SECOND SECTION

CASE OF SEYFETTİN GÜNEŞ v. TURKEY

(Application no. 22182/10)

JUDGMENT

STRASBOURG

17 November 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Seyfettin Güneş v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Guido Raimondi, President,
	Işıl Karakaş,
	Nebojša Vučinić,
	Helen Keller,
	Paul Lemmens,
	Egidijus Kūris,
	Robert Spano, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 13 October 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 22182/10) 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 a Turkish national, Mr Seyfettin Güneş (“the applicant”), on 24 February 2010.
2.  The applicant, who had been granted legal aid, was represented by Mr S. Ramanlı, a lawyer practising in Batman. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 10 September 2012 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1970 and is serving a sentence in Batman prison.
Section 1.01	A.  Alleged ill-treatment of the applicant, the criminal proceedings against him and his criminal complaint against police officers
5.  In April 2000 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. He claimed to have been arrested on 4 April 2000, whereas according to the arrest report he was taken into custody on 7 April 2000. His first medical examination upon his arrest was, however, carried out on 6 April 2000.
6.  The examination was carried out by a doctor at the request of the police. According to the medical report issued in respect of the applicant, it was conducted prior to his detention in police custody. The report stated that there was old scar tissue measuring 3 cm on his upper right wrist. The doctor also noted that there were no signs of violence on the applicant’s body.
7.  On 9 April 2000 a second medical report was drafted, according to which the scar tissue mentioned in the medical report of 6 April 2000 was 2.5 cm long.
8.  On 10 April 2000 the applicant was questioned by the police without a lawyer being present. According to the document containing his statements to the police, he acknowledged being a member of Hizbullah.
9.  On 11 April 2000, at the end of his detention in police custody, the applicant was once again examined by a doctor. According to the report, there were no signs of violence on his body.
10.  On the same date the applicant was brought before the public prosecutor and, subsequently, a judge, who questioned him and recorded his statements. On both occasions he denied the veracity of his statements to the police, claiming that he had signed them under duress. The judge remanded him in custody.
11.  On 3 May 2000 the public prosecutor at the Diyarbakır State Security Court filed an indictment against the applicant and a number of other individuals. They were charged with being members of Hizbullah under Article 168 of the former Criminal Code.
12.  On 27 June 2000 the Diyarbakır State Security Court held the first hearing on the merits of the case, at which the applicant gave evidence. He maintained, inter alia, that while in police custody, he had been beaten and given electric shocks to his genitals. He also told the court that he had been taken into police custody on 6 April 2000.
13.  On 2 July 2001 the applicant once again maintained before the first‑instance court that his statements to the police had been obtained under torture.
14.  In 2004 State Security Courts were abolished. The case against the applicant was transferred to the Diyarbakır Assize Court.
15.  On 11 October 2004 the applicant was released pending trial.
16.  On 25 October 2005 the case against the applicant and his co‑accused was joined with another case brought against a number of other people charged with being members of Hizbullah.
17.  Between 11 October 2004 and 13 February 2008 the applicant did not attend court, although during this period his lawyers attended some hearings on his behalf.
18.  On 13 February 2008, during the final hearing in the case, the applicant’s lawyer contended that the court should not base its judgment on the applicant’s statements to the police, as they had been made under duress.
19.  On the same day the Diyarbakır Assize Court convicted the applicant of being a member of an illegal organisation and sentenced him to ten years’ imprisonment. The court noted that he had alleged that he had been tortured in police custody. It nevertheless based its judgment on the statements the applicant and a number of the other accused had made to the police, and documents found in the applicant’s house at the time of his arrest.
20.  On 24 June 2009 the applicant’s lawyer lodged an appeal against the judgment of 13 February 2008, which did not refer to any of the applicant’s allegations of ill-treatment while in police custody.
