SECOND SECTION
\nCASE OF SERTKAYA v. TURKEY
\n(Application no. 37315\/10)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n27 February 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Sertkaya 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 6 February 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. 37315\/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 Abbas Sertkaya (\u201cthe applicant\u201d), on 12 April 2010.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr \u0130. Akme\u015fe, a lawyer practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On 27 March 2013 the application was communicated to the Government.<\/p>\n 4.\u00a0\u00a0On 12 October 2016 the Vice-President of the Second Section invited the Government to submit further observations, if they wish, in the light of the judgment in Ibrahim and Others v. the United Kingdom ([GC], nos.\u00a050541\/08 and 3 others, ECHR\u00a02016)<\/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 1974 and lives in Mu\u015f.<\/p>\n 7.\u00a0\u00a0On 30 October 2001 the applicant was arrested and taken into custody on suspicion of membership of an illegal organisation, namely the PKK (the Kurdistan Workers\u2019 Party).<\/p>\n 8.\u00a0\u00a0On 1 November 2001 the applicant\u2019s statement was taken by the police in the absence of a lawyer. During his interrogation, he confessed being a member of the PKK and gave a detailed account of his acts within the illegal organisation.<\/p>\n 9.\u00a0\u00a0On 3 November 2001 the applicant was heard by the public prosecutor and the investigating judge at the Istanbul State Security Court, again in the absence of a lawyer. In his statements before both the public prosecutor and the investigating judge, the applicant denied the accusations. On the same day, upon the order of the investigating judge, the applicant was placed in pre-trial detention.<\/p>\n 10.\u00a0\u00a0On 6 November 2001 the Public Prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicant under Article 168 of the former Criminal Code,with membership of an illegal armed organisation.<\/p>\n 11.\u00a0\u00a0The state security courts were later abolished by Law no. 5190 of 16\u00a0June 2004, and the case was transferred to the Istanbul Assize Court.<\/p>\n 12.\u00a0\u00a0On 6 October 2006 the Istanbul Assize Court, relying on, inter alia, the applicant\u2019s statements to the police, convicted him of membership of an illegal organisation under Article 314 \u00a7 2 of the new Criminal Code and sentenced him to seven years and six months\u2019 imprisonment.<\/p>\n 13.\u00a0\u00a0On 15 December 2009 the Court of Cassation upheld the judgment of the first\u2011instance court.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 14.\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\u00a02008).<\/p>\n 15.\u00a0\u00a0On 15 July 2003 Law no.4928 repealed Section 31 of Law no.\u00a03842, whereby 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 6 \u00a7\u00a7 1 AND 3 (c) OF THE CONVENTION<\/p>\n A.\u00a0\u00a0Lack of legal assistance available to the applicant during the preliminary investigation<\/strong><\/p>\n 16.\u00a0\u00a0The applicant complained under Articles 6 \u00a7 3 (b) and (c) of the Convention that his defence rights had been violated as he had been denied access to a lawyer during the preliminary investigation stage and that his statements to the police, allegedly taken under duress, had been used in convicting him by the trial court.<\/p>\n 17.\u00a0\u00a0The Court decides to examine the complaint under Article 6 \u00a7\u00a7\u00a01 and\u00a03\u00a0(c) of the Convention, the relevant parts of which provide:<\/p>\n \u201c1.\u00a0\u00a0In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … 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 1.\u00a0\u00a0Admissibility<\/em><\/p>\n 18.\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 2.\u00a0\u00a0Merits<\/em><\/p>\n 19.\u00a0\u00a0The applicant complained that he had been deprived of legal assistance pursuant to section 31 of Law no. 3842, as he was accused of committing an offence that fell within the jurisdiction of the State Security Courts and that his statements taken by the police in the absence of a lawyer had been used for his conviction.<\/p>\n 20.\u00a0\u00a0Referring to the Court\u2019s judgment in the case of Salduz v.\u00a0Turkey ([GC], no. 36391\/02, ECHR 2008), and Dayanan v. Turkey (no.\u00a07377\/03, \u00a7\u00a032, 13 October 2009), the Government submitted that they were aware of the Court\u2019s case-law under Article 6 \u00a7 3 (c) of the Convention.<\/p>\n 21.\u00a0\u00a0The Court notes 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 the applicant\u2019s arrest (see Salduz, cited above, \u00a7 56). The 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 itself, sufficient to find a violation of Article 6 \u00a7\u00a7 1 and 3 (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 applicant\u2019s defence rights (see Salduz, cited above, \u00a7 58, and Ibrahim and Others v. the United Kingdom ([GC], nos. 50541\/08 and 3\u00a0others, \u00a7 274, ECHR 2016). In that respect, 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 at the trial. Likewise, the Court of Cassation dealt with this issue in a formalistic manner and failed to remedy this shortcoming (see BayramKo\u00e7 v.\u00a0Turkey, no.38907\/09, \u00a7 23, 5 September 2017).<\/p>\n 22.\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 B.\u00a0\u00a0Length of criminal proceedings against the applicant<\/strong><\/p>\n 23.\u00a0\u00a0The applicant further complained that the length of the criminal proceedings had been incompatible with the \u201creasonable time\u201d requirement laid down in Article 6 \u00a7 1 of the Convention.<\/p>\n 24.