The data of the persons involved in the case has been deleted and anonymized.<\/p>\n
SECOND SECTION SUBJECT MATTER OF THE CASE<\/strong><\/p>\n 1. The application concerns the alleged unfairness of criminal proceedings against the applicants (i) under Article 6 \u00a7 3 (c) of the Convention owing to the alleged invalidity of signed waivers of the applicants\u2019 right to legal assistance while making statements to the police and the use of those statements by the domestic courts in convicting them and (ii) under Article 6 \u00a7 3 (d) of the Convention owing to the third applicant\u2019s alleged inability to question a witness, called S.T.<\/p>\n 2. On 26 December 2007 the Istanbul Assize Court convicted the applicants, pursuant to Article 169 of the former Criminal Code (Law no.\u00a0765), of aiding and abetting an armed gang, namely PKK\/KONGRA-GEL (Workers\u2019 Party of Kurdistan\/People\u2019s Congress of Kurdistan \u2013\u00a0hereinafter \u201cthe PKK\u201d), on the basis of, inter alia, statements which they and three other persons (M.Y., H.\u00c7. and S.T.) had made to the police without a lawyer being present. The court sentenced each of them to three years and nine months\u2019 imprisonment. The trial court found that all three of the applicants had hung illegal banners and that the second and the third applicants had taken part in an unauthorised gathering and had chanted slogans. On 15 December 2010 the Court of Cassation upheld the trial court\u2019s judgment.<\/p>\n THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 and 3 (c) OF THE CONVENTION<\/p>\n 3. The applicants complained under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention that they had not had a fair trial, given that they had not been provided with a lawyer when they had made statements to the police (the first two applicants) and the public prosecutor (the third applicant), and that those statements had later been used by the domestic courts to convict them.<\/p>\n 4. The Government raised a preliminary objection, submitting that the applicants could not claim to be victims of a violation under Article 6 of the Convention, given that they had waived their right to a lawyer, as demonstrated by the documents that they 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 their police interviews in the light of the strength of the remaining incriminating evidence \u2013 notably the fact that the first two applicants had been caught in the act of hanging banners.<\/p>\n 5. As the Government\u2019s preliminary objection is closely linked to the merits of this complaint, the Court joins it thereto. Furthermore, the applicants\u2019 complaint is not manifestly ill-founded within the meaning of Article\u00a035 \u00a7 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 6. The general principles concerning the validity of the waiver of the right to a lawyer have been summarised in ([GC], no.\u00a021980\/04, \u00a7\u00a7 122-144, 12 May 2017) and (no.\u00a025253\/08, \u00a7\u00a7 113-123, 19 February 2019).<\/p>\n 7. The Court notes that the first and second applicants were taken into police custody in good health, as was established in the medical reports drawn up in respect of them on 14 March 2004. However, the medical reports compiled at the end of their police custody indicated that the first and second applicants had been physically unfit to work for one day and three days, respectively. The applicants\u2019 ill-treatment complaints under Article 3 of the Convention were declared inadmissible as being manifestly ill-founded on the grounds that it could not be established \u201cbeyond reasonable doubt\u201d that the police had inflicted ill-treatment on them (no. 34221\/08, 4 October 2011). Nevertheless, the inadmissibility of the applicants\u2019 complaint under Article 3 does not detract from the fact that they were able to put forward a prima facie claim of ill-treatment, the existence of which is sufficient to impair the \u201cunequivocal\u201d nature of their waiver. In particular, the medical report of 16 March 2004 drawn up in respect of the second applicant contained his allegation that the police had stepped on his back while taking his statements and the doctor\u2019s finding that the lesion on his back had rendered him unfit for work for one day. As regards the first applicant, he consistently denied the part of his statement to the police which included his acknowledgement that he had been affiliated with the Independent Youth Movement of the PKK, thereby fulfilling the criterion set down in R.B. (cited above). In view of the above, the Court cannot conclude that the first two applicants validly waived their right to legal assistance.<\/p>\n 8. Furthermore, there were no \u201ccompelling\u00a0reasons\u201d to restrict their access to a lawyer. Crucially, even though the first two applicants\u2019 statements to the police formed an integral part of their conviction, neither the trial court nor the Court of Cassation attempted to enquire about the circumstances surrounding the first two applicants\u2019 waivers nor examined their admissibility (see no. 46661\/09, \u00a7\u00a7 49-54, 5 September 2017; no. 22744\/07, \u00a7\u00a7 53-59, 5 September 2017; cited above, \u00a7\u00a7 126-136; and no. 75460\/10, \u00a7\u00a7\u00a064\u201171, 17\u00a0September 2019).<\/p>\n 9. There has accordingly been a violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention in respect of the first two applicants. By so concluding, the Court also dismisses the Government\u2019s preliminary objection concerning the applicants\u2019 victim status.<\/p>\n 10. In view of its finding in paragraph 17 below, the Court does not consider it necessary to examine the third applicant\u2019s complaint under Article\u00a06 \u00a7\u00a7 1 and 3 (c) of the Convention.<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 and 3 (d) OF THE CONVENTION<\/p>\n 11. The third applicant complained further under Article 6 \u00a7 3 (d) of the Convention that he had not had a fair trial owing to his inability to question S.T.<\/p>\n 12. The Government submitted that the applicant had not raised his complaint during the proceedings before the trial court and criticised him for waiting five years before raising that complaint before the Court of Cassation.