SECOND SECTION
\nCASE OF SOYTEM\u0130Z v. TURKEY
\n(Application no. 57837\/09)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n27 November 2018<\/p>\n
FINAL
\n27\/02\/2019<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Soytemiz v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Chamber composed of:<\/p>\n Robert Spano, President, Having deliberated in private on 6 November 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 57837\/09) 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 Hakan Soytemiz (\u201cthe applicant\u201d), on 8 October 2009.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr F.A. Tamer, a lawyer practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0The applicant alleged, in particular, that he had not had a fair trial, in that police officers had unlawfully removed his officially appointed lawyer and subsequently coerced him into making incriminatory statements which had later been used by the trial court to secure his conviction.<\/p>\n 4.\u00a0\u00a0On 25 November 2010 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 5.\u00a0\u00a0The applicant was born in 1971 and lives in \u00c7orum.<\/p>\n 6.\u00a0\u00a0On 17 March 2004 the applicant was arrested and taken into police custody along with another person, on suspicion of aiding and abetting an illegal organisation, the TDP (Turkish Revolutionary Party).<\/p>\n 7.\u00a0\u00a0On 18 March 2004, before his police statement was taken, the applicant asked for the assistance of a lawyer. In accordance with Article\u00a0138 of the former Code of Criminal Procedure, in force at the relevant time, a defence lawyer, A.E.D., was appointed by the Bar Association to represent him. He arrived at the police station where the applicant was being held. The applicant and A.E.D. had a private meeting to discuss the case that lasted for eight minutes. The applicant agreed to A.E.D. representing him.<\/p>\n 8.\u00a0\u00a0On 18 March 2004 the applicant\u2019s police interview took place in the presence of A.E.D. at the Anti-Terrorist Branch of the Istanbul Security Headquarters. According to the written interview record, the applicant replied to certain questions concerning his background and his alleged affiliation to the TDP. He did not admit to any affiliation to the organisation. Following the last question, the applicant stated that M.K., one of the alleged members of the TDP at the time, had asked him to provide him with a fake identity card in order to escape abroad and he had provided him with the identity information of his brother. The police officers terminated the interview at that point as they believed that the lawyer was interfering with the applicant\u2019s free will by saying \u201cremain silent, do not make such statements, do not answer this question\u201d. The lawyer, alleging that the police officers were recording phrases that had not been said by the applicant, also requested that the police officers remove that part of the applicant\u2019s statement.<\/p>\n 9.\u00a0\u00a0Following the lawyer\u2019s intervention the police officers took him out of the interview room allegedly under threat and would not allow him to represent the applicant any more. As a result, the lawyer did not sign the interview record. According to the applicant\u2019s submissions to the Court, after his lawyer was forced to leave,the police officers coerced him into signing self-incriminating statements which he had made while his lawyer was present, by indicating to him that they would involve his brother in the case if he refused to sign the statements. The applicant signed his statements.<\/p>\n 10.\u00a0\u00a0On 20 March 2004 at the request of the police officers, a new lawyer was appointed for the applicant. On the same day, the police resumed the interview and took additional statements from the applicant in the presence of his new lawyer. The applicant once again denied his affiliation to an illegal organisation. He stated that M.K. had stayed at his house on several occasions. On 16 March 2004, when at his house, M.K. had wanted to visit a friend. Having explained that the police were looking for him, he had asked if the applicant\u2019s wife could accompany him so he would not be noticed by the police. Subsequently, the applicant had allowed them to visit the friend together.<\/p>\n 11.\u00a0\u00a0On 21 March 2004 the applicant was brought before the public prosecutor and investigating judge respectively. He exercised his right to remain silent before the public prosecutor. He then gave statements to the investigating judge in the presence of a lawyer and retracted his police statements, alleging that he had been compelled by police officers to make self-incriminating statements. The investigating judge ordered the applicant\u2019s release.<\/p>\n 12.\u00a0\u00a0On 22 March 2004 the applicant\u2019s detention was ordered in absentia.<\/p>\n 13.