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SECOND SECTION

CASE OF ÖZCAN ÇOLAK v. TURKEY

(Application no. 30235/03)

JUDGMENT

STRASBOURG

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:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
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:

PROCEDURE

The case originated in an application (no. 30235/03) 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 Özcan Çolak (“the applicant”), on 1 August 2003.

The applicant, who had been granted legal aid, was represented by Mr F.N. Ertekin and Mr T. Ayçık, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

On 11 February 2008 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

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1974 and lives in Tekirdağ.

A. The detention in police custody and the medical certificates concerning the alleged ill-treatment of the applicant

On 5 November 1999, at around 10 a.m., the applicant was arrested and taken into custody in Tekirdağ on suspicion of membership of an illegal armed organisation, namely the MLKP (Marxist-Leninist Communist Party).

On the same day, at around 2 p.m., the applicant was examined by a doctor who found no signs of ill-treatment on his body.

On the same day, at 2.10 p.m., the applicant was handed over to police officers at the Erzincan Security Headquarters and transferred to Erzincan by car.

On 6 November and 7 November 1999 the applicant took part in two reconstructions of events in the mountains in order to show where he had buried guns.

On 7 November 1999 the applicant was questioned by two police officers at the Anti-Terrorist Branch of the Erzincan Security Headquarters, where he gave a detailed account of the activities he had taken part in within the MLKP.

On an unspecified date the applicant signed a pre-printed document which indicated, inter alia, that he had the right to remain silent.

On 9 November 1999 the applicant was examined by a doctor at the Erzincan State Hospital who found no signs of ill-treatment on his body.

On the same day the applicant was brought before the Erzincan Magistrates' Court where, in the presence of his lawyer appointed by the Bar, he submitted that he was unfit for questioning because he had been subjected to ill-treatment in police custody. The applicant requested to be transferred to a hospital for a medical examination. The judge noted a purple bruise and redness on the applicant's left eye and that he had difficulty in standing upright and speaking, and ordered him to be transferred to the Forensic Medicine Institute for an examination. On the same day, the court remanded the applicant in custody.

On 9 November 1999 the applicant was examined by a doctor at the Erzincan State Hospital who found no signs of ill-treatment on his body.

On 12 November 1999 the applicant asked to be released. In his request he maintained that he had been ill-treated both by the police officers at the Tekirdağ Security Headquarters and the Erzincan Security Headquarters. He gave details as to the form of the treatment, namely beatings, hanging, and squeezing of the genital organs, as well as when they had occurred. The applicant's objection to his remand in custody was dismissed by the Erzincan Magistrates' Court on the same day.

In the meantime, on 10 November 1999, the applicant requested to be examined by a doctor at the prison clinic.

On the same day, at 5.35 p.m., the applicant was examined by the prison doctor, who noted that he had under the left eye a fading light green line of about 1 to 3cm which looked like either a bruise or a hyper pigmentation. He reckoned that it dated from seven to ten days previously. The doctor did not note any other signs of beating or violence.

B. The criminal investigation into the applicant's allegations of ill treatment

An investigation into the alleged ill-treatment was instigated by the Erzincan public prosecutor.

On 28 November 1999 the prosecutor heard evidence from the applicant, who gave details as to where, when and what forms of ill treatment he had been subjected to. In particular, he claimed that his eye injury had resulted from blows he had received from the driver of the car when he was being transferred to Erzincan. He further repeated that he had been tortured during interrogation, both in Tekirdağ and in Erzincan.

On 22 November 1999 the public prosecutor heard evidence from the doctors at Erzincan State University who had examined the applicant. They both affirmed that they had conducted the medical examination in accordance with the law and had not seen any signs of ill-treatment on the applicant.

On 2 December 1999 the prosecutor heard Mr Y.T., one of the accused arrested and detained at the same time as the applicant. He submitted that since he had been blindfolded the whole time he had not seen anyone ill-treating the applicant. He maintained that he had not been ill-treated by police officers and that he had not heard any indicative noises.