21.  On 30 September 2009 the Court of Cassation upheld the judgment.
22.  On 1 December 2009 the applicant began serving his sentence.
23.  On 25 October 2010 he filed a petition with the Batman public prosecutor’s office, requesting that an investigation be initiated into his ill‑treatment while in police custody in April 2000.
24.  On 1 December 2010 the applicant gave statements to the Batman public prosecutor. He maintained that he had not been taken into police custody on 6 April but on 4 April 2000, and that he had been subjected to torture while detained. He requested that both the police officers on duty at the relevant time and the doctors who had issued the medical reports be prosecuted.
25.  On an unspecified date the Batman public prosecutor requested the Diyarbakır branch of the Forensic Medical Institute to examine the applicant and provide an opinion as to whether his allegations of torture were well‑founded.
26.  On 2 December 2010 a doctor from the Diyarbakır branch of the Forensic Medical Institute conducted the examination. The applicant told the medical expert that he had been hung by his wrists in police custody, and that they had been bruised at the material time. The doctor drafted a detailed report comparing the results of the three medical reports issued in April 2000 and containing his opinion. He considered that the term “old scar tissue” should not have been used in the reports issued in 2000, since such scars did not fade for a long time. In this connection, the doctor noted that he could not see any such scar when he examined the applicant in 2010. In sum, the doctor considered that had the scar observed during the medical examinations in 2000 been an “old scar”, it would still have been observed during the examination of 2010. He also noted that the reports issued in April 2000 had not described the type, colour or any other features of the scar. Lastly, he recommended that the applicant undergo an examination at the Forensic Medical Institute in Istanbul with a view to establishing whether he had been suffering any psychiatric problems as a result of the alleged torture.
27.  On 28 November 2011 the Batman public prosecutor decided not to prosecute the officers on duty at the Batman police station at the relevant time or the three doctors who had issued the medical reports on 6, 9 and 11 April 2000. The public prosecutor noted that the statutory time-limit provided in Article 102 of the former Criminal Code (which had been in force in 2000 for prosecutions for torture) was ten years, and that the applicant had lodged his complaint after this time-limit had expired. It was accordingly concluded that the investigation was time‑barred.
28.  On 19 December 2011 the applicant objected to that decision.
29.  On 23 January 2012 the Midyat Assize Court dismissed his objection and the decision was upheld.
Section 1.02	B.  Alleged lack of medical assistance in prison
30.  On 8 January 2001, while the applicant was in custody, his hip was broken while he was playing volleyball. He had surgery twice.
31.  In medical reports dated 16 April, 24 May and 26 September 2002, doctors from the Dicle University Faculty of Medicine concluded that for him to make a full recovery, he would need to have a hip replacement.
32.  On 23 December 2002 and 13 January 2003 the applicant filed petitions with the Batman public prosecutor, requesting immediate surgery and complaining of a delay in treatment.
33.  On 6 February 2003 the applicant’s father submitted another petition to the Ministry of Justice requesting immediate intervention.
34.  A prosthetic hip was implanted after four consecutive operations carried out on unspecified dates in 2003 or 2004. On 22 October 2004 the applicant was declared unfit for military service because of the prosthesis.
Article II.	II.  RELEVANT DOMESTIC LAW
35.  The relevant domestic law and practice in force at the material time can be found in the following judgments: Batı and Others v. Turkey, (nos. 33097/06 and 57834/00 §§ 95-99, ECHR 2004-IV (extracts)); Salduz v. Turkey [GC], (no. 36391/02, §§ 27-31, 27 November 2008); and Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19‑26 26 March 2013).
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S ALLEGED ILL‑TREATMENT IN POLICE CUSTODY AND THE ALLEGED INEFFECTIVENESS OF THE INVESTIGATION
36.  In his application form of 24 February 2010 and further submissions dated 1 November 2010, 29 December 2010 and 19 July 2012, the applicant complained under Article 3 of the Convention that he had been subjected to various forms of ill‑treatment amounting to torture while in police custody in April 2000. He also complained that his allegations of ill-treatment had not been investigated effectively.
