SECOND SECTION

CASE OF YAŞAR AND OTHERS v. TURKEY

(Application no. 1236/09)

JUDGMENT

STRASBOURG

28 November 2017

This judgment is final but it may be subject to editorial revision.

In the case of Yaşar and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
	Ledi Bianku, President,
	Paul Lemmens,
	Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 7 November 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 1236/09) 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 four Turkish nationals, Mr Eyyup Yaşar, Mr Cahit Tamur, Mr Fuat Bor and Mr Hüseyin Duman (“the applicants”), on 1 August 2008.
2.  The applicants were represented by Mr S. Kaya, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent.
3.  On 29 September 2010 the application was communicated to the Government.
4.  On 7 October 2016 the Vice-President of the Second Section invited the Government to submit further observations, if they so wished, following the judgment in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, ECHR 2016).
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  A list of the applicants is set out in the appendix.
6.  On 21 November 1994 the applicants were taken into police custody. Their statements were taken by the police in the absence of a lawyer. All the applicants confessed to having committed the crimes with which they had been charged. On 28 December 1994 they were remanded in custody.
7.  On 24 January 1995 the Public Prosecutor at the Diyarbakır State Security Court filed a bill of indictment against the applicants (except for Eyyup Yaşar), charging them under Section 125 of the former Criminal Code with carrying out activities with the aim of bringing about the secession of part of the national territory.
8.  On 18 June 1999 the Constitution was amended and the military judges sitting on the bench of the State Security Courts were replaced by civilian judges.
9.  On 4 December 2001 the Diyarbakır State Security Court convicted the applicants as charged.
10.  On 20 November 2002 the Court of Cassation quashed the convictions.
11.  State Security Courts were abolished on 16 June 2004 pursuant to Law no. 5190. The case was accordingly transferred to the Diyarbakır Assize Court.
12.  On 22 February 2007 the Diyarbakır Assize Court again convicted the applicants under Section 125 of the Criminal Code and sentenced them to life imprisonment.
13.  On 6 February 2008 the Court of Cassation upheld the convictions.
Article II.	II.  RELEVANT DOMESTIC LAW
14.  A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 27‑31, ECHR 2008).
15.  On 15 July 2003 Law no. 4928 repealed Section 31 of Law no. 3842, thus the restriction on an accused’s right of access to a lawyer in proceedings before the State Security Courts was lifted.
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION
16.  The applicants complained that they had not had access to a lawyer while in police custody. They further alleged that the length of the criminal proceedings against them had been excessive. Article 6 of the Convention, in its relevant part, reads as follows:
“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...
3.  Everyone charged with a criminal offence has the following minimum rights:
...
(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
...”
17.  The Government contested those arguments.
Section 3.01	A.  Admissibility
18.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
Section 3.02	B.  Merits
(a)	1.  Access to a lawyer during police custody
19.  The applicants complained that they had been deprived of legal assistance pursuant to section 31 of Law no. 3842, as they were accused of committing an offence that fell within the jurisdiction of the State Security Courts.
20.  The Government submitted that the applicants had been represented by lawyers throughout the trial and as such had the possibility to present their arguments and challenge those put forward by the prosecution. Moreover, the trial court had delivered its judgment on the basis of a number of serious evidence, and had not relied solely on the applicants’ statements to the police.
21.  The Court notes that the applicants’ access to a lawyer was restricted by virtue of Law No. 3842 and was as such a systemic restriction applicable at the time of the applicants’ arrest (Salduz v. Turkey [GC], no. 36391/02, § 56, ECHR 2008). The Court does not consider it necessary to examine whether the systematic nature of the restriction on the applicants’ right of access to a lawyer was, in itself, sufficient to find a violation of Article 6 §§ 1 and 3 (c) of the Convention, as, in any event, the Government have not offered any compelling reasons for the restriction or demonstrated that the absence of legal assistance at the initial stage of the investigation did not irretrievably prejudice the applicants’ defence rights (Salduz v. Turkey [GC], no. 36391/02, § 58, ECHR 2008; and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 274, ECHR 2016) In that respect, the Court notes that in convicting the applicants, the first-instance court relied on their statements to the police. Moreover, it did not examine the admissibility of evidence at the trial. Likewise, the Court of Cassation dealt with this issue in a formalistic manner and failed to remedy this shortcoming (see, Bayram Koç v. Turkey, no. 38907/09, 5 September 2017).
22.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.
(b)	2.  Length of proceedings
23.  The applicants complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention.
24.  The Government contended that the length of the proceedings could not be considered unreasonable in view of the complexity of the case, the number of accused and the seriousness of the charges against the applicants.
25.  The Court observes, at the outset, that a new domestic remedy has been established in Turkey since the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court observes that in its decision in the case of Turgut and Others v. Turkey (no. 4860/09, 26 March 2013), it declared a new application inadmissible on the ground that the applicants had failed to exhaust the domestic remedies, that is to say the new remedy. In so doing, the Court in particular considered that this new remedy was, a priori, accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
