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UMIT GUL v. TURKEY - 7880/02 [2009] ECHR 1408 (29 September 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1408.html
Cite as:
[2009] ECHR 1408
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SECOND
SECTION
CASE OF ÜMİT GÜL v. TURKEY
(Application
no. 7880/02)
JUDGMENT
STRASBOURG
29
September 2009
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 Ümit Gül
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Françoise Elens-Passos,
Deputy
Section Registrar,
Having
deliberated in private on 8 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 7880/02) 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 of Kurdish origin, Mr Ümit
Gül (“the applicant”), on 17 January 2002.
The
applicant, who had been granted legal aid, was represented by Messrs
Hüseyin Aygün and Özgür Ulaş Kaptan, lawyers
practising in Tunceli, Turkey. The Turkish Government (“the
Government”) were represented by their Agent.
The
applicant alleged, in particular, that while he was in police custody
he had been subjected to ill-treatment amounting to torture and that
the criminal proceedings brought against him at the end of that
period of custody had not been fair.
On
10 May 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1982 and lives in Dusseldorf, Germany.
On
14 January 2001 police officers from the anti-terrorist branch of the
Tunceli police headquarters arrested the applicant on suspicion of
having written slogans on a wall in support of TKP/ML-TMLGB, namely,
the Communist Party of Turkey/Marxist Leninist - Marxist Leninist
Youth Union of Turkey (Türkiye Komunist Partisi/Marksist
Leninist - Türkiye Marksist Leninist Gençlik Birliği),
an illegal organisation. He was placed in police custody. According
to the arrest report of 14 January 2001, the applicant did not ask
for a lawyer.
The
applicant alleged that while in police custody he had been subjected
to physical and psychological ill-treatment amounting to torture. The
ill treatment consisted of, inter alia, being hosed with
pressurised cold water and suspended by the arms, electric shocks and
beatings.
According
to four medical reports drawn up on 14, 16, 17 and 19 January
2001 by a doctor at Tunceli State Hospital, apparently at the request
of the police headquarters where the applicant was being detained,
there were no marks of ill-treatment on the applicant’s body.
It was stated in the reports that the applicant “did not have
any complaints, appeared well and was conscious” and that there
were “no injuries on his body”.
On
17 January 2001, while he was in police custody, police officers
questioned the applicant and recorded his statement. In the nine page
statement the applicant was reported as having stated that he did not
want the assistance of a lawyer and went on to detail the activities
he had carried out on behalf of the above-mentioned illegal
organisation. These activities included distributing copies of a
left-wing newspaper, writing slogans on walls and taking part in
meetings with other members of the organisation.
On
19 January 2001 the applicant was brought before the Tunceli
prosecutor and subsequently before the Tunceli Magistrates’
Court (Tunceli Sulh Ceza Mahkemesi), where he was questioned
further. The applicant confirmed the accuracy of the contents of the
statement he had made in police custody on 17 January 2001. The
Magistrates’ Court ordered the applicant’s detention
pending the outcome of the criminal proceedings. The applicant was
detained in Malatya Prison.
1. The investigation into the applicant’s allegations of
ill-treatment
On
22 January 2001 the applicant submitted a petition to the Malatya
State Security Court, requesting his release. In his petition the
applicant stated that, in the course of his detention in police
custody he had been subjected to intensive physical and psychological
torture in order to force him to sign a statement. Furthermore, he
had not been allowed to sleep for three days preceding his appearance
before the prosecutor and, as a result, had not been fully conscious
when questioned. The applicant’s request for release was
rejected the following day.
On
8 February 2001 the applicant asked, in writing, for the Malatya
public prosecutor to refer him to a hospital so that the marks left
on his shoulders by the ill treatment could be documented. On 14
February 2001 the Malatya prosecutor decided that the alleged
ill-treatment had not taken place in his area of jurisdiction and
forwarded the applicant’s letter to the Tunceli prosecutor.
