CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 20 septembre 2011

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TURKEY   (Application no. 47695/09)             JUDGMENT       STRASBOURG   20 September 2011           This judgment is final but it may be subject to editorial revision. In the case of Gölünç v. Turkey , The European Court of Human Rights (Second Section), sitting as a committee composed of: Dragoljub Popović, President, András Sajó, Paulo Pinto de Albuquerque, judges, and Françoise Elens-Passos, Deputy Section Registrar, Having deliberated in private on 30 August 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no. 47695/09) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Hakan Gölünç (“the applicant”), on 12 August 2009. The applicant was represented by Mr F. A. Tamer, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 2. On 26 May 2010 the President of the Second Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 3. The applicant was born in 1971 and lives in Istanbul. 4. On 10 September 2002 the applicant was taken into police custody by police officers from the Anti-Terrorism Branch of the Istanbul Security Directorate on suspicion of membership of the PKK (the Kurdistan Workers’ Party) and KADEK (the Kurdistan Freedom and Democracy Congress). 5. On 11 September 2002 the applicant was interrogated at the Anti‑Terrorism Branch in the absence of a lawyer. According to a form explaining arrested persons’ rights which the applicant had signed, he had been reminded of the charges against him and of his right to remain silent. It was expressly indicated in the form that, as the applicant had been taken into custody in connection with an offence falling within the jurisdiction of the State Security Courts, he could only have access to a lawyer upon being remanded in custody or after the prolongation of his detention in police custody by a court order. In his statement, which was nine pages long, the applicant explained that he had gone to Greece in 1999 illegally for economic reasons, and to avoid military service. In Athens, he had first taken refuge in an organisation controlled by the PKK and had then joined a PKK camp, where he underwent political training. He had subsequently been sent back to Istanbul and from there to Iran, where he had joined another PKK camp and received further training. He had returned to Istanbul in March 2002. He stated that he was only interested in undertaking legal activities as opposed to acts of violence. 6. At 11.00 a.m. on 13 September 2002 the applicant was examined by a doctor, who stated that there were no traces of ill-treatment on his body. 7. He was brought before the Public Prosecutor at the Istanbul State Security Court on the same day, again in the absence of a lawyer. The applicant largely reiterated his police statements in respect of the activities he had undertaken in Greece. However, he denied the part about his activities in Iran, alleging that he had gone to Iran for commercial reasons only. He further stated that he had not been ill-treated in police custody, but only threatened. 8. On the same day the applicant was interrogated by a single judge at the Istanbul State Security Court where he stated that he had not been not engaged in any activities for the PKK and denied the parts of the police statement which claimed otherwise. He further contended that he had only stayed at a PKK camp in Greece out of necessity. The judge ordered the applicant’s pre-trial detention at the end of the questioning. 9. On 27 September 2002 the Public Prosecutor at the Istanbul State Security Court filed an indictment with that court against the applicant and eight other persons, accusing the applicant with membership of the PKK and KADEK, an offence under Article 168 (2) of the former Criminal Code and Section 5 of the Prevention of Terrorism Act. 10. The case against the applicant was subsequently transferred to the Istanbul Assize Court following the abolition of State Security Courts by Law no. 5190 of 16 June 2004. 11. On 10 April 2006 the Twelfth Chamber of the Istanbul Assize Court delivered its judgment. It acquitted four of the accused and convicted the applicant and five other accused as charged and sentenced the applicant to six years and three months of imprisonment. 12. In convicting the applicant, the Istanbul Assize Court had regard to the applicant’s statements to the police, the public prosecutor and the single judge who had ordered his detention on remand. It also took into consideration his co-defendants’ statements regarding the applicant’s involvement with the PKK. The court further noted that, although the applicant had denied all the charges against him, such denial had no credibility in view of the evidence found in the case file. 13. On 4 December 2008 the Ninth Criminal Chamber of the Court of Cassation upheld the judgment of the first-instance court. This decision was deposited with the registry of the first-instance court on 23 February 2009. II. RELEVANT DOMESTIC LAW 14. The relevant domestic law and practice in force at the material time can be found in Salduz v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 15. The applicant complained under Articles 6 §§ 1 and 3 (c) of the Convention that his defence rights had been violated as he had been denied access to a lawyer during his detention in police custody. He also argued that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention. A. Admissibility 16. The Government asked the Court to reject the applicant’s complaints for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention on the ground that the applicant had failed to raise them before the domestic courts. 