CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 19 février 2019

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TURKEY   (Application no. 25253/08)                 JUDGMENT     STRASBOURG   19 February 2019     FINAL   19/05/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Ruşen Bayar v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Robert Spano, President,   Işıl Karakaş,   Julia Laffranque,   Valeriu Griţco,   Stéphanie Mourou-Vikström,   Arnfinn Bårdsen,   Darian Pavli, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 29 January 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 25253/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ruşen Bayar (“the applicant”), on 24 April 2008. 2.     The applicant was represented by Mr İ. Akmeşe, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.     The applicant alleged under Article 5 § 3 of the Convention that the length of his detention had been excessive and that the review proceedings of his detention had been in breach of Article 5 § 4 of the Convention as the decisions had been delivered solely on the basis of the case file, without hearing him or his lawyer and without providing them with the public prosecutor’s opinion. The applicant also complained under Article 5 § 5 that he had no right to compensation in domestic law for the alleged violations of Article 5 §§ 3 and 4 of the Convention. The applicant further alleged under Article 6 §§ 1 and 3 of the Convention that he had not had a fair trial on account of the denial of legal assistance to him during his police custody. Lastly, the applicant submitted under Articles 6 § 1 and 13 of the Convention that the length of the criminal proceedings against him had been excessive and that there was no effective remedy under Turkish law whereby he could have contested the length of the proceedings brought against him. 4.     On 8 October 2010 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1972 and is detained in Tekirdağ. 6.     On 13 November 2003 the applicant was arrested on suspicion of membership of the PKK/KADEK (Workers’ Party of Kurdistan/Kurdistan Freedom and Democracy Congress), an illegal organisation. He was in possession of a fake identity card at the time of his arrest. Subsequently, following the applicant’s directions to the police, the latter conducted a house search in the presence of the applicant on the premises where he and another co-accused had been staying. The police found and seized 40   grams of cyanide, a description and diagrams for the construction of a bomb mechanism handwritten by the applicant, and a fake passport bearing the applicant’s photograph that had been used by him to go to Iran twice. 7.     On 14 November 2003 the applicant was taken for questioning to the Istanbul police headquarters. The applicant’s statements to the police were transcribed on pre-printed forms, the first page of which was filled in to indicate, inter alia , that the applicant was suspected of the killing of a certain M.Y. in 1999 on behalf of the PKK/KADEK, of undergoing military and political training at the organisation’s camps abroad and of carrying out other activities for the organisation. The same page also included a pre-printed message which stated, inter alia , that the person being questioned had the right to remain silent and the right to choose a lawyer. It appears from the form that the applicant had refused legal assistance, since the first page of the record includes a pre-printed phrase stating “No lawyer sought” and a box next to it that is marked with a pre-printed “X”. Moreover, according to the record, he also stated that he did not want a lawyer or to remain silent. In his statement, which was fifteen pages long, the applicant admitted that he had become a member of the PKK/KADEK in 1996 and gave a detailed account of all the activities he had carried out for that organisation since then, including the killing of M.Y., opening fire on a police armoured vehicle during a demonstration organised in the aftermath of Abdullah Öcalan’s arrest, and receiving training at the organisation’s camp in Iraq. Moreover, when he was asked whether he wished to benefit from Law no. 3419 on Repentance ( Pişmanlık Yasası ), the applicant turned the offer down, explaining that he found the relevant Law to be “degrading” and “dishonourable”. Every page of the statement form was signed by the applicant. 8.     According to an undated form explaining arrested people’s rights, which the applicant duly signed, he was reminded of his right to remain silent and to have access to a lawyer. According to another document dated 14   November 2003, the applicant had been informed of his rights under Article   135 of the Code of Criminal Procedure as in force at the material time and stated that he would like to give his statements without a lawyer present. This was also a pre-printed form that bore the applicant’s signature and the indication that a copy of a form explaining his rights had been given to him. 9.     On 15 November 2003 at 11.10 p.m. two police officers and the applicant signed an incident report according to which the applicant had suddenly moved towards a window while in custody, pushing the officers, and had tried to harm himself by punching the window and hitting his head off it. 10.     On 16 November 2003 at midnight the applicant was examined at Haseki Hospital in Istanbul by a doctor who noted the presence of an abrasion on the applicant’s third and fifth fingers of his left hand. 11.     