CASE OF CAKMAK AND OTHERS v. TURKEY (European Court of Human Rights)

SECOND SECTION
CASE OF ÇAKMAK AND OTHERS v. TURKEY
(Application no. 33436/10)
JUDGMENT
STRASBOURG
13 October 2020

This judgment is final but it may be subject to editorial revision.

In the case of Çakmak and Others v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Valeriu Griţco, President,
Arnfinn Bårdsen,
Peeter Roosma, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 33436/10) 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 three Turkish nationals, Ms Meysu Çakmak (Altay), Mr Aydın Nas and Mr Yalçın Kılıç (“the applicants”), on 10 May 2010 indicated in the appended table;

the decision to give notice of the application to the Turkish Government (“the Government”);

the parties’ observations;

Having deliberated in private on 22 September 2020,

Delivers the following judgment, which was adopted on that date:

THE FACTS

1. The applicants were born in 1974, 1984 and 1979 respectively. They were represented by Mr M. Erbil, a lawyer practising in Istanbul.

2. The Government were represented by their Agent.

3. The Government did not object to the examination of the application by a Committee.

4. In January 2004 Ms Çakmak (Altay) (“the first applicant”), Mr Nas (“the second applicant”), and Mr Kılıç (“the third applicant”) were arrested on suspicion of membership of an illegal armed organisation, namely the PKK (the Workers’ Party of Kurdistan).

5. The applicants made incriminatory statements to the police concerning their involvement in the activities of the terrorist organisation in the absence of a lawyer as, according to their statement forms, they did not ask for a lawyer. The third applicant also took part in a reconstruction of events where he had made incriminatory statements in the absence of a lawyer, admitting, notably that he had thrown Molotov cocktails at a bank. The applicants’ subsequent statements had been taken in the presence of their lawyers and had not been incriminatory. The third applicant denied the contents of the statements he had made to the police, alleging that although he had asked for a lawyer, the police officers had taken his statements without one.

6. On 6 February 2004 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against nine individuals, including the applicants, accusing the second and the third applicant of membership of an illegal armed organisation under Article 168 of the then Criminal Code and the first applicant with aiding and abetting an illegal organisation under Article 169 of that Code. The third applicant was also charged with throwing a Molotov cocktail under Article 264 of the same code.

7. On 22 April 2008 the Istanbul Assize Court found the third applicant guilty and sentenced him to: (i) six years and three months’ imprisonment for membership of an illegal armed organisation; (ii) three years and nine months’ imprisonment for storage of hazardous materials; and (iii) one year and eight months’ imprisonment and a fine for causing damage to property. The trial court also convicted the first and the second applicants for aiding and abetting the PKK and sentenced them to three years and nine months’ imprisonment.

8. On 25 April 2011 the Court of Cassation upheld the third applicant’s convictions for membership of an illegal armed organisation and storage of hazardous materials, but overturned his conviction for causing damage to property and the convictions of the first and the second applicant, remitting the case to the Istanbul Assize Court.

9. On 14 August 2012 the Istanbul Assize Court found the first and the second applicants guilty of membership of an illegal armed organisation and sentenced each of them to three years and nine months’ imprisonment. The trial court further convicted the third applicant of causing damage to property and sentenced him to one year and eight months’ imprisonment.

10. According to the two reasoned judgments rendered by the trial court, all of the accused who had made incriminatory statements to the police in the absence of their lawyers had denied those statements either before the public prosecutor or before the investigating judge. However, the trial court relied on, inter alia, the applicants’ police statements to convict them without subjecting them to scrutiny and examining their inadmissibility or the circumstances surrounding the applicants’ waivers.

11. On 2 July 2014 the Court of Cassation upheld the trial court’s judgment.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

12. The relevant domestic law in force at the material time, as well as the 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, §§ 41‑6, 19 February 2019).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (C) OF THE CONVENTION

13. The applicants complained that they had not had a fair trial because they had not been provided with a lawyer during their time in police custody. Article 6 §§ 1 and 3 (c) of the Convention, reads, in so far as relevant, 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.”

A. Admissibility

14. Relying on the Court’s decision in Hasan Uzun v. Turkey ((dec.), no. 10755/13, §§ 68-71, 30 April 2013), the Government raised a preliminary objection alleging that the applicants had failed to lodge an application before the Constitutional Court. Accepting that that remedy had not been available to the applicants at the time they had lodged their applications with the Court, the Government nevertheless argued that once a new domestic remedy was made available to the applicants after the date on which the application had been lodged, that remedy had to be exhausted even in the circumstances where the application was pending before the Court.

15. The applicants did not contest the Government’s argument regarding non-exhaustion of domestic remedies.

16. The Court reiterates that it has already regarded the Constitutional Court as an accessible and effective remedy, which may provide, in principle, direct and speedy redress for violations of the rights and freedoms protected by the Convention, in respect of all decisions that had become final after 23 September 2012 (see Hasan Uzun v. Turkey, cited above, §§ 68-71). Moreover, it was clear from the Constitutional Court’s judgments already delivered that it accepted an extension of its jurisdiction ratione temporis to situations involving a continuing violation which had begun before 23 September 2012 and had been carried out after that date.