<\/p>\n 13. The Court notes that this complaint is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 14. The principles regarding the right to obtain the attendance and examination of witnesses can be found in A. and T. v.\u00a0the United Kingdom ([GC], nos. 26766\/05 and 22228\/06, \u00a7\u00a7 118-51, ECHR 2011), S. v. Germany ([GC], no. 9154\/10, \u00a7\u00a7 100-31, ECHR 2015) and S. v. Turkey, (no. 59453\/10, \u00a7\u00a7 61-66, 17\u00a0November 2020).<\/p>\n 15. While it is true that the third applicant did not ask the trial court to hear S.T. in person, this failure cannot be held against him, given that the trial court, in requesting copies of S.T.\u2019s statements, indicated \u201cS.T., who made statements in respect of ***** [the second applicant]\u201d in its letter dated 29 November 2007 \u2013 that is, approximately one month before the final hearing at which it convicted the applicants. It is therefore reasonable that the third applicant did not ask the trial court to secure S.T.\u2019s presence at that stage of the proceedings. However, the third applicant explicitly raised that issue on the third page of his appeal dated 3 September 2009; he cannot therefore be assumed to have waived that complaint (see M. v. Russia [GC], no. 36658\/05, \u00a7 126, 18 December 2018).<\/p>\n 16. The Court further notes that there was no good reason for S.T.\u2019s non\u2011attendance at the trial. Furthermore, the evidence S.T. carried, at the very least, significant weight in relation to the third applicant\u2019s conviction, having regard, in particular, to the fact that, in S.T.\u2019s statements to the police, the applicant\u2019s participation in a press statement was described within the context of activities undertaken on behalf of the PKK. More importantly, the Court finds it striking that the domestic courts did not examine the admissibility and the reliability of the evidence given by S.T., despite the fact that the public prosecutor, who had taken his statements immediately after his police custody, noted that S.T. had had bruises under his eyes, blood stains on his clothes and a laceration on the back of his head, which had been closed with sutures. Neither did the domestic courts pay heed to the fact that S.T. had made statements to the police without a lawyer being present and had retracted them during the first hearing in his case (compare F.K. v.\u00a0Turkey, no. 53848\/07, \u00a7 49, 16 March 2021). Furthermore, the Court discerns no effective procedural safeguards capable of compensating for the absence of S.T.<\/p>\n 17. In view of the foregoing considerations, the Court concludes that the third applicant was not afforded sufficient safeguards commensurate with the nature of his complaint and the importance of what was at stake for him \u2013\u00a0namely three years and nine months\u2019 imprisonment \u2013 that could have enabled the court to sufficiently test the reliability and truthfulness of the evidence given by S.T., in line with the guarantees of a fair trial under Article\u00a06 of the Convention.<\/p>\n 18. There has therefore been a violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention in respect of the third applicant.<\/p>\n APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n 19. Without submitting any documentary proof in respect of their claims, each applicant claimed 50,000 euros (EUR) in respect of pecuniary damage and a total of 27,878 Turkish liras (approximately EUR 4,295) in respect of costs and expenses.<\/p>\n 20. The Government contested those claims.<\/p>\n 21. The Court considers that the finding of a violation of Article 6 \u00a7\u00a7\u00a01 and\u00a03\u00a0(c) of the Convention constitutes sufficient just satisfaction in respect of the first and second applicants. However, the third applicant must have suffered non-pecuniary damage as a result of the violation of his rights under Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention, which cannot be compensated for solely by the finding of a violation. The Court thus awards the third applicant EUR\u00a05,000 under this head, plus any taxes that may be chargeable to him. It furthermore notes that Article 311 of the Code of Criminal Procedure allows for the reopening of domestic proceedings in the event that the Court finds a violation of the Convention.<\/p>\n 22. Lastly, the applicants\u2019 claims in respect of costs and expenses must be rejected, regard being had to the terms of Rule 60 \u00a7 2 of the Rules of Court and the applicants\u2019 failure to provide the Court with any documents in support of their claims.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Decides to join to the merits the Government\u2019s objection relating to the applicants\u2019 victim status under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention and dismisses their objection;<\/p>\n 2. Declares the application admissible;<\/p>\n 3. Holds that there has been a violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention in respect of the first two applicants;<\/p>\n 4. Holds that there is no need to examine the third applicant\u2019s complaint under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention;<\/p>\n 5. Holds that there has been a violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention in respect of the third applicant;<\/p>\n 6. Holds that the finding of a violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention constitutes in itself sufficient just satisfaction for the non\u2011pecuniary damage that may have been sustained by the first two applicants in that connection;<\/p>\n 7. Holds<\/p>\n (a) that the respondent State is to pay the third applicant, within three months, 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 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/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 8. Dismisses the remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 1 March 2022, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n","protected":false},"excerpt":{"rendered":" The data of the persons involved in the case has been deleted and anonymized. SECOND SECTION (Application no. 32043\/11) JUDGMENT STRASBOURG 1 March 2022 SUBJECT MATTER OF THE CASE 1. The application concerns the alleged unfairness of criminal proceedings against…<\/p>\n
\n(Application no. 32043\/11)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n1 March 2022<\/p>\n