According to a report drawn up by the police officers and signed by the applicant and his lawyer, T.D., on 16 November 2003, the applicant had seen his lawyer the same day. 12.     On 17 November 2003, the applicant underwent a further medical examination at the branch of the Forensic Medicine Institute responsible for the Istanbul State Security Court at 10.30 a.m. The doctor who examined the applicant also observed the same abrasion, adding that the applicant had told him that it had happened when he had hit the window. That report also bore the applicant’s handwritten complaints according to which he had been subjected to external stress, deprived of sleep and subjected to psychological pressure and had not been informed of his rights. However, the doctor concluded that there were no signs of ill-treatment on the applicant’s body. 13.     On the same day the applicant was brought before the public prosecutor at the Istanbul State Security Court, where he was once again informed of his right, inter alia , to have access to a lawyer and his right to remain silent. He stated that he did not wish to benefit from the assistance of a lawyer and that he wanted to remain silent. He complained to the prosecutor that he had been subjected to psychological duress at the Istanbul police headquarters, that he had not been informed of his rights and that he had been denied legal assistance. He alleged that when he had asked to see a lawyer, the police had told him that the lawyer had not wished to come to the interview session. 14.     On the same day the applicant was questioned by a single judge at the Istanbul State Security Court without a lawyer present, where he expressed his wish to see a lawyer before giving any statement. Thus, the applicant remained silent and refused to make a statement. At the end of the interview, the judge ordered his pre ‑ trial detention. 15.     On 4 December 2003 the public prosecutor at the Istanbul State Security Court filed a bill of indictment with that court against the applicant and four other persons, charging the applicant with the offence of breaking up the unity of the State and seeking to remove part of the national territory from the State’s control, under Article 125 of the former Criminal Code. The acts attributed to the applicant were as follows: involvement in opening fire on a police vehicle during a demonstration on 16 February 1999; involvement in a demonstration of 20 February 1999 where six police officers had been wounded by gunfire; membership of a terrorist organisation; killing M.Y. on 1 June 1999; and collecting money on behalf of a terrorist organisation through coercion. 16.     On 17 March 2004 the Istanbul State Security Court held its first hearing (case no. 2003/332), where the applicant denied all the charges against him, as well as his police statement. He maintained that at the Istanbul police headquarters he had been forced to sign a self-incriminating statement prepared by the police officers and that his request for legal assistance had been disregarded. The applicant’s lawyer also stated that the applicant had not been provided with a lawyer during his pre ‑ trial detention despite his requests, and repeated this allegation throughout the proceedings. He further stated that the witness testimony given by a certain S.N. during a different set of proceedings before the same court (case no.   1999/285), which also concerned the killing of M.Y., included a description of the suspected killer which bore no resemblance to the applicant. The lawyer, therefore, pleaded the applicant’s innocence and applied for his release. At the end of the hearing, the court held, inter alia , that there was no need to summon S.N. as a witness as he had already testified in case no. 1999/285 and he had not had much information about the killing of M.Y. in any event. It also ordered the applicant’s continued detention. It further decided to request the investigation file concerning the torture allegations of the applicant from the Fatih public prosecutor’s office. 17.     By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, the State Security Courts were abolished. The case against the applicant was therefore transferred to the Twelfth Chamber of the Istanbul Assize Court. 18.     At a hearing held on 25 August 2004 the applicant’s lawyer informed the trial court that the Fatih public prosecutor had delivered a decision not to prosecute the police officers and that he had lodged an objection ( itiraz ) against that decision. 19.     At a hearing held on 22 November 2004 case no. 2003/332 was joined with case no. 1999/285, which was also pending before the Twelfth Chamber of the Istanbul Assize Court. 20.     At a hearing held on 6 April 2005 the applicant’s lawyer informed the trial court that the objection against the decision of the Fatih public prosecutor had been dismissed by the Beyoğlu Assize Court. 21.     At a hearing held on 20 July 2005, the applicant’s lawyer stated that in accordance with Article 148 § 4 of the new Code of Criminal Procedure, in force as of 1 June 2005, statements taken by the police without a lawyer present should not be used unless confirmed by the individual before a judge or a court. Thus, he asked the court to exclude the applicant’s statements to the police. The trial court did not respond to his application. 22.     At a hearing held on 9 November 2005 the trial court received a copy of the Fatih public prosecutor’s decision not to prosecute the police officers who had allegedly ill-treated the applicant. At the same hearing, the applicant’s lawyer, while referring to his previous defence submissions, stated that the applicant’s police statement had no probative value in line with the provisions of the Code of Criminal Procedure. The trial court did not give a ruling on that issue. 