17. In the present case, the Court observes that the criminal proceedings against the first and the second applicants as well as those against the third applicant regarding his conviction for causing damage to public property had come to an end on 2 July 2014 with the Court of Cassation’s decision upholding the trial court’s judgment. Accordingly, that part of the application came within the Constitutional Court’s temporal jurisdiction (see Eroğlu v. Turkey (dec.), no. 3114/07, §§ 7-11, 6 February 2018). Nevertheless, according to the documents in its possession, none of the applicants lodged an application with the Constitutional Court.

18. As for the third applicant’s conviction for membership of an illegal armed organisation and storage of hazardous materials which became final with the Court of Cassation’s judgment dated 25 April 2011, the Court discerns no exceptional circumstance capable of requiring the third applicant to use a remedy, namely lodging an individual application with the Constitutional Court, which had not existed at the time he had lodged his application with the Court. The Government did not argue that the third applicant had not exhausted the domestic remedies available to him at the time he had lodged his application. Thus, the Court dismisses the Government’s preliminary objection in as much as it relates to the third applicant’s conviction for membership of an illegal armed organisation and storage of hazardous materials.

19. In view of the above, the Court concludes that the applications of the first and the second applicants and that of the third applicant in so far as it concerns his conviction for causing damage to public property must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

20. The Court further notes that the application of the third applicant in so far as it concerns his conviction for membership of an illegal armed organisation and storage of hazardous materials is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B. Merits

21. The third applicant (“the applicant”) argued that he had not been given the assistance of a lawyer when he had given statements to the police, which were later used by the trial court to convict him.

22. The Government asserted that the applicant had validly waived his right to a lawyer in the light of the documents he had signed while in police custody. In any event, the overall fairness of the criminal proceedings had not been prejudiced by the absence of a lawyer during his police interview in the light of, notably, the strength of the remaining evidence for his conviction.

23. The Court is called upon to examine whether the applicant validly waived his right of access to a lawyer when giving statements to the police on 10 January 2004 on various occasions, given that 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.

24. As for the crime-scene reconstruction carried out on the same date, 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 to his involvement in the incidents.

25. The Court reiterates that it examines complaints concerning the validity of the waiver of the right to a lawyer in the light of the three pronged test developed in Simeonovi (v. Bulgaria [GC], no. 21980/04, §§ 122-144, 12 May 2017), which consists of the following steps: (i) whether the applicant waived his right to legal assistance; (ii) whether there were “compelling reasons” to restrict access to a lawyer; and (iii) whether the overall fairness of the proceedings was ensured. Applying those criteria, the Court has already found in cases against Turkey that a waiver was not valid where an applicant had neither admitted his guilt nor accepted his statements to the police after he had been granted access to a lawyer and had consistently repudiated his confession throughout the ensuing proceedings, in which he had been represented by a lawyer (see Akdağ v. Turkey, no. 75460/10, §§ 48-61, 17 September 2019, and Ruşen Bayar v. Turkey, no. 25253/08, §§ 113-123, 19 February 2019 with further references therein). The Court has also had regard to the indications showing that an applicant had asserted before the domestic courts that he had made an explicit request for legal assistance (contrast Kaytan v. Turkey, no. 27422/05, § 31, 15 September 2015, and Gür v. Turkey (dec.), no. 39182/08, 14 January 2014).

26. The Court observes that those two conditions are also present in the instant case. Thus, it cannot establish beyond any reasonable doubt that the applicant unequivocally, knowingly and intelligently waived his rights under Article 6 of the Convention.

27. When that procedural shortcoming has been examined against the overall fairness of the criminal proceedings, the Court notes that the trial court neither attempted to inquire into the circumstances surrounding the applicant’s waiver nor subjected his incriminatory police statements to scrutiny or examined their admissibility before convicting him to nine years and twelve months’ imprisonment (see Yunus Aktaş and Others v. Turkey, no. 24744/03, § 51, 20 October 2009, and Ekinci v. Turkey, no. 25148/07, § 70, 12 May 2020). Similarly, the Court of Cassation did not remedy them either.

28. The absence of the aforesaid procedural safeguards has already been found to have violated the overall fairness of the criminal proceedings in respect of the same legal question and where the applicants’ statements were used by the national courts to convict them. That is also the case in the present application (see Bozkaya v. Turkey, no. 46661/09, §§ 49-54, 5 September 2017; Türk v. Turkey, no. 22744/07, § 53-9, 5 September 2017; Ruşen Bayar, cited above, §§ 126-136; Canlı, cited above, §§ 43-49; Ekinci, cited above, §§ 75-81; and Akdağ, cited above, §§ 64-71).

29. Accordingly, the Court concludes that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

30. 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.”

Damage, costs and expenses

31. The applicant invited the Court to award him 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,200 in respect of costs and expenses.

32. The Government contested those claims.

33. As for the 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. It further considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 of the Convention, should he so request. 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.

34. The Court rejects also the claims for costs and expenses as the applicant submitted no documentary proof in support of those claims.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the third applicant’s complaints admissible in so far as they concern his conviction for membership of an illegal armed organisation and storage of hazardous materials 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 in respect of the third applicant;

3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the third applicant;

4. Dismisses, the remainder of the third applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı                        Valeriu Griţco
Deputy Registrar                    President


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