European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

CASE OF AYDIN ÇETİNKAYA v. TURKEY

 

(Application no. 2082/05)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

 

STRASBOURG

 

2 February 2016

 

 

 

 

 

 

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 Aydın Çetinkaya v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Guido Raimondi, President,
          Işıl Karakaş,
          Nebojša Vučinić,
          Helen Keller,
          Paul Lemmens,
          Egidijus Kūris,
          Robert Spano, judges,
and Abel Campos, Deputy Section Registrar,

Having deliberated in private on 12 January 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 2082/05) 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 Aydın Çetinkaya (“the applicant”), on 16 November 2004.

2.  The applicant was initially represented by Mr A.K. Özcan, a lawyer practising in Düzce. By means of an authority form dated 25 March 2011 the applicant appointed Mr E. Şen, a lawyer practising in Istanbul, as his representative, and he informed the Court on 26 April 2011 that he had dismissed his previous representative. The Turkish Government (“the Government”) were represented by their Agent.

3.  On 21 May 2012 the application was communicated to the Government. On 31 October 2012 and 20 February 2013 the Government and the applicant submitted their observations on the admissibility and merits of the case respectively.

4.  On 17 March 2015 the Chamber decided, under Rule 54 § 2 (c) of the Rules of Court, to invite the parties to submit further written observations on the admissibility of the applicant’s complaint under Article 3 of the Convention.

5.  On 10 April 2015 the Government submitted their further observations. On 11 and 18 May 2015 the applicant replied to the submissions of the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1964.

A.  The applicant’s arrest and detention in police custody and the medical certificates concerning his alleged ill-treatment

7.  In 1993 the applicant was convicted of murder and sentenced to twenty four years’ imprisonment.

8.  On 8 March 2002 the applicant was conditionally released from prison.

9.  On 23 March 2002 at 8.40 p.m. the applicant was arrested at his home on suspicion of leading a criminal organisation and involvement in the attempted abduction of a certain Ş.H. and his son, H.H. He was subsequently placed in custody by the organised crime division of the Istanbul Security Directorate.

10.  On 24 March 2002 at 8 p.m. the applicant and six other persons were examined at the Haseki Hospital, in Istanbul, by a doctor who recorded on a single sheet of paper that there was no sign of violence on the bodies of these seven persons.

11.  On the same day at 10.30 p.m. the applicant was once again examined at the Haseki Hospital by a doctor who noted that he had been told that the applicant had hit his head against a wall. The doctor, a general practitioner, observed the following injuries on the applicant’s body: a swelling on the left side of the forehead and a headache, a hyperaemia of 0.5 cm in width around both wrists and a hyperaemia of 2 cm on the right side of the neck. The doctor considered that the applicant should also be examined by a neurosurgeon, who subsequently carried out a number of tests on the applicant and concluded that the applicant did not show any signs of pathology.

12.  On 25 March 2002 at 9.10 p.m. the applicant underwent a further medical examination at the Haseki Hospital by a doctor who noted in a medical report the same injuries as those mentioned in the medical report of 24 March 2002.

13.  On 26 March 2002 at 7 p.m. the applicant was once again taken to the Haseki Hospital for an examination. The medical expert noted that there was an erythema of 3 cm in diameter on the right side of the applicant’s forehead, scabbed wounds of 3 cm on the underside of his wrists and a hyperaemia of 2 cm on the right side of his neck.

14.  On 27 March 2002 the applicant underwent two medical examinations. The first examination took place at the Haseki Hospital at 9.30 a.m. The doctor observed scabbed wounds on the underside of the wrists, a recovering hyperaemia of 2 cm on the right side of the neck and an erythema of 2 cm in diameter on the right side of the forehead. The second medical examination was carried out by a medical expert at the Forensic Medicine Institute branch responsible for the Istanbul State Security Court at 11 a.m. The doctor who examined the applicant observed the following injuries on his body: a scabbed abrasion of 3 cm on the underside of the left wrist, a scabbed abrasion of 1 cm on the underside of the right wrist, a scabbed abrasion of 0.5 cm on the back of the right wrist, two thin abrasions of 1 cm and 3 cm on the right side of the forehead. The doctor concluded that these injuries did not put the applicant’s life at risk but rendered him unfit to carry out daily activities for three days.

15.  According to the applicant, he was subjected to ill-treatment throughout his detention in police custody. In particular, he was kept blindfolded and handcuffed to an iron bar for five days. He was beaten, given electric shocks and made to lie on a bed over which his arms and legs were stretched, and his genitals were squeezed.

16.  According to the Government, the applicant sustained his injuries as a result of his own conduct. The scratches and traces on his body were a result of having attempted to break his handcuffs, and he had hit his head on the floor. In support of their submissions, the Government provided video footage from the surveillance camera monitoring the room in which the applicant was detained, recorded between 9.11 p.m. and 9.16 p.m. on 24 March 2002 (see paragraph 21 below).

17.  On 24 March 2002 at 9.20 p.m. eight police officers and the applicant signed an incident report according to which the applicant was kept attached to a bed in order to prevent him from harming himself. The report states that at around 9.10 p.m., he managed to break one of his handcuffs and hit his head on the floor. The officers recorded that they had used force to handcuff the applicant and that the applicant had sustained injuries on his wrists as a result. According to the report, the injuries on the applicant’s head had occurred when he hit his head on the floor.

18.  On 26 and 27 March 2002 statements were taken from the applicant by two police officers. According to the document drafted at 00.35 a.m. on 27 March 2002 and signed by the applicant, the police told the applicant that he had been in possession of a mobile phone whilst in prison and that the conversations that he had held using this telephone had been intercepted by the police. The police officers alleged that he had given instructions for the abduction of a number of persons by phone and that it was considered that he had been the leader of a criminal organisation. The applicant denied the allegations that he had made the phone calls in question and that he had been involved in criminal activities. In his statements to the police, the applicant accepted that he knew some of the persons who had been arrested on the same day as him and that he knew that two other arrestees had attempted to abduct Ş.H. He stated that he knew Ş.H. personally, but that he had not been involved in his abduction attempt.

19.  On 27 March 2002 the applicant appeared before the public prosecutor at the Istanbul State Security Court. He denied the allegations against him and submitted that he had been subjected to torture in police custody. He alleged that he had been beaten, given electric shocks and stretched by his arms and legs, had his testicles squeezed, and been handcuffed to an iron bar for five days. On the same day he was remanded in detention by a judge.

20.  Between 23 and 27 March 2002 the six persons who had been taken into police custody on the same day as the applicant also made statements to the police. According to some of these statements, the applicant had been the leader of a criminal organisation and had given instructions for the abduction of Ş.H. These persons were also medically examined during and after their detention in police custody. Some of them were found to have sustained injuries to various parts of their bodies.

