SECOND SECTION
\nCASE OF \u015e\u0130M\u015eEK v. TURKEY
\n(Application no. 48719\/08)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n13 November 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of \u015eim\u015fek v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n Ledi Bianku, President, Having deliberated in private on 16 October 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. 48719\/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 (\u201cthe Convention\u201d) by a Turkishnational, Mr \u0130dris \u015eim\u015fek (\u201cthe applicant\u201d), on 3 September 2008.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr M. \u00d6zbekli, a lawyer practising in Diyarbak\u0131r. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On 18 March 2014 the complaints concerning the ill-treatment of the applicant while in custody and the systemic denial of legal assistance, were communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n 4.\u00a0\u00a0On 17 February 2017 the Vice-President of the Second Section invited the Government to submit further observations, if they so wish, following the judgment inIbrahim and Others v. the United Kingdom[GC], (nos.\u00a050541\/08and 3 others, ECHR 2016).<\/p>\n 5.\u00a0\u00a0The Government objected to the examination of the application by a Committee. After having considered the Government\u2019s objection, the Court rejects it.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 6.\u00a0\u00a0The applicant was born in 1973 and is detained in Sivas.<\/p>\n 7.\u00a0\u00a0According to a report drawn up by the police officers and signed by the applicant, on 19 November 2002 at 1.30 p.m., the applicant was taken into police custody on suspicion of membership of an illegal organisation, namely the Hizbullah following an hour long armed conflict with the police officers during which he had resisted, had thrown a grenade and had fired back at the police officers.<\/p>\n 8.\u00a0\u00a0On the same day at 1.50 p.m. the applicant was examined at the Silvan State Hospital, in Diyarbak\u0131r, by a doctor who observed the following on the applicant\u2019s body: 2 cm-long scrape on his lower left chest, handcuff marks on his wrists, a traumatic scrape on the front side of his right leg.The doctor observed no unfitness for work. Also on the same day at 5.45 p.m. the applicant was examined at the Diyarbak\u0131r State Hospital by another doctor who made similar findings as those mentioned in the first medical report.<\/p>\n 9.\u00a0\u00a0On 22 November 2002 the applicant was interviewed by police in the absence of a lawyer in the course of which he had allegedly sustained both physical and psychological ill-treatment. According to the applicant\u2019s submissions, he was allegedly forced to sign some documents, as well as a declaration to waive his right to legal assistance. He further maintained that when he had wished to read the documents that he had been made to sign he had been threatened with further ill-treatment.<\/p>\n 10.\u00a0\u00a0On 23 November 2002 at the end of his police custody, the applicant was examined at theDiyarbak\u0131r State Hospital by a doctor who noted that there were no new signs of ill-treatment on the applicant\u2019s body. According to the applicant, during the examination the police officers intervened and ordered the doctor to write that the applicant had some grazes on his wrists and ankles.<\/p>\n 11.\u00a0\u00a0On 23 November 2002 the applicantgave a statement to the public prosecutor in the absence of a lawyer in which he accepted the accusations against him. On the same day the applicant was brought before the investigating judge at the Diyarbak\u0131r State Security Court, who took his statements in the absence of a lawyer in which he had accepted most of the statements he had given to the police. According to his submissions before the Court, the applicant claimed that he had admitted being a member of the Hizbullah before the public prosecutor and the judge on account of the duress and the intimidation exerted on him by the police. He further claimed that the police officers had threatened him with excessive length of proceedings and had told him that if he had accepted the charges they would help him and release him from detention.<\/p>\n 12.\u00a0\u00a0On 27 November 2002 the Diyarbak\u0131r public prosecutor filed a bill of indictment, charging the applicant under Article 146 of the former Turkish Criminal Code with attempting to undermine the constitutional order of the State.<\/p>\n 13.\u00a0\u00a0On 19 March 2003 the Diyarbak\u0131r State Security Court held the first hearing on the merits of the case. During the hearing, the applicant gave evidence without a lawyer in which he denied his previous statements and the accusations. He further stated, without providing any details, that he had been subjected to pressurewhilein police custody and that he had pressurised to sign his police statementswithout readingthem.