SECOND SECTION
\nCASE OF KORKMAZ v. TURKEY
\n(Application no. 35935\/10)
\nJUDGMENT
\nSTRASBOURG
\n13 October 2020<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Korkmaz v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n Valeriu Gri\u0163co, President, Having regard to:<\/p>\n the application (no. 35935\/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 (\u201cthe Convention\u201d) by a Turkish national, Mr Ayvaz Korkmaz (\u201cthe applicant\u201d), on 20 April 2010;<\/p>\n the decision to give notice of the application to the Turkish Government (\u201cthe Government\u201d);<\/p>\n the parties\u2019 observations;<\/p>\n Having deliberated in private on 22 September 2020,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n THE FACTS<\/strong><\/p>\n 1. The applicant was born in 1966 and lives in Istanbul. The applicant was represented by Ms N. Sel\u00e7uk and Mr H.B. Sel\u00e7uk, lawyers practising in Istanbul.<\/p>\n 2. The Government were represented by their Agent.<\/p>\n 3. The Government did not object to the examination of the application by a Committee.<\/p>\n 4. The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 5. On 12 January 2000 the applicant was arrested on suspicion of having committed certain offences falling within the jurisdiction of the State Security Courts. As a result, the applicant made incriminatory statements to the police, to the public prosecutor and to the investigating judge in the absence of a lawyer, concerning, in particular, his involvement in the killing of A.N.N.<\/p>\n 6. On 7 July 2008 the Bak\u0131rk\u00f6y Assize Court found that the applicant had incited F.D. to kill A.N.N. and sentenced him to life imprisonment. In doing so, it also relied on the applicant\u2019s statements taken in the absence of a lawyer. On 20 October 2009 the Court of Cassation upheld the RELEVANT LEGAL FRAMEWORK<\/strong><\/p>\n 7. A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([GC] no.\u00a036391\/02, \u00a7\u00a7\u00a027\u201131, ECHR 2008).<\/p>\n THE LAW<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 and 3 (C) OF THE CONVENTION<\/p>\n 8. The applicant complained that he had not had a fair trial owing to the absence of a lawyer during his police interview and the use by the trial court of the statements he had made to the police to convict him. The Court will examine this complaint under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention, the relevant parts of which read as follows:<\/p>\n \u201c1. 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 …<\/p>\n 3. Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (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.\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 9. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 10. The applicant reiterated his claims.<\/p>\n 11. The Government submitted that the fact that the applicant\u2019s statements had been taken in the absence of a lawyer during the preliminary investigation stage had not had any impact on the overall fairness of the proceedings.<\/p>\n 12. In Beuze v. Belgium ([GC], no. 71409\/10, 9 November 2018), the Court affirmed that the test clarified in Ibrahim and Others should also be applied in cases where the restriction on the applicant\u2019s 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)\u00a0whether 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.<\/p>\n 13. The Court has already examined the same legal problem and found violations of Article 6 \u00a7\u00a71 and 3 (c) of the Convention in cases against Turkey both before and after the above-mentioned Ibrahim and Others judgment (for the Court\u2019s approach prior to the Ibrahim and Others judgment, see Salduz v. Turkey [GC], no. 36391\/02, ECHR 2008; no.\u00a020564\/10, 12 January 2016; Galip Do\u011fru v. Turkey, no.\u00a036001\/06, 28\u00a0April 2015; Eraslan and Others v. Turkey, no. 59653\/00, 6\u00a0October 2009; Halil Kaya v. Turkey, no. 22922\/03, 22 September 2009; Ditaban v.\u00a0Turkey, no. 69006\/01, 14 April 2009; and \u0130brahim \u00d6zt\u00fcrk v.\u00a0Turkey, no.\u00a016500\/04, 17\u00a0February 2009; and for the Court\u2019s approach following the Ibrahim and Others judgment, see Mehmet Duman v. Turkey, no.\u00a038740\/09, 23\u00a0October 2018; \u00d6mer G\u00fcner v. Turkey, no. 28338\/07, 4 September 2018; Can\u015fad and Others v. Turkey, no. 7851\/05, 13 March 2018; Giri\u015fen v.\u00a0Turkey, no.\u00a053567\/07, 13 March 2018; \u0130zzet \u00c7elik v.\u00a0Turkey, no.\u00a015185\/05, 23\u00a0January 2018; and Bayram Ko\u00e7 v. Turkey, no.\u00a038907\/09, 5\u00a0September 2017).<\/p>\n 14. 