23.     At a hearing held on 6 March 2006 the applicant’s lawyer submitted once again that the evidence had been collected in respect of the applicant had been in breach of the relevant provisions of the Code of Criminal Procedure and that such evidence should not be used in the trial. The trial court did not respond to this application. 24.     At a hearing held on 5 June 2006 the public prosecutor read out his observations on the merits of the case, stating that the applicant should be convicted and sentenced under Article 125 of the former Criminal Code. At the same hearing, the applicant’s lawyer and some of the lawyers of the other co-defendants applied for time to prepare their defence submissions in reply to the public prosecutor’s observations on the merits of the case. The trial court adjourned and granted them further time until the next hearing on 26   July 2006. 25.     At a hearing held on 26 July 2006, the trial court noted that two different lawyers of the other co-defendants had informed the court that they would be unable to attend the hearing as one of them had another hearing outside Istanbul and the other one had a hearing in another court in Istanbul. Referring to the absence of those lawyers and the fact that they had not been able to prepare their defence submissions, the applicant’s lawyer also asked the trial court to give them a short period of time to prepare their written observations in reply to the public prosecutor’s observations on the merits. The trial court accepted the excuses of the two lawyers, adjourned and granted all three lawyers further time to prepare their submissions. 26.     At the next hearing, held on 13 November 2006, the public prosecutor read out his observations on the merits and reiterated his previous observations. The applicant’s lawyer did not attend that hearing. The lawyer of co-defendant M.A. and the applicant applied for more time to prepare their submissions. The trial court adjourned and granted that application, stating that it would give them time until the next hearing but that it would be for the last time. 27.     At the hearing of 12 March 2007 the applicant’s lawyer submitted a seven-page-long defence submission where he reiterated, inter alia , that the applicant had been subjected to torture while in police custody and had been forced by the police to sign his statements. In that respect, he referred to Article   148 of the Code of Criminal Procedure pursuant to which statements that had been obtained through such methods could not be used in evidence. Moreover, the applicant’s lawyer reiterated that Article 148 § 4 of the Code provided for a specific proscription of the use of police statements taken without a lawyer present unless they had been confirmed by the individual before a judge or a court. Thus, he asked the trial court not to use the applicant’s police statements taken without his lawyer present, given that he had never accepted the content of those statements. According to the applicant’s lawyer, it would be a breach of Article 6 §§ 1 and 3 (c) of the Convention were the trial court to rely on the applicant’s statements to the police to convict him. At the same hearing, M.A.’s lawyer once again applied for additional time to prepare defence submissions, citing his inability to meet his client and the voluminous nature of the case file. The applicant’s lawyer stated that in the event of another adjournment of the trial, he would like to make his oral submissions at the next hearing. The trial court noted the reasons put forward by M.A.’s lawyer, adjourned and granted them further time until the next hearing. 28.     At the next hearing, held on 2 July 2007, it was noted that M.A.’s lawyer had sent a fax to the trial court in which he had provided an excuse and asked for an adjournment. The applicant’s lawyer was present and reiterated his defence submissions that the evidence against the applicant was unlawful and that it could not be used by the trial court. The trial court did not respond to this application. However, the trial court accepted the excuse of M.A.’s lawyer, adjourned and granted further time to that lawyer for the preparation of his defence submissions on the merits. 29.     At the next hearing, held on 8 October 2007, the trial court noted the application lodged by M.A.’s lawyer asking for M.A. to be represented by new counsel. The applicant’s lawyer was present and reiterated his previous defence submissions. The trial court adjourned the hearing with a view to appointing a new lawyer for M.A. and granting that lawyer time to prepare defence submissions. 30.     On 12 December 2007 the applicant’s lawyer was present and he once again reiterated his previous submissions. M.A.’s new lawyer applied for additional time to prepare defence submissions and was granted this by the trial court. 31.     At a hearing held on 2 June 2008 the applicant’s lawyer sent a fax to the trial court in which he provided an excuse for his inability to attend the trial. The trial court heard evidence from a defence witness in respect of M.A. in relation to his ill-treatment allegations. M.A.’s lawyer further raised a plea of unconstitutionality in relation to the maximum permissible period of detention. The trial court decided to examine the plea of unconstitutionality raised by M.A.’s lawyer, accepted the applicant’s lawyer’s excuse and granted him additional time to prepare his oral submissions. 