Following
a request apparently made by the director of the Malatya Prison on 27
February 2001, the applicant was examined on 28 February 2001 by the
director of the Malatya branch of the Forensic Medicine Directorate,
who is also a medical consultant. According to the report drawn up by
that doctor, there were four scars, measuring between two and three
centimetres by one centimetre, on the front and back of the
applicant’s shoulders. It also appears from the report that the
applicant had complained to the doctor about pain and restriction of
movement in his arms. The doctor recommended that the applicant be
sent to a fully equipped hospital for further diagnosis of his
injuries and complaints.
On
22 March 2001, and subsequently on 10 April 2001, the applicant made
two statements before a prosecutor and set out in detail the
ill treatment to which he had been subjected by six or seven
police officers while in custody. According to these statements, the
ill-treatment included being stripped naked and wrapped in a damp
blanket before being beaten with truncheons and suspended by the
arms, which caused the ligaments in his shoulders to tear. The police
officers had also threatened to harm his relatives and get his father
dismissed from his job as a neighbourhood security guard if he denied
the allegations against him. The applicant told the prosecutor that
the contents of the medical report drawn up by the Malatya branch of
the Forensic Medicine Directorate were correct and informed the
prosecutor that he would be able to recognise the police officers
responsible for the ill-treatment if he ever saw them again. He asked
the prosecutor to prosecute them.
The
applicant was examined by a consultant orthopaedist and a consultant
neurologist at Malatya State Hospital on 13 April 2001. The
orthopaedist noted a number of scars on the applicant’s
shoulders, compatible with the findings of the medical report of 28
February 2001 (see paragraph 13 above). The neurologist recommended
the applicant’s referral to a specialist hospital.
On
14 April 2001 the Tunceli prosecutor requested authorisation from the
Tunceli governor to prosecute the police officers allegedly
responsible for the applicant’s ill-treatment. This request was
made pursuant to Law No. 4483 on the Trial of State Employees and
other Public Servants.
The
applicant was released on bail on 24 April 2001.
On
7 and 11 May 2001 police chief Y.K., who was entrusted with the duty
of investigating the applicant’s allegations, questioned two
police officers, Z.G. and İ.Ç., who had apparently
questioned the applicant and taken down his statement on 17 January
2001. Both officers denied ill-treating the applicant and stated that
“members of terrorist organisations made such allegations in
order to lower the morale of the police”.
On
10 May 2001 the Tunceli prosecutor referred the applicant to Fırat
Research Hospital in the city of Elazığ (hereinafter “
Elazığ Hospital”) in order to establish whether the
applicant’s injuries had caused any permanent damage. A medical
examination was scheduled to take place on 15 June 2001.
On
15 May 2001 the police chief Y.K. recommended to the Tunceli governor
that permission for the prosecution of the two police officers should
not be granted.
The
Tunceli prosecutor’s request for authorisation to prosecute was
refused by the Tunceli governor on 21 May 2001. The governor
considered, on the basis of a report prepared by the police chief
Y.K., that, other than the applicant’s own allegations, there
was no evidence to prove that the injuries detailed in the medical
reports had been caused in detention.
On
31 May 2001 the applicant lodged an objection against the Tunceli
governor’s decision of 21 May 2001 and argued that the
decision, which had been taken before his examination at Elazığ
Hospital was due, had failed to establish the truth and should be
annulled.
In
its decision of 13 June 2001, the Malatya Regional Administrative
Court annulled the decision of the Tunceli governor on the ground
that it was based on an incomplete investigation. In particular, the
governor’s decision had been taken before a detailed medical
report from Elazığ Hospital had become available.
Furthermore, the decision was based on a report prepared by an
investigator who had not interviewed the applicant. Finally, the
authorisation to prosecute had been rejected solely on the basis of
the statements taken from those allegedly responsible for the
ill-treatment and the medical reports drawn up while the applicant
was in detention.
On
21 June Elazığ Hospital sent a letter to the Tunceli
prosecutor informing him that the applicant “did not have his
EMG examination done”.
