CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 8 mars 2022

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border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .s66732282 { width:22.86%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .sF43C5150 { width:22.88%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s3E181D07 { width:8.48%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s53532DF { width:22.86%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s77626D63 { width:22.88%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top }   SECOND SECTION CASE OF EKREM CAN AND OTHERS v. TURKEY (Application no. 10613/10)     JUDGMENT   Art 11 read in light of Art 10 • Freedom of peaceful assembly • Disproportionately lengthy pre-trial detention and prison sentences for involvement in non-violent courthouse protest disturbing the orderly administration of justice • Margin of appreciation wide but not unlimited Art 6 § 1 (criminal) and Art 6 § 3 (c) • Fair hearing • Domestic courts’ failure to examine conditions surrounding alleged waiver of applicants’ right to a lawyer while in police custody • Use of evidence given in the absence of a lawyer to convict the applicants • Failure to observe necessary procedural safeguards • Trial rendered unfair as a whole   STRASBOURG 8 March 2022   FINAL   05/09/2022     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ekrem Can and Others v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Carlo Ranzoni,   Branko Lubarda,   Pauliine Koskelo,   Jovan Ilievski,   Gilberto Felici,   Saadet Yüksel, judges, and Hasan Bakırcı, Deputy Section Registrar, Having regard to: the application (no.   10613/10) 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 fifteen Turkish nationals, listed in the appendix (“the applicants”), on 3   February 2010; the decision to give notice to the Turkish Government (“the Government”) of the complaints concerning the alleged unfairness of the criminal proceedings against the applicants under Article 6 of the Convention and the alleged breach of their right to freedom of assembly under Article 11 of the Convention, and to declare inadmissible the remainder of the complaints; the parties’ observations; Having deliberated in private on 14 February 2022, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns the alleged breach of the applicants’ right to freedom of assembly under Article 11 of the Convention on account of their conviction for having staged a protest in a courthouse, during which they chanted slogans, displayed a banner, threw leaflets around, and locked themselves in one of its corridors, thereby impeding hearings that were taking place. It further concerns the fairness of criminal proceedings against the applicants under Article 6 of the Convention owing to the alleged invalidity of their waiver of their right to a lawyer when making statements to the police during the preliminary investigation stage. THE FACTS 2.     The applicants’ personal details are set out in the appendix. The applicants were represented by Mr M. Erbil and Mrs N. Selçuk, lawyers practising in Istanbul. 3.     The Government were represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5 .     On 18 November 2003 at around 10.50 a.m. a group of twenty-three individuals, including the applicants, entered the corridor of the third floor of the Sultanahmet Courthouse in Istanbul, where the registries and hearing rooms of several courts were located, while some civilians and court officials were present in the same corridor . The group began chanting slogans such as “End the Isolation” (“ Tecride Son ”), “No to invasion” (“ İşgale Hayır ”), “Close İmralı Prison” (“ İmralı Cezaevi Kapatılsın ”), “We have not surrendered and we will not surrender” (“ Teslim olmadık olmayacağız ”), “Salute, salute a thousand salutes to İmralı” (“ Selam, Selam, İmralıya Bin Selam ”), “Freedom to Öcalan” (“ Öcalan’a Özgürlük ”) and “The messenger of peace is in İmralı” (“ Barış elçisi İmralı’da ”). 6 .     Subsequently, some members of the group closed the door to the corridor and locked themselves in the corridor by toppling metal cupboards behind the door. They then hung a large banner from one of the windows of the corridor and threw leaflets outside. The banner read: “A democratic solution to the Kurdish problem; İmralı Prison must be shut down” (“ Kürt sorununa demokratik çözüm, İmralı Cezaevi kapatılsın ”), and “Youth Initiative for Social Peace” (“ Toplumsal Barış için Gençlik Girişimi ”). The leaflets contained critical remarks concerning the policies of the governing Justice and Development Party. The applicants later submitted to the trial court that they had locked themselves in and that they had originally planned to make a press statement in front of the courthouse, but that they had entered the building owing to the rain. The applicants furthermore submitted to the trial court that they had attempted to go outside again to make the press statement, but that certain civilians had attacked them with a view to lynching them, forcing them to seek shelter in the closest corridor. The door of the corridor had then been shut behind them and as the door had only had one handle, they had not been able to open it from the corridor. 