Last Updated on November 2, 2019 by LawEuro
SECOND SECTION
CASE OF AYDEMİR v. TURKEY
(Application no. 21163/08)
JUDGMENT
STRASBOURG
27 February 2018
This judgment is final but it may be subject to editorial revision.
In the case of Aydemir v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 6 February 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 21163/08) 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 Hasbi Aydemir (“theapplicant”), on 24 April 2008.
2. The applicant was represented by Mr İ. Akmeşe and Mr H. Çalışçı lawyers practising in Istanbul. The Turkish Government (“theGovernment”) were represented by their Agent.
3. On 13 April 2011 the application was communicated to the Government.
4. On 24 January 2017 the Vice-President of the Second Section invited the Government to submit further observations, if they wish, in the light of the judgment in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, ECHR 2016).
5. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it (see Yivli v. Turkey, no.12723/11, 14 November 2017).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1969 and is detained in Tekirdağ.
7. On 13 February 1999, the applicant was arrested during an operation carried outagainst an illegal organisation,namely the PKK (the Kurdistan Workers’ Party),at which time he was found to be in possession of a fake identity card.
8. On 15 February 1999 the applicant was interrogated by police officers at the Istanbul Security Headquarters in the absence of a lawyer pursuant to Law No. 3842, which at the time of the applicant’s arrest provided for a systemic restrictionin respect of offences falling within the jurisdiction of the State Security Courts.
9. The applicant admitted in his statement that he was a member of the organisation in question and gave information about a number of activities in which he had participated, including armed activities.
10. On 18 February 1999 statements were takenfrom the applicant by the Istanbul public prosecutor in the absence of a lawyer. The applicant stated that he was a member of the illegal organisation in question,that he had joined them in a rural area, and that he had afterwards tried to collect money for the organisation in Istanbul. However, he withdrew the statements he had made to the police, maintaining that he had not participated in any other activity for the illegal organisation. He alleged that he had given those statements to the police under duress.
11. On the same day the applicant was questioned by the investigating judge, onceagain in the absence of a lawyer. He confirmed the statement he had made to the public prosecutor, but withdrew the one he had made to the police. The investigating judge ordered the applicant’s pre-trial detention.
12. On 19 March 1999 the public prosecutor at the Diyarbakır State Security Courtfiled an indictment with the Diyarbakır State Security Court, charging the applicant under Article 125 of the former Turkish Criminal Code with membership of an illegal organisation and involvement in separatist activities against the Republic of Turkey.
13. On 5 June 1999 Diyarbakır State Security Court declared that it had no jurisdiction to examine the case and transferred the file to the Istanbul State Security Court.
14. At a hearing held on 18 February2000, the applicant stated that he had not been able to see his lawyer to prepare his defence and requested time to do so. The applicant was granted time to prepare his defence.
15. At a hearing held on 1 September 2000, the applicant gave evidence in person and denied all the charges. He stated that he had given his previous statements under duress.
16. At a hearing held on 14 November 2001 the applicant stated that he was a member of the illegal organisation, buthad carried out only political activities for the organisation and not armed activities.
17. On 1 July 2003 another set of criminal proceedings brought against the applicant, which had been pending since 1994 and concerningchargesrelated to membership of the PKK and taking part in activities for that illegal organisation, was merged with the one that had been initiated in 1999.
18. The State Security Courts were later abolished by Law no. 5190 of 16 June 2004 and the case was transferred to the Istanbul Assize Court.
19. On 16 September 2004 Istanbul Assize Court held that the applicant had committed an offence under Article 125 of the former Criminal Code and sentenced him to life imprisonment. The court based its decision, inter alia, on the applicant’s statements to the police, the public prosecutor and the investigating judge, and other witness statements taken by the police and the public prosecutor.
20. On 3 May 2005 the Court of Cassation quashed the decision of 16 September 2004 on the grounds that the details of a number of PKKactivities for which the applicant had been held responsible had not been discussed in the decision in depthand that the case file lacked the necessary official reports.