\u00a0\u00a0On 29 March 2004 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, charging him with aiding and abetting an illegal organisation under Article 169 of the former Criminal Code.<\/p>\n 14.\u00a0\u00a0On 20 April 2004 the applicant was remanded in custody.<\/p>\n 15.\u00a0\u00a0At a hearing held on 24 November 2004 the applicant gave evidence in the presence of his lawyer and denied the charges against him, arguing that he had not aided any member of an armed organisation. He accepted the statements he had given to the investigating judge and the fact that he had exercised his right to remain silent before the public prosecutor. However, he denied his statements to the police, stating that they had frequently recorded things he had not said, as a result of which his lawyer had confronted them and had then been removed from the interview. According to the applicant, after his lawyer\u2019s removal, the police had added to his statements the fact that he had passed the identity information of his brother to his co-defendant M.K. At the same hearing, the court noted that the investigation file relating to the allegations that the police officers had ill-treated the accused and had not allowed them to see their lawyers had been sent to the Fatih public prosecutor\u2019s office. It accordingly decided to request a copy of that investigation file.<\/p>\n 16.\u00a0\u00a0At a hearing held on 6 July 2005 the Istanbul Assize Court decided to join the case pending before it to proceedings before the Erzurum Assize Court, to which it sent the case file.<\/p>\n 17.\u00a0\u00a0On 4 March 2005 the applicant was released pending trial.<\/p>\n 18.\u00a0\u00a0On 16 March 2006 the Erzurum Assize Court acquitted the applicant, finding that there was insufficient evidence to convict him.<\/p>\n 19.\u00a0\u00a0On 20 November 2006 the Court of Cassation quashed the judgment, concluding that the elements of the crime had been established. The case was accordingly remitted to the Erzurum Assize Court.<\/p>\n 20.\u00a0\u00a0A document provided by the PTT (the postal, telegraph and telephone service) to the Erzurum Assize Court shows that on 26\u00a0January 2007 the forthcoming hearing date was served on the secretary of the applicant\u2019s lawyer.<\/p>\n 21.\u00a0\u00a0At a hearing held on 24 December 2007 the applicant, at his request, made his final submissions to the Erzurum Assize Court about the decision of the Court of Cassation. At the end of the hearing the court notified him that the next hearing would take place on 27\u00a0December 2007.<\/p>\n 22.\u00a0\u00a0On 27 December 2007 the first-instance court convicted the applicant as charged and sentenced him to three years\u2019 imprisonment in the absence of both him and his lawyer. In delivering its judgment, the court relied on his partial confession, the false identity card drawn up in his brother\u2019s name, the arrest and identification reports. The court held that the applicant had harboured a member of an illegal organisation, M.K., and had provided him with the identity information of his brother, E.S. It further noted that on 27\u00a0February 2004 police officers had arrested M.K. at Adana Airport in possession of a false identity card, drawn up in the applicant\u2019s brother\u2019s name, while he had been trying to escape to the Turkish Republic of Northern Cyprus.<\/p>\n 23.\u00a0\u00a0In his appeal, the applicant alleged that he had not been notified of the hearing date and argued that he had been convicted on the basis of abstract police statements obtained under coercion.<\/p>\n 24.\u00a0\u00a0On 2 March 2009 the Court of Cassation upheld the conviction.<\/p>\n 25.\u00a0\u00a0On 8 April 2009 the judgment was deposited with the registry of the first-instance court.<\/p>\n Criminal proceedings against the police officers<\/p>\n 26.\u00a0\u00a0On an unspecified date the applicant, along with the lawyer concerned, lodged a complaint alleging that the police officers who had participated in his interview had unlawfully interfered with the questioning and had therefore breached his defence rights.<\/p>\n 27.\u00a0\u00a0On 22 October 2004 the Fatih public prosecutor filed a bill of indictment against the relevant police officers, accusing them of ill\u2011treatment and misconduct in office. The prosecutor stated that they had ill-treated the applicant and other suspects in police custody between 17\u00a0and 21\u00a0March 2004. It further held that they had not allowed the lawyers to examine certain documents, had not given them copies of those documents and had terminated the interviews on the grounds that the lawyers had interfered with the free will of the suspects and reminded them of their right to remain silent in the course of the interviews.<\/p>\n 28.