32.     At a hearing held on 19 November 2008 the applicant’s lawyer was present and he once again reiterated his previous submissions. M.A.’s lawyer asked the trial court to conduct an additional investigation and hear S.N. as a witness with a view to shedding light on M.Y.’s killing. That lawyer once again asked for additional time to prepare his defence submissions. The trial court dismissed the plea of unconstitutionality, granted M.A.’s lawyer further time to prepare his defence submissions and adjourned. 33.     At the hearing held on 19 December 2008 the applicant’s lawyer was present and he once again reiterated his previous submissions. However, another lawyer for M.A. was present and she applied for additional time to prepare defence submissions. The trial court adjourned and granted her further time. 34.     On 13 February 2009 the Twelfth Chamber of the Istanbul Assize Court found the applicant guilty as charged, convicted him under Article   125 of the former Criminal Code of breaking up the unity of the State and seeking to remove part of the national territory from the State’s control, and sentenced him to life imprisonment. The trial court listed, among other pieces of evidence, “the statements of the accused throughout the proceedings” in the “evidence” part of its judgment. In the part entitled “assessment of evidence and reasons”, the trial court noted that one of the accused, namely M.Z.Ç., had sent a letter to the court on 12 May 2004 in which he had stated that M.Y. had been abducted and killed by Ma.Y., F.A. and M.H. The trial court concluded that that statement had been corroborated by the autopsy report, a sketch of the scene and a police report establishing that the gun that had been used to kill M.Y. had been the same one that had been used in the demonstration of 20 February 1999. It went on to hold that the defendants’ denial during the trial of their guilt should be dismissed in the light of that evidence. 35.     The trial court also noted that documents of an organisational nature and documents containing descriptions for the construction of bomb mechanisms handwritten by the applicant as well as the invoices of the illegal organisation had been found. In view of that evidence and the statements of the witnesses and the victims, it found it established that co-defendants M.Z.Ç. and Ma.Y. had both on their own and on the applicant’s orders attempted to or collected money on behalf of the illegal organisation through coercion. Taking into account the participation of the applicant, M.Z.Ç. and Ma.Y. in the demonstration of 20 February 1999, and their positions within the illegal organisation, the trial court considered that the killing of M.Y. and the completed acts of extortion should be accepted as being “serious enough”, the material element of the offence set out in Article   125 of the former Criminal Code. 36.     Lastly, in the “conviction” part of its judgment, the trial court held that the applicant had been a member of an illegal organisation, had taken military training in its mountain camps, had participated in the demonstration on 16 February 1999 on behalf of that illegal organisation and had opened fire on a police vehicle, had been involved in the injury of five policemen on 20 February 1999, and that the three bullet casings found in the scene of that incident had been fired from the pistol that the applicant had used to kill M.Y. on 1 June 1999. The trial court did not assess any evidence in that part of its judgment. 37.     The material submitted by the parties to the Court does not contain a copy of the evidence listed either in the “evidence” or in the “assessment of evidence and reasons” parts of the trial court’s judgment. Furthermore, the trial court did not mention any of the defence submissions made by the applicant’s lawyer and merely stated that the applicant had denied the accusations in his defence before the court. Similarly, while twelve out of the fifteen accused that had made incriminatory statements to the police had denied those statements before the trial court, the latter did not conduct any assessment in that regard. 38.     At the end of each hearing, the Istanbul State Security Court, and subsequently the Twelfth Chamber of the Istanbul Assize Court, considered the applicant’s detention either of their own motion or following an application by the applicant. Each time, they ordered the applicant’s continued detention pending trial, having regard to the nature and seriousness of the offence with which he was charged, the existence of a strong suspicion that he had committed the offence and the state of the evidence. On two occasions the applicant objected to the assize court’s decisions dated 12 March 2007 and 8 October 2007 regarding his continued detention, specifically on 14 March and 15   October 2007. Both of those objections were rejected by the Thirteenth Chamber of the Istanbul Assize Court on 21 March 2007 and 24 October 2007 respectively on stereotypical grounds by way of a non-adversarial procedure. More specifically, the examination was conducted on the basis of the case file alone without hearing the applicant or his lawyer although the public prosecutor was consulted on the matter. Moreover, the opinion obtained from the public prosecutor regarding the applicant’s detention was not transmitted to the applicant. 39.     On 27 April 2010 the Court of Cassation upheld the judgment of the first-instance court. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Provisions on the right of access to a lawyer 40.     The relevant provisions of the former Code of Criminal Procedure (Law no. 1412), namely Articles 135, 136 and 138, provided that anyone suspected or accused of a criminal offence had a right of access to a lawyer from the moment he or she was taken into police custody. In accordance with section 31 of Law no. 3842 of 18 November 1992, which amended the legislation on criminal procedure, the above-mentioned provisions were not applicable to persons accused of offences falling within the jurisdiction of the State Security Courts. On 15 July 2003, by virtue of Law no. 4928, the restriction on an accused’s right of access to a lawyer in proceedings before the State Security Courts was lifted (see Salduz v. Turkey [GC], no.   36391/02, §§ 27 ‑ 29, ECHR 2008). B.     Relevant case-law of the Constitutional Court regarding the waiver of the right to legal assistance during police custody 41.     In application no. 2013/2319, the Plenary of the Constitutional Court dealt with a situation very similar to the instant case in so far as it concerned the validity of the waiver of the right to legal assistance before giving statements to the police during the pre-trial stage and the use by the trial court of evidence obtained therefrom. On 8 April 2015 it delivered a judgment and found a violation of the right to a fair trial on account of the appellant’s inability to have access to a lawyer while in police custody. On 8   and   9   September 2015 the First and the Second Sections of the Constitutional Court found violations of the right to a fair trial in respect of the appellants, who had also been tried and convicted in the same set of criminal proceedings as the appellant in application no. 2013/2319. The reasoning of the above mentioned three judgments were almost identical to each other. However, as application no. 2013/2541 bore more similarities to the present application in that both the appellant in that case and the applicant in the present case had signed a separate document indicating that they had not wished to have a lawyer present when giving statements to the police, the details of that application will be presented below. 42.     In that case, the appellant was arrested on 14 May 2004 on suspicion of involvement in the murder of two individuals on behalf of an illegal organisation. The same day, that appellant signed a document according to which he had stated that he had not wished the assistance of a lawyer. The next day the appellant made incriminatory statements to the police without his lawyer present. According to the statement record, the appellant was informed of his rights, including his right to remain silent and to legal assistance, but stated that he neither wished to have the assistance of a lawyer nor to remain silent. Subsequently, the appellant gave statements to the public prosecutor and the investigating judge without a lawyer present and denied any involvement in the murder. He maintained that position and denied his police statements before the trial court. The relevant parts of the Constitutional Court judgment in that application (no. 2013/2541) read as follows: “... 86.     The rules and rights in relation to statements provided in Article 135 of the Code of Criminal Procedure [Law no. 1412] were indicated on the appellant’s statement record. The fact that the appellant did not wish to benefit from a lawyer is included as a pre-printed phrase on the [applicant’s statement]. 87.     Nevertheless, after his arrest the appellant submitted in his statements to the public prosecutor on 18 May 2004 that he had had to sign a document according to which he had not wished to benefit from a lawyer and that he had made his statement under physical and psychological pressure and that he denied the content of the statement record and having committed the attributed offences. 88.     The descriptions in the bill of indictment dated 14 June 2006 filed by the public prosecutor attached to the Istanbul State Security Court as to how the attributed offences were committed [by the appellant and the other suspects] relied generally on the [police] custody statements. Taking the reasons for the conviction into consideration, it is seen that the [police] custody statements were decisively relied on in the conviction. 89.     The examination of the merits of a case and reliance on a confession without examining its admissibility in case it were alleged that it had been obtained under ill-treatment or torture was considered a deficiency by the European Court of Human Rights (see Hulki Güneş/Türkiye , B. No: 28490/95, 19 June 2003, § 91). ... 91.     In this context, no tangible finding capable of proving the appellant’s allegations that he was subjected to ill-treatment during police custody and that as a result he had to sign the statement form, has been submitted. The appellant does not have, on the basis of those allegations, a separate complaint that the prohibition of treatment that is incompatible with human dignity was violated. 92.     According to the European Court of Human Rights, the fact that the complaints concerning ill-treatment or torture were not examined because of a decision as to their inadmissibility, does not preclude the Court from taking into consideration the stated circumstances for the right to a fair trial ( Kolu / Türkiye , B. No: 35811/97, 2   August 2005, § 54). 93.     