<\/p>\n When askedabout his statements before the public prosecutor and the investigating judge, the applicant stated that he had given self-incriminating statements as a result of the pressure from the police officers.<\/p>\n 14.\u00a0\u00a0At a hearing held on 18September 2003 the applicant submitted, without providing any details, that he had been tortured during the preliminary investigation.<\/p>\n 15.\u00a0\u00a0By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. Therefore, the Diyarbak\u0131r Assize Court acquired jurisdiction over the case.<\/p>\n 16.\u00a0\u00a0On 22June 2007 the Diyarbak\u0131r Assize Court found that, inter alia, on the basis of the applicant\u2019s statements to the police, the public prosecutor and the investigating judge thatthe applicant had committed the offence under Article 146 of the former Criminal Code and sentenced him to life imprisonment.Relying on the medical report dated 23 November 2002, it also rejected the applicant\u2019s contention that he had been tortured while in police custody.<\/p>\n 17.\u00a0\u00a0On 10 April 2008 the Court of Cassation upheld the trial court\u2019s judgment.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 18.\u00a0\u00a0A description of the relevant domestic law concerning the right of access to a lawyer may be found inSalduz v. Turkey ([GC] no.\u00a036391\/02, \u00a7\u00a7\u00a027\u201131, ECHR 2008).<\/p>\n 19.\u00a0\u00a0On 15 July 2003 Law no. 4928 repealed Section 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 THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n 20.\u00a0\u00a0The applicant complained that he had been subjected to ill-treatment during his police custody between 19 and 23 November 2002. Article 3 of the Convention, which reads as follows:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n 21.\u00a0\u00a0The Government contested that claim and submitted that the applicant had failed to comply with thesix-month time-limit. In that connection, they argued that the applicant had raised his complaint of ill-treatment for the first time in his statement at the hearing held on 12\u00a0December 2002, after which time he had remained totally passive for six years. They also pointed out that the applicant had failed to lodge a formal complaint with the public prosecutor\u2019s office.In their view, the six-month period should be taken to have started shortly after 2002 pursuant to the case-law of the Court.<\/p>\n 22.\u00a0\u00a0The applicant did not make any submissions on this point.<\/p>\n 23.\u00a0\u00a0The Court observes that the applicant raised his ill\u2011treatment allegations not only on 12 December 2002, but also at the hearing held on 18\u00a0September 2003. However, in none of those hearings had the applicant put forward any detailed explanations as to the nature of the ill-treatment he had allegedly been subjected to. After those hearings, the Diyarbak\u0131r State Security Court took certain procedural decisions in which no mention was made of the allegations of ill-treatment. Nevertheless, in its reasoned judgment, it rejected the applicant\u2019s contention that he had been ill-treated during his time in police custody in the light of the medical report dated 23\u00a0November 2002.<\/p>\n 24.\u00a0\u00a0The Court further notes that it does not have any document in its possession demonstrating that the applicant raised his ill-treatment allegations before the Court of Cassation (see Karabulut v.\u00a0Turkey, no.\u00a056015\/00, \u00a730, 24 January 2008).<\/p>\n 25.\u00a0\u00a0Therefore, in the light of these considerations, the Court considers that the applicant, who failed to reiterate his ill-treatment allegations before the Court of Cassation,should have been aware of the ineffectiveness of remedies in domestic law by 22 June 2007, the date on which the Diyarbak\u0131r State Security Court delivered its judgment (see \u0130\u00e7\u00f6z v.\u00a0Turkey (dec.), no.\u00a054919\/00, 9 January 2003, and compareAhmet Engin \u015eat\u0131r v.\u00a0Turkey, no.\u00a017879\/04, \u00a7\u00a7 35-6, 1 December 2009). Accordingly, thesix\u2011month period provided for in Article 35 \u00a7 1 of the Conventionshould be considered to have startedrunning no later than 22 June 2007. On that account, his application should have been introduced no later than December 2007, whereas it was not lodged until 3 September 2008.<\/p>\n 26.\u00a0\u00a0It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 \u00a7\u00a7 1 and 4 of the Convention.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 and 3 (c) OF THE CONVENTION<\/p>\n 27.\u00a0\u00a0The applicant complained under Article 6 \u00a7 1 of the Convention that he had been denied a fair hearing as a result of the domestic courts\u2019use ofhis statements obtained under duress and in the absence of a lawyer during the preliminary investigation stage. Article 6 of the Convention, in so far relevant, reads as follows:<\/p>\n \u201c1.