The
same police chief Y.K. was entrusted with the duty of carrying out
the new investigation. When he questioned the applicant on 6 July
2001 the applicant told him that when he had been brought before the
doctor while in police custody he had been very scared and therefore
had not been able to tell the doctor anything about the
ill-treatment. In any event, the doctor had not examined him
properly. When he had finally been referred to Elazığ
Hospital he had been asked to pay the costs of the medical
examination but had been unable to afford it. As a result, the
doctors at the hospital had refused to examine him. The applicant
told the police chief that he wanted those responsible for his
ill-treatment to be prosecuted.
The
police chief Y.K. prepared his report on 17 July 2001 and stated that
in his opinion permission for the prosecution of the police officers
should not be granted.
On
27 July 2001 the Tunceli governor again refused authorisation to
prosecute the police officers. The governor noted the applicant’s
claim that he had not been examined at Elazığ Hospital as
he had been unable to pay the cost (approximately 30 euros) for an
electromyography test (an EMG). The Tunceli governor considered that
the defects highlighted in the Regional Administrative Court’s
decision of 13 June 2001 had been eliminated and that there was
no evidence that the applicant had been subjected to ill-treatment.
The report of 28 February 2001, showing injuries on the applicant’s
body, had been obtained thirty-nine days after his release from
police custody.
According
to the applicant, the Tunceli governor’s decision was not
communicated to him, as in the meantime he had fled Turkey and
settled in Germany as a result of harassment to which police officers
had subjected him. He did not, therefore, lodge an objection against
this decision. According to a document submitted to the Court by the
Government, however, the applicant was served with the decision on
5 August 2001.
An
automatic appeal was lodged against the Tunceli governor’s
decision with the Malatya Regional Administrative Court, which,
however, remitted it to the governor’s office as only the
applicant or the prosecutor could have lodged the appeal. The
Regional Court observed that the decision in question had become
final as no appeal had been lodged.
On
the basis of the Tunceli governor’s decision of 27 July 2001,
on 16 October 2001 the Tunceli prosecutor rendered a decision not to
prosecute the police officers allegedly responsible for the
ill-treatment. The applicant lodged an objection, through his legal
representative, against that decision and pointed to the failure to
remedy the defects identified in the Malatya Regional Administrative
Court’s decision of 13 June 2001.
On
8 November 2001 the applicant’s objection was rejected by the
Erzincan Assize Court on the basis of the Tunceli governor’s
above-mentioned decision of 27 July 2001.
2. The applicant’s trial and conviction
In
the meantime, on 20 February 2001 the prosecutor at the Malatya State
Security Court filed an indictment charging the applicant with the
offences of membership of an illegal organisation and aiding and
abetting members of that organisation. In his indictment the
prosecutor quoted extensive paragraphs from the statements taken from
the applicant by police officers on 17 January 2001 and then by the
prosecutor and the Magistrates’ Court on 19 January 2001.
Criminal
proceedings commenced before the 2nd Chamber of the
Malatya State Security Court (hereinafter “the trial court”).
In the course of the proceedings the applicant was represented by a
lawyer. The applicant told the trial court that his statement had
been extracted under torture while he was in police custody. He
repudiated the statement and maintained his innocence. The trial
court had regard to the Tunceli prosecutor’s decision of 16
October 2001 not to prosecute the police officers.
On
9 April 2002 the applicant was found guilty of the offence of aiding
and abetting an illegal organisation, contrary to Article 169 of the
Criminal Code, and sentenced to three years and nine months’
imprisonment. In convicting the applicant the trial court had regard
to the statements taken from the applicant by the police on 17
January 2001 and by the prosecutor and the Magistrates’ Court
on 19 January 2001 (see, respectively, paragraphs 9-10 above).
The
applicant’s conviction was upheld by the Court of Cassation on
12 November 2002.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
The
applicant complained under Article 3 of the Convention that while in
police custody he had been subjected to ill-treatment amounting to
torture. He further complained that the authorities had failed to
carry out a serious and impartial investigation into his allegations
of ill treatment and that they had thus deprived him of an
effective remedy within the meaning of Article 13 of the Convention.
The
Court considers that these complaints should be examined solely from
the standpoint of Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government contested the applicant’s arguments.