7 .     According to witness statements, the protesters warned other individuals present in the corridor and inside the offices that they were going to stage a protest but that there was no need to be afraid. It appears that some of the witnesses locked themselves in the hearing rooms and some in the registries during the protest by blocking the entrances to those rooms. The witnesses mainly reported hearing repetitive slogans being chanted outside in the corridor, but they reported that they had come to no harm. Similarly, the incident report of 18 November 2003 drawn up by the Deputy Public Prosecutor of Istanbul indicated that no material damage had been caused in the corridor or to its furniture. 8.     The protesters, including the applicants, continued their actions for about an hour until the police broke in and arrested them. According to the Government’s version of events the protestors resisted the officers during their arrest by locking arms, prompting the police to use tear gas to disperse them. The applicants contested that version of events, arguing that they had surrendered to the police but that they had nevertheless been beaten at the time of their arrest. 9.     Following their arrest, the applicants were first taken to Haseki Hospital and then examined by the Forensic Medicine Institute. According to the medical reports added to the case file, all of the applicants, except for Mehmet Şahin, Özgür Tan and Mahmut Cengiz, presented signs of physical trauma, either at the beginning or at the end of their custody. In particular, even though the medical reports drawn up in respect of the applicants Ekrem Can and Fikret Avras at the beginning of their time in police custody did not note any signs of ill-treatment, the reports compiled at the end of that time concluded that they had been unfit – for a period of one day – for work. 10.     Between 18 and 22 November 2003, the applicants were held in police custody on terrorism-related charges and were interviewed by the Anti-Terrorism branch of the Istanbul Security Directorate. According to some documents in the case file, most of the applicants met their lawyer before and after giving statements to the police. According to other forms bearing the signature of each applicant (save for the applicant Mehmet Şahin), the applicants chose to give their statements without the presence of a lawyer. Those forms also indicated that each applicant had been informed of his rights under Article 135 of the former Code of Criminal Procedure and that a copy of a form explaining their rights had been handed to each of them. The forms did not bear the time at which they had been signed, but the dates were recorded by hand. 11 .     The applicant Mehmet Şahin was the only applicant who requested the assistance of a lawyer during the taking of his statement by the police. A certain A.P., who is not one of the applicants, also appears to have requested the assistance of a lawyer. Both the applicant Mehmet Şahin and A.P. were interviewed in the presence of a lawyer and remained silent before the police. The officers involved in the questioning of Mehmet Şahin and A.P. were not the same as those involved in the questioning of the other applicants. The applicant Kerim Taştan also exercised his right to remain silent, without requesting the assistance of a lawyer. 12.     The rest of the applicants gave statements to the police between 19   and 21 November 2003, in the absence of a lawyer. Their statements were transcribed on printed forms, the first page of which was filled in to indicate inter alia that they were suspected of, inter alia , acting on behalf of the PKK (the Workers’ Party of Kurdistan), an illegal organisation. The same page also included a printed message that 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 forms that all the applicants refused legal assistance, as on each of their forms the box entitled “No lawyer sought” was marked with a printed “X”. Moreover, according to these records, all the applicants, except for one, also stated that they did not wish to have a lawyer or to remain silent. 13.     The applicant Fikret Avras met a different lawyer respectively on 19   November 2003 at 10.35 a.m. and on 21 November 2003 at 9.30 p.m., and the applicant Ekrem Can met a lawyer on 19 November 2003 at 11.20   a.m. 14.     The applicants, except for Kerim Taştan and Mehmet Şahin (who did not give statements to the police), acknowledged having wilfully participated in the protest, pursuant to decisions made by the council of the PKK. Many of the applicants also acknowledged having taken part in other protests organised in support of the PKK. 15.     