On 21 December 1999 the prosecutor heard evidence from an accused police officer D.A. He submitted that he had questioned the applicant on 7 November 1999 and that at that time the applicant had had a fading bruise under his left eye which appeared to be a few days old. He did not know how it had happened but the applicant had not been ill-treated by him, whether or not with someone else present.

On 22 December another police officer was heard who denied the allegations of ill-treatment and claimed that the applicant's eye injury might be a swelling due to the twenty-five hours' travelling, lengthy questioning and two trips to the mountains for site visits.

On 18 January 2000 the prosecutor heard Mr E.Ç., the doctor who had examined the applicant in prison. The doctor affirmed that they had conducted the medical examination in accordance with the law and had not seen any signs of ill-treatment on the applicant apart from the light green area, which could be seen only if looked at carefully, under his eyes. In this connection, he submitted that he did not think that this was the result of ill-treatment since the area was not large. He considered that it could have been the result of lack of sleep or a local infection.

On 21 February 2000 the prosecutor heard Mr I.K., one of the accused arrested and detained at the same time as the applicant. He also submitted, inter alia, that since he had been blindfolded he had not seen anyone ill treating the applicant. He maintained that he had not heard any noise indicating ill-treatment. However, he stated that, since he did not know where the applicant had been held, he could not be sure if he could have heard something in any case.

On 24 March 2000 the Erzincan public prosecutor gave a decision of non-prosecution concerning the two police officers at the Anti-Terrorist Branch of the Erzincan Security Headquarters on account of lack of evidence. In his decision, the prosecutor took particular note of the testimony of the doctors and the other suspects who had been detained at the same time as the applicant on the same grounds.

C. The criminal proceedings against the applicant

In the meantime, on 13 December 1999, the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant, accusing him of membership of the illegal armed organisation MLKP and of throwing a Molotov cocktail in a public place. The charges were brought under Articles 168 § 2 and 264 §§ 6 and 8 of the Criminal Code.

On 17 January 2000 the “trio protocol”, prepared jointly by the ministries of Justice, Health and Interior to introduce security measures on the access of lawyers to prisons, came into force. The Turkish Bar Association, considering such measures to be, inter alia, in breach of defence rights, gave a decision indicating to lawyers not to go into prisons while such measures remained in place.

In the meantime, on 27 December 1999 the criminal proceedings against the applicant commenced before the Istanbul State Security Court. In the course of the trial the applicant repeatedly denied any involvement with the MLKP and alleged that he had been tortured and forced to make self-incriminating confessions during his police interrogations. He rejected the findings of the medical reports included in the case file. The applicant also submitted that he had encountered difficulties in having access to his lawyer due to the stringent measures introduced by the “trio protocol”. Before the court the applicant's lawyer further maintained that, apart from one person, all other suspects who had given statements against the applicant had been acquitted before other courts.

On 4 September 2002 the Istanbul State Security Court found the applicant guilty of membership of an illegal armed organisation and sentenced him to twelve years and six months' imprisonment. In so doing, they took into account the evidence in the case file, including the applicant's statements given in police custody, the verbatim records of the reconstruction of the events and the statements of other suspects or convicts given to the police or another court. In particular, the court considered that, in the absence of any indication of ill-treatment noted in the medical report, the applicant's statements given to the police were sincere and truthful.

On 4 February 2003 the Court of Cassation held a hearing and upheld the judgment of the first-instance court. The applicant's request for a rectification of this decision was dismissed by the principal public prosecutor at the Court of Cassation on 20 March 2003.

D. Subsequent developments

Following the adoption of the new Criminal Code, the execution of the applicant's sentence was suspended by the Erzincan Assize Court on 22 October 2004. He was released from prison.

On 10 April 2006 by an additional judgment the Erzincan Assize Court reduced the applicant's original sentence to six years and three months' imprisonment. This decision became final on 10 May 2006.

II. RELEVANT DOMESTIC LAW AND PRACTICE

The relevant domestic law and practice in force at the material time as well as recent developments can be found in the following judgments: Kolu v. Turkey (no. 35811/97, § 44, 2 August 2005), and Salduz v. Turkey ([GC], no. 36391/02, §§ 27-31, 27 November 2008).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

The applicant complained under Article 6 §§ 1 and 3 (b) and (c) of the Convention that he had been denied a fair hearing as the Istanbul State Security Court admitted as evidence and convicted him on the basis of statements, extracted under torture, which he had later retracted and which had been obtained during the preliminary investigation when he did not have access to a lawyer; that the statements of witnesses used as evidence to convict him had also been obtained under duress; that neither he nor the trial court examined these witnesses; that he was deprived of adequate legal assistance throughout the proceedings due to the difficulties posed by the implementation of the “trio protocol”; that the prerogative of the public prosecutor to evaluate applications for rectification breached the principle of equality of arms and that the decision of the trial court lacked reasoning.

The applicant further complained under Articles 6 and 8 of the Convention that his written correspondence with his lawyer had regularly been subjected to interference in so far as it had been opened and inspected by the prison authorities.

The Court will examine these complaints under Article 6 §§ 1 and 3 (b) and (c), which provide as follows:

“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;

A. Use by the Istanbul State Security Court of statements allegedly taken under torture, in the absence of legal assistance

1. Admissibility

The Government asked the Court to dismiss the applicant's complaint of a lack of legal assistance during his time in police custody for failure to comply with the six-month rule (Article 35 § 1 of the Convention), on the ground that the applicant had failed to lodge his application within six months of the date on which his police custody ended.

The Court reiterates that it has already examined and rejected the Government's preliminary objections in similar cases (see, in particular, Çimen v. Turkey, no. 19582/02, § 22, 3 February 2009). The Court finds no particular circumstances in the instant case which would require it to depart from its findings concerning the above-mentioned applications.

Consequently, the Court rejects the Government's preliminary objection.

Moreover, the Court considers that this part of the application 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.

2. Merits

The Court reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140).

It is therefore 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. 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 and, where violation of another Convention right is concerned, the nature of the violation found (see, among others, Jalloh v. Germany [GC], no. 54810/00, § 95, 11 July 2006).

The Court has already held that the use of evidence obtained in violation of Article 3 in criminal proceedings could infringe the fairness of such proceedings even if the admission of such evidence was not decisive in securing the conviction (ibid, § 99, and Söylemez v. Turkey, no. 46661/99, § 23, 21 September 2006). It has further held that the absence of an Article 3 complaint does not preclude the Court from taking into consideration the applicant's allegations of ill-treatment for the purposes of deciding on compliance with the guarantees of Article 6 (see Örs and Others v. Turkey, no. 46213/99, § 60, 20 June 2006, and Kolu v. Turkey, no. 35811/97, § 54, 2 August 2005).

Moreover, the Court reiterates that the privilege against self-incrimination or the right to remain silent are generally recognised international standards which lie at the heart of a fair procedure. Their aim is to provide an accused person with protection against improper compulsion by the authorities and thus to avoid miscarriages of justice and secure the aims of Article 6 (see John Murray v. the United Kingdom, 8 February 1996, § 45, Reports of Judgments and Decisions 1996 I). This right presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained by coercion or oppression in defiance of the will of the accused (see Jalloh, § 100, and Kolu, § 51, both cited above). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see Salduz, cited above, § 54).

In the instant case the applicant was arrested on 5 November 1999 in Tekirdağ. On the same day, he was transferred by car to Erzincan where he remained in custody until 9 November 1999. During this time the applicant was questioned and taken twice for a reconstruction of events in the mountains, where he made a number of incriminating statements (see paragraphs 8 and 9 above).

In this connection, the Court observes that the applicant had made these statements in circumstances where he had not been allowed access to a lawyer. The Court further observes that the applicant subsequently denied the accuracy of those statements throughout the proceedings before the domestic courts, alleging that he had been tortured and ill-treated. In this connection, the Court observes that the restriction imposed on the applicant's right of access to a lawyer at that stage was systemic and applied to anyone held in custody in connection with an offence falling under the jurisdiction of the State Security Courts (see Salduz, cited above, § 56). In the Salduz judgment, the Court found that this in itself falls short of the requirements of Article 6 of the Convention (ibid).