21. The applicant was tried afresh before the Istanbul Assize Court. A number of hearings took place during the trial. The applicant claimed during the trial that his statements during the preliminary investigation had beenmade under duress and he asked to be allowed to confront and examine a certain witness, namely S.K., whose statements had been relied on by the prosecutor in the indictment. His request to examine that witness was rejected.
22. On 1 February 2007 Istanbul Assize Court found the applicant guilty of committing an offence under Article 125 of the former Criminal Code and again sentenced him to life imprisonment.
23. On 9 October 2007 the Court of Cassation upheld the decision of 1 February 2007.
II. RELEVANT DOMESTIC LAW
24. 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).
25. On 15 July 2003 Law no. 4928 repealed Section 31 of Law no. 3842, whereby the restriction on an accused’s right of access to a lawyer in proceedings before the State Security Courts was lifted.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6§§1 AND 3 (c) OF THE CONVENTION
A. Lack of legal assistance available to the applicant during the preliminary investigation
26. The applicant alleged that his defence rights had been violated as he had been denied access to a lawyer during the preliminary investigation. In this connection he relied on Article 6 § 3 (c) of the Convention. He also maintained under the same Article that his police statements, which had been made under duress and in the absence of a lawyer, had been used by the trial courtto convict him.Article 6 §§ 1 and 3 (c) of the Convention, in so far as relevant, reads as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … 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;
…”
1. Admissibility
27. The Court notes that this 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.
2. Merits
28. The applicant stated that the restriction on his right to legal assistance during the preliminary investigation had breached his right to a fair hearing.
29. Referring to the Court’s judgment in the case of Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008), and Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, ECHR 2016), the Government submittedthatthere had been compelling reasons for delaying access to legal advice, given that the applicant had been arrested during an operation against a terrorist organisation while carrying a fake identity card.They further submitted,in a general manner and without giving any details, that many lives had been at risk, that there had been an urgent need to obtain information on potential planned attacks, and that the police had been hampered by severe practical constraints.
30. The Government further maintained that the absence of legal assistance in the initial stages of the investigation had not irretrievably prejudiced the applicant’s defence rights. They noted that the applicant had been convicted on the basis ofvariousitems of evidence contained in the case file, including physical evidence such as ballistic and autopsy reports, witness statements, and the applicant’s own statements before the domestic courts.
31. The Court notes that the applicant’s access to a lawyer was restricted by virtue of Law no. 3842 and was as such a systemic restriction applicable at the time of the applicant’s arrest (Salduz, cited above, § 56). The Court does not consider it necessary to examine whether the systematic nature of the restriction on the applicant’s right of access to a lawyer was, in itself, sufficient to find a violation of Article 6 §§ 1 and 3 (c) of the Convention, as, in any event, the Government have not offered any compelling reasons specific to the circumstances of the case for the restriction or demonstrated that the absence of legal assistance at the initial stage of the investigation did not irretrievably prejudice the applicant’s defence rights (Salduz, cited above, § 58, and Ibrahim and Others, cited above, § 274). In that respect, the Court notes that in convicting him, the first-instance court relied on the applicant’s statements to the police. Moreover, it did not examine the admissibility of evidence at the trial. Likewise, the Court of Cassation dealt with this issue in a formalistic manner and failed to remedy this shortcoming (Bayram Koç v. Turkey, no.38907/09, § 23, 5 September 2017).
32. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
B. Length of criminal proceedings against the applicant
33. The applicant further complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
34. The Government noted that, pursuant to Law no. 6384, a Compensation Commission has been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that the applicant had not exhausted domestic remedies as he had not made an application to that Compensation Commission. This argument had also been recognised by the Court in its decision in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).
35. The Court notes that in its decision in the case of Ümmühan Kaplan(no. 24240/07, 20 March 2012) it stressed that it could pursue the examination of such complaints under the normal procedure in cases which had already been communicated to the Government prior to the entry into force of the new remedy.