\u00a0\u00a0At a hearing held on 2 March 2005 before the Fatih Criminal Court of General Jurisdiction, the applicant\u2019s officially appointed lawyer A.E.D. was heard as a complainant. He stated that on the day in question he had been representing another suspect and the police had told him that he could not look that suspect in the face. Subsequently, during the course of the applicant\u2019s interview when he had informed him that he had the right to remain silent, one of the officers had shouted at him saying that he was \u201cill-mannered\u201d (terbiyesizlik). Another police officer had allegedly told him that he had \u201coverstepped the mark\u201d (\u00e7izmeyi a\u015fmak) and had taken him out of the interview room. Two other lawyers also testified as complainants and stated that the police had either not allowed them to see the suspects or had prevented them from examining certain documents in the investigation file.<\/p>\n 29.\u00a0\u00a0On 29 September 2010 the Fatih Criminal Court of General Jurisdiction discontinued the case, finding that it was time-barred pursuant to Article 102 of the former Criminal Code (Law no. 765) and Article 223 of the new Code of Criminal Procedure (Law no. 5271). The parties did not appeal and the judgment became final on 14 December 2010.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 30.\u00a0\u00a0A 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 31.\u00a0\u00a0On 15 July 2003 Law no.\u00a04928 repealed Article 31 of Law no.\u00a03842, thus the restriction on an accused\u2019s right of access to a lawyer in proceedings before the State Security Courts was lifted.<\/p>\n 32.\u00a0\u00a0The relevant provisions of the former Code of Criminal Procedure (Law no. 1412), in force at the time of the applicant\u2019s arrest, provided as follows:<\/p>\n Article 136<\/p>\n \u201cAt all stages of the proceedings the suspect or accused is entitled to seek the advice of, and be represented by, one or more counsel. Where he or she has a legal guardian, he or she may also select counsel for the accused.<\/p>\n During questioning by a senior police officer [or] officers, only one defence lawyer may be present. During procedures conducted by the public prosecutor\u2019s office, this number shall not exceed three.<\/p>\n The right of the lawyer to communicate with the suspect or accused, and to be present and provide him [or her] with legal assistance during the taking of a statement or during questioning shall not be impeded or restricted at any stage of the investigation, including investigations carried out by the police.\u201d<\/p>\n Article 137<\/p>\n \u201cCounsel may be chosen from those persons having the right to act as advocates or solicitors (dava vekili).\u201d<\/p>\n Article 138<\/p>\n \u201cIn cases where the suspect or accused declares that he or she is unable to choose his or her own counsel, counsel shall be appointed by the Bar on his or her behalf, if he or she so requests. If the suspect or accused who does not have counsel is a child or an individual who is disabled to the extent that he or she cannot make his own defence, or is deaf or mute, then counsel shall be appointed [on his or her behalf].\u201d<\/p>\n Article 139<\/p>\n \u201cWhere the accused later appoints a lawyer [of his or her own choosing], the duties of the State-funded counsel previously appointed by the Bar Association will come to an end.\u201d<\/p>\n Article 144<\/p>\n \u201cArrested or detained individuals may have a meeting with their lawyers at any time and in an environment where other individuals are unable to hear the conversation, without power of attorney being required. Correspondence between such persons and their lawyers shall not be monitored.\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 and 3 (c) OF THE CONVENTION<\/p>\n 33.\u00a0\u00a0The applicant complained of a violation of Article 6 \u00a7 3 (c) of the Convention, submitting that the police had unlawfully removed his officially appointed lawyer and had coerced him into making incriminatory statements in the absence of that lawyer which had later been used by the trial court to convict him.<\/p>\n 34.\u00a0\u00a0The relevant parts of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention read as follows:<\/p>\n \u201c1.\u00a0\u00a0In 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.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (c)\u00a0\u00a0to 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 35.\u00a0\u00a0The Government contested that argument.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 36.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 37.\u00a0\u00a0The applicant alleged that he had been coerced into signing incriminatory statements in the absence of a lawyer after the police had unlawfully removed his officially appointed lawyer and terminated his interview. He further maintained that the trial court had relied on the statements made in the absence of a lawyer to secure his conviction.<\/p>\n 38.