A. Admissibility
The
Government argued that the applicant had failed to exhaust the
domestic remedies available to him, within the meaning of Article 35
§ 1 of the Convention. In this connection they submitted that
the applicant had failed to lodge an objection against the Tunceli
governor’s decision of 27 July 2001, which, contrary to
the applicant’s suggestion, had been communicated to him on 5
August 2001 (see paragraph 28 above).
The
Government further submitted that there were various civil and
administrative remedies provided by domestic law in respect of
persons claiming to be the victims of ill-treatment in police custody
and that the applicant could have sought reparation for the harm he
had allegedly suffered.
Regarding
the Government’s reference to civil and administrative
remedies, the Court reiterates that it has already examined and
rejected similar preliminary objections made in similar cases (see,
in particular, Atalay v. Turkey, no. 1249/03, § 28, 18
September 2008 and the case cited therein). The Court reaffirms its
earlier conclusions that the remedies referred to by the Government
cannot be regarded as sufficient for a Contracting State’s
obligations under Article 3 of the Convention as they are aimed
at awarding damages rather than identifying and punishing those
responsible. The Court finds no particular circumstances in the
instant case which would require it to depart from its findings in
the above-mentioned case. It therefore rejects the Government’s
preliminary objection in respect of civil and administrative
remedies.
Concerning the Government’s reliance on the
applicant’s failure to lodge an objection against the Tunceli
governor’s decision of 27 July 2001 (see paragraph 39 above),
the Court considers that this issue is closely linked to the
substance of the applicant’s complaint concerning the
effectiveness of the investigation into his allegations of
ill-treatment and, as such, should be
joined
to the merits.
43. The Court
considers, in the light of the parties’ submissions, that the
applicant’s complaints raise serious issues of fact and law
under the Convention, the determination of which requires an
examination of the merits. It concludes therefore that these
complaints are not manifestly ill founded within the meaning of
Article 35 § 3 of the Convention. No other ground for declaring
them inadmissible has been established.
B. Merits
The
applicant alleged that by subjecting him to ill-treatment in police
custody the agents of the respondent Government had acted in complete
disregard of the prohibition of ill-treatment. He further alleged
that the investigation carried out by the authorities had not been
effective or impartial.
The
Government were of the opinion that the applicant had failed to prove
his allegations of ill-treatment beyond reasonable doubt. None of the
medical reports drawn up on 14, 16, 17 and 19 January 2001,
which were compatible with the recommendations of the European
Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT), showed any signs of ill-treatment on
the applicant’s body. Moreover, by medically examining the
applicant every twenty-four hours the authorities had acted in a
diligent manner. The medical reports detailing the injuries, on the
other hand, had not been obtained until 28 February and 13 April 2001
and were not, therefore, credible when compared with the previous
medical reports.
The
Government considered that the purpose of seeking authorisation to
prosecute the police officers was not to afford them any immunity;
such authorisations were required in order to protect civil servants
against false allegations. The authorities had acted diligently and
investigated the applicant’s claims adequately. Contrary to
what was suggested by the applicant, the reason he had not been
examined at Elazığ Hospital was not because he had been
asked to pay the costs of his examination, but because he had failed
to go there. In the Government’s opinion, this was evident from
Elazığ Hospital’s letter of 21 June 2001.
The
Court considers at the outset that, contrary to what was suggested by
the Government, the medical reports of 14, 16, 17 and 19 January
2001 (see paragraph 8 above) lack detail and fall significantly short
of both the standards recommended by the CPT, which are regularly
taken into account by the Court in its examination of cases
concerning ill treatment (see, inter alia, Akkoç
v. Turkey, nos. 22947/93 and 22948/93, § 118, ECHR
2000-X), and the guidelines set out in the Istanbul Protocol (see
Batı and Others v. Turkey, nos. 33097/96 and 57834/00,
§ 100, ECHR 2004-IV (extracts)). As such, the Court
considers that these medical reports cannot be relied on as evidence
for proving or disproving that the applicant was ill-treated.