On 21 November 2003 the applicants Ekrem Can and Fikret Avras additionally participated in an “identity parade” conducted with photographs ( fotoğraftan teşhis ) and the applicants Ekrem Can, Fikret Avras and Mahmut Cengiz were also taken to certain locations for a reconstruction of the events in question ( yer gösterme ), during which they were not assisted by a lawyer and acknowledged having been involved in throwing Molotov cocktails at police vehicles, throwing stones at public buses, and attacking a bank on different occasions. 16 .     The case file contains the copies of two separate handwritten records ( tutanak ). The first record read as follows: “On 18 November 2003 I was assigned to represent the defendant, Ekrem Can, by the [Istanbul] Bar Association. The defendant, Ekrem Can, stated during our meeting, which was held on 19   November 2003 at 11.34 a.m. at the Anti-Terrorism branch of the Istanbul Security Directorate, that he would not give statements to the police, he would not attend any investigative acts without a lawyer and that he would exercise his right to remain silent; this record was prepared and signed together. 19 November 2003 (time: 11.40   a.m.) Suat Eren (Lawyer)       Ekrem Can (arrestee) Despite this record, there exists a statement record showing that statements were taken [from Ekrem Can].” 17 .     The second record read as follows: “On 18 November 2003 I was assigned by the Bar Association to represent the defendant, Ekrem Can. On 20 November 2003 at 9 p.m. I attempted to hold a meeting with the defendant on the premises of the [Anti-Terrorism] branch of the Istanbul police headquarters. I was prevented from meeting my client on the basis of the usual pretext that ‘he was not present on the premises [because] he had been taken outside for the reconstruction of events’. I have previously been [“fobbed off”] from holding meetings with similar excuses. The drawing up of this report has been deemed necessary. 20 November 2003, 9   p.m. Suat Eren (Lawyer) Sami Almaz (Lawyer) ” 18.     At the end of their period in police custody on 22 November 2003, the applicants were taken to the Forensic Medicine Institute for medical examination. It was found that the applicants Ekrem Can, Fikret Avras, Şenol Akyaz, Ahmet Işık, Güven Öztürk, Kerim Taştan, Muhlis Doğan, Yavuz Oğur, Esat Gezer and Abdulkerim Doğan bore marks of physical trauma on different parts of their bodies that were not life-threatening. Medical reports drawn up in respect of the applicants Ekrem Can and Fikret Avras indicated that they were unfit for work for one day, even though the medical reports compiled at the beginning of their custody indicated no such finding. 19.     On 22 November 2003 the applicants gave statements to the public prosecutor in the presence of their lawyers. All the applicants, except for the applicant Muhlis Doğan, contested the version of events and the additional offences to which they had confessed when being interviewed by the police. In that connection, the applicants Fikret Avras and Mahmut Cengiz denied the accuracy of the records concerning the reconstruction of events. The applicants mainly stated that they had agreed to take part in a peaceful protest concerning the “Kurdish problem” and that they had locked themselves in the corridor of the third floor of the courthouse for fear of being forcibly dispersed by the police. The respective lawyers of the applicants Ekrem Can, Fikret Avras, Yavuz Oğur and Osman Taşdemir informed the public prosecutor that they had not been allowed to be present at the police interviews of their clients or the reconstruction of events. 20.     Subsequently, on the same day, the applicants were questioned by a judge of the Istanbul State Security Court. The applicants gave similar accounts of the event as those that they had given to the public prosecutor, affirming that they had had the intention of taking part in the making of a press statement in front of or inside the Sultanahmet Courthouse. As in his statements to the public prosecutor, the applicant Ekrem Can denied his affiliation with the group. The lawyer of Fikret Avras requested the judge to bear in mind the fact that he had not been allowed to be present during the taking of statements by the police from his client or during the reconstruction of events. At the end of the questioning, the judge placed all the applicants in pre-trial detention. 21.     On 10 December 2003 the Istanbul public prosecutor filed a bill of indictment against the applicants and charged the applicants Ekrem Can, Fikret Avras, Mahmut Cengiz and Şenol Akyaz, with, inter alia , membership of a terrorist organisation (Article 168 of the former Criminal Code) and possessing and using explosive materials (Article 264 § 6 in fine of the former Criminal Code) and the rest of the applicants with aiding and abetting a terrorist organisation (Article 169 of the former Criminal Code). Furthermore, the public prosecutor charged all the applicants with “interrupting public services through coercion, distortion or the commission of unlawful acts” (Article 188 § 5 in fine of the former Criminal Code). 