CASE OF TANDOĞAN v. TURKEY (European Court of Human Rights) Application no. 27300/12

The case concerns the alleged unfairness of the criminal proceedings against the applicant on account of the systemic restriction imposed on his right to a lawyer stemming from Law no. 3842 and the subsequent use by the trial court, in convicting the applicant, of statements that he and his co‑accused F.G. had made in the absence of a lawyer.


SECOND SECTION
CASE OF TANDOĞAN v. TURKEY
(Application no. 27300/12)
JUDGMENT
STRASBOURG
13 July 2021

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

In the case of Tandoğan v. Turkey,

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

Carlo Ranzoni, President,
Valeriu Griţco,
Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having regard to:

the application (no. 27300/12) 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 Kenan Tandoğan (“the applicant”), on 16 April 2012;

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

the parties’ observations;

Having deliberated in private on 22 June 2021,

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

INTRODUCTION

1. The case concerns the alleged unfairness of the criminal proceedings against the applicant on account of the systemic restriction imposed on his right to a lawyer stemming from Law no. 3842 and the subsequent use by the trial court, in convicting the applicant, of statements that he and his co‑accused F.G. had made in the absence of a lawyer.

THE FACTS

2. The applicant was born in 1976 and lives in Istanbul. He was represented before the Court by Mr M. Dikan, 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 31 March 1994 the applicant was arrested by police officers from the Anti-Terrorist Branch of the Istanbul Security Directorate in connection with an operation conducted against an illegal organisation, namely Dev‑Sol (Revolutionary Left). He was accused of having committed certain offences falling within the jurisdiction of the State security courts. Subsequently, the applicant made incriminatory statements to the police in the absence of a lawyer concerning, in particular, his involvement in the killing of three police officers.

6. On 9 April 1994 the applicant was brought before the public prosecutor. He exercised his right to remain silent, stating that he did not wish to give any statement.

7. On the same day, the applicant was questioned by the investigating judge in the absence of a lawyer. The applicant rejected the statements he had made to the police and denied the charges against him. At the end of the hearing, he was remanded in custody.

8. On 22 November 1993 a co-accused, F.G., made incriminatory statements in respect of the applicant to the police in the absence of a lawyer. On 27 October 2004 the Istanbul Assize Court acquitted F.G. of the killing of three police officers owing to insufficient evidence. In its reasoned judgment, the Istanbul Assize Court emphasised that there was no evidence, except for the incriminatory statements F.G. had made to the police.

9. On 2 May 1994 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant together with twenty other co-accused. The prosecutor charged the applicant with attempting to undermine the constitutional order by force under Article 146 of the former Criminal Code on the grounds, in particular, of his involvement in the killing of three police officers.

10. On 7 July 1994, at the first hearing in the case, the applicant gave evidence in person and denied the charges against him. When asked about his statements before the police, the applicant denied them.

11. On 25 December 2009 the Istanbul Assize Court found the applicant guilty under Article 146 of the former Criminal Code of attempting to undermine the constitutional order by force and sentenced him to sixteen years and eight months’ imprisonment. In this respect, the court relied on, inter alia, the statements the applicant and his co-accused had made in the absence of a lawyer. On 23 September 2011 the Court of Cassation upheld the first-instance court’s judgment.

RELEVANT LEGAL FRAMEWORK

12. 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

13. The applicant alleged that he had been denied legal assistance during the preliminary investigation stage. He further alleged that he had been convicted on the basis of the statements he and his co-accused had made in the absence of a lawyer and under duress during the preliminary investigation stage.

14. The Court will examine this complaint under Article 6 §§ 1 and 3 (c) of the Convention, which read 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

15. The Government argued that the applicant had failed to exhaust domestic remedies in respect of his complaints, as he had filed a petition indicating his intention to appeal against the domestic court’s judgment of 25 December 2009, but neither he nor his lawyer had submitted a detailed notice of appeal. As a result, his appeal before the Court of Cassation had contained no complaint to the effect that he and his co-accused had been denied the assistance of a lawyer when making statements to the police. Thus, the complaint had to be rejected for non-exhaustion of domestic remedies

16. The applicant argued that he had exhausted all domestic remedies available to him before lodging the present application.

17. As regards the complaints concerning the use of the statements that F.G. made under alleged duress and in the absence of a lawyer as well as those that the applicant had made under alleged duress, both in the course of the preliminary investigation stage, the Court notes that the applicant failed to raise those complaints before the Court of Cassation. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

18. With regard to the applicant’s complaint concerning the systemic restriction imposed on his right to a lawyer and the use by the trial court of the statements he had made without a lawyer being present in the course of the preliminary investigation stage, the Court notes that it has already examined a similar objection in Halil Kaya v. Turkey (no. 22922/03, §§ 13‑14, 22 September 2009) and dismissed it, finding that the restriction imposed on the applicant’s right of access to a lawyer had been in accordance with section 31 of Law no. 3842, and that it had applied to anyone held in police custody in connection with an offence falling under the jurisdiction of the State security courts. The Court therefore dismisses the Government’s plea of non-exhaustion in respect of this complaint.

