The application concerns the alleged unfairness of criminal proceedings against the applicants owing to the systemic restriction imposed on their right of access to a lawyer, in accordance with Law no.\u00a03842, during the preliminary investigation stage and the trial court\u2019s use of evidence that they had given while in police custody allegedly under duress and in the absence of a lawyer.<\/p>\n
SECOND SECTION This judgment is final but it may be subject to editorial revision.<\/p>\n In the case of Tuncer and Others v. T\u00fcrkiye,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of: Having regard to:<\/p>\n the application (no.\u00a060237\/11) against the Republic of T\u00fcrkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 21 July 2011 by three Turkish nationals, Mr Tamer Tuncer, Mr Nuri Akal\u0131n and Mr\u00a0Mete Tuncer (\u201cthe applicants\u201d), whose relevant details are listed in the appended table and who were represented by Ms G. Tuncer, a lawyer practising in Istanbul;<\/p>\n the decision to give notice of the complaints concerning the alleged unfairness of criminal proceedings to the Turkish Government (\u201cthe Government\u201d), represented by their Agent, Mr Hac\u0131 Ali A\u00e7\u0131kg\u00fcl, Head of the Department of Human Rights of the Ministry of Justice of the Republic of T\u00fcrkiye, and to declare the remainder of the application inadmissible;<\/p>\n the parties\u2019 observations;<\/p>\n the decision to reject the Government\u2019s objection to examination of the application by a Committee;<\/p>\n Having deliberated in private on 23 May 2023,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n SUBJECT MATTER OF THE CASE<\/strong><\/p>\n 1. The application concerns the alleged unfairness of criminal proceedings against the applicants owing to the systemic restriction imposed on their right of access to a lawyer, in accordance with Law no.\u00a03842, during the preliminary investigation stage and the trial court\u2019s use of evidence that they had given while in police custody allegedly under duress and in the absence of a lawyer. The application further pertains to the alleged lack of independence and impartiality of the trial court owing to the fact that a criminal complaint had been lodged by the bench of that court against the second applicant\u2019s lawyer on account of the \u201cdisrespectful\u201d manner in which she had addressed the court.<\/p>\n 2. On 22 May 2009 the Istanbul Assize Court convicted the applicants under Article 125 of the previous Criminal Code (Law no.\u00a0765) of attempting to undermine the constitutional order by force and sentenced the first applicant to aggravated life imprisonment and the second and third applicants to life imprisonment. In so doing, the trial court relied on, inter alia, statements made by the applicants during the preliminary investigation stage, evidence that they had given during the reconstruction of events and identification procedures, statements of witnesses and certain co-defendants, fake identity cards, and documents seized during searches. In that connection, the trial court found it established that the first applicant had carried out (i)\u00a0seven counts of murder, (ii)\u00a0twelve counts of armed robbery, (iii)\u00a0two counts of attempted robbery, (iv)\u00a0five counts of aggravated assault, and a further count of throwing a bomb at the garden of the Istanbul State Security Court.<\/p>\n 3. On 11 March 2011 the Court of Cassation upheld the trial court\u2019s judgment.<\/p>\n THE COURT\u2019S ASSESSMENT<\/strong><\/p>\n 4. The applicants complained that they had not had a fair trial owing to (i)\u00a0the systemic restriction imposed on their right of access to a lawyer, in accordance with Law no.\u00a03842, while in police custody, (ii)\u00a0the trial court\u2019s use of the evidence that they had allegedly given under duress and without a lawyer being present while in police custody, and (iii)\u00a0the trial court\u2019s alleged lack of independence and impartiality on account of the criminal complaint filed by the members of the bench against the second applicant\u2019s lawyer.<\/p>\n I. ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION IN RESPECT of the SECOND AND THIRD APPLICANTS<\/strong><\/p>\n 5. The second and third applicants\u2019 complaint concerning the trial court\u2019s use of the evidence that they had reportedly given under duress is not manifestly ill-founded 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 6. The Government submitted that it had not been established that the findings contained in medical reports drawn up in respect of the second and third applicants had been the result of acts carried out by police officers.