22.     At a hearing held on 19 April 2004, the applicants gave evidence to the Istanbul Assize Court (“the trial court”). The applicant Ekrem Can reiterated the statements that he had given to the public prosecutor, asserting that he had become caught up in the protest by mere accident. He further denied any affiliation with the PKK and denied the charges. 23 .     The applicant Mahmut Cengiz acknowledged that the applicants had planned to make a press statement in front of the Sultanahmet Courthouse regarding the fact that Abdullah Öcalan was being held in isolation in İmralı Prison, adding that they had gone inside the building owing to the rain. He maintained that the police had kept him awake over the course of the three days that he had been held in custody and had forced him into signing certain documents; he did, owing to the refusal of the police to allow him to see his lawyer, despite his repeated requests. 24.     The applicant Fikret Avras gave a similar version of events. He also submitted that he had been deprived of sleep during his time in police custody and that officers had slapped him every time that he had replied to their questions with a “no”. He further noted that he, Ekrem Can and Mahmut Cengiz had been taken to certain locations by car, and that one of the police officers had forcibly ejected him from the police vehicle and had then forced him – squeezing his arm – to admit while being recorded on video to committing crimes. 25.     The rest of the applicants also stated that they had planned to peacefully make a press statement in front of the courthouse. All the applicants, except for the applicants Mehmet Şahin and Kerim Taştan (who had not given statements to the police), retracted the statements that they had given to the police. The rest of the applicants further stated to the trial court that they had been subjected to pressure or ill-treated while in police custody. 26.     At the same hearing, the applicants’ lawyers submitted that the incident had in fact comprised no more than the making of a simple press statement, and that the applicants should not have been charged with terrorism-related offences. They also submitted that even though they had been present at the police station during the time that the applicants had been held in custody, they had never been called by the police to take part in the interviews of their clients. 27.     At a hearing held on 1 November 2004 a number of witnesses gave evidence. M.A.İ. stated that he had been waiting his turn to attend a hearing before a court when a noisy quarrel had broken out in the corridor. According to his statement, after the clamour in the corridor had escalated, the judge had discontinued the hearing, and the people in the hearing room had moved some cabinets behind the hearing room’s door in order to securely block the entrance. M.A.İ. further stated that he and others had been confined in the hearing room for a further forty-five minutes. He also stated that the tear gas used to disperse the group had affected the people in the hearing room and that the judge had postponed the rest of the proceedings scheduled for that day. Another witness, G.İ., a clerk working for a court, attested that at around 10   a.m. two individuals had come into the registry of that court, stating that they would give a statement (in the corridor) and would not harm anyone. G.İ. stated that the group had first chanted PKK-related slogans and the name of Abdullah Öcalan. She and the other people who had barricaded themselves into the hearing room had then unblocked the door and left the office after about an hour; she had not identified any damage in the corridor. 28.     At the hearing held on 1 August 2005, the trial court ordered the release of the applicants, except for the applicants Ekrem Can, Fikret Avras, Mahmut Cengiz and Şenol Akyaz. 29.     On 26 December 2006 the Istanbul Assize Court delivered its judgment in the case and found that the applicants had chanted certain slogans (see paragraph 5), waved a banner from the windows (see paragraph 6) and closed the door to the corridor, preventing officials from entering by placing metal cupboards behind the door to form a barricade, thereby trapping the lawyers and the court personnel and hampering them in the performance of their duties. On this basis, the trial court found all the applicants guilty under Article   113 § 1 of the Criminal Code of “interrupting public services through coercion, distortion or the commission of unlawful acts”, and sentenced each of them to one year and eight months’ imprisonment. On the basis of the same acts, all the applicants, except for Ekrem Can, Fikret Avras, Mahmut Cengiz and Şenol Akyaz, were also found guilty under Article 169 of the former Criminal Code of aiding and abetting an armed gang, and were each sentenced to three years and nine months’ imprisonment. 30.     