided with the facilities to prepare the defence submissions which they had been able to make before the national courts.
59. Given the above factors, it was the Government’s contention that the absence of the applicant’s lawyer during his police custody had not seriously impaired his right to a fair trial.
2. The Court’s assessment
(a) General principles
60. The general principles with regard to access to a lawyer, the right to remain silent, the privilege against self-incrimination, the waiver of the right to legal assistance and the relationship of those rights to the overall fairness of the proceedings under the criminal limb of Article 6 of the Convention can be found in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, §§ 249-74, 13 September 2016), Simeonovi v. Bulgaria ([GC], no. 21980/04, §§ 110-20, 12 May 2017) and Beuze v. Belgium [GC] (no. 71409/10, §§ 119-50, 9 November 2018).
61. The Court reiterates that the right to be assisted by a lawyer applies throughout and until the end of questioning by the police, including when the statements taken are read out and the suspect is asked to confirm and sign them, as the assistance of a lawyer is equally important at this point of the interview. The lawyer’s presence and active assistance during questioning by police is an important procedural safeguard aimed at, among other things, preventing the collection of evidence through methods of coercion or oppression in defiance of the will of the suspect and protecting the freedom of a suspected person to choose whether to speak or to remain silent when questioned by the police (see Soytemiz v. Turkey, no. 57837/09, § 45, 27 November 2018).
62. The Court also reiterates that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. That also applies to the right to legal assistance. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance. Such a waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his or her conduct, waived an important right under Article 6, it must be shown that he or her could reasonably have foreseen what the consequences of his or her conduct would be. Moreover, the waiver must not run counter to any important public interest (see Simeonovi, cited above, § 115). It follows that a waiver of the right to a lawyer, a fundamental right among those listed in Article 6 § 3 which constitute the notion of a fair trial, must be strictly compliant with the above requirements (see, mutatis mutandis, Murtazaliyeva v. Russia [GC], no. 36658/05, § 118, 18 December 2018).
63. The Court further reiterates that compliance with the requirements of a fair trial must be examined in each case having regard to the development of the proceedings as a whole and not on the basis of an isolated consideration of one particular aspect or one particular incident, although it cannot be excluded that a specific factor may be so decisive as to enable the fairness of the trial to be assessed at an earlier stage in the proceedings (see Ibrahim and Others v. the United Kingdom, cited above, § 251). Those considerations also hold true for the validity of a waiver of the entitlement to the guarantees of a fair trial, as what constitutes a valid waiver cannot be the subject of a single unvarying fact but must depend on the individual circumstances of the particular case (see Murtazaliyeva, cited above, §§ 117‑18).
(b) Application to the present case
(i) Whether the applicant waived his right to legal assistance
64. The Court observes at the outset that the present case differs from Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008), where the restriction on the applicant’s right of access to a lawyer stemmed from Law no. 3842 and was thus systemic. In other words, there was no blanket restriction on the applicant’s right of access to a lawyer during his police custody since at the time of his arrest Law no. 3842 – which had provided for a systemic restriction on access to a lawyer in respect of people who had been accused of committing an offence falling within the jurisdiction of the State Security Courts – had already been amended. Thus, from 15 July 2003 onwards it was legally possible for such suspects to have access to a lawyer when giving statements to the police, the public prosecutor and the investigating judge, subject to the condition that they asked for one.
65. The legal question before the Court is whether the applicant validly waived his right of access to a lawyer before giving statements to the police on 28 July 2004, as it is not disputed between the parties that the applicant was represented by a lawyer when making statements to the public prosecutor and the investigating judge.
66. Turning back to the circumstances of the present case, the Court notes that according to the statement form dated 28 July 2004, which the applicant signed, he was informed of his rights, including his right to have legal assistance and his right to remain silent at the time his statement was taken. The first page of the same record where the applicant stated that he did not want a lawyer or to remain silent includes a printed phrase stating “No lawyer sought” and a box next to it is marked with a printed “X”. Moreover, whilst it was essential that the applicant be clearly informed of the consequences of not requesting the assistance of a lawyer, the Court notes that the Government have not demonstrated that the applicant received any specific information to that effect. In that connection, it finds it useful to stress that documents which contain no information as to their time of issuance offer little help in demonstrating whether they were signed before or after the applicant’s statements were taken.
67. Another printed and undated form explaining the rights of accused people and a separate printed form dated 28 July 2004 indicating that the applicant did not wish to have access to a lawyer were also signed by the applicant. The Court has already examined the probative value of the same type of documents against a similar background of circumstances in Ruşen Bayar v. Turkey, (no. 25253/08, §§ 114-23, 19 February 2019), in which it held, as to the first document, that that document could not demonstrate with certainty that the applicant had been properly informed of his right to a lawyer and his right to remain silent (see Hakan Duman v. Turkey, no. 28439/03, § 50, 23 March 2010, and Płonka v. Poland, no. 20310/02, § 37, 31 March 2009). In that case, the Court examined the same documents and decided that the applicant’s waiver was not valid given that he had neither admitted his guilt nor accepted his statements to the police after he had been given access to a lawyer and had consistently repudiated his confession throughout the ensuing proceedings, in which he had been represented by a lawyer. Equally important was the fact that he had been able to show that he had asserted before the domestic courts that he had made an explicit request for legal assistance (see paragraphs 17 and 18).
