Last Updated on June 15, 2021 by LawEuro
The application concerns the alleged unfairness of criminal proceedings against the applicant on account of the systemic denial of his right to a lawyer during his time in police custody on the basis of Law no. 3842, and the domestic courts’ reliance on evidence which he allegedly gave under torture and in the absence of a lawyer to convict him. It further pertains, under Article 6 § 1 of the Convention, to the alleged breach of the principle of equality of arms on account of the deficient manner in which evidence was collected and examined during the trial.
SECOND SECTION
CASE OF SARAR v. TURKEY
(Application no. 74345/11)
JUDGMENT
STRASBOURG
15 June 2021
This judgment is final but it may be subject to editorial revision.
In the case of Sarar v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Aleš Pejchal, President,
Egidijus Kūris,
Carlo Ranzoni, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 74345/11) 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 Sarar (“the applicant”), on 18 November 2011;
the decision to give notice to the Turkish Government (“the Government”) of the complaints concerning the systemic restriction imposed on the applicant’s right to a lawyer, the domestic courts’ use of his statements obtained under alleged duress and in the absence of a lawyer to convict him and their failure to respect the principle of equality of arms, and the decision to declare inadmissible the remainder of the application;
the decision to reject the Government’s objection to examination of the application by a Committee;
the parties’ observations;
Having deliberated in private on 18 May 2021,
Delivers the following judgment, which was adopted on that date:
1. The application concerns the alleged unfairness of criminal proceedings against the applicant on account of the systemic denial of his right to a lawyer during his time in police custody on the basis of Law no. 3842, and the domestic courts’ reliance on evidence which he allegedly gave under torture and in the absence of a lawyer to convict him. It further pertains, under Article 6 § 1 of the Convention, to the alleged breach of the principle of equality of arms on account of the deficient manner in which evidence was collected and examined during the trial.
THE FACTS
2. The applicant was born in 1970 and lives in France. The applicant was represented by Mrs G. Tuncer, a lawyer practising in Istanbul.
3. The Government were represented by their Agent.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 5 April 2001 the applicant was arrested on suspicion of being involved in the Revolutionary Communists’ Union of Turkey (“the TIKB”, Türkiye İhtilalci Komünistler Birliği). At 11.30 p.m. on the same day a doctor who examined the applicant at Haseki Hospital made the following observations: he had ecchymosis on his forehead and face, ecchymosis and swelling on his nose, rashes on both sides of his neck, and pain in different parts of his body.
6. On 7 April 2001 police officers carried out a search at a house which the applicant had allegedly indicated was a house belonging to a political cell, and found, inter alia, guns and cartridges.
7. On 9 April 2001 at 7.25 p.m. the applicant was examined by a doctor at Haseki Hospital who requested that the applicant have consultations with the internal medicine department and noted no signs of ill-treatment.
8. On 10 April 2001 the applicant gave statements to the police in the absence of a lawyer, admitting that he had been a member of the TIKB. He also gave detailed information concerning the organisation and its members. On the same day the applicant took part in a photo identification procedure, again in the absence of a lawyer, and identified sixteen TIKB members from their photographs. On the same day the applicant also participated in five different reconstructions of events without a lawyer being present, and made of confessions about how he and other TIKB members had committed certain offences.
9. On 11 April 2001 at 10.20 a.m. the applicant once again underwent a medical examination by a doctor at Haseki Hospital and complained of chest pain. Following his examination, the doctor concluded that the applicant’s complaint stemmed from myalgia.
10. On 12 April 2001, at the end of his time in police custody, the applicant underwent a medical examination by a doctor at the Istanbul State Security Court’s branch of the Forensic Medical Institute, and he complained that police officers had beaten and ill-treated him. The doctor concluded, on the basis of that examination and the applicant’s previous medical examinations on 5, 9 and 11 April 2001, that he would be unfit for work for five days.
11. On the same day, 12 April 2001, the applicant was brought before the public prosecutor, who took statements from him in the absence of a lawyer. The applicant rejected the content of the reports concerning the reconstructions of events and the statements he had made to the police, arguing that he had had to sign them because he had been sleep deprived and subjected to duress by the police officers.
12. Later the same day the applicant was questioned by the investigating judge in the absence of a lawyer. The applicant once again rejected the statements he had made to the police, submitting that they had been extracted under torture and duress, and he denied owning the material found at the house. At the end of the hearing the applicant was remanded in custody.
13. On 16 April 2001 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant with that court, charging him under Article 146 of the then Criminal Code with attempting to undermine the constitutional order by force.