37.  The Government claimed that the applicant had lodged his application outside the six-month time-limit. They maintained in this connection that he had been released from prison in 2004 and should therefore have lodged his petition with the Batman public prosecutor’s office and requested an investigation into his allegations long before 2010. They also noted that he had raised his allegations of torture before a State Security Court. Given that the public prosecutor did not take any action in the face of those allegations, the domestic remedies at the relevant time had clearly been ineffective. The applicant should therefore have been aware of their ineffectiveness earlier.
38.  The applicant submitted in reply that he had lodged his application within six months of the Court of Cassation’s decision.
39.  The Court reiterates at the outset that in cases concerning an investigation into ill-treatment, applicants are expected to take steps to keep track of its progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 263, ECHR 2014 (extracts)).
40.  It follows that the obligation of diligence incumbent on applicants contains two distinct but closely linked aspects. On the one hand, they must contact the domestic authorities promptly concerning progress in the investigation – which implies the need to apply to them with diligence, since any delay risks compromising the effectiveness of the investigation – and, on the other, they must lodge their application promptly with the Court as soon as they become aware or should have become aware that the investigation is not effective (ibid., § 264 and the cases cited therein).
41.  In the present case, the Court must examine whether the applicant fulfilled both aspects of his duty of diligence in the light of the principles recapitulated in Mocanu and Others (ibid., §§ 258-269).
42.  As to the first aspect incumbent on the applicant – that is, the duty to raise his allegations of ill-treatment promptly before the national authorities and to keep track of the outcome of his complaint – the Court observes that on 11 April 2000 when he was brought before the public prosecutor and judge who questioned him and recorded his statements, he denied the veracity of his statements to the police, claiming that he had signed them under duress (see paragraph 10 above). The applicant further raised his allegation of ill‑treatment on 27 June 2000 during the first hearing of the case against him (see paragraph 12 above). The national authorities however failed to initiate an investigation into the applicant’s claim that he had been coerced by the police into signing his statements and his allegations of ill‑treatment despite the fact that under Article 153 of the former Code of Criminal Procedure, in force at the material time, a public prosecutor who had been informed of a situation that gave rise to a suspicion that an offence had been committed was obliged to investigate the facts by conducting the inquiries necessary to identify the perpetrators (see İlhan v. Turkey [GC], no. 22277/93, § 36, ECHR 2000‑VII; and Mocanu and Others, cited above, § 265).
43.  The Court however observes that apart from his aforementioned statements of 11 April and 27 June 2000, the applicant (and his lawyer) raised the allegations of ill-treatment only twice, on 2 July 2001 and 13 February 2008 within the context of the criminal proceedings against him and with a view to challenging the admissibility of his statements to the police in the case file and their use as evidence (see paragraphs 13 and 18 above). While the applicant may be considered to have been in a vulnerable position as a prisoner and his inactivity may be deemed understandable up until 11 October 2004, the date on which he was released pending trial, from that date onwards he could and should have contacted the national authorities with a view to seeking information about the outcome of his complaints and lodged a formal complaint with the prosecuting authorities had he learned that there had been no investigation. What is more, in his appeal filed with the Court of Cassation on 24 June 2009, the applicant did not pursue his allegations of ill-treatment. The Court therefore finds that the applicant failed to comply with the obligation of diligence to take steps to inform himself whether an investigation had been initiated into his allegations of ill-treatment and, if so, to keep track of it.
44.  With regard to the second aspect incumbent on applicant – that is, the duty to lodge an application with the Court as soon as he realised, or ought to have realised, that there had been no effective investigation into his allegations of ill-treatment – the Court notes that despite the applicant’s statements on 27 June 2000, 2 July 2001 and 13 February 2008 before the Diyarbakır State Security Court and Diyarbakır Assize Court, the national authorities failed to initiate an investigation into his allegations. In the Court’s view, the judicial authorities’ failure to fulfil their obligation to investigate must have become apparent to the applicant by 13 February 2008 at the latest, the date the Diyarbakır Assize Court rendered its judgment in the case against him (see Baytap v. Turkey (dec.), no. 17579/05, 29 April 2010).
