European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

CASE OF TÜRK v. TURKEY

 

(Application no. 22744/07)

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

5 September 2017

 

 

 

 

 

 

 

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 Türk v. Turkey,

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

          Robert Spano, President,
          Julia Laffranque,
          Ledi Bianku,
          Işıl Karakaş,
          Paul Lemmens,
          Valeriu Griţco,
          Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 4 July 2017,

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

PROCEDURE

1.  The case originated in an application (no. 22744/07) 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 Mehmet Ali Türk (“the applicant”), on 18 May 2007.

2.  The applicant was represented by Mr A. Bozan, a lawyer practising in Mersin. The Turkish Government (“the Government”) were represented by their Agent.

3.  The applicant alleged, in particular, that he had not had a fair trial on account of the fact that he had been tricked by the police into making incriminating statements without having been advised of his basic rights and in the absence of legal assistance. He also complained that he had not had an opportunity at any stage of the proceedings to question, examine and confront M.N.A., whose statements had been used, to a decisive extent, to convict him.

4.  On 4 January 2012 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1972 and is currently serving a life sentence in Antalya.

6.  On an unspecified date the applicant went to the Mersin Security Directorate headquarters to complete certain procedures regarding the sale of his car and found out that a warrant for his arrest had been issued by the Antalya Security Directorate.

7.  Subsequently, at approximately 1 p.m. on 16 February 2004 the applicant went to the Antalya Security Directorate. It appears that at some point he confessed to his involvement in the shooting of a certain K.G. and as a result, at 4 p.m. the same day he took part in a photo identification procedure. According to a report drawn up by the police and signed by the applicant, the applicant turned himself in and confessed to his involvement in the shooting of K.G., which had taken place in 1992, and identified S.K., M.N.A. and A.Y. as his accomplices. There was no record indicating that the applicant had been advised of his rights, including his right to legal assistance and his right to remain silent, under the Code of Criminal Procedure in force at the material time.

8.  At around 5.30 p.m. the same day, the applicant participated in a reconstruction of the events (yer gösterme). According to the record drafted by police officers and signed by the applicant, the latter described in detail what steps he had taken before the shooting, how he had shot K.G. in 1992 in Antalya, and how he had left the crime scene. There was no record indicating that the applicant had been advised of his rights, including his right to legal assistance and to remain silent, under the Code of Criminal Procedure in force at the material time.

9.  The police started questioning the applicant at around 6.30 p.m. the same day. According to the applicant, he was shown an arrest warrant, dated 19 November 1992, in which the offence was indicated as “breaching Law no. 6136 (the Firearms Act)” and the deadline stipulated in the statute of limitations was “2 September 1997”. In this connection, the police officers told him that the offence for which he was being sought was illegal possession of firearms and explosives contrary to Law no. 6136. They said that any statement given by him was merely a “formality”, since the time-limit for prosecution of that offence had already expired in 1997. The applicant therefore agreed to give a statement. His statements were transcribed on a pre-printed form. According to this form, he had been reminded of his rights to remain silent and to be represented by a lawyer. It appears that the applicant had refused legal assistance, since the first page of the record includes a pre-printed phrase stating “No lawyer is requested” with the applicant’s signature underneath. He was thus questioned in the absence of a lawyer.

10.  The applicant was accordingly questioned at the Anti-Terrorism Department of the Antalya Security Directorate about his involvement in the PKK (the Workers’ Party of Kurdistan, an illegal organisation) and the wounding of a certain K.G. in 1992. In his nine-page statement, the applicant admitted to his involvement in the PKK and explained in detail that he had shot K.G. upon the instructions of the illegal organisation.

11.  On 17 February 2004 the applicant was questioned again by the Antalya public prosecutor and the investigating judge. According to the statement drawn up during the questioning by the public prosecutor, the applicant had been advised of his rights again. However, the statement he gave was similar to his police statement.

12.  Before the investigating judge, the applicant was advised of his rights again. He stated that he did not want the assistance of a lawyer and repeated the content of his police statement. The investigating judge first ordered the applicant’s release; however, following an objection by the prosecutor, he ordered that the applicant be placed in detention pending trial.

13.  On 10 March 2004 the public prosecutor at the Izmir State Security Court filed an indictment with that court and accused the applicant of carrying out activities for the purposes of bringing about the secession of part of the national territory, an offence under Article 125 of the Criminal Code. In his indictment, the public prosecutor also indicated that the applicant had turned himself in.