14. Between 2001 and 2008 numerous hearings were held before the trial court, during which some witnesses were examined, further evidence was collected, certain forensic examinations were ordered and the parties’ submissions were heard.
15. On 4 February 2008 the applicant’s lawyer filed submissions with the trial court wherein she asked it to take additional steps to collect and examine further evidence with a view to extending the scope of the investigation. Referring to the medical reports drawn up in respect of the applicant, she asked the trial court: (i) to disregard the evidence which the applicant had given during his time in police custody, because it had been obtained as a result of ill-treatment; (ii) to refer the applicant to the Forensic Medicine Institute for a medical examination, so as to find out whether he had been subjected to torture in police custody; and (iii) to inquire as to the outcome of the applicant’s ill-treatment allegations by asking for information from the relevant authorities.
16. At a hearing held on 13 May 2009, and in line with the applicant’s lawyer’s submissions dated 4 February 2008, the trial court decided to send the applicant’s complaints regarding his alleged ill-treatment in police custody to the Fatih public prosecutor’s office, together with the medical reports drawn up in respect of him during that period. However, the trial court rejected his application for a further inquiry into this issue, holding that the case file contained no document showing that a case dealing with the applicant’s torture allegations actually existed.
17. At a hearing held on 19 February 2010 the trial court noted that the response it had received from the Fatih public prosecutor’s office did not contain decisions on the applicant’s complaints of ill-treatment.
18. On 14 May 2010 the Istanbul Assize Court noted that it had received the Fatih public prosecutor’s office’s decision not to bring a prosecution in respect of the applicant’s complaints. At the end of that hearing the Istanbul Assize Court found the applicant guilty under Article 146 of the then Criminal Code and sentenced him to life imprisonment. The trial court relied on, inter alia, the statements which the applicant had given to the police and the public prosecutor, the reports of the reconstructions of events and an on-site inspection, incident reports, and the statements that some co-defendants had made. The trial court did not carry out an examination regarding the admissibility of the evidence obtained in the absence of a lawyer or the effects of the absence of a lawyer. Nor did it make any mention of the medical reports drawn up in respect of the applicant or the finding contained in the medical report dated 12 April 2001 declaring the applicant unfit for work for five days.
19. On 18 April 2011 the Court of Cassation ordered the applicant’s release, finding that his detention had exceeded the then statutory maximum of ten years.
20. On 15 June 2011 the Court of Cassation upheld the trial court’s judgment.
RELEVANT LEGAL FRAMEWORK
21. A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 27‑31, ECHR 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION
22. The applicant complained that he had not had a fair trial, given that the domestic courts had used the evidence that he had given during his time in police custody which had been obtained by torture and in the absence of a lawyer. The applicant relied on Article 6 §§ 1 and 3 (c) of the Convention, which reads 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
23. The Court notes that those complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible.
B. Merits
1. The parties’ submissions
24. The applicant’s lawyer stated that she would not submit additional observations in reply to those of the Government, arguing that such an effort would be meaningless and futile in the light of the Court’s current practice and “understanding of the law”. Accordingly, she submitted that she and the applicant would await the Court’s judgment, so as to use the ostensible right to a retrial before the domestic courts.
25. The Government submitted that in convicting the applicant, the domestic courts had relied not only on his statements given in the absence of a lawyer, but also on other evidence such as the statements of other witnesses which corroborated each other, identification reports, the reports concerning the reconstructions of events, and organisational documents and explosives seized at the house that the applicant had indicated to the authorities after his arrest. Therefore, the applicant’s statements were not the sole or decisive evidence upon which his conviction had been based. Accordingly, the Government considered that the absence of a lawyer during the applicant’s time in police custody had not irretrievably prejudiced the overall fairness of the proceedings.
2. The Court’s assessment
26. As regards the applicant’s complaint regarding the systemic restriction imposed on his right to a lawyer and the subsequent use by the trial court of the evidence which he had given during his time in police custody and in the absence of a lawyer, the Court reiterates that in Beuze v. Belgium ([GC], no. 71409/10, § 144, 9 November 2018) it affirmed that the test clarified in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, 13 September 2016) should also be applied in cases where the restriction on an applicant’s right to a lawyer stemmed from statutory provisions and was therefore systemic. Thus, the Court must examine the following factors when faced with such complaints: (i) whether there was a restriction on the right to a lawyer; (ii) whether there were compelling reasons for the restriction; and (iii) whether the proceedings were fair as a whole.