B.  Video footage submitted by the Government

21.  During the proceedings before the Court, the Government produced a CD-ROM containing a police video recording. The CD-ROM contains images of a room. The part which concerns the applicant was recorded between 9.11 p.m. and 9.16 p.m. on 24 March 2002. It shows that the applicant was kept in a room on a mattress, the top of which is placed on two chairs. The applicant is seen lying down on the mattress with his arms straight out to the sides and attached to the chair legs. He is also blindfolded with a piece of black cloth. On the other side of the room, there are four or five plainclothes police officers standing around a desk and a chair. The applicant begins moving with a view to standing up. Four officers approach the applicant, detach him from the chairs, put him on the floor, kneel around him and for about one and a half minutes keep the applicant under physical restraint on the floor. During this period, the applicant cannot be seen by the camera. Thereafter, another plainclothes officer arrives in the room and instructs the other officers to arrange the mattress and the chairs in a certain way. Subsequently, the applicant is seen without the blindfold and with his arms held behind his back by two officers who are also holding him around his neck. They make the applicant stand in front of the newly-arrived officer, who douses the applicant’s face with water from a plastic bottle. He then hits the applicant on the head with the same bottle. Afterwards, six officers place the top of the mattress on the chairs, force the applicant to lie down on the mattress on his back, handcuff him to the chair legs and blindfold him.

C.  Criminal proceedings against the police officers

22.  On 3 April 2002 the applicant lodged a petition with the Fatih public prosecutor’s office and alleged that he had been subjected to ill-treatment during his detention in police custody.

23.  On 22 May 2002 the applicant made statements to the Fatih public prosecutor in which he complained about his alleged ill-treatment while in police custody. He claimed that he had been insulted, threatened, beaten, stripped naked, stretched by his arms and legs, blindfolded, given electric shocks and had his genitals squeezed. The applicant submitted that there were a superintendent, A.İ., and the director of the Department of Organised Crime of the Istanbul Security Directorate, A.S.S., among those who had tortured him. The applicant also provided the names of several persons who had allegedly witnessed his ill-treatment in police custody and asked the public prosecutor to take their statements as witnesses.

24.  On 29 July and 6 and 22 August 2002 the Fatih public prosecutor took statements from İ.E., N.K., S.G. and M.G., the police officers who had been on duty at the time of the applicant’s detention in police custody. They all denied the veracity of the applicant’s allegations of ill-treatment.

25.  On 17 October 2002 the Fatih public prosecutor further obtained statements from A.İ., who submitted that the applicant had hit his head on the floor. On 20 January 2003 A.S.S. also made statements to the Fatih public prosecutor and maintained that he had not been involved in the applicant’s questioning.

26.  On 21 January 2003 the Fatih public prosecutor requested the Department of Organised Crime of the Istanbul Security Directorate to submit any video recording demonstrating that the applicant had resisted the officers, if such recording existed.

27.  On 25 February 2003 A.S.S., in his capacity as the director of the Department of Organised Crime, sent the video recording of 24 March 2002 (see paragraph 21 above) along with a letter to the Fatih public prosecutor’s office. In his letter, A.S.S. noted that the applicant had resisted the police officers while in police custody.

28.  On 20 June 2003 the Fatih public prosecutor sent the video recording to the Forensic Medicine Institute and requested that a report clarifying whether the applicant could have sustained the injuries noted in the medical reports as a result of his own conduct be drafted. The public prosecutor also submitted the medical reports concerning the applicant to the Institute.

29.  On 13 August 2003 six medical experts from the Forensic Medicine Institute, including the president, drafted a report after examining the medical reports issued during the applicant’s police custody and the photographs and video footage submitted to them by the Fatih public prosecutor. In their report, the doctors concluded that the applicant’s injuries had occurred as a result of his own conduct. They considered that, following the applicant’s agitation, the police officers had struggled to lay him down on a camp bed and had handcuffed his hands to the bed. They further stated that the applicant did not appear to have been subjected to any beatings in the video footage. Having considered the position of the applicant’s injuries on his body, they concluded that the injuries must have been caused by the applicant’s own conduct.

30.  On 15 October 2003 the Fatih public prosecutor filed a bill of indictment with the Fatih Criminal Court accusing six police officers, A.İ, A.S.S., İ.E, N.K., S.G. and M.G., of inflicting ill-treatment on the applicant and one of his co-accused, Ö.Ç.

31.  On 8 December 2003 the applicant testified before the Bolu Criminal Court, acting on letters rogatory. The applicant contended that he had been kept blindfolded throughout his detention, stretched by his arms and legs, given electric shocks, hosed with cold water, stripped naked and had his genitals squeezed.

32.  On 12 February 2004 the Fatih Criminal Court held the first hearing on the merits of the case and heard evidence from the accused police officers, except one officer, A.S.S., who did not participate in the hearing. They all maintained that they had not ill-treated the applicant or Ö.Ç. As regards the applicant, they contended that they had handcuffed him upon the instructions of a public prosecutor and subsequently used force with a view to preventing him from harming himself. One of the officers, İ.E., maintained that the applicant had sustained injuries to his head as he had hit his head against the wall. They referred to the video footage recorded on 24 March 2002. During the same hearing, C.A., one of the applicant’s lawyers who represented him along with A.K. Özcan, requested that the applicant be allowed to join the proceedings as an intervening party. His request was granted. The applicant’s representative further requested the court to obtain the entire video recording of the places where the applicant had been held throughout his detention in police custody. The court decided to consider this request subsequently, after obtaining the statements of all accused police officers.

33.  Between 12 February 2004 and 5 October 2004 the trial court adjourned the hearings as A.S.S. could not be located.

34.  On 5 October 2004 A.S.S. made statements before the Fatih Criminal Court and denied the veracity of the applicant’s allegations. He reiterated that he had not been involved in the questioning of the applicant and Ö.Ç. On the same day the Fatih Criminal Court ordered the Security Directorate to send it the video recordings concerning the applicant’s police custody.

35.  On 2 February 2005 the first-instance court adjourned the hearing as the video footage requested during the previous hearing had not been received. One of the applicant’s lawyers, C.A., was present during this hearing.

36.  Upon receipt of the video footage of 24 March 2002, during the hearing of 3 March 2005 the Fatih Criminal Court viewed the recording and observed that one person had suddenly bent forwards and the police officers had immediately intervened. The court noted that the video footage was very short, lasting a few seconds, and the people in the images were not identifiable. At the same hearing, one of the accused police officers, İ.E., contended that the person in the footage was the applicant himself, who had hit his head on the floor in order to be able to lodge a complaint against them for ill-treatment in police custody, and that they had intervened to stop him.

37.  On 14 June 2005 the Fatih Criminal Court referred the case to the Istanbul Assize Court on account of lack of jurisdiction, pursuant to Article 94 of the new Criminal Code (Law no. 5237), which defined
ill-treatment by public servants as torture, an offence that should be tried by assize courts.

