SECOND SECTION
\nCASE OF KAPLAN v. TURKEY
\n(Application no. 13807\/08)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n30 January 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Kaplan 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 9 January 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. 13807\/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 Turkish national, Mr Cihan Kaplan (\u201cthe applicant\u201d), on 19 February 2008.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Ms S. Ep\u00e7eliArslan and Ms\u00a0D.\u00a0Kaya, lawyers practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On 15 October 2014 the complaints concerning restriction on access to a lawyer and the use by the trial court of his statements taken in the absence of a lawyer to convict him were communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule\u00a054 \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 so wish, following the judgment in Ibrahim and Others v. the United Kingdom [GC], nos.\u00a050541\/08 and 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 (see Yivli v. Turkey, no.12723\/11, 14 November 2017).<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 6.\u00a0\u00a0The applicant was born in 1975 and is detained in Tekirda\u011f.<\/p>\n 7.\u00a0\u00a0On 9 September 1995 the applicant was arrested and taken into police custody on suspicion of membership of an illegal organisation.<\/p>\n 8.\u00a0\u00a0On the same day the public prosecutor at the Istanbul State Security Court prolonged the applicant\u2019s detention in police custody for a period of up to 15 days.<\/p>\n 9.\u00a0\u00a0On 13 September 1995 the applicant\u2019s statements were taken by the police in the absence of a lawyer. The applicant confessed to being a member of an illegal organisation and having been involved in a murder.<\/p>\n 10.\u00a0\u00a0On 14 September 1995 the applicant participated in a reconstruction of the events (yerg\u00f6sterme) with another suspect K.A., organised by the police in the absence of a lawyer. According to a report, drafted by police officers and signed by the applicant and K.A., both of the accused gave the details of the murderwhich they had committed.<\/p>\n 11.\u00a0\u00a0On 22 September 1995 the applicant was examined by a doctor from the Istanbul Forensic Institute. A collective medical report was drawn up in respect of the applicant and five other suspects. According to the report, there were no traces of ill-treatment on the applicant\u2019s body.<\/p>\n 12.\u00a0\u00a0On 22 September 1995 the applicant was heard by a public prosecutor and an investigating judge respectively. In his statements to the public prosecutor and the investigating judge, the applicant denied his police statements alleging that they had been taken under duress. Following his questioning, the investigating judge ordered the applicant\u2019s detention on remand.<\/p>\n 13.\u00a0\u00a0On 9 October 1995 a public prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicant with attempting to undermine the constitutional order, an offence prescribed by Article\u00a0146 \u00a7 1 of the former Criminal Code.<\/p>\n 14.\u00a0\u00a0On 7 December 1995 the applicant was heard by the trial court during the first hearing in the presence of his lawyer. The applicant denied all the charges against him and stated that his statements at the police had been taken under duress.<\/p>\n 15.\u00a0\u00a0In the meantime, State Security Courts were abolished by Law no.\u00a05190 of 16June 2004. Accordingly, the case was transferred to Istanbul Assize Court.<\/p>\n 16.\u00a0\u00a0On 13 September 2007, relying on, inter alia,the applicant\u2019s and his co-accused K. A.\u2019s statements to the police, the Istanbul Assize Court held that the applicant had committed the offence under Article 146 \u00a7 1 of the Criminal Code and sentenced him to life-imprisonment.<\/p>\n 17.\u00a0\u00a0On an unknown date the applicant\u2019s lawyer appealed against the judgment of 13 September 2007.<\/p>\n 18.\u00a0\u00a0On 1 December 2008 the Court of Cassation upheld the above judgment.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 19.\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 20.\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 6 \u00a7\u00a7 1 and 3 (c) OF THE CONVENTION<\/p>\n 21.\u00a0\u00a0The applicant complained under 6 \u00a7\u00a7 1 and 3 (c) 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 first-instance court. The applicant further complained of a violation of Article\u00a06 \u00a7\u00a02of the Convention in that his detention on remand and conviction had been solely based on his statements taken by the police.<\/p>\n 22.\u00a0\u00a0The Court decides to examine those complaints solely under Article\u00a06 \u00a7\u00a7 1 and 3 (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 A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 23.\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 24.\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 were used for his conviction.<\/p>\n 25.\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. the United Kingdom ([GC], nos.\u00a050541\/08 and 3 others, ECHR 2016), the Government suggested in a broad 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 26.\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 (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. In this connection, the Court notes thatthe 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 (Salduz, cited above, \u00a7 58, and Ibrahim and Others, cited above, \u00a7 274). In particular, in convicting the applicant, the first-instance court relied on his 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 (BayramKo\u00e7 v. Turkey, no. 38907\/09, \u00a7 23, 5\u00a0September 2017).<\/p>\n 27.\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 28.\u00a0\u00a0The applicant claimed 50,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 non-pecuniary damage. He also claimed EUR\u00a05,200 for lawyer fees. In support of his claim the applicant submitted the Istanbul Bar Association\u2019s scale of fees. However, he did not submit any receipts or other relevant document.<\/p>\n 29.\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 30.\u00a0\u00a0The Court observes that it has found a violation of Article 6 \u00a7\u00a7\u00a01 and\u00a03 (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 31\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 the finding of a violation constitutes in itself sufficient just satisfaction.<\/p>\n 32.\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 EUR850 for costs incurred in the proceedings before the Court (see BayramKo\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\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\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 850 (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 amountat a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 5.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 30 January 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\u00a0 Ledi Bianku
\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