The trial court further found the applicants Ekrem Can, Fikret Avras, Mahmut Cengiz and Şenol Akyaz guilty of membership of an armed terrorist organisation under Article 314 § 2 of the Criminal Code, and sentenced each of them to six years and three months’ imprisonment on the basis of their actions within the courthouse and on the basis of certain other activities, such as procuring new members for the PKK (Şenol Akyaz) and throwing Molotov cocktails (Ekrem Can, Fikret Avras, Mahmut Cengiz), which had been proved by the statements they had made during the police interviews and the reconstruction of events. On the basis of those acts, the trial court furthermore convicted Ekrem Can on two counts of possessing (Article 174 of the Criminal Code) and using explosive materials (Article 170 § 1 (c) of the Criminal Code) and sentenced him to an additional term of eight years and four months’ imprisonment and a judicial fine. Lastly, Mahmut Cengiz and Fikret Avras were also convicted of possessing and using explosive materials, and were each sentenced to four years and two months’ imprisonment and a judicial fine under the above-mentioned Articles. 31.     On 18 March 2009, following an appeal by the applicants, the Court of Cassation partially upheld and partially quashed the trial court’s judgment. The Court of Cassation upheld the convictions of the applicants Ekrem Can, Fikret Avras, Mahmut Cengiz and Şenol Akyaz under Article 314 § 2 of the Criminal Code, those of the applicants Ekrem Can, Fikret Avras and Mahmut Cengiz under Article 174 § 1 and those of the rest of the applicants under Article   169 of the former Criminal Code. However, the Court of Cassation quashed the convictions of all the applicants under Article 113 § 1 of the Criminal Code and those of Ekrem Can, Fikret Avras and Mahmut Cengiz for using explosive materials under Article 170 § 1 (c) of the Criminal Code. Accordingly, the case file was remitted to the trial court in respect of the convictions that were quashed. 32.     On 3 February 2010 the applicants lodged their application with the Court while the proceedings were still pending before the trial court. 33.     On 30 June 2010 the Istanbul Assize Court once again convicted all the applicants under Article 113 § 1 of the Criminal Code, and sentenced them each to one year and eight months’ imprisonment. The trial court went on to convict the applicant Ekrem Can on two counts of using explosive materials, and sentenced him to ten months’ imprisonment under Article 170 § 1 (c) of the Criminal Code. The applicants Fikret Avras and Mahmut Cengiz were also convicted under the same Article and were each sentenced to five months for throwing Molotov cocktails. 34.     On 2 April 2012 the Court of Cassation upheld the first-instance court’s judgment in so far as it concerned the applicants. RELEVANT LEGAL FRAMEWORK AND PRACTICE 35.     The relevant domestic law (as in force at the material time), as well as the case-law of the Constitutional Court regarding the issue of waiver of the right to a lawyer, may be found in Ruşen Bayar v. Turkey , (no.   25253/08, §§   41 ‑ 46, 19 February 2019). 36.     The relevant provisions of the Criminal Code provided as follows at the material time: Article 113 “1.     Where the activities of a public institution are prevented by the use of violence or threats or by any other unlawful act, a penalty of imprisonment for a term of two to five years shall be imposed.” Article 170 “1.     Any person who acts in such a way that is capable of creating panic, fear or anxiety among the public or of endangering the life, health, property of the public by: .... c)     firing weapons or using explosives, ... shall be sentenced to a penalty of imprisonment for a term of six months to three years.” THE LAW PRELIMINARY ISSUES The Government’s preliminary objection and request for the case to be struck out of the Court’s list of cases 37.     The Government submitted that the applicants, except for Mahmut Cengiz, who had duly authorised Mr Erbil as his representative when the application had been lodged, had failed to appoint a representative or to submit a letter of authority. Accordingly, the Government invited the Court to strike the application out of its list of cases, pursuant to Article 37 §   1   (a) of the Convention, contending that it was clear that the applicants, other than Mahmut Cengiz, had chosen not to pursue their application. Furthermore, the Government invited the Court to disregard the applicants’ observations regarding (i)     the admissibility and merits of the case and (ii)     the just satisfaction claims submitted on behalf of the same fourteen applicants, as they had only been signed by Mr Erbil, who had not been authorised to act on their behalf. 38.     The applicants did not comment on this point. 39.     