14.  During the hearings before the Izmir State Security Court the applicant was represented by a lawyer. At a hearing held on 4 May 2004, the applicant gave evidence in the presence of his lawyer and retracted the statements he had made previously. He maintained, in particular, that he had been tricked by the police into giving incriminating statements by being shown a paper in which the time-limit for prosecution of the offence he was accused of committing had expired. He denied his involvement in the shooting and rejected the accusations against him. The applicant further submitted that he did not know the co-accused, A.Y., S.K. or M.N.A.

15.  During the same hearing, the trial court deemed it necessary to hear from people who had been tried for the same incident in a previous case, no. 1996/9, namely M.N.A., S.K. and B.Ç., with a view to verifying the defence submissions of the applicant and his co-accused, A.Y. In this connection, the trial court ordered that the necessary steps be taken to find out in which prisons M.N.A., S.K. and B.Ç. had been held and ordered an enquiry as to their addresses in the event that they had been released from prison. The trial court further ordered that a confrontation take place once the witnesses had been located. It ordered that photographs be taken of the applicant and A.Y., one from the side and the other from the front, and sent with the reports concerning the case, in the event that M.N.A., S.K. and B.Ç. were located outside its jurisdiction. If they resided in the centre of İzmir, they should be heard in person.

16.  The trial court also ordered that the address of the victim, K.G., be ascertained with a view to bringing him before the court, so that evidence could be taken from him in person.

17.  At a hearing held on 29 June 2004, the trial court heard evidence from S.K. as a witness. S.K. said that he neither knew nor had ever seen the applicant and A.Y. He did not have direct knowledge of K.G.’s shooting and had given his previous statement as a result of information he had obtained from M.N.A. and B.Ç. The trial court reiterated its orders concerning M.N.A., B.Ç. and K.G.

18.  At a hearing held on 26 August 2004, A.Y.’s lawyer submitted a medical report issued by the Elazığ Psychiatric Hospital, dated 3 September 2002, which stated that M.N.A. suffered from depression. The lawyer accordingly asked the trial court not to call M.N.A. as a witness. The trial court did not respond to that request.

19.  Under Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. The case against the applicant was therefore transferred to the Izmir Assize Court.

20.  On 19 August 2004 M.N.A. was questioned by the Siirt Assize Court, pursuant to a letter rogatory from the trial court. According to the transcript of the hearing at the Siirt Assize Court, M.N.A. was serving a sentence in the Siirt E-type Prison at that time. He explained that in 1992, together with the applicant and a certain A.Y., he had received instructions from the PKK and S.K. to shoot K.G. Accordingly, while he had secured the area, the applicant and A.Y. had gone to shoot K.G. He had heard gunshots but had not seen K.G. being shot. He further identified the applicant and A.Y. from the photographs. The Siirt Assize Court then asked M.N.A. to clarify the inconsistency between the statements he had given to the police and the public prosecutor in 1995 and those he had just given to the court. M.N.A. insisted that he was now telling them the correct version of the events. The court reminded him that in his statement of 29 November 1995 before the public prosecutor he had said that he had not known the accused, and asked him to clarify that point. M.N.A then explained that it was because he had been questioned as an accused on 29 November 1995. He repeated that he was now telling them the correct version of the events.

21.  On 17 December 2004, at the seventh hearing, M.N.A.’s statement was read out. The applicant objected to the statement, referring to the inconsistency of M.N.A.’s statements since 1995. A.Y.’s lawyer also referred to the medical report in respect of M.N.A. and requested that his statement be considered as unreliable. The trial court did not provide a response to that request. It reiterated its orders concerning B.Ç. and K.G.

22.  On 17 February 2005 the eighth hearing was held, and the trial court again reiterated its orders concerning B.Ç. and K.G.

23.  At the ninth hearing on 28 April 2005 the trial court once again reiterated its orders concerning B.Ç. and K.G.

24.  At the tenth hearing on 12 July 2005 the victim, K.G. appeared before the trial court and gave evidence as a witness. K.G. submitted that he had not seen the applicant or A.Y. at the crime scene and that they had not been involved in his shooting. He gave a detailed description of the people who had shot him.

25.  On 4 October 2005 the Izmir Assize Court found the applicant guilty as charged and convicted him on the basis of the case file as a whole, including the record of the reconstruction of the events and the report of the photo identification.