The appellant, together with the other co-accused, was charged with and found guilty of attempting to undermine the constitutional order by force by killing two individuals and was sentenced to aggravated life imprisonment [ ağırlaştırılmış müebbet ağır hapis ] at the end of the trial. 94.     It is seen that the appellant, who had been defending the view that he had been innocent and that there had been no proof showing that he had had any connection with the killings, also denied his statements to the police before the public prosecutor and the investigating judge, claiming that he had had to sign them under threat and physical coercion. 95.     Those statements [the appellant’s police statements] were relied on by the trial court without examining the appellant’s defence [submissions], the submissions of the other suspects against whom no case was brought and the other allegations concerning the denial of legal assistance. 96.     Within this framework, taking into account the nature of the offence, the severity of the punishment and the appellant’s defence submissions following his arrest, it does not appear beyond any reasonable doubt that the appellant knowingly and intelligently acquiesced to giving statements without asking for [the assistance of] a lawyer during his four-day-long custody. It has not been shown that the appellant was reasonably able to foresee the consequences of such a waiver. 97.     It is seen that the statements that were denied by the appellant had been relied on [by the trial court] as a basis for his conviction and that the legal assistance provided afterwards [to the appellant] and the other procedural safeguards could not remedy the prejudice caused to the rights of the defence in the beginning of the investigation. 98.     Although Article 148 of the Code of Criminal Procedure, which entered into force while the proceedings were ongoing is of such a character as to secure the efficiency of the defence during the trial, the case was concluded within the framework that had been established by the above-mentioned statements and that situation was not examined in the appeal process. 99.     The fact that the appellant was not able to benefit from the assistance of a lawyer and the resulting prejudice caused to the defence prevented the trial from being fair as a whole. ...” C.     Probative value of evidence gathered during the preliminary investigation 43.     Under Article 247 of the former Code of Criminal Procedure (in force until 1 June 2005), as interpreted by the Court of Cassation, any confessions made to the police or the public prosecutor’s office had to be repeated before a judge if the record of the questioning containing them was to be admissible as evidence for the prosecution. If the confessions were not repeated, the records in question were not allowed to be read out as evidence in court and consequently could not be relied on to support a conviction. Nevertheless, even a confession repeated in court could not on its own be regarded as a decisive piece of evidence but had to be supported by additional evidence (see Dikme v. Turkey , no. 20869/92, § 38, ECHR 2000 ‑ VIII). 44.     Article 148 of the new Code of Criminal Procedure (Law no.   5271) in force as of 1 June 2005 reads as follows: “The statement of the suspect and the accused should be based on his or her own free will. Physical or psychological interferences capable of undermining [free will] such as ill-treatment, torture, the administration of drugs, induced fatigue, torment and deception, duress, threat, or use of other equipment shall be prohibited. No benefit that is contrary to law shall be promised. Statements that were obtained through such methods shall not be used in evidence even if consent has been given [by the accused or the suspect] for their use. Statements taken by the police without a lawyer present shall not be relied on [for conviction] unless the suspect or the accused confirms them before a judge or a court. ...” 45.     Article 213 of the new Code of Criminal Procedure entitled “Reading out of an accused’s previous statements” reads as follows: “In the event of a contradiction [between an accused’s statements], an accused’s statements before a judge or a court and his or her statements to the public prosecutor or his or her statements to the police given in the presence of a lawyer may be read out during trial.” 46.     Article 217 of the new Code of Criminal Procedure entitled “Discretion to evaluate [evidence]” reads as follows: “A judge shall base his or her decision only on evidence brought to the hearings [ duruşmaya getirilen ] and assessed in his or her presence. That evidence shall be evaluated freely through the inner conviction of the judge.” D.     Relevant provisions on pre-trial detention 47.     Pre-trial detention is regulated by Article 100 et seq. of the Code of Criminal Procedure, which entered into force on 1 June 2005 (a description of the relevant domestic law and practice prior to the entry into force of the new Code of Criminal Procedure as regards pre-trial detention can be found in Çobanoğlu and Budak v. Turkey , no. 45977/99, §§ 29 ‑ 31, 30   January 2007). 48.     Under Article 100 pre-trial detention of a person may be ordered only if two conditions are met, namely when there exists a strong suspicion that that person has committed an offence and when there are grounds for detention. 49.     