The Court notes that when the application was lodged with the Court in 2010, all the applicants were duly represented in accordance with the practice then in force, since both Mr Erbil and Mrs Selçuk had signed the application form, to which were attached, inter alia , the two following annexes: (i)     an authority form signed by the applicant Mahmut Cengiz and Mr   Erbil, and (ii)     a power of attorney authorising Ms Selçuk to act as the lawyer of the remaining fourteen applicants. Accordingly, the Government argue, in essence, that the applicants should be required to comply with Rule   47 of the Rules of Court, as amended in 2014 – even though the application was lodged prior to that amendment. As it is not possible to apply that provision retroactively, the Court dismisses the Government’s request (see Beg S.p.a. v. Italy , no. 5312/11, § 60, 20   May 2021). 40.     Moreover, while it is true that the Court corresponded only with Mr   Erbil after the Government were given notice of the application on 8   June 2017, Mrs Selçuk informed the Court by a letter dated 6 October 2020 that all such correspondence had been undertaken with her knowledge and approval. That being the case, the Court dismisses the Government’s request under Article 37 § 1 (a) of the Convention. Six-month rule and the scope of the case 41.     Even though the Government did not raise a preliminary objection as regards the applicants’ compliance with the six-month rule, this question calls for consideration by the Court of its own motion (see Sabri Güneş v.   Turkey [GC], no. 27396/06, § 29, 29   June 2012). 42.     On 18 March 2009 the Court of Cassation upheld the convictions of of the applicants Ekrem Can, Fikret Avras, Mahmut Cengiz and Şenol Akyaz under Article 314 § 2 of the Criminal Code, those of the applicants Ekrem Can, Fikret Avras and Mahmut Cengiz under Article 174 § 1 and those of the rest of the applicants under Article 169 of the former Criminal Code. As a result, those convictions became final. 43.     The Court does not have in its possession any document showing that the Court of Cassation’s decision was duly served on the applicants or on their lawyers. Neither did the application form contain the date on which the applicants or their lawyers had been apprised of the Court of Cassation’s decision. Similarly, the information available in the case file is not such as to enable the Court to discern the exact date on which the decision of the Court of Cassation was deposited with the registry of the trial court. Nevertheless, on 18 June 2009 the trial court drew up a preparatory report ( tensip tutanağı ) whereby it set the date of the first hearing after the Court of Cassation had delivered its decision. 44.     In view of the above, the Court of Cassation’s decision should be presumed to have been available at the trial court’s registry, at the latest, by 18   June 2009. The time-limit started to run on the following day and expired on 18 January 2010. However, the application was lodged with the Court on 3   February 2010 – that is, after the expiry of the six-month time-limit in respect of the above-mentioned convictions. 45 .     Accordingly, the scope of the Court’s examination will be confined to (i)     all the applicants’ convictions under Article 113 of the Criminal Code and (ii)     the convictions of the applicants Ekrem Can, Mahmut Cengiz and Fikret Avras under Article 170 § 1 (c) of the Criminal Code (see Keskin v.   Turkey (dec.), no. 12923/12, 8 July 2014). The Court will carry out a separate analysis of the admissibility of each complaint below, having regard to the preliminary objections raised by the Government. 46.     As regards the remainder of the application, the Court finds that it was introduced out of time and must be rejected, pursuant to Article 35 §§ 1 and   4 of the Convention. ALLEGED VIOLATION OF ARTICLE 6   §§ 1 and 3 ( c ) OF THE CONVENTION 47.     The applicants complained that they had not been allowed to benefit from legal assistance when they had given statements to the police, in breach of Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, provides: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time 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;” Admissibility 48.     The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible. Merits The parties’ submissions 49.     The applicants claimed that the police officers had forced them into signing certain documents which allegedly showed that they had waived their right to a lawyer. However, the fact that all the applicants had asked for a lawyer when giving statements to the public prosecutor and to the above-mentioned judge of the Istanbul State Security Court constituted proof that the documents they had signed during police custody had not reflected the truth. In fact, the applicants had asked for a lawyer during their time in custody, as was shown by the reports drawn up by the lawyers. 50.     