68. The Court observes that these two conditions are also present in the instant case given that: firstly, the applicant retracted the statements he had made to the police as soon as he had access to a lawyer on 1 August 2004, when he made statements before the public prosecutor and maintained that position vis-à-vis his police statements until the end of the criminal proceedings against him, following which he was sentenced to a total of seven years and eleven months’ imprisonment (contrast Aksin and Others v. Turkey, no. 4447/05, §§ 7, 8 and 19, 1 October 2013; Diriöz v. Turkey, no. 38560/04, § 36, 31 May 2012; and Yoldaş, cited above, § 53). Secondly, the applicant’s lawyer also argued both before the public prosecutor and the investigating judge that the applicant’s requests to have a lawyer present when making statements to the police had not been granted. Hence, similarly to the case of Ruşen Bayar (cited above), the applicant in the present case was able to show that he had asserted his right to legal assistance before the national authorities (contrast Kaytan v. Turkey, no. 27422/05, § 31, 15 September 2015, and Gür v. Turkey (dec.), no. 39182/08, 14 January 2014).
69. As for the crime-scene reconstruction carried out on 28 July 2004 at 10.05 p.m., the Court observes that none of the documents submitted by the parties indicate that the applicant had been made aware of his basic rights prior to that investigative step, during which the applicant had confessed his involvement in the incident (see Alakhverdyan v. Ukraine [Committee], no. 12224/09, § 56 in fine, 16 April 2019). This factor was further exacerbated by the absence of a statutory basis for a so-called “crime-scene reconstruction” under the former Code of Criminal Procedure, which supported the view that that method of collecting evidence was not accompanied by the relevant procedural safeguards (see Türk v. Turkey, no. 22744/07, § 49, 5 September 2017).
70. Be that as it may, the national courts did not carry out an examination on the conditions of the applicant’s waiver of his right to a lawyer before making statements to the police on 28 July 2004 (see Yunus Aktaş and Others v. Turkey, no. 24744/03, § 51, 20 October 2009).
71. In the same vein, the Court further notes that the applicant took the first opportunity to bring matters to an official when telling the doctor who examined him at the end of his police custody on 1 August 2004 that the police had hit him on the ear and that they had beaten him up in order to force him to sign a statement record. In the view of the Court, this is another factor, which casts doubt on and stands against the contention that the applicant unequivocally waived his right to a lawyer in accordance with the Convention standards before making statements to the police on 28 July 2004. This remains so despite the fact that the Court has already declared inadmissible the applicant’s complaint that he was subjected to ill-treatment while in police custody as being manifestly ill-founded, because the absence of any element suggesting that the applicant was subjected to ill-treatment or was otherwise coerced into making incriminating statements is not, in itself, sufficient to conclude that the waiver in a given case is valid for the purposes of a fair trial under Article6 of the Convention (see Akdağ v. Turkey, no. 75460/10, § 55, 17 September 2019, and Bozkaya v. Turkey, no. 46661/09, § 45 in fine, 5 September 2017).
72. In view of the foregoing, the Court considers that it is unable to find that it has been established beyond any reasonable doubt that the applicant unequivocally, knowingly and intelligently waived his rights under Article 6 of the Convention (compare Şedal v. Turkey (dec.), no. 38802/08, § 36, 13 May 2014, where the applicant had seen his lawyer both before and after giving statements to the police).
(ii) Whether there were “compelling reasons” to restrict access to a lawyer
73. The Court reiterates that restrictions on access to a lawyer for “compelling reasons” are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see Simeonovi, cited above, § 129, and Beuze,cited above, § 142).
74. The Court notes that the Government have not offered any compelling reasons for the restriction of the applicant’s access to a lawyer between 28 July and 1 August 2004, during which time he was in police custody. Furthermore, it is not for the Court to undertake of its own motion this task and determine several years on from the events at issue whether there existed any compelling reasons to restrict the applicant’s right of access to a lawyer. All the more so, since the domestic legislation in force at the material time did not provide any reasons for such a restriction for suspects in police custody, let alone a compelling one.
(iii) Whether the overall fairness of the proceedings was ensured
75. The Court will now examine whether the overall fairness of the criminal proceedings against the applicant was prejudiced by the absence of a valid waiver of legal assistance when the applicant gave statements to the police and the subsequent admission by the trial court of those statements to secure his conviction. As there were no compelling reasons to restrict the applicant’s right of access to a lawyer when he was giving statements to the police, the Court must apply a very strict scrutiny to its fairness assessment (see Dimitar Mitev v. Bulgaria, no. 34779/09, § 71, 8 March 2018). More importantly, the onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (see Beuze, cited above, § 145; Simeonovi, cited above, § 132; and Ibrahim and Others, cited above, § 265).