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 the assessment as to whether that 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 according to Article 6 of the Convention. In the absence of any such assessment, the Court must nevertheless make its own determination. In doing so, it is, however, not this Court\u2019s task to embark upon an assessment of evidence so as to determine whether a given procedural shortcoming has or has not irretrievably prejudiced the overall fairness of the proceedings, matters that primarily fall within the domain of the national courts.<\/p>\n 15. Turning to the circumstances of the present case, the Court notes that the applicant\u2019s access to a lawyer was restricted by virtue of Law No.\u00a03842 and was as such a systemic restriction applicable at the time of the applicant\u2019s arrest (Salduz, cited above, \u00a7 56).<\/p>\n 16. 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\u2019\u00a0access 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 \u201ccompelling reasons\u201d (see Beuze, cited above, \u00a7 138). Hence, the Court considers that there were no compelling reasons to restrict the applicant\u2019s right to a lawyer while in police custody.<\/p>\n 17. The Court notes that the trial court neither examined 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 the applicant\u2019s conviction (see Beuze, cited above, \u00a7\u00a7 171-74 where the Court held that this examination lay at the heart of the second stage of the test set out in the Salduz and Ibrahim and Others judgments; Mehmet Duman, cited above; \u00a7 41; \u00d6mer G\u00fcner, cited above, \u00a7\u00a036; Can\u015fad and Others, cited above \u00a7 44; Giri\u015fen, cited above, \u00a7 60; \u0130zzet \u00c7elik, cited above, \u00a7 38; and Bayram Ko\u00e7, cited above, \u00a7 23). Likewise, the Court of Cassation dealt with this issue in a formalistic manner and failed to remedy this shortcoming.<\/p>\n 18. The systemic restriction on the applicant\u2019s right of access to a lawyer, and the national courts\u2019 failure to carry out a Convention-compliant examination vis-\u00e0-vis that shortcoming and to administer the crucial safeguards mentioned above are sufficient to prejudice the overall fairness of the criminal proceedings to an extent that is incompatible with Article\u00a06 of the Convention.<\/p>\n 19. Bearing in mind that it is not this Court\u2019s task in such a case to embark upon an assessment of evidence so as to determine whether a given procedural shortcoming has or has not irretrievably prejudiced the overall fairness of the proceedings, the Court concludes that there has been a violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention.<\/p>\n II. APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 20. Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A. Damage, costs and expenses<\/strong><\/p>\n 21. The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage, EUR 5,000 for legal fees and EUR 1,000 for expenses related to translation. In support of those claims, the applicant submitted a legal fee agreement amounting to EUR 5,000 and two invoices showing that he had paid EUR 1,587 to his lawyer for his case before the Court.<\/p>\n 22. The Government contested those claims.<\/p>\n 23. As for non-pecuniary damage, the Court considers that the finding of a violation of Article 6 \u00a7\u00a7 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.<\/p>\n 24. With regard to costs and expenses, the Court reiterates 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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the awards made in comparable cases (see Salduz, cited above, \u00a7 79; \u0130zzet \u00c7elik v. Turkey, no. 15185\/05, \u00a7\u00a052, 23\u00a0January 2018), the Court finds it reasonable to award EUR 1,000 under this head.<\/p>\n B. Default interest<\/strong><\/p>\n 25. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declares the application admissible;<\/p>\n 2. Holds that there has been a violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention;<\/p>\n 3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;<\/p>\n 4. Holds<\/p>\n (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n (i) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (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;<\/p>\n 5. Dismisses, the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 13 October 2020, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Hasan Bak\u0131rc\u0131 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Valeriu Gri\u0163co
\nArnfinn B\u00e5rdsen,
\nPeeter Roosma, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
\nfirst-instance court\u2019s judgment.<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n