The Government argued that the contents of the documents that the applicants had signed while in police custody showed that they had waived their right to a lawyer after being duly informed of their fundamental rights. More importantly, the applicants Ekrem Can and Fikret Avras had met their lawyers while in police custody – on 19 November 2003 (both applicants) and on 21 November 2003 (the latter). The validity of the documents signed by the applicants was further supported by the fact that a lawyer had been appointed to represent the applicant Mehmet Şahin at his own request; that lawyer had, moreover, been present at his interview. Lastly, the applicants’ convictions had not been solely based on the statements that they had made in the absence of a lawyer. Accordingly, the Government invited the Court to declare the applicants’ complaints under Article 6 §§ 1 and 3 (c) of the Convention inadmissible as being manifestly ill-founded. The Court’s assessment (a)    General principles 51 .     The general principles regarding access to a lawyer, the right to remain silent, the privilege against self-incrimination, waiver of the right to legal assistance and the relationship of those rights to the overall fairness of proceedings under the criminal limb of Article 6 of the Convention can be found in the judgment in the case of Simeonovi v. Bulgaria ([GC], no.   21980/04, §§ 112-120, 12 May 2017). The Court reiterates that it examines complaints concerning the restriction of access to a lawyer in the light of a three-pronged test which consists of the following steps: (i)   whether the applicant waived his right to legal assistance in an unequivocal manner and whether the waiver was attended by minimum safeguards commensurate with its importance; (ii)     whether there were “compelling reasons” to restrict access to a lawyer; and (iii)     whether, despite the temporary absence of a lawyer, the overall fairness of the proceedings was ensured. (b)    Application of the principles to the instant case 52.     In view of the differences in the facts of their respective cases, the Court deems it appropriate to divide the applicants into two groups for the purposes of its examination under Article 6 §§ 1 and 3 (c) of the Convention. (i)       In respect of the applicants Ekrem Can, Mahmut Cengiz and Fikret Avras (α)      Whether the applicants waived their right to legal assistance 53 .     The Court is called upon to examine whether the applicants validly waived their right of access to a lawyer during their police interviews and the reconstruction of events that took place during the time they spent in police custody from 18 until 21 November 2003, as it is not disputed between the parties that the applicants were represented by a lawyer when giving statements to the public prosecutor and to the judge of the Istanbul State Security Court on 22 November 2003. Referring to the documents that the applicants had signed while in police custody, the Government asserted that they had validly waived their right to a lawyer. The Government further argued that the fact that the applicants Ekrem Can and Fikret Avras had met their lawyers during the time that they had been in police custody constituted proof that the waivers had been genuine. 54.     The Court has already found in cases against Turkey that the validity of a waiver of the right to legal assistance during police custody cannot be shown by mere reference to the documents that an applicant signed while in police custody where that applicant (i)     after being granted access to a lawyer neither admitted his or her guilt nor maintained statements that he or she had made to the police before being granted access to that lawyer, and (ii)     consistently repudiated the self-incriminatory police statements throughout the ensuing proceedings, in which he or she was represented by a lawyer (see Akdağ v. Turkey , no. 75460/10, §§ 48-61, 17 September 2019, and Ruşen Bayar v. Turkey , no. 25253/08, §§ 113-123, 19 February 2019 with further references). The Court has also had regard to any indications that an applicant told the domestic courts that he had made a request for legal assistance (contrast Kaytan v. Turkey , no. 27422/05, § 31, 15   September 2015, and Gür v. Turkey (dec.), no. 39182/08, 14 January 2014). 55.     As regards the first limb of the Government’s argument, the Court reiterates that it has already examined an identical argument in Ruşen Bayar (cited above, §§ 115-123) and dismissed it. As the Government did not put forward any reason capable of requiring it to depart from the conclusion reached therein, the Court rejects the first limb of the Government’s argument. 56.     As regards the second limb of the Government’s argument, the Court notes that the case file contains two records drawn up in handwriting ( Tutanak ) by the lawyer of the applicant Ekrem Can on 19 and 20   November 2003, which were signed by that applicant, his lawyer and another lawyer (see paragraphs 16 and 17). Those records attested that the applicant Ekrem Can had told his lawyer that he would neither make statements to the police, nor take part in any other investigative acts. The second record stated that Ekrem Can’s lawyer had been prevented from meeting his client and that the recording of the incident had been deemed necessary (see Öcalan v.   