26.  The Court further points out that, in its judgment in the case of Ümmühan Kaplan (cited above, § 77), it stressed that it could nevertheless pursue the examination of such applications under the normal procedure in cases which had already been communicated to the Government prior to the entry into force of the new remedy. It further notes that in the present case the Government did not raise an objection in respect of the new domestic remedy. In view of the above, the Court decides to pursue the examination of the present application (see Rifat Demir v. Turkey, no. 24267/07, §§ 34‑36, 4 June 2013).
27.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case and the conduct of the applicants and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II).
28.  In the present case, the Court observes that the period to be taken into consideration began on 21 November 1994 with the applicants’ arrest and ended on 6 February 2008 with the final decision delivered by the Court of Cassation. It thus lasted for nearly thirteen years and three months at two levels of jurisdiction, which each examined the case twice. It further notes that the case before the criminal court was not particularly complex. As to the conduct of the authorities, the Court observes that it took more than six years for the trial court to deliver its judgment. When this judgment was quashed by the Court of Cassation, it took another four years and three months for the trial court to deliver its second judgment. No sufficient explanation has been provided for those delays and no other explanation been offered as to whether the applicants bore any responsibility for the delay in the proceedings. Having regard to the documents in its possession, the Court also does not discern any delays that can be imputed to the applicants.
29.  Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement (Daneshpayeh v. Turkey, no. 21086/04, § 28, 16 July 2009; Hayrettin Demir v. Turkey, no. 2091/07, § 54, 24 July 2012; and Gürbüz and Özçelik v. Turkey, no. 11/05, § 24, 2 February 2016).
30.  There has accordingly been a breach of Article 6 § 1.
Article IV.	II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
31.  The applicants complained that the length of their police custody – which allegedly lasted fourteen days – had exceeded the reasonable time requirement. They further contended that there had been no effective remedy in domestic law whereby they could challenge the unlawfulness of their police custody. They also complained that they had had no enforceable right to compensation in accordance with Article 5 § 5.
32.  Relying on Article 6 § 1 of the Convention, the applicants alleged a violation of their right to a fair trial on the basis of the involvement of a military judge in part of their trial in the Diyarbakır State Security Court.
33.  Relying on Article 7, the applicants argued that the domestic courts had erred in the legal classification of their conduct and in application of the relevant provisions of the domestic law
34.  An examination by the Court of the material submitted to it does not disclose any appearance of a violation of these provisions. It follows that this part of the application must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.
Article V.	III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
Section 5.01	A.  Damage
35.  The applicants each claimed 100,000 euros (EUR) in respect of pecuniary damage and the same amount for non-pecuniary damage.
36.  The Government contested these amounts as speculative and excessive.
37.  The Court observes that it has found a violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case. It cannot speculate as to the outcome of the proceedings against the applicants if there had been no breach of the Convention (see Ibrahim and Others, cited above, § 315). The Court therefore makes no award in respect of pecuniary damage.
38.  With respect to the complaint relating to the lack of legal assistance by a lawyer, the Court observes that Article 311 of the Code of Criminal Procedure allows the possibility to reopen proceedings. It 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, and Abdulgafur Batmaz v. Turkey, no. 44023/09, § 58, in fine, 24 May 2016). It further considers that in these circumstances the finding of a violation constitutes in itself just satisfaction for any non-pecuniary damage related to this complaint.
39.  With respect to the complaint relating to the length of the proceedings, the Court finds that the applicants must have suffered pain and distress which cannot be compensated solely by the Court’s finding of a violation in this respect. Ruling on an equitable basis, it therefore finds it appropriate to award each applicant the sum of EUR 8,000 in respect of non-pecuniary damage (see Uçan and Others v. Turkey, no. 37377/05, § 47, 2 July 2013.
Section 5.02	B.  Costs and expenses
40.  The applicants also claimed EUR 17,160 for the costs and expenses incurred before the domestic courts and the Court. This sum corresponds to two hundred hours of legal work, billed at an hourly rate of EUR 60 plus taxes.
41.  The Government were of the opinion that the claims in respect of costs and expenses were exaggerated and not itemised.
42.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 850, covering costs under all heads.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaints concerning access to a lawyer during police custody and the length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the criminal proceedings;

4.  Holds that the finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicants in relation to their complaint concerning denial of access to a lawyer during police custody;

5.  Holds
(a)  that the respondent State is to pay each applicant, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage caused by the excessive length of the criminal proceedings;
(ii)  EUR 850 (eight hundred and fifty euros) plus any tax that may be chargeable to the applicants, 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 applicants’ claim for just satisfaction.
Done in English, and notified in writing on 28 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Hasan Bakırcı	Ledi Bianku
	Deputy Registrar	President

APPENDIX

1.	Eyyup YAŞAR, born in 1973
2.	Fuat BOR, born in 1973
3.	Hüseyin DUMAN, born in 1974
4.	Cahit TAMUR, born in 1969