As
for the reports pertaining to the medical examinations carried out on
28 February and 13 April 2001 (see paragraphs 13 and 15 above),
which, in the opinion of the Government, were not credible, the Court
considers that the applicant cannot be reproached for the delays in
obtaining those reports. Although the applicant informed the
prosecutor as early as 22 January 2001 about the alleged
ill-treatment (see paragraph 11 above) – that is three days
after his release from police custody – he was not taken to the
doctor for an additional period of thirty-seven days. The Court
considers that ensuring a much more prompt medical examination would
have been a straightforward matter for the authorities but they
nevertheless failed to do so, partly because of the lengthy
communications between prosecutors in determining in whose area of
jurisdiction the applicant was being detained (see paragraph 12
above). The Court considers it highly regrettably that the
authorities’ own delays in obtaining these reports were then
used against the applicant when dismissing his allegations of
ill-treatment (see paragraph 27 above).
As
for the evidential value of the medical reports drawn up on
28 February and 13 April 2001, the Court observes that they
pertain to medical examinations conducted by a consultant doctor
specialising in forensic medicine, a consultant orthopaedist and a
consultant neurologist. They include not only the medical findings,
but also the details of the applicant’s allegations of
ill-treatment. Although these consultants recommended the applicant’s
referral to specialised medical institutions for further
examinations, the Court notes with regret that this was not done. In
this connection the Court cannot but remark on the Government’s
challenge to the truth of the applicant’s allegation that the
reason for the failure to examine him at Elazığ Hospital
had been due to his inability to pay the costs. In the Government’s
opinion, the letter drawn up by Elazığ Hospital on 21 June
2001 showed that the applicant had failed to go there. Nevertheless,
the Court notes that the letter referred to by the Government makes
no mention of any failure on the part of the applicant to go to the
hospital, but merely states that the applicant “did not have
his EMG examination done” (see paragraph 24 above). In any
event, the Court observes that the applicant did inform the domestic
investigation authorities of his inability to afford the medical
examination (see paragraph 27 above), but nothing was done by those
authorities.
Concerning
the nature and the extent of the medical findings detailed in the
reports of 28 February and 13 April 2001, the Court observes that the
applicant’s injuries are consistent with his version of the
ill-treatment, including being suspended by the arms (see paragraphs
7 and 14 above). Furthermore, having regard to the fact that the
applicant’s injuries were still visible some weeks after the
ill-treatment had taken place, and having regard, further, to the
fact that the forensic expert and medical consultants recommended the
applicant’s referral to a specialised hospital (see paragraphs
13 and 15 above), the Court considers that the applicant was
subjected to ill-treatment which was sufficiently serious to fall
within the scope of Article 3 of the Convention.
Furthermore,
the fact that the applicant was not released after his police custody
but was transferred to a prison, and the fact that the medical
reports were drawn up while the applicant was being detained there,
are sufficient for the Court to conclude that the injuries detailed
in those reports had been caused while the applicant was in the hands
of agents of the State. In this connection the Court notes that the
Government, who bear the burden of providing a plausible explanation
for those injuries (see, in this connection, Salman v. Turkey
[GC], no. 21986/93, § 100, ECHR 2000-VII), have not put
forward such an explanation.
As
for the applicant’s complaints concerning the effectiveness of
the investigation, the Court reiterates the requirements of an
effective investigation into allegations of ill-treatment which are
set out in its judgment in the above-mentioned case of Batı
and Others (§§ 133-37).
The
Court observes in this connection that the investigation in the
present case was largely conducted by a police chief who was the
superior in rank of the police officers implicated in the applicant’s
ill-treatment. Furthermore, the decision not to grant authorisation
for the prosecution was given by a governor, who, in turn, is the
hierarchical superior of the local police force. In a number of its
judgments the Court has considered that investigations conducted by
such entities, which are not independent of the persons implicated in
the events, cannot be compatible with the independence and
impartiality requirement of an effective investigation (ibid, §
135; see also Güleç v. Turkey, 27 July 1998, §§
80-82, Reports of Judgments and Decisions 1998 IV; Oğur
v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR
1999 III).
The
Court reaches the same conclusion in the present case and disagrees
with the Government’s suggestion that the purpose of such
investigations was to protect civil servants against false
allegations. In the Court’s opinion, independent judicial
authorities are better placed to establish the accuracy of
allegations of ill-treatment, while providing the necessary
safeguards for those accused of such allegations.