In accordance with Article 100 § 2 of the Code of Criminal Procedure, grounds for detention may be assumed to exist in cases where the suspect or the accused has absconded or when there are concrete facts showing that the suspect or the accused will abscond or go into hiding, or in a case where the conduct of the suspect or the accused indicates a strong suspicion that he or she will attempt to influence witnesses, victims or other persons or will destroy, manipulate or conceal evidence. However, grounds for detention may be assumed to exist in respect of the particularly grave offences exhaustively listed in Article 100 § 3 of Law no. 5271 in the event that there is a strong suspicion that one of these has been committed. 50.     In accordance with Article 101 as in force at the material time, detention may be ordered during the investigation stage by the investigating judge following an application by the public prosecutor. During the investigation stage ( kovuşturma aşaması ), it may be ordered by the trial court either of its own motion or following an application by the public prosecutor. Article 101 § 5 provides that an objection may be lodged against the decisions given in accordance with Articles 100 and 101 of the Code of Criminal Procedure. The suspect or accused may, at any time of the investigation or prosecution stage, apply to be released (Article 104 §   1). Objections may be lodged against the decisions rejecting such applications (Article   104 § 2 in fine ). 51.     Review of detention is laid out in Article 108 of the Code of Criminal Procedure, which reads as follows: “(1)     During the investigation phase, a review of whether a suspect’s continued detention is necessary or not shall be conducted by an investigating judge upon the public prosecutor’s application within time-limits not exceeding thirty days, (2)     Within the time-limit mentioned in the foregoing paragraph, the suspect may also lodge an application for review of the lawfulness of his or her continued detention, (3)     During the trial phase, a judge or a court, on their own motion, shall review an accused person’s continued detention at each hearing or, if the conditions require, in between hearings, or within the time-limits foreseen in the first paragraph of this Article.” 52.     Furthermore, against every decision concerning detention on remand, whether taken at the detainee’s request or proprio motu , an objection can be lodged under Article 267 of the Code of Criminal Procedure. An objection is initially reviewed by the very same judge or the court who has given the challenged decision. The judge or the court may rectify the decision in the event that they allow an objection (Article   268 §   2). Otherwise, they transmit the case file to the competent court for review. 53.     Article 141 of the Code of Criminal Procedure entitled “compensation [for damage sustained] as a result of preventive measures” provides, in so far as relevant, the following: “Individuals; ... d)     who were lawfully detained but not brought before a legal authority within a reasonable time and who were not tried within a reasonable time, during the criminal investigation or prosecution may bring a claim for compensation for all pecuniary and non-pecuniary damage they sustained from the State.” 54.     Section 1 of Article 142 of the Code of Criminal Procedure further provides: “A claim for compensation may be brought [against the State] within three months of the date of service of the final ... judgment and, in any case, within one year following the date on which the ... judgment becomes final.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 55.     The applicant complained that the length of his pre-trial detention had been excessive. He relied on Article 5 § 3 of the Convention, which reads as follows: “Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 56.     The Court notes that this complaint 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. 57.     The Government argued that the crimes with which the applicant had been charged had been of a serious nature and that his continued detention had been necessary to prevent him from committing any further offences or fleeing. In that connection, they pointed to the concrete and convincing evidence against the applicant such as the fake identity card, the 40 grams of cyanide seized, the description and diagrams for the construction of a bomb mechanism handwritten by him, the fake passport bearing his picture that had been used to go to Iran, the statements of the co-accused and a weapon found in another co-accused’s house and used by the applicant in the demonstration of 20 February 1999. Thus, the trial court considered the very high risk of the applicant’s escape and aimed at preventing a further offence as the applicant had already been accused of serious crimes. The trial court had also aimed at preserving public order. Accordingly, it had decided to extend the applicant’s detention on justified grounds and had displayed special diligence in the conduct of the proceedings. 58.     The Court observes that the applicant’s detention for the purposes of Article   5 § 3 of the Convention began when he was arrested on 13   November 2003. He was detained for the purposes of Article 5 § 3 of the Convention until his conviction by the Istanbul Assize Court on 13   February 2009. From that date he was detained “after conviction by a competent court” within the meaning of Article   5 §   1   (a) of the Convention and therefore that period of his detention falls outside the scope of Article 5 §   3 (see Solmaz v. Turkey , no. 27561/02, §   34, 16   January 2007). Thus, the applicant’s pre-trial detention lasted for five years and three months. 59.     