45.  As to the investigation opened in 2010 in the wake of the applicant’s complaint of 25 October 2010, the Court observes that despite the fact that the public prosecutor took two investigative steps, namely taking the applicant’s statements and requesting the Forensic Medicine Institute to prepare a medical opinion on his allegations of ill-treatment, at the end of the investigation he concluded that the applicant had lodged his petition after the statutory time-limit for prosecutions for torture had expired (see paragraph 27 above). The Court further observes that at that stage the applicant had not based his petition on any new information or new evidence. Thus, in the Court’s view, he should have known that his petition to the public prosecutor’s office would not give rise to an effective investigation and that the one initiated was doomed to failure. The Court considers as a result that the petition the applicant lodged on 25 October 2010 did not warrant the interruption of the initial six-month period or revive the national authorities’ procedural obligation to investigate his allegations of ill-treatment (see Manukyan v. Georgia (dec.), no. 53073/07, 9 October 2012; and Akhvlediani and Others v. Georgia (dec.), nos. 22026/10, 22043/10, 22078/10, 22097/10, 22128/10, 27480/10, 27534/10, 27551/10, 27572/10, 27583/10, 9 April 2013; compare with Brecknell v. the United Kingdom, no. 32457/04, § 71, 27 November 2007; and Gasyak and Others v. Turkey, no. 27872/03, § 63, 13 October 2009).
46.  In view of the above, the Court considers that the unexplained inactivity of the applicant and indifference on his part towards the lack of an investigation for over ten years rendered his complaint of 25 October 2010 without substance, and also fell foul of the purposes of the six-month rule under Article 35 § 1 of the Convention (compare with Aysu v. Turkey no. 44021/07, §§ 28-29, 13 March 2012, where the Court dismissed the Government’s objection regarding the six-month time-limit, noting that the applicant’s allegations of ill-treatment had been examined on their merits by the prosecuting authorities although the applicant had waited for more than seven years before lodging a separate complaint). The Court therefore concludes that the applicant’s complaints alleging ill‑treatment and lack of an effective investigation in that regard are inadmissible for failure to comply with the six-month rule.
47.  It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
Article IV.	II.  ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
48.  The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that his statements obtained by the police under duress and without legal assistance had been used during the proceedings against him. He also submitted under Article 6 § 1 of the Convention that the length of those proceedings had exceeded the reasonable time requirement.
49.  Article 6 of the Convention, in so far relevant, reads as follows:
“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... 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;
...”
Section 4.01	A.  Use of the applicant’s statements to the police allegedly obtained under duress and without legal assistance
(a)	1.  Admissibility
50.  The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible.
(b)	2.  Merits
51.  The applicant complained that he had been denied legal assistance during his detention in police custody, and that in convicting him, the first‑instance court had used statements obtained by the police as a result of ill‑treatment.
52.  The Government maintained that the applicant’s statements to the police had not been decisive evidence against him, as the Diyarbakır Assize Court had also relied on other evidence. Referring to the Court’s judgment in the case of Salduz, cited above, they submitted that they were aware of the Court’s case-law in so far as it relates to the applicant’s complaint concerning the lack of legal assistance in police custody.
53.  The Court observes at the outset that, on the basis of the case file, it cannot be concluded that the applicant was subjected to ill-treatment or otherwise coerced into making statements in police custody (see Taşçıgil v. Turkey, no. 16943/03, § 35, 3 March 2009; Mehmet Zeki Doğan v.  Turkey, no. 38114/03, § 12, 6 October 2009; and Hayrettin Demir v. Turkey, no. 2091/07, § 48, 24 July 2012; and compare with Örs and Others v. Turkey, no. 46213/99, §§ 53-61, 20 June 2006; and Özcan Çolak v. Turkey, no. 30235/03, §§ 41-50, 6 October 2009). The Court therefore considers that the examination of this part of the application should be confined to the complaint concerning the use by the trial court of statements made to the police without a lawyer being present, which should be examined under Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1.
