CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 28 novembre 2017

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TURKEY   (Application no. 47079/06)             JUDGMENT         STRASBOURG   28 November 2017         This judgment is final but it may be subject to editorial revision. In the case of Güneş v. Turkey, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Ledi Bianku, President,   Paul Lemmens,   Jon Fridrik Kjølbro, judges, and Hasan Bakırcı, Deputy Section Registrar, Having deliberated in private on 7 November 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 47079/06) 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 Abdurrahim Haşimi Güneş (“the applicant”), on 30 May 2008. 2.     The Turkish Government (“the Government”) were represented by their Agent. 3.     On 5 September 2014 the complaints concerning denial of access to a lawyer while in police custody and use of his police statements allegedly taken under duress and in the absence of a lawyer by the trial court to convict him were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. 4.     On 7 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.   50541/08 and 3 others, ECHR 2016). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1974 and is detained in Diyarbakır. 6.     On 8 March 1995 the applicant was taken into police custody on suspicion of membership of Hizbullah, an illegal organisation. The applicant’s right of access to a lawyer was restricted during his police custody according to the now defunct Law no. 3842. On the same day he was examined by a doctor at his own request. The doctor noted, in a police document, that there was no sign of physical violence on the applicant’s body. 7.     On 16 March 1995 the applicant was taken part in “an identification parade with statements ( ifadeli yüzleştirme tutanağı )” with other accused persons and identified, in the absence of a lawyer, certain persons as members of the said organisation and confessed to committing a murder. 8.     On 26 March 1995 the applicant further participated in the reconstruction of the events ( olay ve yer gösterme) in the course of which he had confessed, in the absence a lawyer, having carried out an arson attack. 9.     On 29 March 1995 the applicant was questioned by the police officers in the absence of a lawyer. In his statement, the applicant gave a detailed description about his involvement in Hizbullah. 10.     On 5 April 1995 the applicant was brought before the public prosecutor and the investigating judge respectively, again in the absence of a lawyer. Before the public prosecutor and the investigating judge, the applicant denied his police statements claiming that he had been subjected to torture. The investigating judge ordered the applicant’s detention on remand. On the same day and before his statements were taken, he had been examined by a doctor at the request of the police. The doctor noted, in a police document, that there was no sign of physical violence on the applicant’s body. 11.     On 12 April 1995 he was examined by a doctor at his own request claiming that he had been subjected to torture while in police custody. The doctor noted that there was no sign of physical violence on the applicant’s body. 12.     On 2 May 1995 the applicant gave evidence as complainant before the public prosecutor and stated that the had been subjected to various forms of torture, which included beatings, electric shock treatment, blindfolding, hosing with cold water, and being stripped naked. 13.     On 23 May 1995 the public prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicant and several other persons. The applicant was accused of carrying out activities for the purpose of bringing about the secession of part of the national territory, proscribed by Article 125 of the former Criminal Code. 14.     On 19 October 1995 the State Security Court held the first hearing in the case. 15.     By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was transferred to the Diyarbakır Assize Court. 16.     On 31 March 2005 the Diyarbakır Assize Court convicted the applicant of attempting to undermine the constitutional order, proscribed by Article   146 § 1 of the former Criminal Code, and sentenced him to life imprisonment. 17.     On 11 December 2006 the Court of Cassation quashed the judgment of 31 March 2005 in respect of some of the accused, including the applicant, and remitted the case to the Diyarbakır Assize Court. 18.     On 9 November 2007, the Diyarbakır Assize Court convicted the applicant of attempting to undermine the constitutional order, proscribed by Article   146 § 1 of the former Criminal Code, and sentenced him to life imprisonment again. 19.     On 19 January 2009 the Court of Cassation upheld the first-instance court’s judgment. II.     RELEVANT DOMESTIC LAW 20.     A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([GC] no.   36391/02, §§   27 ‑ 31, ECHR 2008). 21.     On 15 July 2003 Law no. 4928 repealed Section 31 of Law no.   3842, thus the restriction on an accused’s right of access to a lawyer in proceedings before the State Security Courts was lifted. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION 22.     The applicant complained that he had been denied a fair trial in that he had been denied legal assistance during the preliminary investigation and that his statements, which had been taken under duress and in the absence of a lawyer during the police custody, had been used by the trial court to convict him. 23.     The Court decided to examine the complaint under Article 6 §§   1 and   3   (c) of the Convention, the relevant parts of which provide: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3.     Everyone charged with a criminal offence has the following minimum rights: ... (c)     to 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; ...” A.     Admissibility 24.     The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 25.     The applicant complained that he had been deprived of legal assistance, under section 31 of Law no. 3842, as he was accused of committing an offence that fell within the jurisdiction of the state security courts. 26.     Referring to the Court’s judgment in the case of Salduz v.   Turkey ([GC], no. 36391/02, ECHR 2008), the Government submitted that they were aware of the Court’s case-law under Article 6 § 3 (c) of the Convention. Relying on the medical report dated 5 April 1995, they submitted that the trial court’s judgment had not been based on the applicant’s statements taken under duress. They further maintained that the applicant did not accept the charges against him at any stage of the proceedings except in his statements taken by the police. Accordingly, the Government invited the Court to reject the applicant’s contentions. 27.     The Court notes that the applicant’s 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’s arrest ( Salduz , cited above, § 56). The Court does not consider it necessary to examine whether the systematic nature of the restriction on the applicant’s right of access to a lawyer was, in itself, sufficient to find a violation of Article 6 §§ 1 and 3 (c) of the Convention, as, in any event, the Government have not offered any compelling reasons for the restriction nor demonstrated that the absence of legal assistance at the initial stage of the investigation did not irretrievably prejudice the applicant’s defence rights ( Salduz , cited above, § 58; and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §   274, ECHR 2016) In that respect, the Court notes that 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 (see Bayram Koç v.   Turkey , no.   38907/09, 5 September 2017). 28.     Additionally, given the seriousness of the applicant’s allegations concerning the alleged duress while in police custody, the Court considers that that contention, albeit not supported by any medical report, deserved an answer by the trial court. Regrettably, the trial court’s reasoned judgment includes no such answer. 29.     The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION A.     Damage 30.     The applicant sought non-pecuniary damage, but left it to the discretion of the Court to determine the amount. 31.     The Government invited the Court to reject the applicant’s claims. 32.     The 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, § 72; and Abdulgafur Batmaz v.   Turkey , no.   44023/09, § 58, in fine , 24 May 2016). It further considers that in these circumstances the finding of a violation constitutes in itself just satisfaction. B.     Costs and expenses 33.     The applicant also claimed 1,000 euros (EUR) for the costs and expenses incurred before the Court. 34.     The Government requested the Court not to award any sum as costs and expenses. 35.     Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award the sum of EUR   600 covering costs for the proceedings before the Court. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;   3.     Holds that the finding of a violation constitutes in itself sufficient just satisfaction in respect of any non ‑ pecuniary damage that may have been sustained by the applicant;   4.     Holds (a)     that the respondent State is to pay the applicant, within three months the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)     EUR 600 (six hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (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 28 November 2017, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Hasan Bakırcı   Ledi Bianku Deputy Registrar   President