<\/p>\n 7. The second and third applicants maintained their complaints.<\/p>\n 8. The general principles regarding the use in criminal proceedings of evidence obtained in breach of Article 3 of the Convention may be found in G\u00e4fgen v. Germany ([GC], no. 22978\/05, \u00a7\u00a7 165-67, ECHR 2010). Moreover, the absence of an admissible Article 3 complaint does not, in principle, preclude the Court from taking into consideration an applicant\u2019s allegations that police statements had been obtained using methods of coercion or oppression and that their admission to the case file, relied upon by the trial court, therefore constituted a violation of the fair-trial guarantee of Article 6 (see Ayd\u0131n \u00c7etinkaya v. Turkey, no. 2082\/05, \u00a7 104, 2\u00a0February 2016, and Mehmet Duman v. Turkey, no. 38740\/09, \u00a7 42, 23\u00a0October 2018).<\/p>\n 9. The Court observes that the medical report issued on 14 March 1997 in respect of the second applicant noted the existence of hyperaemia on his inner thighs. Similarly, the medical report issued on 23 May 1998 in respect of the third applicant indicated that he had scratches on his eyes and wrists and that he had complained of pain in his right shoulder and the left side of his chest, as well as of a headache. However, the Government failed to explain the origins of the findings contained in those reports, which had been issued immediately after the applicants\u2019 time in police custody. Neither the trial court nor the Court of Cassation shed any light on this crucial aspect or examined the matter in accordance with the guarantees set out in Article 6 of the Convention.<\/p>\n 10. Accordingly, the Court concludes that the admissibility, reliability, accuracy and authenticity of the evidence given by the second and third applicants while in police custody was tainted, since the evidence in issue had been taken against their will, as demonstrated by the above-mentioned medical reports.<\/p>\n 11. That being the case, and having regard to the fact that the domestic courts used the above-mentioned evidence to convict the second and third applicants, the Government\u2019s argument that there had been other evidence capable of maintaining the safety of their conviction cannot suffice to remedy the shortcoming identified above (see Ayd\u0131n \u00c7etinkaya, cited above, \u00a7\u00a0106). It follows that the overall fairness of the criminal proceedings against the second and third applicants was prejudiced by the admission of the evidence that they had given against their will while in police custody.<\/p>\n 12. There has accordingly been a violation of Article 6 \u00a7 1 of the Convention in respect of the second and third applicants.<\/p>\n 13. In view of this finding, the Court does not consider it necessary to examine the admissibility and merits of the second and third applicants\u2019 remaining complaints under Article 6 of the Convention, including the trial court\u2019s alleged lack of independence and impartiality on account of the criminal complaint filed by the members of the bench against the second applicant\u2019s lawyer.<\/p>\n II. ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 and 3 (c) OF THE CONVENTION IN RESPECT of the first applicant<\/strong><\/p>\n 14. The Government raised a plea of non-exhaustion of domestic remedies, arguing that the first applicant, in his appeal to the Court of Cassation, had failed to raise his complaint concerning the alleged denial of legal assistance and the trial court\u2019s use of the evidence he had given in the absence of a lawyer. The complaint had thus to be rejected.<\/p>\n 15. The Court has already examined a similar objection in previous cases and dismissed it (see, among many other authorities, Mehmet Zeki \u00c7elebi v.\u00a0Turkey no. 27582\/07, \u00a7 39, 28 January 2020). The Court discerns no element in the present case capable of persuading it to reach a different conclusion. Accordingly, the Court dismisses the Government\u2019s objection.<\/p>\n 16. This 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 17. The first applicant maintained his complaint.<\/p>\n 18. The Government pointed out that the statements that the first applicant had made to the police after his first arrest in 1997 had not been self-incriminating and that, in any event, there had been abundant evidence to support his conviction. Accordingly, the evidence given by the applicant in the absence of a lawyer had had no adverse impact on the fairness of his trial.