38.  On 3 October 2005 the Istanbul Assize Court issued a summons requiring the applicant and the accused police officers to attend the hearing to be held on 29 November 2005. The summons issued in respect of the applicant was served on A.K. Özcan. On 29 November and 27 December 2005 the Istanbul Assize Court held two hearings and heard evidence from the accused police officers, who reiterated the statements they had made before the Fatih Criminal Court. Neither the applicant nor his representatives participated in these hearings.

39.  During the hearing held on 27 December 2005 the public prosecutor requested that the police officers be acquitted of the charges against them. At the end of the same hearing the Istanbul Assize Court acquitted the accused police officers of the charges of torture. On the basis of the evidence before it, namely the medical reports, the report of the Forensic Medicine Institute dated 13 August 2003, the statements taken from the accused officers, the applicant and Ö.Ç., and the aforementioned video footage, the Istanbul Assize Court found that the applicant had been agitated and the police officers had handcuffed him to a camp bed with a view to preventing him from injuring himself. The court noted that the injuries observed on the applicant’s wrists and other parts of his body had thus occurred as a result of his agitation. The assize court considered that the applicant had not been subjected to beatings. It concluded that the accused officers had not tortured the applicant.

40.  On 20 January 2006 the judgment of 27 December 2005 was served on lawyer C.A. As C.A. could not be found in his office, the notification document was left with the mayor of the neighbourhood, in accordance with the provisions of the Law on Notifications.

41.  On 21 January 2011 A.K. Özcan, acting on behalf of the applicant, submitted a petition to the Istanbul Assize Court. He maintained that the judgment of 27 December 2005 had been served on a lawyer who had not been involved in the case and asked to be officially served with the judgment in question.

42.  On 14 February 2011 another lawyer lodged an appeal with the Istanbul Assize Court, to be submitted to the Court of Cassation, against the judgment of 27 December 2005 on behalf of the applicant, claiming that the judgment of 27 December 2005 had erroneously been served on C.A.

43.  On 28 February 2011 the Istanbul Assize Court rejected the petition, holding that C.A. had represented the applicant during the proceedings and his power of attorney was in the case file. It further noted that the judgment had already been served on him and that notification to one of the applicant’s representatives had been sufficient for the judgment to become final. The assize court therefore considered that the appeal dated 14 February 2011 had been submitted outside the time-limit laid down for submission of appeals in Article 310 of the Code of Criminal Procedure.

44.  The applicant appealed against the decision of the Istanbul Assize Court.

45.  On 22 May 2013 the Court of Cassation upheld the decision of 28 February 2011.

46.  According to the documents in the case file, on 18 March 2003 A.S.S. and on an unspecified date A.İ. were dismissed from duty respectively on account of some other criminal convictions. According to the judgment of 27 December 2005 one of the police officers, İ.E., was promoted and became a superintendent during the criminal proceedings brought against him.

D.  Criminal proceedings against the applicant

47.  On 30 April 2002 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant and fifteen other individuals. The applicant was charged with leading a criminal organisation and the attempted abduction of Ş.H. and H.H. in order to obtain a ransom. The charges were brought under Article 1 of Law no. 4422 on the Struggle against Profit-oriented Criminal Organisations and Article 499 of the former Criminal Code. The public prosecutor claimed that the applicant had been in possession of a mobile phone while he was in prison, that his conversations had been intercepted by the police following a court decision and that he had given instructions by phone to two of his co-accused for the abduction attempt. In this connection, the public prosecutor referred to the transcripts of the telephone conversations which were included in the investigation file. The public prosecutor further claimed that the applicant had expanded the criminal organisation subsequent to his release from prison and his co-accused had either become members of this organisation or had aided it. In the indictment, the public prosecutor had explained the details of the abduction attempt regarding Ş.H. and H.H., specifying the role of each accused. The applicant was identified as the person who had given the order for this offence to be committed.

48.  On 23 July 2002 the Istanbul State Security Court held the first hearing on the merits of the case. During this hearing, the applicant made statements before the court and maintained that he had been tortured while in police custody. He maintained that he had been made to listen to a recording of a telephone conversation by the police and that as he had denied that he had held the conversation in question, he had been tortured. He described the treatment he had allegedly been subjected to in detail and denied the veracity of his police statements. He further submitted that he had not made any phone calls or given instructions when he had been in prison and that these allegations had been invented by the police. He contended that he knew neither his co-accused nor Ş.H. or H.H. During the hearing of 23 July 2002 the applicant’s co-accused also denied the veracity of their police statements, claiming that they had been forced to sign those statements by the police and that they had been ill-treated whilst in police custody. During the hearing, the medical report of 27 March 2002 issued by the Forensic Medicine Institute in respect of the applicant was read out. At the end of the hearing, noting that the applicant had lodged a formal complaint with the Fatih public prosecutor’s office requesting that his allegations of ill-treatment be investigated, the Istanbul State Security Court decided to request information from the Fatih public prosecutor as to the outcome of the investigation.

49.  During the second hearing in the case, held on 24 September 2002, the applicant once again denied that he had made telephone calls while in prison. One of his lawyers contended that the police reports according to which the applicant had made telephone calls did not reflect the truth and requested his client’s release. At the end of the hearing, as the Fatih public prosecutor’s office had not sent the information requested on 23 July 2002, the first-instance court reiterated its request for information regarding the investigation into the applicant’s allegations of ill-treatment.

50.  During the third hearing on 12 December 2002 one of the applicant’s lawyers maintained that it would have been impossible for the applicant to possess a mobile phone whilst detained in an F-type prison. At the end of the hearing, the Istanbul State Security Court once again decided to request information from the Fatih public prosecutor’s office.

51.  On 11 March 2003 the fourth hearing in the case was held. During the hearing one of the applicant’s lawyers stated that the information requested from the Fatih public prosecutor’s office had been submitted and the investigation into the applicant’s allegations of ill-treatment was pending. However, the first-instance court neither noted that this document had been submitted nor read it out.

52.  During the same hearing, H.H., the son of the person whose abduction had allegedly been ordered by the applicant, made a statement before the trial court and submitted that neither of the accused had been involved in the attempted abduction. During the same hearing, the applicant’s lawyers contended that the only evidence against the applicant was the police statements of his co-accused, which had been obtained through ill-treatment and the veracity of which had been denied by each of the accused.

53.  On 29 May 2003 the fifth hearing was held, during which the public prosecutor submitted his opinion on the merits of the case and the accused were asked to provide their observations on the public prosecutor’s opinion by the next hearing. During the hearing, the applicant submitted a petition to the first-instance court in which he submitted that he did not have a good relationship with his brother and claimed that he had been the victim of a conspiracy organised by a senior police director who was a friend of his brother. Finally, one of the applicant’s lawyers maintained that the investigation into the applicant’s allegations of ill-treatment was still pending.