76. The Court reiterates that in determining whether the proceedings as a whole were fair, regard must be had to whether the rights of the defence have been respected (see Beuze, cited above, § 150; Simeonovi, cited above, § 120; and Ibrahim and Others, cited above, § 274, for a non‑exhaustive list of factors when assessing the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings), in particular whether the applicant was given the opportunity of challenging the admissibility and authenticity of the evidence and of opposing its use (see Panovits v. Cyprus, no. 4268/04, § 82, 11December 2008). In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy. Indeed, where the reliability of evidence is in dispute the existence of fair procedures to examine the admissibility of the evidence takes on an even greater importance (see Pavlenko v. Russia, no. 42371/02, § 116, 1 April 2010).
77. Furthermore, the Court reiterates that it was in the first place the trial court’s duty to establish in a convincing manner whether or not the applicant’s confessions and waivers of legal assistance had been voluntary (see Türk, cited above, § 53). In that connection, the Court notes that Turkish law sets out a very strong procedural safeguard in Article 148 § 4 of the Code of Criminal Procedure capable of remedying the procedural shortcomings in relation to the use of police statements taken without a lawyer present, irrespective of whether a suspect had waived his right to legal assistance or not. Pursuant to that provision, the police statements taken without a lawyer present should not have been used by the trial court unless they had been confirmed before a court or a judge.
78. Notwithstanding the above and having already found that the national courts failed to address in any way the validity of the applicant’s waiver before making statements to the police on 28 July 2004, the Court also observes that the trial court performed no assessment as regards the admissibility of evidence given in the absence of a lawyer before using such evidence to secure the applicant’s conviction (see Beuze, cited above, § 174). Likewise, the Court of Cassation did not alleviate this procedural shortcoming either, as it neither addressed nor provided any individualised reasoning in respect of the applicant’s appeal, wherein his lawyer had specifically raised this matter (see paragraph 24).
79. As regards the evidential value of the statements the applicant had made in the absence of a lawyer, the Court considers that they were of significant importance in the present case particular regard being had to the fact that the trial court appears to have relied merely on those statements and the police statements of S.B. in convicting the applicant.
80. Against this background, the Court reiterates that it has already found violations of Article 6 §§ 1 and 3 (c) of the Convention in various cases against Turkey where the domestic courts neither subjected the applicants’ alleged waivers of their right to a lawyer during the pre‑trial stage to any type of scrutiny nor examined the admissibility of the evidence they had given in such conditions before using them for securing convictions (see Bozkaya, cited above, §§ 39-54; Türk, cited above, §§ 43‑59; Ruşen Bayar, cited above, §§ 112-36; and Akdağ, cited above, §§ 48‑71).
81. Having examined the case before it, the Court sees no reason to depart from its case-law and accordingly finds a violation of Article 6 §§ 1 and 3 (c) of the Convention (see Leonid Lazarenko v. Ukraine, no. 22313/04, §57, 28 October 2010).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
82. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
83. The applicant claimed 80,000 euros (EUR) in respect of non‑pecuniary damage.
84. The Government submitted that the applicant’s claims were excessive and did not correspond to the case-law of the Court.
85. As regards non-pecuniary damage, the Court considers that the finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention in the instant case constitutes sufficient just satisfaction. Given the possibility under Article 311 of the Code of Criminal Procedure to have the domestic proceedings reopened in the event that the Court finds a violation of the Convention, the Court makes no award under this head (see Bayram Koç, cited above § 29).
C. Costs and expenses
86. The applicant also claimed 7,434 Turkish liras (TRY – approximately EUR 1578) which constituted the legal fee inclusive of value‑added tax for the proceedings before the Court. The applicant’s lawyer explained that this sum consisted of the amount indicated in the Union of Bar Associations of Turkey’s scale of fees for 2018, namely TRY 6,300 as the minimum fee for cases before the international judicial organs without a hearing, with value-added tax at 18% applied thereto. He also claimed TRY 720 for expenses relating to postage, translation and stationery which he had incurred both before the Court and in the domestic proceedings without however submitting any documentary proof such as invoices in support of his claims.
87. The Government stressed that the applicant had failed to submit any valid supporting documents such as invoices or any proof of payment capable of showing that the claimed costs and expenses had actually been occurred. As for the lawyer’s fees, they argued that the Union of Bar Associations of Turkey’s scale of fees was only indicative and that in any event it did not prove that the amount had actually been paid by the applicant. Thus, they invited the Court to reject the claims under this head.
88. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that the applicant did no more than refer to the Union of Bar Associations of Turkey’s scale of fees in respect of his legal representative’s claims and failed to submit any supporting documents.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints concerning the validity of the applicant’s right to a lawyer when he made statements to the police and their subsequent use by the trial court admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;
3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;
4. Dismisses the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 May 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Valeriu Griţco
Deputy Registrar President