\u00a0\u00a0In the determination of … any criminal charge against him, everyone is entitled to a fair … 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;<\/p>\n …\u201d<\/p>\n 28.\u00a0\u00a0The Government contested that argument.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 29.\u00a0\u00a0The Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 of the Convention. It further notes that it is not inadmissible on any other grounds and must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 30.\u00a0\u00a0The applicant maintained under Article 6 of the Convention that he was convicted on the basis of unlawful evidence in that the domestic court relied on his statements which had been taken under duressand in the absence of a lawyer.<\/p>\n 31.\u00a0\u00a0The Government submitted that the applicant\u2019s complaint concerning the use of evidence allegedly obtained under duress to convict him must be rejected in the light of the medical reports and the applicant\u2019s failure to substantiate his ill-treatment allegations. As regards the complaint concerning the right to have legal assistance, the Government submitted that they were aware of the Court\u2019s case-law under Article 6 \u00a7 3 (c) of the Convention.<\/p>\n 32.\u00a0\u00a0The Court notes that the applicant\u2019s complaint raised under Article\u00a03 of the Convention is to be declared inadmissible for non-compliance with the six-month time-limit.However, it reiterates that the absence of an admissible Article 3 complaint does not, in principle, preclude it from taking into consideration the applicant\u2019s allegations that the police statements had been obtained using methods of coercion or oppression and from holding that the admission of such evidence to the case file, relied upon by the trial court, therefore constituted a violation of the fair trial guarantee of Article 6 (see\u00d6rs and Others v. Turkey, no.46213\/99, \u00a7\u00a058, 20\u00a0June 2006, and \u00d6zcan \u00c7olak v.Turkey, no. 30235\/03, \u00a743, 6\u00a0October 2009).<\/p>\n 33.\u00a0\u00a0In the instant case, the Court observes that the medical reports drawn up on 19 and 23 November 2002 indicated the following findings: 2\u00a0cm\u2011long scrape on his lower left chest, handcuff marks on his wrists, a traumatic scrape on the front side of his right leg. The other report drawn up on 19 November 2002 at 5.45 p.m. also corroborated those findings.<\/p>\n 34.\u00a0\u00a0The Court also observes that the applicant submitted his ill-treatment allegations in very brief and general terms alleging that he had been physically and psychologically tortured, beaten up and threatened. He did not provide any details as regards the manner in which the beatings were inflicted upon him which could confirm or match the findings noted in the medical report (see Fomin v. Russia (dec.), no. 15524\/08, 6 March 2018). According to the documents in the Court\u2019s possession, the applicant did not describe the alleged ill-treatment before the domestic courts either (see Sat\u0131k v.\u00a0Turkey (no. 2), no. 60999\/00, \u00a734, 8 July 2008, and compare Osman Karademirv. Turkey, no. 30009\/03, \u00a755, 22 July 2008).<\/p>\n 35.\u00a0\u00a0Moreover, although theapplicant challenged the veracity of the medical reports before the Court alleging that the police officers had intervened and ordered the doctor to write that he had some grazes on his wrists and ankles, the Court considers it significant that he had not lodged a formal complaint with the public prosecutor\u2019s office, a remedy which was capable of shedding light on the origin of the findings noted in the medical reports and the circumstances surrounding his medical examinations (see Ayd\u0131n \u00c7etinkayav. Turkey, no. 2082\/05, \u00a784, 2 February 2016, with further references therein).<\/p>\n 36.\u00a0\u00a0In view of the above and on the basis of the material before it, the Court is unable to conclude, beyond reasonable doubt that the applicant\u2019s statements during the preliminary investigation stage were taken under duress. As such, the Court considers that the examination of this part of the application should be confined to the use by the trial court of the statements made at the pre\u2011trial stage in the absence of a lawyer (see\u00d6ng\u00fcn v.\u00a0Turkey, no.\u00a015737\/02, \u00a7 32, 23 June 2009).<\/p>\n 37.\u00a0\u00a0In that connection, the Court reiterates that the applicant\u2019s access to a lawyer was restricted by virtue of Law No. 3842 and was as such a systemic restriction applicable at the time of his arrest (see Salduz v.\u00a0Turkey [GC], no. 36391\/02, \u00a756, ECHR 2008).<\/p>\n 38.