54.  During the sixth and last hearing in the case, held on 18 July 2003, one of the applicant’s lawyers maintained that there was no evidence against the applicant in the case file other than the statements obtained under torture and that an investigation had been launched into the applicant’s allegations of torture by the Fatih public prosecutor. Another lawyer representing the applicant also made defence statements. He contended that the telephone tapping in question had been illegal and that there had not been a court order authorising it. He further noted that the police statements obtained from the applicant under torture could not be used as evidence.

55.  On the same day the Istanbul State Security Court rendered its judgment in the case. The applicant was convicted of leading an armed criminal organisation and of the abduction of Ş.H. and H.H. in order to obtain a ransom as charged and was sentenced to nine years, five months and ten days’ imprisonment. His conditional release in respect of his previous sentence was also revoked.

56.  In its judgment, the first-instance court found it established, in the light of the content of the case file as a whole, to which the court repeatedly referred in its reasoning, and the evidence in its possession (which included, inter alia, the following evidence: transcripts of telephone conversations allegedly held by the applicant, material evidence collected where the attempted abduction of Ş.H. and H.H. had occurred, witness statements, the applicant’s and the co-accuseds’ police statements, and statements made to the public prosecutor and a judge at the State Security Court on 27 March 2002), that the applicant had planned the attempted abduction of Ş.H. and had given instructions to two of his co-accused to carry out the abduction in telephone calls he had made using a mobile phone when he was in prison. This telephone had originally been used by other inmates in prison and had been tapped by the police. The police had found out that the applicant had also used it in order to give instructions to the members of his criminal organisation and had subsequently conducted an investigation into the applicant and his co-accused. The first-instance court further noted that, after having assessed all the evidence in the case file, taking into account the legislation and the Court of Cassation’s case-law, it had come to the conclusion that the applicant and his co-accused had already formed a criminal organisation prior to the attempted abduction. The State Security Court therefore found, once again referring to the content of the case file, which included the applicant’s police statements, that the applicant was the leader of the criminal organisation in question and six other co-accused were members of that organisation.

57.  On 26 May 2004 the Court of Cassation upheld the judgment.

58.  Following the entry into force of the new Criminal Code in 2005, the Istanbul Assize Court reviewed the applicant’s conviction of 18 July 2003 and his sentence in the light of the provisions of the new Code. On 6 April 2006 the assize court amended the applicant’s sentence and imposed on him four years and three months’ imprisonment, holding that the new Code provided more favourable conditions for the applicant. One of the applicant’s lawyers, A.K. Özcan, was present when the assize court pronounced its judgment.

59.  On 20 February 2007 the Court of Cassation rejected the applicant’s appeal and upheld the judgment of 6 April 2006.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

A.  Criminal Codes (Laws nos. 765 and 5237)

60.  Article 245 of the former Criminal Code (Law no. 765), which was repealed on 1 June 2005, provided:

“Any law-enforcement officer ... who, in the course of duty ... and in circumstances other than those prescribed by law ... ill-treats, injures or strikes a person or causes him bodily harm shall be liable to imprisonment of between three months and five years and be temporarily barred from public service...”

61.  Article 94 § 1 of the Criminal Code (Law no. 5237), which entered into force on 1 June 2005, reads as follows:

Torture

“Any public officer who carries out acts which cause severe bodily or mental pain or loss of consciousness or ability to act, or degrade a person shall be liable to imprisonment of between three years and twelve years.”

B.  Codes of Criminal Procedure (Laws nos. 1412 and 5271)

62.  On 1 June 2005 the Code of Criminal Procedure (Law no. 5271) entered into force, repealing the former Code of Procedure (Law no. 1412). However, according to Law no. 5320 on the modalities of entry into force and application of the Code of Criminal Procedure, dated 31 March 2005, Articles 305-326 of the former Criminal Code on the procedure for appeals to the Court of Cassation remain in force until the regional appeal courts begin functioning. Articles 307 and 308 of Law no. 1412, in force at the material time, read as follows:

“Grounds for appeal on points of law

Article 307 - An appeal on points of law may not concern any issue other than the allegation of unlawfulness of the impugned judgment.

Non-application or erroneous application of a legal rule shall constitute unlawfulness.

Instances of unlawfulness

Article 308 - Unlawfulness is deemed to be manifest in the following cases:

1.  Where the court is not established in accordance with the law;

2.  Where a judge who has been involved in the decision-making process was barred by statute from participating;

3.  Where a judge, against whom a motion to disqualify him on the basis of a valid doubt submitted and accepted, or rejected unlawfully, has been involved in the decision-making process;

4.  Where a court considers that it has jurisdiction over a case in contravention of the legislation;

5.  Where a hearing has been held in the absence of the public prosecutor or other persons whose presence during the hearings is required by law;

6.  Breach of the requirement to render a public judgment in cases where oral hearings are held;

7.  Where the judgment does not contain reasoning;

8.  Where the judgment has restricted the defence rights as regards crucial issues in the judgment.”

63.  The relevant parts of Article 230 and 223 of Law no. 5271 on the requirements as to the judgments of first-instance courts acquitting the accused, are as follows:

“Points to be included in the reasoning of a judgment

Article 230 -

...  (2) The reasoning of an acquittal shall contain an explanation as to which ground listed in Article 223(2) has been taken into account in rendering the judgment.

Conclusion of the trial and the judgment

Article 223 -

...(2) A judgment of “acquittal of the accused” shall be rendered in the following cases:

a)  Where the act with which the accused was charged has not been defined as an offence in criminal laws;

b)  Where it has been proven that the offence with which the accused was charged had not been committed by the accused;

c)  Where the perpetrator had no intent or negligence vis-à-vis the offence with which the accused was charged;

d)  Where there is a ground for making the accused’s conduct lawful even if he or she has committed the act in question;

e)  Where it has not been proven that the offence with which the accused was charged was committed by the accused.”

64.  Article 242 of Law no. 5271, on the right of the intervening party to lodge an appeal on points of law, reads as follows:

“(1) An intervening party in criminal proceedings can lodge an appeal independently of the public prosecutor.

(2) If the judgment is quashed upon an appeal by the intervening party, the public prosecutor shall pursue the case again. ”

C.  Relevant decisions of the Court of Cassation

65.  In support of their observations of 10 April 2015, the Government submitted copies of fifteen decisions of the 8^th Division of the Court of Cassation, including an examination of appeals lodged by intervening parties in cases brought against members of the security forces involving charges of ill-treatment or torture.

66.  In seven of these decisions (decision no. 2006/3712, dated 26 April 2006; decision no. 2006/6680, dated 13 September 2006; decision no. 2010/14263, dated 20 December 2010; decision no. 2011/9432, dated 14 September 2011; decision no. 2011/10943, dated 6 October 2011; decision no. 2012/21562, dated 21 June 2012; and decision no. 2013/6715, dated 27 February 2013), the 8^th Division of the Court of Cassation decided to quash the first-instance courts’ judgments, finding that the accused’s acquittal of the charges against them had been erroneous. The high court held that the evidence in the case files ‒ such as medical reports, statements by victims and intervening parties, witness statements and statements by the accused officers ‒ proved that the intervening parties had been subjected to ill-treatment and that the first-instance courts should have established the criminal responsibility of the accused and convicted them.