\u00a0\u00a0The Government submitted that the applicant had had the assistance of his officially appointed lawyer in private before giving statements to the police. Even after the lawyer\u2019s removal, he had been assisted by another lawyer during his second interview with the police. Moreover, those two lawyers had been present when he had given statements to the public prosecutor and investigating judge on 21 March 2004. Furthermore, he had been represented by a lawyer throughout the trial stage, had been entitled to submit evidence on his behalf, could comment on the evidence introduced in the case file and could request that the trial court collect further evidence. Moreover, the trial court had taken into account not only his statements to the police, but a number of pieces of strong evidence proving that he was guilty. As a result, no harm had been done on account of the removal of the first officially appointed lawyer.<\/p>\n 1.\u00a0\u00a0General principles<\/em><\/p>\n 39.\u00a0\u00a0The general principles with regard to access to a lawyer, the right to remain silent, the privilege against self-incrimination, and the relationship of those rights to the overall fairness of the proceedings under the criminal limb of Article 6 of the Convention can be found in the recent judgment in the case of Ibrahim and Others v. the United Kingdom ([GC], nos.\u00a050541\/08 and 3\u00a0others, \u00a7\u00a7\u00a0255-74, 13 September 2016).<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 40.\u00a0\u00a0The Court observes at the outset that the present case differs from Salduz (cited above), where the restriction on the applicant\u2019s right of access to a lawyer stemmed from Law no. 3842 and was thus systemic. In other words, there was no blanket restriction on the applicant\u2019s right of access to a lawyer during his police custody since at the time of his arrest Law no.\u00a03842, which provided for a systemic restriction on access to a lawyer in respect of people who were accused of committing an offence that fell within the jurisdiction of the State Security Courts, had already been amended. For that reason, from 15 July 2003 onwards it was legally possible for suspects to have a lawyer when giving statements to the police, public prosecutor and investigating judge provided that they had asked for representation.<\/p>\n 41.\u00a0\u00a0Turning to the circumstances of the present case, the Court notes that it is undisputed that the Bar Association appointed the lawyer A.E.D. to represent the applicant in line with Article 138 of the former Code of Criminal Procedure, as the applicant had asked for the assistance of a lawyer when giving statements to the police on 18 March 2004. Following their meeting held in private which lasted for eight minutes, A.E.D. took part in the applicant\u2019s police interview as his lawyer.<\/p>\n 42.\u00a0\u00a0Furthermore, it is also undisputed between the parties that the police officers terminated the interview when the applicant\u2019s officially appointed lawyer reminded him of his right to remain silent and advised him not to answer a certain question or respond in a certain way (see Yaremenko v.\u00a0Ukraine, no. 32092\/02, \u00a778, 12 June 2008). Subsequently, the police officers removed the officially appointed lawyer A.E.D. from the case and allegedly forced the applicant to sign the previously recorded incriminatory statements. On 20 March 2004 another lawyer was appointed for the applicant and that lawyer attended his second police interview which took place on the same day.<\/p>\n 43.\u00a0\u00a0The Court recalls that the right of everyone \u201ccharged with a criminal offence\u201d to be effectively defended by a lawyer requires that, as a rule, access to a lawyer should be provided as from the moment that a \u201ccriminal charge\u201d exists within the meaning of the Court\u2019s case-law (see Ibrahim and others, cited above, \u00a7253, and Simeonovi v. Bulgaria [GC], no.\u00a021980\/04, \u00a7\u00a0114, 12 May 2017). The Court has also recognised that the presence of a lawyer during the investigative actions, including police questioning, is an inherent aspect of the safeguard enshrined in Article 6\u00a73 (c) of the Convention (see Karabil v. Turkey, no.5256\/02, \u00a744, 16 June 2009; \u00dcmit Ayd\u0131n v. Turkey, no.33735\/02, \u00a7 47, 5 January 2010; Boz v.\u00a0Turkey, no.\u00a02039\/04, \u00a734, 9 February 2010; and Navone and Others v.\u00a0Monaco, nos.\u00a062880\/11 and 2 others, \u00a7\u00a778-79, 24 October 2013) as it is difficult to see how the specific services associated with \u201clegal assistance\u201d, which Article\u00a06\u00a7\u00a03\u00a0(c) of the Convention speaks of, may be exercised in the absence of a lawyer.<\/p>\n 44.\u00a0\u00a0Therefore, the right to be assisted by a lawyer requires not only that the lawyer is permitted to be present, but also that he is allowed to actively assist the suspectduring, inter alia, the questioning by the police and to intervene to ensure respect for the suspect\u2019s rights (see Brusco v.\u00a0France, no.\u00a01466\/07, \u00a7 54 in fine, 14 October 2010; Aras v.Turkey (no.\u00a02), no.