SECOND SECTION
\nCASE OF TA\u015e v. TURKEY
\n(Application no. 30811\/11)<\/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 Ta\u015f v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of: 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. 30811\/11) 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 \u015eirinTa\u015f (\u201cthe applicant\u201d), on 7\u00a0March 2011.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Ms N. Sel\u00e7uk, a lawyer practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On 5 February 2015 the complaint concerning the lack of legal assistance available to the applicant during police custody was 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 12 October 2016 the Vice-President of the Second Section invited the Government to submit further observations, if they wished, in the light of the judgment in Ibrahim and Others v. the United Kingdom ([GC], nos.\u00a050541\/08and 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 1979 and lives in Mu\u015f.<\/p>\n 7.\u00a0\u00a0On 19 April 2003 the applicant was arrested and taken into custody on suspicion of membership of an illegal organisation.<\/p>\n 8.\u00a0\u00a0On 20 April 2003 the applicant\u2019s statements were taken by the police in the absence of a lawyer. During the interrogation, the applicant gave a detailed account of his acts within the illegal organisation PKK (the Kurdistan Workers\u2019 Party).<\/p>\n 9.\u00a0\u00a0On 22 April 2003 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 and maintained that his statements to the police had been given under duress. 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 May 2003 the public prosecutor at the Istanbul State Security Court filed an indictment accusing the applicant of membership of an illegal terrorist organisation under Article 168 of the former Criminal Code, Law\u00a0no.\u00a0765.<\/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 19 September 2006, relying on, inter alia, the applicant\u2019s statements to the police, the Istanbul Assize Court convicted the applicant under Article 314 \u00a7 2 of the new Turkish Criminal Code and sentenced him to six years and three months\u2019 imprisonment.<\/p>\n 13.\u00a0\u00a0On 19 November 2007 the Court of Cassation quashed the judgmenton procedural grounds.<\/p>\n 14.\u00a0\u00a0On 30December 2008 the Istanbul Assize Court convicted the applicant again under Article 314 \u00a7 2 of the new Turkish Criminal Code and sentenced him to six years and three months\u2019 imprisonment.<\/p>\n 15.\u00a0\u00a0On 20 March2012 the Court of Cassation upheld the judgment of the Istanbul Assize Court.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 16.\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 17.\u00a0\u00a0On 15 July 2003 Law no.\u00a04928 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 18.\u00a0\u00a0The applicant complained under Article 6 \u00a7 3 (c) of the Convention that he had not had access to a lawyer during the preliminary investigation stage of the proceedings.<\/p>\n 19.\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;\u201c<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 20.\u00a0\u00a0The Court notes that the application 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 21.\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.<\/p>\n 22.\u00a0\u00a0Referring to the Court\u2019s judgment in the case of Salduz v.\u00a0Turkey ([GC] no. 36391\/02, ECHR 2008) and Ibrahim and Others v.\u00a0the\u00a0UnitedKingdom ([GC], nos.50541\/08 and 3 others, ECHR 2016), the Government suggested in a broad and abstract manner that there were compelling reasons for delaying access to legal assistance arising from the potential loss of life on a large scale and the urgent need to obtain information on possible planned attacks as well as the severe practical constraints under which the police were operating. However, the Government did not refer to any specific circumstances of the case.<\/p>\n 23.\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 specific to the circumstances of the case 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, cited above, \u00a7 274) 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.\u00a038907\/09, \u00a7 23, 5September 2017).<\/p>\n 24.\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 II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 25.\u00a0\u00a0The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. He also claimed EUR 1,500 in respect of lawyers\u2019 fees and EUR 600 for other other costs and expenses incurred before the Court without giving any details. In support of his claim, the applicant referred to the Turkish Bar Association\u2019s scale of fees. However, he did not submit any receipts or other relevant document.<\/p>\n 26.\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 27.\u00a0\u00a0The 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\u00a0315).<\/p>\n 28.\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 29).<\/p>\n 29.\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\u00a0Declaresthe application admissible;<\/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 the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;<\/p>\n 3.\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 State at the rate applicable at the date of settlement:<\/p>\n (i)\u00a0\u00a0EUR\u00a0850 (eight hundred and 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 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 4.\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 Ledi Bianku
\nLediBianku, President,
\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\u00a0 President<\/p>\n