Indeed,
the Court notes that the requirement for prosecutors to obtain
authorisation under Law No. 4483 (see paragraph 16 above) before they
can bring a prosecution against civil servants accused of offences
related to ill-treatment was abolished in 2003 with the entry into
force of Law No. 4778.
The
conclusion that the investigation into the applicant’s
allegations of ill-treatment was not carried out by an impartial and
independent body is sufficient for the Court to conclude that the
authorities have failed to carry out an effective investigation,
contrary to the positive obligation inherent in Article 3 of the
Convention. The Court thus deems it unnecessary to examine the
remaining features of the investigation.
In
the light of the foregoing the Court considers that the
administrative procedure by which the prosecutor sought authorisation
to prosecute the police officers cannot be regarded as an effective
remedy for the purposes of Article 35 § 1 of the Convention and
that the applicant did not, therefore, fail to comply with the
requirement to exhaust domestic remedies by
not lodging an objection against the Tunceli governor’s
decision of 27 July 2001. It notes that the applicant did
subsequently lodge an objection against the Tunceli prosecutor’s
decision not to prosecute and introduced his application within six
months from the date of the rejection of that objection by the
Erzincan Assize Court (see paragraph 31 above). The Court accordingly
dismisses the Government’s preliminary objection in this
respect (see paragraphs 39 and 42 above) and holds that there has
been a violation of Article 3 of the Convention under both its
substantive (see paragraph 51 above) and procedural (see paragraph 56
above) limbs.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicant submitted that he had been detained in police custody for
six days and had not, therefore, been brought promptly before a judge
within the meaning of Article 5 § 3 of the Convention, which, in
so far as relevant, provides as follows:
“3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power...”.
The
Government contested that argument.
The
Court observes that the applicant’s police custody ended on
19 January 2001 (see paragraph 10 above), when he was brought
before the prosecutor and the Magistrates’ Court. However, he
did not lodge his application with the Court until 17 January 2002.
He thereby failed to observe the six-month rule laid down in Article
35 § 1 of the Convention in respect of this complaint. This
aspect of the case must therefore be rejected pursuant to Article 35
§§ 1 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The applicant further complained that his right to a
fair trial, guaranteed by Article 6 of the Convention, had been
breached on account of his inability to consult his lawyer while in
police custody. Article 6 of the Convention, in so far as relevant,
provides as follows:
“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.”
The
Government were of the opinion that the applicant could not claim to
be a victim within the meaning of Article 34 of the Convention
because he had not asked for a lawyer while in police custody.
The
Court deems it more appropriate to examine the Government’s
preliminary objection when examining the merits of the complaint. It
considers that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
The
Government further argued that throughout the criminal proceedings
against him the applicant had been represented by a lawyer. Moreover,
the applicant’s conviction had not been based solely on the
statements taken from him in the absence of a lawyer and during his
police custody, where he claimed to have been ill-treated, but also
on other evidence adduced in the file in the course of the
proceedings.
The
Court notes at the outset that, notwithstanding the statement taken
from the applicant in police custody according to which he allegedly
did not want the assistance of a lawyer (see paragraph 9 above), at
the time of the applicant’s police custody systemic
restrictions were imposed on the right of access to a lawyer under
section 31 of Law no. 3842 on persons arrested in connection
with an offence falling within the jurisdiction of the State Security
Courts (see Çimen v. Turkey,
no. 19582/02, § 21, 3 February 2009). It would
therefore have been futile for the applicant to request the
assistance of a lawyer while in police custody. The Court thus
rejects the Government’s challenge to the applicant’s
victim status (see paragraph 62 above).
The
Court reiterates the basic principles laid down in its judgment in
the case of Salduz v. Turkey [GC] (no. 36391/02, §§
50-55, 27 November 2008). It will examine the present case in
the light of those principles.