\u00a015065\/07, \u00a7\u00a739-42, 18November 2014; and A.T.v.\u00a0Luxembourg, no\u00a030460\/13, \u00a787, 9 April 2015) as a person charged with a criminal offence should be able to obtain the whole range of services specifically associated with legal assistance, not only in the course of trial but also during the pre-trial stage given its particular importance for the preparation of the criminal proceedings (see Dvorski v. Croatia [GC], no.\u00a025703\/11, \u00a7\u00a078, ECHR 2015).<\/p>\n 45.\u00a0\u00a0Moreover, the right to be assisted by a lawyer applies throughout and until the end of the questioning by the police, including when the statements taken are read out and the suspect is asked to confirm and sign them, as assistance of a lawyer is equally important at this moment of the questioning. The lawyer\u2019s presence and active assistance during questioning by police is an important procedural safeguard aimed at, among other things, preventing the collection of evidence through methods of coercion or oppression in defiance of the will of the suspect and protecting the freedom of a suspected person to choose whether to speak or to remain silent when questioned by the police.<\/p>\n 46.\u00a0\u00a0The Court also recalls that the police are, in principle, under an obligation to refrain from or adjourn questioning in the event that a suspect has invoked the right to be assisted by a lawyer during the interrogation until a lawyer is present and is able to assist the suspect. The same considerations also hold true in case the lawyer has to \u2013 or is requested to \u2013 leave before the end of the questioning of the police and before the reading out and the signing of the statements taken (see Pishchalnikov v.\u00a0Russia, no.\u00a07025\/04, \u00a7\u00a7 74 and 79, 24 September 2009, and Kulik v.\u00a0Ukraine [Committee], no. 34515\/04, \u00a7\u00a7 186-87, 2 February 2017).<\/p>\n 47.\u00a0\u00a0Turning back to the circumstances of the present case, the police terminated the interview of the applicant and took the applicant\u2019s lawyer out of the interview room. This was done after the lawyer had tried to assist the applicant during the questioning and after the lawyer had alleged that the police were recording phrases that had not been said by the applicant. It was only after the lawyer had left the interview room and the applicant was no longer assisted by a lawyer that the applicant was made to sign the interview record, according to the applicant as a result of coercion from the police. In other words, the statements were signed by the applicant in the absence of the lawyer chosen by him. In these circumstances, the Court will treat the present application as one of denial of access to a lawyer and apply the principles developed in Ibrahim and Others (cited above, \u00a7\u00a7\u00a0255\u2011274).<\/p>\n (a)\u00a0\u00a0Whether there were compelling reasons to restrict the applicant\u2019s right to a lawyer<\/p>\n 48.\u00a0\u00a0In circumstances such as those obtaining in the present case, the Court will first ascertain whether there were compelling reasons to restrict the applicant\u2019s right of access to a lawyer which took the form of the removal and replacement of the applicant\u2019s lawyer A.E.D. on 18\u00a0March 2004. In that connection, it notes that the Government did not dispute the applicant\u2019s contention that the removal had been unlawful as there was no basis in Turkish law allowing the police to remove and replace an officially appointed lawyer. At this point, the Court points to Article 136 \u00a7 3 of the former Code of Criminal Procedure, in force at the time of the applicant\u2019s interview, which clearly stipulated that \u201c… legal assistance during the taking of a statement or during questioning shall not be impeded or restricted at any stage of the investigation, including investigations carried out by the police.\u201d<\/p>\n 49.\u00a0\u00a0In the instant case, however, the officially appointed lawyer was removed and replaced for what appears to be a lawful exercise of his profession, a fact which has not been contested by the Government.<\/p>\n 50.\u00a0\u00a0In the same vein, the Court also attaches importance to the fact that the Fatih public prosecutor indicted the police officers, inter alia, for their interference with the applicant\u2019s questioning and charged them with misconduct in office on the basis of those acts.<\/p>\n 51.\u00a0\u00a0In view of the above, the Court considers that the Government have failed to demonstrate that there were compelling reasons for the removal and replacement of the applicant\u2019s officially appointed lawyer.<\/p>\n (b)\u00a0\u00a0The fairness of the proceedings as a whole<\/p>\n
\nLedi Bianku,
\nI\u015f\u0131l Karaka\u015f,
\nValeriu Gri\u0163co,
\nJon Fridrik Kj\u00f8lbro,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m,
\nIvana Jeli\u0107, judges,
\nand Stanley Naismith, Section Registrar,<\/p>\n