36. However, taking account of the Government’s preliminary objection with regard to the applicants’ failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others(cited above). It therefore concludes that the complaint in regard to the excessive length of the criminal proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see Rifat Demir v. Turkey, no. 24267/07, § 35, 4June 2013, and Yiğitdoğan v. Turkey (no.2), no. 72174/10, § 59, 3 June 2014).
C. Other alleged breaches of the fairness of the proceedings
37. The applicant further complained under Article 6 of the Convention that he had not received a fair trial by an independent and impartial court, that he had not been represented by a lawyer during the trial stage until 22 September 2005, that he had been unable to question, confront and examine a key witness, and that at the appeal stage he had not received the written opinions of the public prosecutor at the Court of Cassation. The applicant also complained that that there was no effective remedy under Turkish law in respect of his complaints under Article 6.
38. In the light of all the material in its possession and of its findings under Article6 § 3 (c) in conjunction with Article 6 § 1 of the Convention, and without taking a position on the remaining complaints raised by the applicant regarding the fairness of the proceedings, the Court considers that no separate examination of the remaining complaints concerning the fairness of proceedings is necessary (see Tezcan Uzunhasanoğlu v. Turkey, no. 35070/97, § 23, 20 April 2004; Geçgel and Çelik v. Turkey, nos. 8747/02 and 34509/03, § 16, 13 October 2009; and Türk v. Turkey, no. 22744/07, §§60‑61, 5 September 2017).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
39. The applicant further complained under Article 5 § 3 about the length of his police custody and the length of his detention on remand. The applicant also invoked Article 5 §§ 4 and 5 of the Convention.
40. The Court notes that the applicant’s police custody ended on 18 February 1999 andthat he was convicted on 1 February 2007.His conviction was upheld by the Court of Cassation on 9 October 2007. The applicant’s detention on remand ended on 1 February 2007, but he did not lodge his application with the Court until 24 April 2008. Accordingly, the Court must reject those complaints pursuant to Article 35 §§ 1 and 4 of the Convention as having been lodged outside the six-month time-limit.
41. Lastly, the applicant complained that the length of his detention violated his right to presumption of innocence.
42. In the light of all the material in its possession and in so far as the matter complained of is within its competence, the Court concludes that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects it as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
43. The applicant claimed 70,000 euros (EUR) in respect of non‑pecuniary damage. The applicant also claimed 7,780Turkish liras (TRY) (approximately EUR3,180) in respect of lawyers’ fees. In that connection, he submitted two invoices produced by his lawyers. He further claimed TRY1,300 (approximately EUR530) for other costs and expenses incurred before the Court such as stationary, postage and translation fees. He did not submit any documents in support of those expenses.
44. The Government contested the amount in respect of non-pecuniary damage, submitting that it was excessive and unsubstantiated. They further submitted that the applicant had failed to support his claim for costs and expenses with documentary evidence.
45. The Court observes that it has found a violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case. It cannot speculate as to the outcome of the proceedings against the applicant had there been no breach of the Convention (see Ibrahim and Others, cited above, § 315). In this connection, it notes that Article 311 of the Code of Criminal Procedure allows the possibility to reopen proceedings. It considers therefore 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 (see Salduz, cited above, § 72, and Abdulgafur Batmaz v. Turkey, no. 44023/09, § 58, in fine, 24 May 2016). It thus concludes that in these circumstances the finding of a violation constitutes in itself sufficient just satisfaction.
46. As regards the costs and expenses, the Court observes that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR1,500 covering costs under all heads.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints concerning Article 6 §§ 1 and 3 (c)of the Convention admissible and the remainder of the application inadmissible;
2. Holdsthat there has been a violation of Article 6 §§ 1 and 3 (c)of the Convention;
3. Holdsthat there is no need to examine the remaining complaints under Article 6 of the Convention;
4. Holdsthat the finding of a violation constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicant;
5. Holds
(a) that the respondent State is to pay the applicant, within three monthsthe following amounts,to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement:
(i) EUR1,500 (one thousand five hundred euros), plus any tax that may be chargeable,in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 27 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Ledi Bianku
Deputy Registrar President
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