The
Court considers that, even though the applicant denied the accuracy
of the contents of the statements taken from him in the absence of
legal assistance (see paragraph 33 above), the Malatya State Security
Court relied on those statement when convicting him (see paragraph 34
above). Moreover, the Court has already found that the applicant
was subjected to ill-treatment in breach of Article 3 of the
Convention while he was in the custody of the police who took his
statement (see paragraphs 51 and 57 above). In this connection the
Court reiterates that the use of evidence obtained in violation of
Article 3 in criminal proceedings infringes the fairness of such
proceedings even if the admission of such evidence was not
decisive in securing the conviction (see Haci Özen v. Turkey,
no. 46286/99, § 101, 12 April 2007, and the cases cited
therein).
Thus,
the applicant in the present case was undoubtedly affected by the
restrictions on his access to a lawyer in the course of his police
custody, during which he was also ill-treated. Therefore, neither the
assistance provided subsequently by a lawyer not the adversarial
nature of the ensuing proceedings could cure the defects which had
occurred earlier.
In
sum, the Court finds that the absence of a lawyer at the initial
stages of the investigation irretrievably affected the applicant’s
defence rights.
There
has therefore been a violation of Article 6 § 3 (c) of the
Convention in conjunction with Article 6 § 1.
IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
Lastly,
invoking Article 14 of the Convention, the applicant alleged that he
had been subjected to ill-treatment on account of his Kurdish origins
and political opinions.
The
Government contested that argument.
The
Court has examined the applicant’s allegation in the light of
the evidence submitted to it. It considers that there is an
insufficient basis in fact for grounding this allegation. It
therefore follows that this complaint is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The
applicant claimed a total of 11,000 euros (EUR) in respect of
non-pecuniary damage.
In
the Government’s opinion, the sum claimed by the applicant was
excessive.
The
Court considers the sum claimed to be reasonable and it thus awards
it in full in respect of non-pecuniary damage.
Furthermore,
where the Court finds that an applicant has been convicted in
criminal proceedings which were found to be in breach of Article 6
§ 1 of the Convention, it considers that, in principle, the most
appropriate form of relief would be to ensure that the applicant be
put, as far as possible, in the position in which he would have been
had this provision not been disregarded (see Şirin v. Turkey,
no. 47328/99, § 30, 15 March 2005). The Court
therefore considers that the most appropriate form of redress would
be the retrial of the applicant in accordance with the requirements
of Article 6 § 1 of the Convention, should the applicant so
request (see, mutatis mutandis, Gençel v. Turkey,
no. 53431/99, § 27, 23 October 2003, and Salduz,
cited above, § 72).
B. Costs and expenses
The
applicant also claimed 9,700 Turkish liras (approximately EUR 6,200)
in respect of the fees of his legal representatives for representing
him in the proceedings before the Court and EUR 1,350 for various
postal and translation expenses. In respect of the fees of his legal
representatives, the applicant submitted to the Court a time sheet
showing that the legal representatives had spent a total of
twenty-one hours on the case. No documentary evidence was submitted
in respect of the postal and translation expenses.
The
Government considered the sums claimed to be exaggerated and
unsubstantiated.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far
as it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. In the present case,
regard being had to the information in its possession and the above
criteria, the Court considers it reasonable to award the sum of EUR
2,000 covering costs under all heads, less the EUR 850 which the
applicant received in legal aid from the Council of Europe (see
paragraph 2 above).
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares the complaints under Articles 3 and 6
of the Convention admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of both
the substantive and procedural aspects of Article 3 of the
Convention;
Holds that there has been a violation of Article
6 § 3 (c) of the Convention in conjunction with Article 6 §
1;
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 11,000 (eleven thousand euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage and EUR 2,000 (two
thousand euros) in respect of costs and expenses, less EUR 850 (eight
hundred and fifty euros) granted by way of legal aid, plus any tax
that may be chargeable to the applicant, to be converted into Turkish
liras 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 amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 29 September,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