The Court notes that in a number of cases against Turkey, it has already examined similar grievances and repeatedly found violations of Article   5 § 3 of the Convention (see Ali Hıdır Polat v. Turkey , no.   61446/00, §   24, 5 April 2005; Dereci v. Turkey , no. 77845/01, §§ 38 ‑ 39, 24 May 2005; and Murat Özdemir v. Turkey , no. 60225/11, §§ 38-39, 15 April 2014). It has examined the present case and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgments. 60.     There has therefore been a violation of Article 5 § 3 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 61.     The applicant complained that the proceedings reviewing his pre-trial detention had not complied with the requirements of Article 5 § 4 of the Convention, which reads as follows: “4.     Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 62.     The Government contested that argument. A.     Admissibility 63.     The Court reiterates that Article 5 § 4 applies to the proceedings before a court following the lodging of an objection against a decision extending a person’s detention (see Altınok v. Turkey , no.   31610/08, §   39 ‑ 40, 29 November 2011). 64.     That being the case, Article 5 § 4 is not applicable to the Istanbul Assize Court’s decisions given pursuant to Article 108 of Law no. 5271 by which it reviewed the applicant’s pre-trial detention every thirty days of its own motion and without holding a hearing (see Altınok , cited above §   40). 65.     It follows that that part of the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article   35 § 3 (a) and must be rejected in accordance with Article 35 § 4. 66.     The Court further notes that the applicant lodged objections against the decisions of the trial court of 12 March and 8 October 2007 extending his detention. Those objections were rejected by the Thirteenth Chamber of the Istanbul Assize Court on 21 March and 24 October 2007 respectively. Given that the present application was lodged on 24 April 2008, the Court finds that the applicant’s complaints concerning the decision of 21   March 2007 were not submitted within the six-month time-limit in accordance with Article   35 of the Convention (see Ali Rıza Kaplan v. Turkey , no.   24597/08, §   27, 13 November 2014). 67.     Thus, the Court concludes that that part of the application should be rejected for being introduced out of time pursuant to Article 35 §§ 1 and   4 of the Convention. 68.     As a result, the Court’s examination under Article 5 § 4 of the Convention is confined to the decision of 24 October 2007. The Court notes that this part of the complaint 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 69.     The applicant alleged that the proceedings reviewing his pre-trial detention had not been truly adversarial and that they had breached the principle of equality of arms. He averred in particular that the proceedings had been conducted on the basis of the case file and neither he nor his lawyer had been able to attend the proceedings, which had denied him the chance to properly question the lawfulness of his continued detention. Moreover, although the domestic courts had consulted the public prosecutor regarding his continued detention, they had not transmitted the prosecutor’s opinion to him for comment. 70.     The Government argued that the effectiveness of a remedy does not depend on a favourable outcome. The principle of equality of arms had been ensured given that the applicant had had the opportunity to challenge the lawfulness of his continued detention. 71.     As regards the applicant’s inability to be present before the appeal court examining the objections to his detention, the Court reiterates that his objection was dismissed on 24 October 2007 by the Thirteenth Chamber of the Istanbul Assize Court, without holding an oral hearing. Nevertheless, the applicant had appeared before the trial court sixteen days before his objections were examined by the appellate court (see Çatal v.   Turkey , no.   26808/08, § 41, 17 April 2012, and Öner Aktaş v. Turkey , no.   59860/10, §   46, 29 October 2013). The Court also observes that the appellate proceedings were conducted in the absence of both the prosecutor and the applicant or his lawyer (see Rahbar-Pagard v. Bulgaria , nos.   45466/99 and   29903/02, § 67, 6 April 2006). In these circumstances and bearing in mind the absence of any other element which may have required the applicant’s personal presence before the appellate court, the Court does not consider that a further oral hearing before the appeal court was required for the purposes of Article 5 § 4 of the Convention (compare Naimdzhon Yakubov v. Russia , no. 40288/06, § 75, 12 November 2015, and Kolomenskiy v. Russia , no. 27297/07, § 98, 13 December 2016). 72.     In view of the above, the Court concludes that the lack of an oral hearing during those proceedings did not jeopardise their adversarial nature. 73.     In so far as the non-transmittance of the public prosecutor’s opinion is concerned, the Court notes that the present case raises issues similar to the case of Altınok (cited above, §§ 57-61), where it found a violation of Article   5 § 4 of the Convention. In its view, there is no reason to depart from that finding. 74.     Accordingly, the Court considers that in the present case there has been a violation of Article 5 § 4 of the Convention on account of the non-transmittance of the public prosecutor’s opinion to the applicant or his representative in the context of review proceedings in respect of the lawfulness of the applicant’s detention. III.     ALLEGED VIOLATION OF ARTICLE 5   §   5 OF THE CONVENTION 75