<\/p>\n 19. The Court reiterates that the general principles regarding restrictions on the right of access to a lawyer and the manner in which their impact on the overall fairness of the criminal proceedings should be assessed may be found in Beuze v. Belgium ([GC], no. 71409\/10, \u00a7\u00a7 119-50, 9 November 2018).<\/p>\n 20. In the present case, the first 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 his arrest (see Salduz v. Turkey [GC], no.\u00a036391\/02, \u00a7\u00a056, ECHR 2008).\u00a0There were no compelling reasons for restricting the first applicant\u2019s right of access to a lawyer on a systemic basis while he was in police custody (see Mehmet Zeki \u00c7elebi, cited above, \u00a7\u00a7 55-56). The Court must therefore apply \u201cvery strict scrutiny\u201d to its fairness assessment (ibid., \u00a7\u00a057).<\/p>\n 21. The Court further observes that the first applicant was arrested for the first time in 1997 after he had been caught in flagrante delicto following a shooting during which he had killed a police officer, M.U., and injured another one. It is important to note that the applicant exercised his right to remain silent in his police interview and denied having killed a police officer in his statements to the public prosecutor and the investigating judge, despite the fact that he had not benefitted from the assistance of a lawyer during any of those steps. Moreover, at a hearing held on 15 April 1999, the applicant admitted to having killed the police officer in question and the trial court, in its reasoned judgment, does not appear to have accorded any specific weight to the previous statements made in the absence of a lawyer when convicting the applicant (see Pervane v. Turkey, no. 74553\/11, \u00a7\u00a7 26-33, 8\u00a0September 2020). In such circumstances, the Court cannot conclude that the overall fairness of the criminal proceedings against the first applicant was irremediably prejudiced on account of the systemic restriction imposed on his right of access to a lawyer during his first arrest.<\/p>\n 22. Conversely, when the first applicant was arrested for a second time in 1998 (following his escape from the prison in which he had been detained), he was denied legal assistance when he gave statements to the police and the public prosecutor and when he was made to take part in investigative acts, which resulted in his giving self-incriminating evidence. The trial court later admitted those statements in evidence and relied on them along with numerous other items of evidence in convicting the first applicant under Article\u00a0146 of the previous Criminal Code.<\/p>\n 23. In so doing, however, the trial court examined neither the admissibility of the evidence given by the first applicant in the absence of a lawyer nor the circumstances in which those statements had been given before using them to secure his conviction (see Beuze, cited above, \u00a7\u00a7\u00a0171\u201174). The Court of Cassation likewise dealt with this issue in a formalistic manner and failed to remedy this shortcoming. The Court has already held that where the domestic courts had found that an applicant\u2019s conviction had been justified on the basis of items of evidence other than those gathered in the absence of a lawyer, this was not a substitute for their failure to assess whether the overall fairness of the proceedings had been prejudiced by the absence of a lawyer (see Brus v. Belgium, no.\u00a018779\/15, \u00a7\u00a034, 14 September 2021). This conclusion is a fortiori applicable to the present case, where the domestic courts made no such assessment, let alone an insufficient one, either on the question whether the evidence other than that given by the applicant in the absence of a lawyer was sufficient to justify his conviction or on the impact which the absence of a lawyer had on the overall fairness of the criminal proceedings against him.<\/p>\n 24. Accordingly, the systemic restriction on the first applicant\u2019s right of access to a lawyer in relation to his second arrest and the national courts\u2019 failure to carry out a Convention-compliant examination vis-\u00e0-vis that shortcoming and to provide the procedural safeguards capable of offsetting the adverse effects of that restriction were sufficient to prejudice the overall fairness of the criminal proceedings to an extent that is incompatible with Article\u00a06 of the Convention.