\u00a0\u00a0The Government noted that, pursuant to Law no. 6384, a Compensation Commission has been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that the applicant had not exhausted the domestic remedies as he had not made an application to that Compensation Commission. This argument had also been recognised by the Court in its decision in the case of Turgut and Others v. Turkey ((dec.), no. 4860\/09, \u00a7\u00a7 19-26, 26\u00a0March 2013).<\/p>\n 25.\u00a0\u00a0The Court notes that in its decision in the case of \u00dcmm\u00fchan\u00a0Kaplan (no.\u00a024240\/07, 20 March 2012) it stressed that it could pursue the examination of such complaints under the normal procedure in cases which had already been communicated to the Government prior to the entry into force of the new remedy.<\/p>\n 26.\u00a0\u00a0However, taking account of the Government\u2019s preliminary objection with regard to the applicants\u2019 failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others (cited above). It therefore concludes that the complaint in regard to the excessive length of the criminal proceedings must be rejected under Article 35 \u00a7\u00a7 1 and 4 of the Convention for non\u2011exhaustion of domestic remedies (see RifatDemir v.\u00a0Turkey, no.\u00a024267\/07, \u00a735, 4June 2013, and Yi\u011fitdo\u011fan v. Turkey (no.\u00a02), no.\u00a072174\/10, \u00a759, 3June 2014).<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION<\/p>\n 27.\u00a0\u00a0The applicant complained under Article 13 of the Convention that there had been no effective remedy in relation to his complaints under Article\u00a06 of the Convention.<\/p>\n 28.\u00a0\u00a0The Court notes at the outset that the applicant complained that there had been no effective remedy in domestic law to challenge the length of criminal proceedings against him.<\/p>\n 29.\u00a0\u00a0The Government argued that the complaint was inadmissible in the light of the establishment of the above-mentioned Compensation Commission.<\/p>\n 30.\u00a0\u00a0The Court notes that in its Turgut and Others decision (cited above) it held that the Compensation Commission established by Law\u00a0no.\u00a06384 provides an effective remedy within the meaning of Article 13 of the Convention with regard to complaints about the length of proceedings under Article\u00a06 \u00a7 1.It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n 31.\u00a0\u00a0Lastly, the applicant argued that there was no effective remedy in relation to his complaint of lack of legal assistance available to him during the preliminary investigation.<\/p>\n 32.\u00a0\u00a0The Court considers that this complaint may be declared admissible. However, having regard to its reasoning which led it to conclude Article\u00a06 \u00a7\u00a7\u00a01 and 3 (c) was breached in the present case, the Court deems it unnecessary to examine this complaint separately on the merits (see G\u00fcve\u00e7 v.\u00a0Turkey, no. 70337\/01, \u00a7\u00a7 134-135, ECHR 2009 (extracts).<\/p>\n III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 33.\u00a0\u00a0The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage.He also claimed 4,672 Turkish Liras (TRY) (approximately EUR 1,750) in respect of lawyers\u2019 fees and TRY\u00a0800 (approximately EUR 300) for other costs and expenses incurred before the Court, such as travel expenses, stationery, translation, postage.In support of his claim the applicant submitted the Turkish Bar Association\u2019s scale of fees. The remaining expenses were not supported with any documents.<\/p>\n 34.\u00a0\u00a0The Government contested the applicant\u2019s just satisfaction claims as well as his claims for legal fees, submitting that they were excessive and unsubstantiated.<\/p>\n 35.\u00a0\u00a0 The Court observes that it has found a violation of Article 6 \u00a7\u00a7\u00a01 and\u00a03\u00a0(c) of the Convention in the present case. It cannot speculate as to the outcome of the proceedings against the applicant if there had been no breach of the Convention (see Ibrahim and Others, cited above, \u00a7 315).<\/p>\n 36.\u00a0\u00a0The Court notes that Article 311 of the Code of Criminal Procedure allows the possibility to reopen proceedings. It 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 (see Salduz, cited above, \u00a7 72, and AbdulgafurBatmaz v.\u00a0Turkey, no.\u00a044023\/09, \u00a7 58, in fine, 24 May 2016). It further considers that in these circumstances the finding of a violation constitutes in itself sufficient just satisfaction (see BayramKo\u00e7, cited above, \u00a7\u00a029).<\/p>\n 37.\u00a0\u00a0According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and its case-law, the Court considers it reasonable to award the sum of EUR 850 for costs incurred in the proceedings before the Court (see Bayram\u00a0Ko\u00e7, cited above, \u00a7\u00a030-32).<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declares the complaints concerning Articles 6 \u00a7\u00a7 1 and 3 (c)of the Convention admissible and the remainder of the application inadmissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention;<\/p>\n 3.\u00a0\u00a0Holdsthat there is no need to examine the complaint under Article 13 of the Convention in relation to the applicant\u2019s complaint concerning denial of access to a lawyer during the preliminary investigation;<\/p>\n 4.\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 5.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three monthsthe following amount,to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR\u00a0850 (eight hundred fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amountat a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 6.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 27 February 2018, pursuant to Rule 77\u00a7\u00a72 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\u00a0 LediBianku
\nNeboj\u0161a Vu\u010dini\u0107,
\nJon Fridrik Kj\u00f8lbro, 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