19. The Court notes that this complaint is not inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

20. The applicant complained that he had been deprived of legal assistance during the preliminary investigation stage and that his statements given in the absence of a lawyer had been used by the trial court to convict him.

21. The Government submitted that, in convicting the applicant, the domestic courts had not only relied on his statements given in the absence of a lawyer, but also on other evidence, such as bomb-making materials that had been seized from his house and organisational documents found on him during his arrest. Therefore, the applicant’s statements were not the sole or decisive evidence upon which his conviction had been based. Accordingly, the Government contended that the absence of a lawyer while the applicant was in police custody had not irretrievably prejudiced the overall fairness of the proceedings.

2. The Court’s assessment

22. 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 he had given while in police custody in the absence of a lawyer, the Court observes that in Beuze v. Belgium ([GC], no. 71409/10, 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 the applicant’s right to a lawyer stemmed from the statutory provisions and was hence 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 as a whole were fair.

23. The Court has already examined the same legal question and found violations of Article 6 §§ 1 and 3 (c) of the Convention in a number of cases against Turkey, both before and after the above-mentioned judgment in Ibrahim and Others (for the Court’s approach prior to Ibrahim and Others, see Salduz, cited above; İrmak v. Turkey, no. 20564/10, 12 January 2016; İbrahim Öztürk v. Turkey, no. 16500/04, 17 February 2009; Ditaban v. Turkey, no. 69006/01, 14 April 2009; Halil Kaya, cited above; Eraslan and Others v. Turkey, no. 59653/00, 6 October 2009; and Galip Doğru v. Turkey, no. 36001/06, 28 April 2015; for the Court’s approach following Ibrahim and Others, see Bayram Koç v. Turkey, no. 38907/09, 5 September 2017; İzzet Çelik v. Turkey, no. 15185/05, 23 January 2018; Girişen v. Turkey, no. 53567/07, 13 March 2018; Canşad and Others v. Turkey, no. 7851/05, 13 March 2018; Ömer Güner v. Turkey, no. 28338/07, 4 September 2018; Mehmet Duman v. Turkey, no. 38740/09, 23 October 2018).

24. 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 the procedural shortcoming has been remedied in the course of the ensuing proceedings, the lack of an assessment to that effect in itself being prima facie incompatible with the requirements of a fair trial in accordance with 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).

25. Turning to the circumstances of the present case, the Court notes that the applicant’s access to a lawyer was restricted pursuant to Law no. 3842 and was, as such, a systemic restriction applicable at the time of his arrest (see Salduz, cited above, § 56).

26. 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.

27. The Court notes that although the applicant, when questioned by the investigating judge, had rejected the incriminating statements he had made to the police on 9 April 1994, 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 in securing his conviction (see Beuze, cited above, §§ 171-74, where the Court held that this examination lay at the heart of the second stage of the test set out in Salduz and Ibrahim and Others, both cited above; 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 this shortcoming. Even though the Government submitted that the domestic courts had not only relied on the applicant’s statements given in the absence of a lawyer, but also on other evidence such as bomb-making materials that had been seized from his house and organisational documents found on him during his arrest, the Court observes that the Government failed to establish a reasonable link between the acts forming part of his conviction and those pieces of evidence. Therefore, 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.

28. 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 is incompatible with Article 6 of the Convention.

29. Accordingly, 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.”

31. The applicant claimed 50,000 euros (EUR) in respect of pecuniary damage, asserting that his private and working life had been ruined.

32. The applicant further claimed EUR 50,000 in respect of non-pecuniary damage and EUR 10,000 in respect of costs and expenses.

33. The Government contested those claims.

34. The Court rejects the claim in so far as it concerns pecuniary damage, as it finds no causal link between the violation found and the pecuniary damage alleged. It also dismisses the claim for costs and expenses, as the applicant submitted no documentary proof in support of that claim.

35. 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 given the possibility under Article 311 of the Code of Criminal Procedure of having the domestic proceedings reopened in the event that the Court finds a violation of the Convention. It therefore makes no award under this head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 6 §§ 1 and 3 (c) of the Convention concerning the systemic restriction imposed on the applicant’s right to a lawyer during the preliminary investigation stage and the use by the domestic courts of the statements he had made in the absence of a lawyer 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 remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 13 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı                                        Carlo Ranzoni
Deputy Registrar                                       President

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