17. The Court reiterates that it has already examined and rejected the Government’s preliminary objection in similar cases (see Pekinel v. Turkey , no. 9939/02, §§ 41-43, 18 March 2008; Halil Kaya v. Turkey , no. 22922/03, § 14, 22 September 2009). The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence. The Court moreover notes that, contrary to the Government’s allegations, the applicant did raise the complaint regarding his inability to consult a lawyer at the initial stages of the criminal proceedings a number of times during the proceedings, including in his appeal request. Consequently, the Court rejects the Government’s objection and declares this part of the application admissible. B. Merits 1. Lack of legal assistance in police custody 18. The applicant complained that he had been denied legal assistance during his detention in police custody. 19. The Government argued that the absence of legal assistance at the initial stages of the criminal proceedings did not affect the applicant’s defence rights considering that he benefited from legal assistance at the subsequent stages of the trial. 20. The applicant maintained his allegations. 21. The Court observes that it has already examined the same grievance in the case of Salduz and found a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 (cited above, §§ 56-63). In that judgment, the Court held that the restriction imposed on the right of access to a lawyer was systematic and applied to anyone held in police custody at the material time in connection with an offence falling within the jurisdiction of the State Security Courts. 22. The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned Salduz judgment. 23. There has therefore been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case. 2. Excessive length of proceedings 24. The applicant complained under Articles 6 § 1 of the Convention that the length of the criminal proceedings had been incompatible with the “reasonable time” requirement. 25. The Government submitted that the length of the proceedings could not be considered to be unreasonable in the instant case in view of the complexity of the case, the number of the accused and the nature of the offence with which the applicant was charged. 26. The applicant maintained his allegations. 27. The Court notes that the criminal proceedings commenced on 10 September 2002 when the applicant was taken into police custody, and ended on 4 December 2008 when the Court of Cassation delivered its final decision. They thus lasted six years, two months and twenty-six days before two levels of jurisdiction. 28. Having examined all the material submitted to it, the Court considers that the length of the proceedings was excessive and failed to meet the “reasonable time” requirement (see Daneshpayeh v. Turkey , no. 21086/04, § 28, 16 July 2009; Yer and Güngör v. Turkey , no. 21521/06 and 48581/07, § 20, 7 December 2010). 29. There has accordingly been a breach of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 30. The applicant complained that neither the Istanbul State Security Court, nor the Istanbul Assize Court had met the requirements of independence and impartiality laid down in Article 6 § 1 of the Convention. He further argued that he had been denied an effective remedy under Article 13 of the Convention as he had not been tried by an independent and impartial tribunal and the Ninth Criminal Chamber of the Court of Cassation which had examined his appeal had been politicised. He maintained under Article 6 § 1 of the Convention that his statements had been extracted under duress in police custody, including by way of physical ill-treatment, and that the judgment of the Istanbul Assize Court had been erroneous, had lacked reasoning and had been based on insufficient evidence. Lastly, the applicant maintained that his imprisonment following an unfair hearing had amounted to “torture” within the meaning of Article 3 of the Convention. 31. In the light of all the material in its possession, the Court finds that the above submissions by the applicant do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these complaints must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention (see, for a similar case, Feti Ateş and Others v. Turkey , nos. 34759/04, 28588/05, 1016/06 and 19280/06, § 26, 21 December 2010). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 32. The applicant claimed 25,000 euros (EUR) in respect of non‑pecuniary damage. He also claimed 2,680 pounds sterling (GBP) (equivalent of approximately EUR 3,200 at the material time) for the costs and expenses incurred before the Court, without submitting any documents in support of his claims. 33. The Government contested these claims. 34. Deciding on an equitable basis, the Court awards the applicant EUR 3,900 in respect of non-pecuniary damage. 35. The Court further considers that the most appropriate form of redress would be the re-trial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should he so request (see, Salduz , cited above, § 72). 36. As regards the costs and expenses, the Court notes that according to its 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 were reasonable as to quantum. In the present case, the Court observes that the applicant did not produce any document in support of his claims. Accordingly, the Court makes no award under this head (see Karataş and Yıldız and Others v. Turkey , nos. 4889/05, 4897/05, 24009/05, 33694/05, 37759/05, 42996/06, 43031/06, 43019/06, 43038/06 and 43054/06, § 30, 16 July 2009). 37. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1. Declares the complaint concerning the lack of legal assistance in police custody and the excessive length of criminal proceedings admissible and the remainder of the application inadmissible;   2. Holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance available to the applicant while in police custody;   3. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of criminal proceedings against the applicant;   4. Holds (a) that the respondent State is to pay the applicant, within three months EUR 3,900 (three thousand nine hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement; (b) that 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;   5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 20 September 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-Passos Dragoljub Popovic Deputy Registrar President