CEDH · CASELAW;CLIN;ENG — 20 janvier 2009

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Turkey - 70337/01 Judgment 20.1.2009 [Section II] Article 3 Degrading treatment Inhuman treatment Pre-trial detention of minor in adult prison: violation   Article 5 Article 5-3 Length of pre-trial detention Pre-trial detention of minor in adult prison for four and a half years: violation   Article 6 Criminal proceedings Article 6-1 Fair hearing Inability of minor defendant to participate effectively in his criminal trial and lack of adequate legal representation: violation   Facts : In 1995 the applicant, a fifteen year old, was arrested on suspicion of having links to the PKK. Although he was still a minor, a state-security-court judge ordered his detention in an adult prison pending the institution of criminal proceedings and he was subsequently charged with undermining the territorial integrity of the State, an offence which at the time was punishable by death and could only be tried by a state security court. For the first six and a half months after his arrest the applicant had no legal representation. A lawyer acting for one of his co-accused then informed the court that she would represent him, but she failed to attend most of the hearings. About 18 months after his arrest, the charges against the applicant were reduced, in view of disparities in the prosecution case, to the non-capital offences of membership of an illegal organisation and criminal damage. In October 1997 the applicant was convicted of those charges and given a prison sentence. However, his conviction was quashed by the Court of Cassation on appeal and the case was remitted for a retrial. Owing to ill-health, the applicant failed to attend a number of hearings. In view of the absence of his lawyer, his cell mates wrote to the court in July 2000 to inform it of the situation and appended a note from a prison doctor explaining that the applicant had been admitted to a psychiatric hospital. The applicant's health continued to deteriorate and the prison doctor subsequently reported that, in view of serious psychiatric problems and two suicide attempts, one of which had left him with serious burns, the applicant needed specialist hospital treatment. Following a change of lawyer, the applicant was finally released on bail pursuant to an order of July 2000. A subsequent psychiatric report concluded that he had been suffering from major depression, a condition that had begun and deteriorated during his detention. At his retrial the applicant was convicted of membership of an illegal organisation and given an eight-and-a-half-year prison sentence. His conviction was upheld on appeal. The practice of detaining minors in adult prisons pending trial in Turkey has been criticised in reports by a number of international monitoring bodies including the United Nations Committee on the Rights of the Child, the European Committee of Social Rights and the European Committee for the Prevention of Torture. Article 37 of the UN Convention on the Rights of the Child requires the detention of children to be used only as a measure of last resort and for the shortest appropriate period and for the child to be separated from adults unless it is in its best interests not to be. It also guarantees detained children a right to prompt legal assistance. Law : Article 3 – (a) Admissibility (exhaustion of domestic remedies) : Not only had the Government not demonstrated the effectiveness of the proposed remedies, the applicant was in the special circumstances of the case, absolved from the exhaustion requirement in view of his acute medical problems, his lack of adequate legal representation for considerable periods and the judiciary's complete disregard of the rules applicable to minors. Conclusion : objection dismissed (unanimously). (b)     Merits : The applicant had been detained at the age of 15 in an adult prison, in breach of domestic law and Turkey's international obligations. His psychological problems had begun in prison and worsened there. Following his detention, he had spent the next five years in the company of adult prisoners. He had had no access to legal advice for the first six and a half months and no adequate legal representation for some five years. These circumstances, coupled with the fact that for a period of over 18 months he had been charged with an offence carrying the death penalty, must have caused him total uncertainty and been at the origin of the psychological problems which had led to his repeated attempts to take his own life. The national authorities were directly responsible for the applicant's problems and had manifestly failed to provide him with adequate medical care. Given his age, the length of his detention with adults and the authorities' failure to provide adequate medical care or to take steps to prevent his repeated suicide attempts, the applicant had been subjected to inhuman and degrading treatment. Conclusion : violation (unanimously). Article 5 § 3 – The length of the pre-trial detention included both the period from the applicant's arrest until his initial conviction and the period from the quashing of that conviction by the Court of Cassation until his release on bail and came to more than four and a half years. The applicant had remained a “victim” for Convention purposes notwithstanding the fact that the time he had spent in pre-trial detention was subsequently deducted from his prison sentence. There had been no genuine public-interest requirement necessitating such lengthy pre-trial detention and no indication that the courts had considered alternative methods or used detention as a last resort as required by both domestic and international law. In at least three previous judgments concerning Turkey, the Court had found violations of Article 5 § 3 for considerably shorter periods than that in the applicant's case. The length of his detention on remand was thus excessive. Conclusion : violation (unanimously). Article 6 § 1 in conjunction with Article 6 § 3 (c) – The applicant's case raised important issues concerning the right of minors to effective participation in their trial and to legal assistance. Despite his very young age, the applicant had initially been charged with a capital offence under legislation which at the time precluded his being tried by a juvenile court or having a lawyer assigned to him by the State. He could not be considered to have effectively participated in the proceedings as he had had no legal representation when he was questioned by the police, the prosecution and a duty judge and, on account of his health problems, had been unable to attend almost half of the hearings. The fact that he had subsequently been represented could not alter that conclusion as the lawyer first appointed to defend him had failed to attend most of the hearings and he had been completely without legal assistance during the crucial final stages of the retrial until the second lawyer took over the conduct of his defence. The Court accepted that the State could not normally be held responsible for the conduct of an accused's lawyer unless the lawyer was appointed under the legal-aid scheme and had manifestly failed to provide effective representation. However, although it noted that the applicant's first lawyer had not been appointed under such a scheme, it found that there were a number of factors in the applicant's case – his age, the seriousness of the charges, the contradictions in the prosecution case, the manifest lack of proper representation by the first lawyer and the applicant's many absences from hearings – that should have led the trial court to consider that adequate representation was urgently required. That lack of adequate representation had exacerbated the consequences of the applicant's own inability to participate in his trial effectively and infringed his right to due process. Conclusion : violation (unanimously). Article 41 – EUR 45,000 in respect of non-pecuniary damage, in view of the particularly grave circumstances and the nature of the multiple violations.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes