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BOLUKOC AND OTHERS v. TURKEY - 35392/04 [2009] ECHR 1872 (10 November 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1872.html
Cite as:
[2009] ECHR 1872
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SECOND
SECTION
CASE OF BOLUKOÇ AND OTHERS v. TURKEY
(Application
no. 35392/04)
JUDGMENT
STRASBOURG
10
November 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 Bolukoç and
Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Dragoljub Popović,
Nona Tsotsoria,
Işıl
Karakaş,
Kristina Pardalos, judges,
and Françoise
Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 20 October 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 35392/04) 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 three Turkish nationals, Mr Yunis Bolukoç,
Mr Ferhat Kıyak and Mr Ayhan Ateş (“the
applicants”), on 9 July 2004.
The
applicants were represented by Mr M. Filorinali and Ms Y. Başara,
lawyers practising in İstanbul. The Turkish Government
(“the Government”) were represented by their Agent.
On
16 September 2008 the Court declared the application partly
inadmissible and decided to communicate to the Government the
complaints concerning the lack of legal assistance during detention
in police custody, the length of the criminal proceedings against the
first applicant, and the lack of independence and impartiality of the
State Security Court which tried the first applicant. It 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
applicants were born in 1962, 1978 and 1980 respectively and were in
Kandıra prison at the time of the lodging of the application.
On
11 March 1998 the first applicant, Mr Bolukoç was arrested and
taken into police custody on suspicion of membership of an illegal
armed organisation, namely the DHKP-C (Revolutionary People's
Liberation Party- Front).
According
to a report drafted on 14 March 1998 by a police officer, the first
applicant had stated that he was a member of DHKP-C and that, in line
with that organisation's directives, he would not make statements to
the police.
On
14 March 1998 the first applicant, Mr Bolukoç was brought
before a judge at the Istanbul State Security Court (hereinafter “the
ISCC”), who ordered his remand in custody.
On
30 March 1998 the prosecutor at the ISCC filed a bill of indictment
accusing the applicant of membership of an illegal armed
organisation. The charges were brought, inter alia, under
Article 168 § 2 of the Criminal Code and Section 5 of Law
no. 3713.
On
13 April 1998 criminal proceedings against the first applicant
commenced before the 5th Chamber of the ISSC (no.
1998/128). At the next hearing, held on 28 July 1998, the court
decided to join these proceedings to another case (no. 1997/543)
pending before the 6th Chamber of the ISSC. In the course
of these proceedings, the applicant was released pending trial.
On
11 July 2000 the first applicant was again arrested and taken into
police custody on the same grounds as before, but in respect of acts
which he had allegedly committed after he had been released pending
trial.
On
the same day, the second and the third applicants were arrested and
taken into police custody on the same grounds as the first applicant.
On
14 July 2000 the third applicant was questioned by two police
officers and made a number of statements incriminating both himself
and others.
On
15 July 2000, following authorisation from the prosecutor, the second
applicant met with his lawyer between 3 and 3.15 p.m. On the same
day, the third applicant met with his lawyer between 3.30 and 3.45
p.m.
On
the same day, the police showed photographs of suspected members of
the organisation to the second applicant, who recognised one person
who had procured for him guns and a photocopying machine. The second
applicant was also questioned by two police officers and made a
number of statements incriminating both himself and others.
On
16 July 2000 the second and the third applicant took part in a
reconstruction of events where they admitted, inter alia, to
throwing a Molotov cocktail at a building in Istiklal on
30 March 2000.
According
to a verbatim record drafted by the police on 16 July 2000, the
first applicant refused to make a statement to the police and stated
that he was on hunger strike until his transfer to judicial
authorities. According to another report drafted on 17 July 2000 by a
police officer the first applicant had stated that he was a member of
DHKP-C and that he would not make statements to the police or sign
any documents.
On
17 July 2000 the applicants were bought before the prosecutor at the
ISSC, where they denied the accusations against them. The second and
the third applicants retracted their police statements. The first
applicant stated that he had refused to make a statement to the
police because he did not accept the accusations against him.
On
the same day the applicants were brought before a judge at the ISSC
where they reiterated the statements they had made to the prosecutor.
The legal representative of the second and the third applicants was
present at the hearing. The court ordered the applicants' continued
detention.
On
24 July 2000 the prosecutor at the ISCC filed a bill of indictment
accusing the applicants of membership of an illegal armed
organisation. The second and the third applicants were also accused
of throwing Molotov cocktails on various dates. The charges were
brought, inter alia, under Articles 168 § 1 (for the
first applicant), Article 168 § 2 and 264 (for the second and
the third applicant) of the Criminal Code and section 5 of Law
no. 3713.
On
1 August 2000 the criminal proceedings against the applicants
commenced before the 2nd Chamber of the ISSC. The
applicants were tried together with ten co-accused.
On
20 June 2001 the 6th Chamber of the ISSC heard the
prosecutor's final observations on the merits. The accused, including
the applicants, were given a time-limit to submit their final
observations on the merits. On the same day, the court dismissed the
2nd Chamber of the ISSC's request for the proceedings to
be joined before it, on the ground that the accusations were not
related.
On
28 August 2001 the 2nd Chamber of the ISSC, after several
requests by the first applicant, decided to join his case before the
6th Chamber (no. 1997/543) to the proceedings before
it (no. 2000/207).
On
28 November 2002 the ISSC convicted the applicants as charged and
sentenced them to twelve years and six months' imprisonment for
membership of an illegal organisation. It further sentenced the
second and the third applicants to five years, six months and twenty
days' imprisonment and to a fine for throwing Molotov cocktails. In
so doing, they took into account the evidence in the case file,
including the verbatim records of the reconstruction of the events,
the arrest and search protocols and the statements of the accused,
particularly in police custody.
On
12 January 2004 the Court of Cassation held a hearing and upheld the
judgment of the first-instance court in respect of the applicants.
Following
the adoption of the new Criminal Code, the Istanbul Assize Court, by
an additional judgment, reduced the applicants' original sentences to
six years and three months' imprisonment on account of their
membership of an illegal armed organisation and, for the second and
the third applicants to two years and six months' imprisonment and a
fine for throwing Molotov cocktails. According to the documents in
the case file, the case was still pending before the Court of
Cassation on 10 November 2008.
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:
Öcalan v. Turkey ([GC], no. 46221/99, §§ 52-54,
ECHR 2005 IV), Aydoğan and Others v. Turkey (no.
41967/02, § 17, 2 December 2008), 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
applicants complained that they had been denied the assistance of a
lawyer while in police custody. The first applicant further
complained that he had been denied a fair hearing by an independent
and impartial tribunal on account of the presence of a military judge
on the bench of the Istanbul State Security Court which had tried him
and that the length of the criminal proceedings against him had been
too long. They relied on Article 6 §§ 1 and 3 of
the Convention, which, in so far as relevant, reads:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by an independent and impartial tribunal established by
law. ...
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...”
A. Admissibility
The
Government asked the Court to dismiss the applicants' complaint of a
lack of legal assistance during their time in police custody for
failure to comply with the six-month rule (Article 35 § 1 of the
Convention). In this connection, they argued that the applicants had
failed to lodge their application within six months of the date on
which the preliminary investigation was terminated.
The
applicants disputed the Government's arguments.
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 application.
Consequently,
the Court rejects the Government's preliminary objection.
As
regards the applicants' complaint regarding the fairness of the
proceedings and the first applicant's claim about the lack of
independence and impartiality of the ISSC, the Court considers that
they are not manifestly ill-founded within the meaning of Article 35
§ 3 of the Convention. It further notes that these
complaints are not inadmissible on any other grounds. They must
therefore be declared admissible.
As to the length of the criminal proceedings, after
examining the overall duration of the proceedings, which lasted five
years and ten months, and taking into account that the case was of
some complexity, the number of accused, the fact that the proceedings
initially concerned two separate criminal cases against the first
applicant and which were joined upon his request, that the case was
dealt with at two levels of jurisdiction, with no significant delay
at the appeal stage, and to the fact that the first applicant has not
shown any substantial period of inactivity attributable to the
judicial authorities for these periods, the Court does not consider
that the length of the proceedings in respect of the first applicant
in the present case was excessive (see, for example, Aydoğan
and Others v. Turkey, no. 41967/02,
§ 29, 2 December 2008, and Mehmet Yavuz v.
Turkey,
no. 47043/99,
§§ 46-58, 24 July 2007). It
follows that this part of the application must be rejected as being
manifestly ill founded within the meaning of Article 35 § 3
and 4 of the Convention.
B. Merits
As to the question of legal assistance, the Court
reiterates that it has already examined the same grievance in the
case of Salduz v. Turkey and found a violation of Article 6 §
3 (c) of the Convention in conjunction with Article 6 § 1
(cited above, §§ 56- 62). In that case, the Court found
that the applicant's right of access to a lawyer had been restricted
during his police custody, pursuant to section 31 of Law no. 3842, as
he was accused of committing an offence falling within the
jurisdiction of the State Security Courts. As a result, he had not
had access to a lawyer when he made his statements to the police. No
justification had been given for denying the applicant access to a
lawyer other than the fact that it was a requirement of the relevant
legal provisions. This fell short of the guarantees of Article 6.
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. In this connection, the
Court considers that, in the absence of information from the
Government on the manner in which the meetings took place, the fact
that the second and third applicants were able to meet with their
lawyers for about fifteen minutes on the third and fourth day after
their arrest, failed to ensure that their lawyers were able to give
them effective assistance (see, for example, Tağaç and
Others v. Turkey, no. 71864/01, §§ 35-36, 7 July
2009). In this respect, the Court reiterates that the Convention is
designed to “guarantee not rights that are theoretical or
illusory but rights that are practical and effective”
(ibid. § 51).
There
has therefore been a violation of Article 6 § 3 (c) of the
Convention read in conjunction with Article 6 § 1 in the present
case.
Moreover,
having regard to the facts of the case, the submissions of the
parties and its preceding finding of a violation of Article 6 §§
1 and 3 (c) of the Convention, the Court considers that there is no
need to make a separate ruling on the merits of the first applicant's
complaint concerning the independence and impartiality of the State
Security Court under this provision (see Getiren v. Turkey,
no. 10301/03, § 132, 22 July 2008 and the cases referred to
therein).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
In
their observations on the admissibility and merits, the applicants
further complained about the manner and the length in which the
additional judgment had been given and about the fact that they were
not notified of the principal public prosecutor's opinion at the
Court of Cassation.
Even assuming that these complaints were duly raised,
the Court finds that none of them disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols in the light of all the material in its possession, and in
so far as the matters complained of are within its competence.
Therefore, this part of the application is manifestly ill-founded
within the meaning of Article 35 § 3 of the
Convention and must be rejected pursuant to Article 35 §
4.
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
applicants claimed 10,000 euros (EUR) each in respect of
non pecuniary damage.
The
Government contested the amount.
The
Court, ruling on an equitable basis, awards the applicants EUR 1,000
each.
It
further considers that the most appropriate form of redress would be
the retrial of the applicants in accordance with the requirements of
Article 6 of the Convention, should they so request (see Salduz,
cited above, § 72).
B. Costs and expenses
The
applicants also claimed EUR 5,500 for costs and expenses incurred
before the Court. In support of their claims the applicants submitted
a schedule of costs prepared by their lawyer.
The
Government contested the amount.
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
dismisses the claim for costs and expenses in the domestic
proceedings and considers it reasonable to award the applicants,
jointly, the sum of EUR 1,000.
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 complaint concerning the lack of
legal assistance provided to the applicants while in police custody
and the first applicant's complaint regarding the alleged lack of
independence and impartiality of the Istanbul State Security Court
admissible, and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 3 (c) of the Convention read in conjunction with
Article 6 § 1;
Holds that there is no need to examine the first
applicant's remaining complaint under Article 6 of the Convention;
Holds
(a) that the respondent State is to pay, 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) to
each applicant, EUR 1,000 (one thousand euros), plus any tax that may
be chargeable, in respect of non pecuniary damage;
(ii) to
the applicants jointly, EUR 1,000 (one thousand euros) plus any tax
that may be chargeable to them, in respect of costs and expenses;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 10 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