Moreover, the Court is not convinced by the presence of an undated pre printed and signed document in the case file to demonstrate with certainty that the applicant was properly informed of his right to remain silent (see paragraph 10 above). Finally, although the criminal investigation into the applicant's allegations of ill-treatment led to the prosecutor's decision not to commit any police officer to trial on account of a lack of evidence (see paragraph 25 above), and despite the fact that the applicant has failed to object to that decision before the Assize Courts, serious doubts persist in the Court's view as to the attitude adopted by the police officers during the applicant's questioning. In this connection, the Court takes note of the applicant's consistent and detailed version of events, the testimony of a police officer who alluded to the fact that the applicant might have been exhausted from “a twenty-five-hour car journey, lengthy questioning and being taken to the mountains twice” (see paragraph 22 above), the testimonies of the two detainees Mr I.K. and Mr Y.T., that they had been kept blindfolded during their detention (see paragraphs 20 and 24 above), the applicant's poor appearance observed both by the applicant's lawyer appointed by the Bar and by the judge at the Magistrates' Court at the end of his detention in police custody (see paragraph 12 above) and the bruise on the applicant's left eye noted by the prison doctor a day after the end of his detention in police custody (see paragraph 16 above).

Nevertheless, the Court observes that, although the applicant subsequently retracted his statements before the trial court, claiming that they had been extracted under torture and ill-treatment, the first-instance court found the applicant's statements made to the police to be sincere and truthful and attached weight to them in convicting the applicant, despite the fact that Turkish legislation does not usually attach consequences to any confessions obtained during questioning but denied in court which are decisive for the prospects of the defence (see paragraph 33 above).

In these circumstances, the Court finds 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.

It follows that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.

B. Other alleged breaches of the fairness of the proceedings

The Government asked the Court to dismiss the applicant's complaint concerning his alleged inability to examine or to have examined witnesses for failure to comply with the requirement of exhaustion of domestic remedies, since he had never asked the trial court to examine them or to have them examined.

The Court considers the Government's objection above to be so closely linked to the substance of the applicant's complaints under this head that it cannot be detached from it. Therefore, to avoid prejudging the merits of the said complaint, these questions should be examined together. As the applicant's complaints are not inadmissible on any other grounds, they must therefore be declared admissible.

Having regard to the facts of the case, the submissions of the parties and its finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention above (see paragraph 50 above), the Court considers that it has examined the main legal question raised under Article 6 of the Convention. It concludes therefore there is no need to make a separate ruling on the applicant's remaining complaints under this provision (see, for example, Juhnke v. Turkey, no. 52515/99, § 94, 13 May 2008, and Getiren v. Turkey, no. 10301/03, § 132, 22 July 2008 and the cases referred to therein).

III. 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 20,650 euros (EUR) in respect of pecuniary damage and EUR 15,000 in respect of non-pecuniary damage.

The Government contested the amounts.

On the question of pecuniary damage, the Court considers that it cannot speculate as to what the outcome of proceedings compatible with Article 6 §§ 1 and 3 (c) would have been. It therefore makes no award in respect of pecuniary damage.

As regards non-pecuniary damage, ruling on an equitable basis, the Court awards the applicant EUR 2,000.

The Court further considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 of the Convention, should he so request (see Salduz, cited above, § 72).

B. Costs and expenses

The applicant also claimed EUR 744 for the costs and expenses incurred before the domestic courts and EUR 8,247 for those incurred before the Court. In support of his claims, the applicant submitted invoices regarding various expenses and legal fees and a fee agreement prepared on the basis of the Istanbul Bar Association's schedule of costs.

The Government contested the amounts.

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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,700 covering costs under all heads.

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 application admissible;

Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the use by the Istanbul State Security Court of the applicant's statements allegedly taken under torture, in the absence of legal assistance;

Holds that it is not necessary to examine separately the applicant's other complaints under Article 6 of the Convention;

Holds

(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;

Dismisses the remainder of the applicant's claim for just satisfaction.

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
Registrar President

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.

S.D.
F.T.

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.