27. The Court has already examined the same legal problem and found violations of Article 6 §§ 1 and 3 (c) of the Convention in cases against Turkey both before and after the above-mentioned judgment in Ibrahim and Others (for the Court’s approach prior to the Ibrahim and Others judgment, see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008; Irmak v. Turkey, no. 20564/10, 12 January 2016; Galip Doğru v. Turkey, no. 36001/06, 28 April 2015; Eraslan and Others v. Turkey, no. 59653/00, 6 October 2009; Halil Kaya v. Turkey, no. 22922/03, 22 September 2009; Ditaban v. Turkey, no. 69006/01, 14 April 2009; and İbrahim Öztürk v. Turkey, no. 16500/04, 17 February 2009; and for the Court’s approach following the judgment in Ibrahim and Others, see Mehmet Duman v. Turkey, no. 38740/09, 23 October 2018; Ömer Güner v. Turkey, no. 28338/07, 4 September 2018; Canşad and Others v. Turkey, no. 7851/05, 13 March 2018; Girişen v. Turkey, no. 53567/07, 13 March 2018; İzzet Çelik v. Turkey, no. 15185/05, 23 January 2018; and Bayram Koç v. Turkey, no. 38907/09, 5 September 2017).
28. Moreover, the Court considers that where a procedural defect has been identified, it falls to the domestic courts in the first place to carry out an assessment as to whether that procedural shortcoming has been remedied in the course of ensuing proceedings, the lack of an assessment in that regard in itself being prima facie incompatible with the requirements of a fair trial according to Article 6 of the Convention. In the absence of any such assessment, the Court must nevertheless make its own determination. However, 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 criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer (see Ibrahim and Others, cited above, § 265, and Beuze, cited above, § 145).
29. Turning to the circumstances of the present case, the Court notes that the applicant’s access to a lawyer was restricted on the basis of Law no. 3842, and was as such a systemic restriction applicable at the time of the applicant’s arrest (see Salduz, cited above, § 56).
30. The Court reiterates that restrictions on access to a lawyer for compelling reasons, at the pre-trial stage, 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. Reiterating that the existence of exceptional circumstances which satisfy the substantive requirement of compelling reasons does not automatically provide adequate justification for limiting suspects’ access to legal advice, the Court notes that a statutory restriction of the kind described in the above paragraph, which excludes any individual assessment, cannot stand up to scrutiny in relation to the procedural requirements of the concept of “compelling reasons” (see Beuze, cited above, §§ 138 and 142). Furthermore, the Government have not established any compelling reasons either, and it is not for the Court to ascertain such circumstances of its own motion (see Beuze, cited above, § 163). Hence, the Court considers that in the present case there were no compelling reasons to restrict the applicant’s right to a lawyer while in police custody.
31. The Court notes that although on 12 April 2001 the applicant had already, before the public prosecutor, rejected the incriminating statements he had made to the police, the trial court examined neither the admissibility of the evidence given by the applicant in the absence of a lawyer nor the circumstances in which those statements had been given before using them to convict him (see Beuze, cited above, §§ 171-174, where the Court held that such an examination lay at the heart of the second stage of the test set out in the judgments in Salduz and Ibrahim and Others; see also Mehmet Duman, cited above; § 41; Ömer Güner, cited above, § 36; Canşad and Others, cited above § 44; Girişen, cited above, § 60; İzzet Çelik, cited above, § 38; and Bayram Koç, cited above, § 23). Likewise, the Court of Cassation dealt with this issue in a formalistic manner and failed to remedy that shortcoming. Moreover, the Government have not demonstrated that the absence of legal assistance at the initial stage of the investigation, exceptionally and in the specific circumstances of the case, did not irretrievably prejudice the applicant’s defence rights.
32. The foregoing considerations are sufficient for the Court to conclude that the overall fairness of the criminal proceedings against the applicant was prejudiced to an extent that was incompatible with Article 6 of the Convention.
33. Accordingly, there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
34. The applicant further complained under Article 6 § 1 of the Convention that the trial court’s use of evidence which he had given under duress during his time in police custody and its dismissal of his application for the collection of additional evidence disclosed a violation of his right to a fair trial under Article 6 of the Convention.
35. Having regard to its conclusion under Article 6 §§ 1 and 3 (c) of the Convention (see paragraph 33), the Court considers that it is not necessary to examine separately the remaining complaints raised under Article 6 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
36. 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.”
37. The applicant did not submit any claim under Article 41 of the Convention. Therefore, the Court makes no award under this head.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;
3. Holds that there is no need to examine the remaining complaints under Article 6 of the Convention.
Done in English, and notified in writing on 15 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Aleš Pejchal
Deputy Registrar President
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