67.  In six of the decisions submitted by the Government (decision no. 2006/8537, dated 24 November 2006; decision no. 2012/15465, dated 8 May 2012; decision no. 2012/18138, dated 28 May 2012; decision no. 2013/29039, dated 12 December 2013; decision no. 2014/9219, dated 10 April 2014; and decision no. 2014/20207, dated 18 September 2014), the Court of Cassation considered that the first-instance courts should have obtained further evidence before delivering their judgments acquitting the accused in those cases. Noting that the enquiries conducted by the first-instance courts had been inadequate, the Court of Cassation therefore quashed the judgments of the first-instance courts and remitted the cases to the first-instance courts.

68.  One Court of Cassation decision submitted by the Government (decision no. 2012/37883, dated 12 December 2012) refers to a case where the first-instance court had acquitted the accused police officers of the charge of torture, holding that they had not been the perpetrators of the crime, while at the same time noting that the intervening party had been a victim of torture while in police custody. The Court of Cassation considered that the first-instance court should have provided adequate reasoning for its conclusion that the accused officers were not responsible for the ill-treatment of the complainant.

69.  In the last decision submitted by the Government (decision no. 2013/29039, dated 12 December 2013), the Court of Cassation quashed a judgment by a first-instance court as it considered that the latter had failed to classify the ill-treatment meted out to the intervening party as torture.

70.  Aside from the decisions submitted by the Government, the Court of Cassation quashed first-instance court judgments in a number of other decisions. In its decisions dated 10 June and 12 October 1998 (decisions nos. 1998/8692 and 1998/12819), the Court of Cassation quashed the first-instance courts’ judgments acquitting the accused police officers, finding that those judgments had been erroneous. In these two decisions of 1998, the Court of Cassation found, on the basis of the medical reports, victims’ allegations and witness statements in the case file, that the accused police officers had tortured the intervening parties. It considered that the first-instance courts should have established the criminal responsibility of the accused and convicted them of torture. In a third decision dated 26 December 2002 (decision no. 2002/12044), the Court of Cassation held that the evidence in the case file - that is to say, the medical reports, the victim’s allegations, witness statements and records of identification parades - proved that the accused police officers had subjected the intervening party to ill-treatment. As a result, the high court considered that the reasoning of the first-instance court was flawed and quashed its judgment.

THE LAW

I.  GOVERNMENT’S PRELIMINARY OBJECTION

71.  The Government claimed that the applicant’s first representative had failed to submit an authority form to the Court when he lodged the application, which should therefore be rejected for failure to observe Article 45 § 3 of the Rules of Court.

72.  The Court observes that the applicant’s first representative did submit a duly completed authority form to the Court together with the application form at the time of the application to the Court. It therefore rejects the Government’s plea on this point.

II.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

73.  In his application form dated 16 November 2004 the applicant complained that he had been subjected to ill-treatment while in police custody. In his submissions dated 13 April 2011, relying on Article 3 of the Convention, the applicant reiterated his allegation of ill-treatment and also submitted that the domestic authorities had failed to conduct an effective investigation into those allegations.

Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A.  The parties’ submissions

74.  The Government submitted that the applicant’s complaints under Article 3 of the Convention had been submitted too late, as they had not been included in the original application form. They also maintained that the submissions of 13 April 2011 should in any case be dismissed as they failed to comply with the requirements of Article 47 of the Rules of Court. The Government further contended that if the date of introduction of the application was accepted as being 16 November 2004, then the application should be rejected for failure to exhaust domestic remedies since at the material time the criminal proceedings against the police officers were still pending.

75.  The Government submitted that in any event the applicant had failed to exhaust the domestic remedies as he had failed to lodge a cassation appeal in accordance with the procedural requirements against the judgment of 27 December 2005 acquitting the police officers. In their observations dated 10 April 2015, the Government argued that, although the Court of Cassation did not conduct any research for the purposes of obtaining evidence in order to ascertain the material facts of a case, within the scope of its examination of the alleged unlawfulness of the first-instance courts’ judgments, the Court of Cassation had the competence to review those courts’ findings concerning the facts of the case. According to the Government, the Court of Cassation had the competence to quash the first-instance judgments if it considered that the legislation had been implemented on the basis of an incorrect assessment of fact by the first-instance courts.

76.  As regards the Government’s objection concerning the six-month rule, the applicant submitted that he had stated in his application form that he had been subjected to torture during his detention in police custody and had therefore raised the substance of his complaint under this head.

77.  As to the Government’s objection that the applicant had failed to exhaust domestic remedies, the applicant claimed that according to the provisions of the Codes of Criminal Procedure the assessment of evidence lay within the competence of the first-instance courts. The Court of Cassation only had the authority to review the alleged unlawfulness of the impugned judgments. The applicant submitted that the Court of Cassation could examine or assess neither the material facts of a given case nor the evidence. The applicant also contended that in any case, the aim of the complaint under Article 3 of the Convention was not to challenge the judgment of 27 December 2005 acquitting the police officers, but rather the judgment of 18 July 2003 convicting him, given that the statements that had been taken in police custody ‒ where he had been subjected to ill-treatment ‒ had been used against him in that judgment. He submitted that the main issue in the present case was the unfairness of his trial on account of the use of statements taken from him whilst in police custody.

B.  The Court’s assessment

78.  The Court does not consider it necessary to examine the Government’s objection regarding the six-month rule, since it finds that this part of the application is inadmissible for non-exhaustion of domestic remedies for the reasons set out below.

79.  It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption - reflected in Article 13 of the Convention, with which it has close affinity - that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 69, 25 March 2014; Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 220, ECHR 2014 (extracts); and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 83, 9 July 2015).

80.  States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system. It should be emphasised that the Court is not a court of first instance; it does not have the capacity, nor is it appropriate to its function as an international court, to adjudicate on large numbers of cases which require the finding of basic facts or the calculation of monetary compensation - both of which should, as a matter of principle and effective practice, be the domain of domestic jurisdictions (see Vučković and Others, cited above, § 70, and the cases cited therein; Mocanu and Others, cited above, § 221; and Gherghina, cited above, § 84).

81.  The obligation to exhaust domestic remedies therefore requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see Vučković and Others, cited above, § 71; Mocanu and Others, cited above, § 222; and Gherghina, cited above, § 85). However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Vučković and Others, cited above, § 73; Mocanu and Others, cited above, § 223; and Gherghina, cited above, § 86).

82.  As regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Vučković and Others, cited above, § 77; Mocanu and Others, cited above, § 225; and Gherghina, cited above, §§ 88-89).