Turkey [GC], no. 46221/99, § 131, ECHR 2005 ‑ IV). In the Court’s view, those records seriously undermine the Government’s contention that the applicants’ waivers were genuine. 57.     Furthermore, the applicants retracted the statements that they had made to the police as soon as they were brought before the public prosecutor on 22 November 2003, submitting that they had not been involved in any acts of violence (including the incidents involving Molotov cocktails referred to above), and the applicants Mahmut Cengiz and Fikret Avras specifically denied having taken part, while they had been in police custody, in any reconstruction of events. The applicants also told the public prosecutor and the trial court that they had indeed asked, while they had been in police custody, for a lawyer (see paragraphs 19 and 23). 58.     As regards the Government’s argument that the applicant Mehmet Şahin had in fact been able to exercise his right to a lawyer and that the applicant Kerim Taştan had been able to exercise his right to remain silent, the Court notes that the police officers involved in those two applicants’ interviews and those involved in the interviews of the applicants Ekrem Can, Mahmut Cengiz and Fikret Avras were entirely different (see paragraph   11). Therefore, the mere fact that other applicants could exercise their rights under Article   6 does not suffice to demonstrate that the applicants Ekrem Can, Fikret Avras and Mahmut Cengiz were able to exercise these rights in the same way. 59.     In view of the above, the Court considers that it is unable to find that it has been established beyond any reasonable doubt that the three above-mentioned applicants unequivocally, knowingly and intelligently waived their rights under Article 6 of the Convention (see Ruşen Bayar , cited above, §   123), notably their right to a lawyer when giving statements during the police interviews and the reconstruction of events that took place while they were in police custody. (β)       Whether there were compelling reasons to restrict access to a lawyer 60.     The Court notes that the Government have not offered any compelling reasons for restricting the applicants’ access to a lawyer during their police interviews. Furthermore, the domestic legislation in force at the material time did not provide for any reasons for such a restriction, let alone a compelling one (see Ruşen Bayar , cited above, § 125). Accordingly, there was no compelling reason to restrict the applicants’ access to a lawyer during their time in police custody. (γ)       Whether the overall fairness of the proceedings was ensured 61.     The lack of “compelling reasons” for restricting the applicants’ access to a lawyer in the present case requires the Court to conduct a very strict scrutiny of the fairness of the proceedings. The absence of such reasons weighs heavily in the balance when assessing the overall fairness of the criminal proceedings and may tip the balance towards finding a violation. It is incumbent on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction of the applicants’ access to a lawyer (see Beuze v. Belgium [GC], no.   71409/10, §   145, 9 November 2018; Ibrahim and Others v. the United Kingdom , [GC], nos.   50541/08 and 3 others, § 265, 13 September 2016; and the above-cited cases of Simeonovi , §§ 118 and 132; and Ruşen Bayar , § 126). 62.     Having weighed the procedural shortcoming (namely the invalidity of the applicants’ waiver of their right to legal assistance) against the overall fairness of the criminal proceedings, the Court notes that the trial court neither attempted to examine the circumstances surrounding those waivers nor subjected to scrutiny their self-incriminatory police statements and the evidence that they had given during the reconstruction of events; nor did it examine the admissibility of those before convicting the applicants (see Yunus Aktaş and Others v. Turkey , no. 24744/03, § 51, 20 October 2009). Similarly, the Court of Cassation did not remedy the shortcomings either. 63.     The absence of the aforesaid procedural safeguards has already been found by the Court to have violated the overall fairness of criminal proceedings in respect of the same legal question and in a situation where the applicants’ statements were used by the national courts to convict them (see Akdağ , cited above, §§ 64 ‑ 71; Ruşen Bayar , cited above, §§   126 ‑ 136; Bozkaya v. Turkey , no. 46661/09, §§ 49 ‑ 54, 5 September 2017; and Türk v.   Turkey , no. 22744/07, §§ 53-59, 5 September 2017). The same is also true in respect of the present case, particularly in respect of the fact that the accusations against Ekrem Can, Fikret Avras and Mahmut Cengiz regarding the throwing of Molotov cocktails were made after those applicants had already given confessions in respect thereof to the police and provided information during the course of the reconstruction of events, which subsequently formed the