\u00a0\u00a0The Court does not consider it necessary to examine whether the systematic nature of the restriction on the applicant\u2019s right of access to a lawyer was, in and of itself, sufficient to find a violation of Article 6 \u00a7\u00a7\u00a01 and\u00a03\u00a0(c) of the Convention, as, in any event, the Government have not offered any compelling reasons for the restriction or demonstrated that the absence of legal assistance at the initial stage of the investigation did not irretrievably prejudice the applicants defence rights (see Salduz, cited above, \u00a7\u00a058, and Ibrahim and Others v. the United Kingdom [GC], nos.\u00a050541\/08 and 3 others, \u00a7 274.) In that regard, the Court notes that in convicting him the first-instance court relied on the applicant\u2019s statements to the police. Moreover, it did not examine the admissibility of evidence obtained in the absence of a lawyerat the trial. Likewise, the Court of Cassation failed to remedy this shortcoming (see Bayram Ko\u00e7 v.\u00a0Turkey, no.\u00a038907\/09, \u00a7 23, 5\u00a0September 2017).<\/p>\n 39.\u00a0\u00a0The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention.<\/p>\n III.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION<\/p>\n 40.\u00a0\u00a0In his observations dated 29 September 2014, the applicant submitted a number of new complaints. In particular, he complained that his detention and the criminal proceedings against him had been excessively long and that he had been tried by a court whose composition included a military member until 2003. He invoked Article 6 \u00a7\u00a7 1 and 3 (a), (c) and\u00a0(d) of the Convention.<\/p>\n 41.\u00a0\u00a0The Court reiterates that the running of the six-month time-limit for those complaints not included in the initial application is not interrupted until the date when the complaint is first submitted to the Court. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 \u00a7\u00a7 1 and 4 of the Convention (see Y\u00fcksektepe v. Turkey, no. 62227\/00, \u00a750, 24 October 2006).<\/p>\n IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 42.\u00a0\u00a0Article 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.\u00a0\u00a0Damage<\/strong><\/p>\n 43.\u00a0\u00a0The applicant claimed 30,000 euros (EUR) in respect of pecuniary and EUR 30,000 non-pecuniary damage.However, he did not submit any invoices in support of his claims.<\/p>\n 44.\u00a0\u00a0The Government contested those claims.<\/p>\n 45.\u00a0\u00a0In so far as pecuniary damage is concerned, the Court does not discern any causal link between the violation found and the pecuniary damage alleged and it accordingly rejects that claim.<\/p>\n 46.\u00a0\u00a0As for non-pecuniary damage, the Court considers that the finding of a violation of Article 6 \u00a7 1 and of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention in the instant case can be regarded as sufficient just satisfaction. Given the possibility under Article 311 of the Code of Criminal Procedure of the reopening of the domestic proceedings in the event that the Court finds a violation of the Convention, the Court makes no award under this head (see Bayram Ko\u00e7, cited above \u00a729).<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 47.\u00a0\u00a0The applicant claimed reimbursement of the costs and expenses he had incurred in the proceedings before the national courts; postal, translation and personal expenses whilst in prison; and his family\u2019s travel expenses to visit him in prison. However, he neither quantified them nor submitted any supporting documents and left it to the Court\u2019s discretion to determine the amount to be awarded under this head.<\/p>\n 48.\u00a0\u00a0The Government invited the Court to dismiss the claims since they had not been based on documents or invoices.<\/p>\n 49.\u00a0\u00a0In the present case, the Court observes that the applicant has not substantiated his claim in any way as he has neither quantified his costs nor submitted any supporting documents. It therefore decides not to award him anything under this head (see Giri\u015fen v. Turkey, no. 53567\/07<\/a>, \u00a7\u00a079, 13\u00a0March 2018).<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declares the complaints concerning the denial of legal assistance to the applicant during the pre-trial stage admissible and the remainder of the application inadmissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7\u00a71 and 3 (c) of the Convention on account of the denial of legal assistance to the applicant during the pre-trial stage;<\/p>\n 3.\u00a0\u00a0Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;<\/p>\n 4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 13 November 2018, 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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Ledi Bianku
\nJon Fridrik Kj\u00f8lbro,
\nIvana Jeli\u0107, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n