<\/p>\n 25. Bearing in mind that it is not the Court\u2019s task in such a case to embark on an assessment of evidence so as to determine whether a given procedural shortcoming did or did not irretrievably prejudice the overall fairness of the proceedings, the Court concludes that there has been a violation of Article\u00a06 \u00a7\u00a7\u00a01 and 3 (c) of the Convention in so far as the first applicant\u2019s second arrest is concerned.<\/p>\n 26. In view of this finding, the Court does not consider it necessary to examine the admissibility and merits of the first applicant\u2019s remaining complaints under Article 6 of the Convention, including the trial court\u2019s alleged lack of independence and impartiality on account of the criminal complaint filed by the members of the bench against the second applicant\u2019s lawyer.<\/p>\n APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/strong><\/p>\n 27. The applicants each claimed 50,000 euros (EUR) in respect of non-pecuniary damage.<\/p>\n 28. The Government contested those claims.<\/p>\n 29. The Court considers that the most appropriate form of redress would be the retrial of the applicants, in accordance with the requirements of Article\u00a06 of the Convention, should they so request. It further considers that given the circumstances of the instant case, the finding of a violation constitutes in itself sufficient just satisfaction, given the possibility under Article\u00a0311 of the Code of Criminal Procedure of having the domestic proceedings reopened in the event that the Court finds a violation of the Convention (see Ayetullah Ay v. Turkey, nos. 29084\/07 and 1191\/08, \u00a7\u00a0203, 27\u00a0October 2020). Thus, the Court makes no award under this head.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/p>\n 1. Declares the application admissible in so far as it concerns the systemic restriction imposed on the first applicant\u2019s right of access to a lawyer and the trial court\u2019s use of the evidence given by the first applicant without a lawyer being present and the evidence given by the second and third applicants allegedly under duress;<\/p>\n 2. Holds that there has been a violation of Article 6 \u00a7 1 of the Convention in respect of the second and third applicants owing to the domestic courts\u2019 use of the evidence taken against their will;<\/p>\n 3. Holds that there has been no violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention in respect of the first applicant owing to the systemic restriction imposed on his right of access to a lawyer and the trial court\u2019s use of the evidence he had given while in police custody in 1997;<\/p>\n 4. Holds that there has been a violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention in respect of the first applicant owing to the systemic restriction imposed on his right of access to a lawyer and the trial court\u2019s use of the evidence he had given while in police custody in 1998;<\/p>\n 5. Holds that there is no need to examine the admissibility and merits of the applicants\u2019 remaining complaints under Article 6 of the Convention, including the trial court\u2019s alleged lack of independence and impartiality on account of the criminal complaint filed by the members of the bench against the second applicant\u2019s lawyer;<\/p>\n 6. Holds that the finding of a violation of Article 6 \u00a7 1 of the Convention constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the second and third applicants;<\/p>\n 7. 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 any non\u2011pecuniary damage sustained by the first applicant.<\/p>\n Done in English, and notified in writing on 13 June 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Dorothee von Arnim \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Pauliine Koskelo __________<\/p>\n APPENDIX<\/strong><\/p>\n List of applicants:
\nCASE OF TUNCER AND OTHERS v. T\u00dcRK\u0130YE<\/strong>
\n(Application no. 60237\/11)<\/em>
\nJUDGMENT
\nSTRASBOURG
\n13 June 2023<\/p>\n
\nPauliine Koskelo, President,
\nLorraine Schembri Orland,
\nDavor Deren\u010dinovi\u0107, judges,
\nand Dorothee von Arnim, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n
\nApplication no. 60237\/11<\/p>\n\n\n
\n No.<\/strong><\/td>\n Applicant\u2019s Name<\/strong><\/td>\n Year of birth<\/strong><\/td>\n Nationality<\/strong><\/td>\n Place of residence<\/strong><\/td>\n<\/tr>\n<\/thead>\n\n \n 1.<\/td>\n Tamer TUNCER<\/td>\n 1971<\/td>\n Turkish<\/td>\n Kocaeli<\/td>\n<\/tr>\n \n 2.<\/td>\n Nuri AKALIN<\/td>\n 1977<\/td>\n Turkish<\/td>\n Kand\u0131ra<\/td>\n<\/tr>\n \n 3.<\/td>\n Mete TUNCER<\/td>\n 1969<\/td>\n Turkish<\/td>\n Istanbul<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n