54.  The Court notes that it is not in dispute between the parties that the applicant was denied legal assistance during the period in custody. It notes that at the time he was detained, namely April 2000, the restriction imposed on his right of access to a lawyer was systemic and applied to anyone held in police custody in connection with an offence falling under the jurisdiction of the State Security Courts (see Salduz, cited above, §§ 56-63). The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned Salduz judgment.
55.  There has therefore been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.
Section 4.02	B.  Length of the criminal proceedings against the applicant
56.  The applicant complained that the criminal proceedings against him had been excessively lengthy.
57.  The Government maintained that the applicant had failed to exhaust the remedies available to him under domestic law, as he had not applied to the Compensation Commission set up by Law no. 6384 to deal with applications concerning the length of proceedings.
58.  The Court observes that, as pointed out by the Government, a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in Turgut and Others v. Turkey (no. 4860/09, 26 March 2013), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies once the new domestic remedy had come into being. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
59.  The Court notes that in its decision in Ümmühan Kaplan (cited above, § 77) it stressed that it could examine applications of this type which have already been communicated to the Government.
60.  However, taking account of the Government’s preliminary objection with regard to the applicant’s failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in Turgut and Others (cited above). It concludes, therefore, that the complaint concerning the length of the criminal proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
Article V.	III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
61.  The applicant complained under Article 3 of the Convention that there had been a lack of medical assistance in prison. He also submitted under Article 5 of the Convention that his detention pending trial had been excessively lengthy.
62.  The Court observes that the applicant’s detention on remand ended when he was released from prison on 11 October 2004, whereas he lodged his application with the Court on 24 February 2010. It follows that, even assuming that his allegations regarding the absence of medical assistance were well-founded and that he had exhausted all domestic remedies available to him in relation to his complaints, he failed to comply with the six-month time-limit.
63.  These complaints were therefore lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
Article VI.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
64.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
65.  The applicant claimed 100,000 euros (EUR) in respect of the non‑pecuniary damage he had allegedly suffered. He claimed a further EUR 100,000 in respect of pecuniary damage.
66.  The Government contested those claims, submitting that the amounts requested were unsubstantiated and excessive.
67.  The Court observes that the applicant did not substantiate his claim for pecuniary damage. It therefore rejects that claim. It finds, however, that he must have suffered pain and distress which cannot be compensated for solely by the finding of a violation. Having regard to the nature of the violation found, the Court finds it appropriate to award him EUR 1,500 in respect of non-pecuniary damage.
68.  The Court further considers that the most appropriate form of redress would be a retrial of the applicant in accordance with the requirements of Article 6 of the Convention, should he so request (see Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003).
69.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaints under Article 6 §§ 1 and 3 (c) of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance afforded to the applicant while in police custody;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stanley Naismith	Guido Raimondi
	Registrar	President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Lemmens and Spano is annexed to this judgment.
G.R.A.
S.H.N.

JOINT CONCURRING OPINION 
OF JUDGES LEMMENS AND SPANO
We agree with the Court’s finding of a violation of Article 6 § 3 (c) of the Convention, in conjunction with Article 6 § 1, on account of the lack of legal assistance afforded to the applicant while in police custody. However, in the light of the reasoning provided in Judge Spano’s dissenting opinion in the case of Aras v. Turkey, no. 15065/07, 18 November 2014, in which he was joined by Judge Lemmens, and also in our joint concurring opinion in the case of Galip Doğru v. Turkey, no. 36001/06, 28 April 2015, we consider that paragraph 54 of the judgment should have explicitly mentioned that the applicant’s incriminating statements, given during police questioning in the absence of legal assistance, were directly relied upon by the Assize Court when the applicant was convicted (see paragraph 19 of the judgment).