83.   The Court has dealt with numerous cases brought against Turkey in which applicants have raised allegations of ill-treatment at the hands of members of the security forces. In the aforementioned case of Aksoy (§§ 56-57), where the applicant had made no complaint to the public prosecutor of ill-treatment in police custody, the Court held that it was understandable if the applicant formed the belief that he could not hope to secure concern and satisfaction through national legal channels given that the public prosecutor ‒ who was aware of the injuries sustained by the applicant during his detention in police custody ‒ had taken no action. The Court therefore considered that there had existed special circumstances which absolved the applicant from his obligation to exhaust domestic remedies.

84.  In a number of other decisions and judgments in cases brought against Turkey, the Court has held that, for complaints about ill-treatment suffered in police custody, criminal proceedings are the proper means of obtaining redress (see, among many other authorities, Erat and Sağlam v. Turkey (dec.), no. 30492/96, 15 May 2001; Karayiğit v. Turkey (dec.), no. 63181/00, 5 October 2004; and Gazioğlu and Others v. Turkey, no. 29835/05, §§ 29-31, 17 May 2011) and that, within the context of Turkish law, lodging a formal complaint with the public prosecutor’s office and, where appropriate, filing an objection against a decision not to prosecute, would be sufficient to fulfil the requirements of Article 35 of the Convention (see, for example, Orak v. Turkey (dec.), no. 24936/94, 14 November 2000; Nimet Acar v. Turkey (dec.), no. 24940/94, 3 May 2001; Hamiyet Kaplan and Others v. Turkey (dec.), no. 36749/97, 6 November 2001; Erat and Sağlam, cited above; Mehmet Koçak v. Turkey (dec.), no. 32581/96, 7 October 2003; Kaçar v. Turkey (dec.), no. 11756/02, 7 October 2004; Nurgül Doğan v. Turkey, no. 72194/01, § 42, 8 July 2008; Erdal Aslan v. Turkey, nos. 25060/02 and 1705/03, § 66, 2 December 2008; and Feti Demirtaş v. Turkey, no. 5260/07, § 82, 17 January 2012).

85.  In cases where applicants have joined criminal proceedings against police officers as intervening parties, the Court has held that such applicants were not required to lodge appeals to the Court of Cassation against judgments of first-instance courts acquitting police officers on account of insufficient evidence of ill-treatment. The Court had regard to the powers attaching to the public prosecutor and the judge and to their central role in Turkish criminal proceedings and found that an appeal to the Court of Cassation ‒ which would only have had the power to remit the case for reconsideration by the first-instance court ‒ would have no effective prospect of clarifying or improving the evidence available. The Court therefore held that the appeal nominally available to the applicants in the criminal proceedings would not have been capable of altering to any significant extent the nature of the investigations that were made. As a result, the Court considered that the applicants should be deemed to have complied with the requirement to exhaust domestic remedies (see, for example, Salman v. Turkey [GC], no. 21986/93, § 108, ECHR 2000-VII ; Suna Parlak, Rahime Aktürk et Hatice Tay v. Turkey (dec.), nos. 24942/94, 24943/94 and 25125/94, 9 January 2001; Çiftçi v. Turkey (dec.), no. 39449/98, 9 May 2006); and Yusuf Gezer v. Turkey, no. 21790/04, § 27, 1 December 2009). The Court applied the same criteria in cases where the Government alleged that the applicants should have become intervening parties and lodged appeals with the Court of Cassation against acquittals of police officers on account of insufficiency of evidence of ill-treatment (see, for example, Baki Şenses v Turkey (dec.), no. 24991/94, 14 November 2000; Erat and Sağlam, cited above; Hasan Kılıç v. Turkey (dec.), no. 35044/97, 1 April 2003; and Uyan v. Turkey (no. 2), no. 15750/02, § 48, 21 October 2008).

86.  On the other hand, in its decision in the case of Beyhan Kaygısız v. Turkey ((dec.), no. 44032/98, 29 August 2006), the Court declared the applicant’s complaint under the substantive limb of Article 3 inadmissible for non-exhaustion of domestic remedies because the applicant had not lodged an appeal with the Court of Cassation in the proceedings brought against a number of police officers concerning the charge of ill-treatment of the applicant. In that case, criminal proceedings had initially been brought against the police officers for having tortured the applicant (Article 243 of the former Criminal Code). The first-instance court found that the treatment meted out to the applicant did not have the purpose of extracting a confession of guilt. It therefore convicted the officers only of ill-treatment under Article 245 of the former Criminal Code and suspended the execution of the sentence. In its decision, the Court noted that the circumstances of this case were different from those of previous cases in that the Kaygısız case did not involve an acquittal of the accused on the basis of insufficient evidence. Having regard to Article 307 of the former Code on Criminal Procedure (Law no. 1412), according to which the Court of Cassation had jurisdiction to examine breaches of law and the legal classification of the acts of the accused, the Court considered that the applicant should have joined the proceedings as an intervening party and should have lodged an appeal. The Court declared the applicant’s complaint concerning the effectiveness of the investigation and the criminal proceedings likewise inadmissible as being manifestly ill-founded because the applicant had failed to avail himself of the possibility of using the remedies offered in domestic law.

87.  Most recently, in the case of Mehmet Yaman v. Turkey (no. 36812/07, §§ 47-48, 24 February 2015), the Court rejected the Government’s preliminary objection that the applicant should have lodged an appeal with the Court of Cassation against the judgment of the first-instance court discontinuing the criminal proceedings against police officers who had allegedly ill-treated him for being time-barred. The Court observed that, since the applicant had joined the criminal proceedings as an intervening party, he would in theory have been able to challenge the judgment of the first-instance court before the Court of Cassation. However, as the case had been terminated for being time-barred, and since the legal provision regulating the statutory time-limit for the offence in issue was clear, the Court concluded that the applicant had not been required to lodge an appeal.

88.  Turning to the particular circumstances of the present case, the Court observes at the outset that the judgment of 27 December 2005 was served on C.A., the lawyer who had represented the applicant during the criminal proceedings brought against the police officers, on 20 January 2006. The Court observes that among the documents submitted by the Government there is an authority form showing that C.A. was authorised to represent the applicant. Moreover, according to the hearing minutes, C.A. attended at least two hearings in his capacity as the applicant’s lawyer. Finally, there is nothing in the case file to show that the applicant had revoked the authority form issued for C.A. The Court therefore finds that the decisions of 28 February 2011 and 22 May 2013 dismissing the applicant’s appeal petitions were not defective and that the judgment of 27 December 2005 had become final in the absence of an appeal lodged by the applicant or the public prosecutor.

89.  In these circumstances, the Court must examine the question whether, due to his failure to lodge an appeal with the Court of Cassation in compliance with the procedural requirements, the applicant failed to comply with the rule of exhaustion of domestic remedies.

