(Application no. 30235/03)
6 October 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 Özcan Çolak v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having deliberated in private on 1 September 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The detention in police custody and the medical certificates concerning the alleged ill-treatment of the applicant
B. The criminal investigation into the applicant's allegations of ill treatment
C. The criminal proceedings against the applicant
D. Subsequent developments
II. RELEVANT DOMESTIC LAW AND PRACTICE
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
“1. In the determination ...of any criminal charge against him, everyone is entitled to a fair ...hearing .....
3. Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing ...”
A. Use by the Istanbul State Security Court of statements allegedly taken under torture, in the absence of legal assistance
B. Other alleged breaches of the fairness of the proceedings
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts to be converted into Turkish liras at the rate applicable at the date of settlement:
(i) EUR 2,000 (two thousand euros) in respect of non pecuniary damage, plus any tax that may be chargeable;
(ii) EUR 3,700 (three thousand seven hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant;
(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;
Done in English, and notified in writing on 6 October 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Judge Andras Sajó is annexed to this judgment.
CONCURRING OPINION OF JUDGE SAJÓ
I voted with the majority in finding a violation in this case: in view of the applicable precedent (Salduz v. Turkey [GC], no. 36391/02, 27 November 2008), the restrictions on the applicant's access to a lawyer amount to a violation of the Convention.
However, I cannot agree with the Court's finding that the use in the criminal proceedings against the applicant of statements purportedly obtained from him by torture and ill-treatment during the preliminary investigation, in the absence of his lawyer, rendered his trial as a whole unfair. The Court's conclusion rests on the authority of Örs v. Turkey, no. 46213/99, 20 June 2006. I do not see the facts of that case as being analogous to the present one. In Örs the physicians found serious bruises on the body of several accused who complained, independently, of torture, to the extent that criminal proceedings were initiated against the alleged perpetrators, although the allegations of torture were not subsequently established because the crime allegedly committed by the police officers was found to fall under the statute of limitations. In the present case the applicant was examined by several doctors, including doctors (!) outside the prison system, and they found nothing. Four days after the applicant's arrest a judge noticed a purple bruise and redness on his left eye, while on his sixth day in detention a fading light-green line was observed by a prison doctor, who estimated that it related to an event occurring seven to ten days earlier or to hyperpigmentation, lack of sleep or a local infection. An investigation was instigated into the alleged ill-treatment. The applicant's co-detainees stated that they had no knowledge of ill-treatment of the applicant, nor did they complain of ill-treatment themselves. This led to the prosecutor's decision not to commit any police officer for trial, on account of the lack of evidence (see paragraph 25); the applicant did not lodge any objection against that decision with the Assize Courts.
It follows that the decisive factual elements in Örs are absent in the present case. Nevertheless, the Court found the applicant's “consistent and detailed version of events” to be sufficient evidence of torture, in particular as it was “corroborated” by a statement from a police officer who alluded to the “lengthy questioning” of the applicant. The Court found that the applicant's version was further “corroborated” by the statement from the same police officer to the effect that the applicant was subjected to a twenty-five-hour car journey. I cannot see how “lengthy questioning” (of unspecified duration without signs of sleep deprivation), or a journey in relation to which there is not even any suggestion of humiliating or abusive conduct, could contribute to torture or corroborate the applicant's “consistent” allegations. Incidentally, not even the applicant himself attributed the alleged bruise to the officers who had questioned him and obtained his confession. To my mind, information of this kind proves nothing and is incapable of meeting the requirements of burden of proof. Further, in the present case, in contrast to the careful formulation in Örs (§ 61), where the fairness of the trial as a whole was undermined by the fact that the procedural guarantees could not counter the confessions supposedly (“pretenduement”) [or even probably] obtained under torture, in the absence of a lawyer and on the basis of a misreading of the rules on self incrimination, in the present case the Court concludes that “the use of the applicant's statements obtained purportedly under torture and ill treatment during the preliminary investigation, in the absence of his lawyer, in the criminal proceedings brought against him, rendered his trial as a whole unfair” (see paragraph 49). This conclusion is reached without considering the role of other procedural guarantees and of possible non tainted evidence. It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not, though I personally believe that the Court should require very stringent guarantees in cases where exclusionary rules do not apply in a national system. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question (see, among others, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000 V, and Jalloh v. Germany [GC], no. 54810/00, § 95, ECHR 2006 IX). The Court takes no position on the issue whether the statements given by the applicants while in custody served as the main evidence in the judgment convicting the applicant, as required in Hacı Özen v. Turkey (no. 46286/99, § 103, 12 April 2007). The use of evidence obtained in violation of Article 3 in criminal proceedings infringes the fairness of such proceedings even if the admission of the evidence concerned was not decisive in securing the conviction; however, in the present case the facts simply do not support the finding of such a violation.