CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 29 juin 2010

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Turkey (application no. 12976/05)     NO LAWYER DURING PART OF POLICE CUSTODY, NO QUALIFIED LAWYER DURING TRIAL, no PRESUMPTION OF INNOCENCE: UNFAIR TRIAL   Unanimously   Violation of Articles 6 § 2 and 6   § 3c) and d) in conjunction with Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights     Principal facts   The applicant, Serdar Menderes Karadağ, is a Turkish national who was born in 1974. At the time of lodging the application, he was in detention in Sinop prison (Turkey).   Criminal proceedings were opened against him following the murder of the owner of a mobile phone shop, who was found stabbed to death. On 5 January 2002 the applicant was taken into police custody. According to the transcript of his statement to the police on that day, he confessed to the murder, and there was a tick in the box marked “lawyer present during examination of witness”. On two subsequent occasions – during a reconstruction of the events and when giving evidence to the military authorities – the applicant was not assisted by a lawyer. In February 2002 he was charged with the murder. The Assize Court heard an eye-witness, Ö. B., who recognised Mr Karadağ.   On 30 May 2002 a television programme about the case was aired, with actors playing the parts of the applicant and the other people involved, interspersed with commentary, about the applicant’s state of mind among other things, and scenes from the reconstruction of the crime. The programme showed the applicant’s character stabbing the shopkeeper. It also featured testimonies by witnesses, including a police officer. Following the broadcast the applicant was hospitalised with severe depression.   On 26 September 2002 an investigation was opened into the person who had initially acted as the applicant’s counsel during his trial, there being some doubt as to whether she was a qualified lawyer. At that time Mr Karadağ was represented by a new lawyer, who requested that all the procedural steps taken when the applicant was not properly represented be taken afresh. His request was rejected.   On 1 November 2002 the Assize Court found the applicant guilty of murder and sentenced him to life imprisonment. That judgment was set aside by the Court of Cassation and the case was remitted. On 18 December 2003 the Assize Court found the applicant guilty of murder, based, among other things, on statements made by witnesses, including Ö. B. On 7 October 2004 the Court of Cassation rejected the applicant’s appeal against that judgment.   In 2007 the person who had represented the applicant during part of his trial was found guilty by the Assize Court of illegally practising law; she had opened a law firm, drawn up notarised documents and taken part in trials and enforcement proceedings.     Complaints, procedure and composition of the Court   Relying on Article 6 §§ 1, 2 and 3 (right to a fair trial), the applicant complained, among other things, that he had not been assisted by a lawyer while in police custody, that the proceedings against him had been unfair for various reasons – statements made under duress, lack of legal representation – and that his right to be presumed innocent had been violated by the television programme about his case at the time of his trial. Relying also on Article 5 (right to liberty and security) and Article 3 (prohibition of inhuman or degrading treatment), he also complained about violence allegedly suffered during police custody and the duration of that custody. Under Article 1 of Protocol No. 1 (protection of property), he complained about the fees paid to the bogus lawyer.   The application was lodged with the European Court of Human Rights on 18 March 2005.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgium), President , Ireneu Cabral Barreto (Portugal), Danutė Jočienė (Lithuania), Dragoljub Popović (Serbia), András Sajó (Hungary), Işıl Karakaş (Turkey), Guido Raimondi (Italy), Judges , and also Sally Dollé , Section Registrar.     Decision of the Court Article 6 § 3 c) in conjunction with Article 6 § 1 The Court reiterated that in order for a trial to be fair the accused must have access to the full range of services provided by counsel, and that the absence of legal representation during the investigation constituted a breach of the requirements of Article 6. In this case, although the applicant had been represented by counsel during part of his time in police custody, he had had no counsel when he was taken to the scene of the crime for the reconstruction, or during his questioning by the military authorities. The Court accordingly found a violation of Article 6 § 3 c) in conjunction with Article 6 § 1.     Article 6 § 3 d) in conjunction with Article 6 § 1   Paragraphs 1 and 3 d) of Article 6 provided for an accused person to be able to challenge statements made by witnesses against him and to question the witnesses concerned. In this case, up until the hearing preceding the one at which sentence was pronounced, the applicant had not been represented by a qualified lawyer but by someone posing as a lawyer. His subsequent lawyer’s request for the procedural steps taken when his client had not been properly represented to be taken again had been rejected. The Court considered that the examination and remittal of the case by the Court of Cassation had not remedied the unfairness that had marked the initial proceedings. The failure to hear witnesses at the only stage in the judicial proceedings when the applicant had been represented by a bona fide lawyer had deprived him of the possibility of presenting his case in keeping with the principle of equality of arms and the adversarial principle. The Court accordingly found a violation of Article 6 § 3 d) in conjunction with Article 6 § 1.     Article 6 § 2   The television programme about Mr Karadağ’s case had been interspersed with real witness accounts, including that of a police investigator describing details of the investigation and the circumstances of the crime and leaving no doubt as to the applicant’s guilt. While the authorities had the right to inform the public about progress in criminal investigations, they had to respect the presumption of innocence. This had not been the case here, as the police had taken no such precautions in depicting Mr Karadağ as a criminal. Furthermore, the Turkish Government had provided no explanation as to how the press had been able to access the crime scene and film the reconstruction in which the applicant had taken part. The Court accordingly found a violation of Article 6 § 2.   Other complaints (Articles 3 and 5 and Article 1 of Protocol no. 1)   The applicant presented no evidence attesting to his alleged ill-treatment in police custody, and the two medical examinations carried out had revealed no traces of physical violence. The complaint under Article 3 was therefore rejected as being manifestly ill-founded.   Also, the application to the Court having been lodged more than six months after the end of his pre-trial detention, the applicant’s complaints under Article 5 were rejected as being out of time.   Lastly, the applicant’s complaint under Article 1 of Protocol No. 1 had been worded in general terms, with no evidence to support the allegations. It was accordingly rejected as being manifestly ill-founded.   Just satisfaction   By virtue of Article 41, the Court held that Turkey was to pay Mr Karadağ 7,200 euros (EUR) in respect of non-pecuniary damage and EUR 629 for costs and expenses.   ***   The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website .   Press contacts [email protected] / +33 3 90 21 42 08   Céline Menu-Lange (telephone: + 33 3 90 21 58 77) Emma Hellyer (téléphone : +33 3 90 21 42 15) Tracey Turner-Tretz (telephone: + 33 3 88 41 35 30) Kristina Pencheva-Malinowski (telephone: + 33 3 88 41 35 70) Frédéric Dolt (telephone : + 33 3 90 21 53 39) Nina Salomon (telephone : + 33 3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the   day the   request is rejected. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.