90.  In this connection, the Court notes that the present application differs from the cases mentioned in paragraph 85 above, in which the Court considered that the applicants who had participated in proceedings brought against members of the security forces as intervening parties had not been required to appeal against the first-instance courts’ judgments. In those cases, members of the security forces had been acquitted of the charges of ill-treatment and torture on the basis of the absence or insufficiency of evidence showing ill-treatment, whereas in the case at hand, the assize court did not acquit the accused police officers as it found that there was no evidence ‒ or at least insufficient evidence ‒ demonstrating that the accused had meted out ill-treatment to the applicant. The first-instance court, having regard to the medical reports, the report of the Forensic Medicine Institute dated 13 August 2003, the statements taken from the accused officers, the applicant and Ö.Ç., and the police video recording of 24 March 2002 (see paragraphs 21 and 39 above) in the case file, considered that the treatment meted out to the applicant did not amount to ill-treatment and that the police officers had used legitimate force.

91.  The Court observes in this regard that the Court of Cassation decisions summarised above (see paragraphs 65-70 above) demonstrate that the high court has quashed the judgments of first-instance courts when it considered that the latter had conducted an inadequate or incorrect assessment of the facts in the light of the evidence in the case files. In the Court’s view, despite the fact that the relevant provisions of Laws nos. 1412 and 5271 do not apparently allow the Court of Cassation to conduct an examination of evidence in case files, the Court of Cassation’s practice shows that it considers itself competent to review the assessment of evidence carried out by the first-instance courts.

92.  Moreover, in his replies to the Government’s submissions of 10 April 2015, the applicant referred only to the provisions relevant to appeals in the codes of criminal procedure and did not put forward any argument contesting the Government’s submissions or the decisions of the Court of Cassation provided by the Government. For example, he did not claim that the decisions in question were not relevant to his application. Nor did he submit a copy of any other judicial decision to support his claims. What is more, when asked for further observations regarding the issue of exhaustion of domestic remedies under Article 3 of the Convention, the applicant argued in his submissions dated 11 and 18 May 2015 that the main issue in the instant case was not his complaint under Article 3, claiming instead that his grievances were essentially related to his right to a fair trial since he had been convicted on the basis of statements obtained as a result of ill-treatment. In these circumstances, the Court considers that the applicant failed to establish that the remedy before the Court of Cassation would be inadequate and ineffective in the particular circumstances of the present application.

93.  In sum, in the light of the decisions of the Court of Cassation submitted by the Government and the applicant’s failure to present arguments contesting the accuracy of those submissions, the Court finds that, in the circumstances of the present case, an appeal to the Court of Cassation was required in the same manner as in the aforementioned case of Kaygısız v. Turkey. In the Court’s view, had the applicant lodged an appeal in compliance with the procedural requirements, the Court of Cassation would have been in a position to examine the assessment of evidence carried out by the assize court and the legal classification of the treatment meted out to the applicant by the accused police officers. The Court thus concludes, in the absence of any such appeal, that the applicant failed to exhaust the domestic remedies available to him in respect of his complaints under Article 3 of the Convention.

94.  It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

III.  ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE CONVENTION

95.  The applicant complained under Articles 6 and 13 of the Convention that he had been denied a fair hearing because the Istanbul State Security Court had used statements obtained through ill-treatment in its judgment. He also submitted under these Articles that his conviction had been based on transcripts of telephone conversations that he had not held.

The Court considers that these complaints should be examined under Article 6 § 1 of the Convention.

The relevant parts of Article 6 § 1 of the Convention provide as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

96.  The Government contested the applicant’s assertions.

A.  Use by the Istanbul State Security Court of statements allegedly obtained as a result of ill-treatment

1.  Admissibility

97.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2.  Merits

98.  The applicant maintained that his right to a fair trial had been violated because the Istanbul State Security Court admitted as evidence in the case file police statements which had been obtained from him through torture and which he had later retracted.

99.  The Government submitted that the applicant had not been subjected to ill-treatment while in custody and that his statements could therefore not be considered as having been obtained under duress. They noted in this connection that at the end of the criminal proceedings instituted against the police officers, it had been established that the applicant had sustained his injuries as a result of his own conduct (see paragraph 39 above). The Government further contended that the trial court had also taken other evidence into consideration in establishing the applicant’s guilt. They noted that in its reasoning the Istanbul State Security Court had not made any reference to the applicant’s police statements. The Government concluded that the applicant’s trial had complied with the requirements of Article 6 of the Convention.

100.  The Court reiterates that 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, this being primarily a matter for regulation under national law (see Jalloh v. Germany [GC], no. 54810/00, § 94, ECHR 2006-IX; and Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010). 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 a violation of another Convention right is concerned, the nature of the violation found (see Jalloh, cited above, § 95; and Gäfgen cited above, § 163).

101.  The Court further reiterates that although not specifically mentioned in Article 6 of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (see Funke v. France, 25 February 1993, § 44, Series A no. 256-A, and John Murray v. the United Kingdom, 8 February 1996, § 45, Reports of Judgments and Decisions 1996-I). By providing the accused with protection against improper compulsion by the authorities, these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6 (see John Murray, cited above, ibid.). The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seeks to prove its case against the accused without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Gäfgen, cited above, § 168).

102.  Turning to the circumstances of the present case, the Court observes at the outset that the applicant was detained in police custody between 23 and 27 March 2002 and questioned by the police during this period in the absence of a lawyer. The applicant maintained in his police statements that he had not been involved in the offences of attempted abduction and leading a criminal organisation (see paragraph 18 above). The applicant contended, however, that he knew personally a number of his co-accused as well as Ş.H. and was aware that there had been an attempt to abduct the latter. During the trial the applicant denied the veracity of those statements, claiming that he had been tortured while in police custody. According to the judgment of 18 July 2003 of the Istanbul State Security Court, the applicant’s police statements of 26 and 27 March 2002 were included in the case file and the court delivered its judgment taking into account the content of the file (see paragraph 56 above). While it is true that the first-instance court did not make any specific reference to the applicant’s police statements, in establishing the facts of the case and convicting the applicant, the court referred to the content of the case file which contained, inter alia, the applicant’s statements to the police. The Court therefore cannot accept the Government’s submissions that the trial court had not made any reference to those statements.

103.  The Court further observes that the medical reports of 24 and 25 March 2002 drawn up while the applicant was kept in police custody showed that the applicant had sustained injuries to the left side of his forehead, his wrists and his neck (see paragraphs 11 and 12 above). The reports of 26 and 27 March 2002 issued at the end of the applicant’s detention in police custody also documented an injury to the right side of his forehead (see paragraphs 13 and 14 above). Moreover, in the video footage recorded between 9.11 p.m. and 9.16 p.m. on 24 March 2002, there are images of the applicant blindfolded and attached to chair legs by his outstretched arms and having his head doused with water from a plastic bottle and being hit with the same bottle.

104.  In this connection, Court reiterates that the absence of an admissible Article 3 complaint does not, in principle, preclude the Court from taking into consideration the applicant’s allegations that the police statements had been obtained using methods of coercion or oppression and that their admission to the case file, relied upon by the trial court, therefore constituted a violation of the fair trial guarantee of Article 6 (see Örs and Others v. Turkey, no. 46213/99, § 58, 20 June 2006).

105.  In response to the applicant’s complaint lodged on 3 April 2002, an investigation was initiated into the applicant’s allegations of ill-treatment, and criminal proceedings were subsequently brought against six police officers. It is true that those proceedings led to the acquittal of the police officers. However, on 18 July 2003, i.e. the date on which the State Security Court delivered its judgment convicting the applicant, the investigation into the applicant’s allegations of ill-treatment was still pending. What is more, in the case brought against the applicant, the latter and his representatives alleged at five of the six hearings that he had been subjected to ill-treatment during his detention in police custody. The Court recalls that in the judgment of the State Security Court, the individual pieces of evidence in the case-file are explicitly described, the contents of which included, inter alia, the applicant’s police statements. Although the applicant had pleaded in his defence that he had been subjected to ill-treatment whilst giving the police statements, the State Security Court, when convicting the applicant, repeatedly referred to the “content of the case-file as a whole” in its reasoning (see paragraph 56 above), not excluding in any way these statements allegedly obtained by ill-treatment, despite the fact that Turkish law does not usually attach consequences to any confessions obtained during questioning but later denied in court and which are decisive for the prospects of the defence (see Kolu v. Turkey, no. 35811/97, § 60, 2 August 2005; Örs and Others, cited above, § 59; Baran and Hun v. Turkey, no. 30685/05, § 70, 20 May 2010). Also, the State Security Court failed to examine the admissibility of the evidence in the case file before going on to examine the merits of the case, even though it had requested and received the investigation file from the Fatih public prosecutor’s office and had the medical report of 27 March 2002 in its possession (see paragraphs 48 and 51 above). Nor did the court await the outcome of the investigation into the applicant’s allegations of ill-treatment before delivering its judgment on the merits of the case (see Söylemez v. Turkey, no. 46661/99, § 123, 21 September 2006).

106.  The Court is also unable to accept the Government’s argument that the applicant’s conviction was based on a whole range of evidence. The Court has already held that the use of evidence obtained allegedly as a result of ill-treatment in criminal proceedings infringed the fairness of such proceedings even if the admission of such evidence was not decisive in securing the conviction (see Gäfgen, cited above, § 166, and the cases cited therein). It therefore does not find it necessary to enquire whether the applicant’s criminal conviction was based to a decisive extent on the statement that he had allegedly made to the police under duress.

107.  In sum, the Court finds that the procedural safeguards provided in the present case did not operate to prevent the use of the statements allegedly obtained as a result of ill-treatment in the criminal proceedings against the applicant and thus that the use of those statements, although not necessarily decisive, in convicting the applicant rendered his trial as a whole unfair (see Örs and Others, cited above, § 61; and Özcan Çolak v. Turkey, no. 30235/03, § 49, 6 October 2009).

108.  There has accordingly been a violation of Article 6 § 1 of the Convention.

B.  Use by the Istanbul State Security Court of transcripts of telephone conversations allegedly held by the applicant

109.  The applicant complained that the first-instance court had based its judgment on, among other things, transcripts of telephone conversations which he had not held. In his submission dated 13 April 2011 he further submitted that the Istanbul State Security Court had failed to order a voice analysis with a view to determining whether those calls had in fact been made by the applicant, as alleged by the police.

110.  The Government did not make any submissions on this issue.

111.  In view of its finding of a violation under Article 6 § 1 of the Convention on account of the use by the trial court of police statements allegedly obtained from the applicant through ill-treatment (see paragraph 108 above) and referring to paragraph 119 below, the Court deems it unnecessary to rule separately on either the admissibility or the merits of the present complaint (see Özcan Çolak cited above, § 53; Ahmet Yıldırım v. Turkey, no. 3111/10, § 72, ECHR 2012; and Bayram Güçlü v. Turkey, no. 31535/04, § 27, 18 February 2014).

IV.  ALLEGED VIOLATIONS OF ARTICLES 5, 6, 17 AND 18 OF THE CONVENTION

112.  In his submissions dated 13 April 2011 the applicant complained that his conviction and subsequent detention as a result of an unfair trial had constituted a violation of Articles 5, 6, 17 and 18 of the Convention. He submitted in particular that he had been the victim of a conspiracy by the police - the aim of which was to have his conditional release revoked - and that the domestic courts had failed to assess the circumstances of the case correctly.

113.  The Court observes that the criminal proceedings against the applicant ended on 26 May 2004, when the Court of Cassation upheld the judgment of the first-instance court and that, in any case, the applicant became aware of this judgment on 6 April 2006 at the latest, when the Istanbul Assize Court amended his sentence in view of the provisions of the new Criminal Code (see paragraphs 58 and 59 above). The aforementioned complaints under Articles 5, 6, 17 and 18 of the Convention, which had not been included in the original application form, were therefore introduced outside the six-month time-limit.

114.  It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

115.  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

116.  The applicant claimed 1,000,000 euros (EUR) in respect of non-pecuniary damage. He further maintained that he had suffered pecuniary damage as he had lost his assets during his detention in prison.

117.  The Government contested the applicant’s claim, submitting that the requested amount was unsubstantiated and excessive.

118.  The Court observes that the applicant did not substantiate his claim for pecuniary damage. It therefore rejects that claim. The Court finds, however, that he must have suffered pain and distress which cannot be compensated solely by the Court’s finding of a violation. Having regard to the nature of the violations found, the Court finds it appropriate to award him EUR 2,000 in respect of non-pecuniary damage.

119.  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 Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003).

B.  Costs and expenses

120.  The applicant claimed EUR 50,000 in lawyer’s fees and EUR 100 for postal expenses incurred before the Court. In support of his claims, the applicant submitted a legal fee agreement that he had concluded with his representative and invoices for postal expenses.

121.  The Government contested those claims, noting in particular that the amount claimed for the fees of the applicant’s lawyer was excessive.

122.  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, having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 5,000 covering costs and expenses for the proceedings before the Court.

C.  Default interest

123.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Declares the complaint under Article 6 § 1 of the Convention concerning the use by the Istanbul State Security Court of the applicant’s police statements allegedly obtained as a result of ill-treatment admissible;

 

2.  Holds that there is no need to examine the admissibility or the merits of the complaint under Article 6 § 1 of the Convention concerning the use by the Istanbul State Security Court of transcripts of telephone conversations allegedly held by the applicant;

 

3.  Declares the remainder of the application inadmissible;

 

4.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the use by the Istanbul State Security Court of the applicant’s police statements allegedly obtained as a result of ill-treatment;

 

5.  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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)  EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii)  EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, 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;

 

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 2 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Abel Campos                                                                    Guido Raimondi
Deputy Registrar                                                                       President