26.  The court accordingly sentenced the applicant to life imprisonment, under Article 125 of the former Criminal Code, for carrying out activities with the aim of bringing about the secession of part of the national territory.

27.  On 14 February 2006 the Court of Cassation quashed the judgment and remitted the case to the first-instance court in order to determine whether the terms of the new Criminal Code, which had entered into force on 1 June 2005 (no. 5237), were more favourable for the applicant. The case was thus re-examined by the Izmir Assize Court in view of the recent legislative changes.

28.  On 13 June 2006 the applicant’s lawyer requested that the trial court bring M.N.A before the court in order to cross-examine him directly and arrange a physical confrontation between him and the applicant. The Izmir Assize Court rejected the request on the grounds that it had already examined and rejected the same request.

29.  On the same date the Izmir Assize Court, relying on the same pieces of evidence, once again found the applicant guilty as charged under Article 125 of the Criminal Code and sentenced him to life imprisonment.

30.  The applicant lodged an appeal on 3 July 2003, in which his lawyer submitted, inter alia, that M.N.A.’s statements should not have been taken into consideration given the medical report on his mental state. He further submitted that the applicant had been deceived by the police and asked the Court of Cassation to declare his statements inadmissible and in contravention of Article 6 of the Convention.

31.  On 19 December 2006 the Court of Cassation rejected the applicant’s appeal.

II.  RELEVANT DOMESTIC LAW

32.  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, 27 November 2008).

33.  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.

34.  Under Article 135 (a) of the Code of Criminal Procedure in force at the relevant time, statements were to be given by the accused of his or her own free will. Methods such as ill-treatment, torture, induced fatigue, the administration of drugs, torment and deception that “impairs the will of the accused” were proscribed. Statements that were obtained through such methods could not be used in evidence, even if the accused had agreed to their use.

35.  Article 238 of the same Code empowered the criminal courts to refuse to admit any inappropriate evidence pursuant to the law. Furthermore, Article 254 of the same Code explicitly stated that evidence that had been obtained unlawfully could not be used by the courts.

36.  Pursuant to Article 6 § 5 of “the Regulation on arrest, custody and questioning” (Regulation no. 23480, in force from 1 October 1998 and repealed on 1 June 2005) (Yakalama, Gözaltına Alma ve İfade Alma Yönetmeliği) in force at the relevant time, in the course of arrest and irrespective of the offence, individuals had to be informed of the reasons for their arrest and the allegations against them, and of their rights to remain silent, to have legal assistance and to have someone informed of their arrest.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION

37.  The applicant complained that he had not had a fair trial on account of the fact that he had been denied legal assistance while in police custody and had been tricked into giving statements without being notified of his rights. He relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... 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;

...”

A.  Admissibility

38.  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.

B.  Merits

1.  The parties’ submissions

39.  The applicant submitted that he had not been reminded of his basic rights and had been denied legal assistance while in police custody. According to the applicant, the police deceived him by showing him an arrest warrant in which the time-limit specified in the statute of limitations for the offence he had been accused of committing had expired. He further maintained that the offence attributed to him had been indicated in the arrest warrant as “breaching Law no. 6136”, and not shooting K.G. In such circumstances, the applicant maintained that he could not be regarded as having unequivocally waived his right to legal assistance during the pre-trial stage of the criminal proceedings against him.

40.  The Government contested that argument and maintained that there was no evidence corroborating the applicant’s allegations that the police had tricked him into making incriminating statements. The Government argued that even assuming the applicant’s version to be genuine, he had been reminded of his rights and had refused legal assistance from a lawyer during his questioning before the police, the public prosecutor and the investigating judge, and had made incriminatory statements before those bodies.

41.  The Government submitted that any reasonable person who had confessed to having shot a man ought to have appreciated the consequences of accepting to be questioned without legal assistance. The applicant had not been forced to waive his right to legal assistance. In the light of those arguments, the Government invited the Court to conclude that there had been no violation of Article 6 §§ 1 and 3 (c) in the present case.

2.  The Court’s assessment

(a)  General principles

42.  The general principles with regard to access to a lawyer, the right to remain silent, the privilege against self-incrimination, the waiver of the right to legal assistance and the relationship of those rights to the overall fairness of the proceedings under the criminal limb of Article 6 of the Convention can be found in the recent judgment in the case of Simeonovi v. Bulgaria ([GC], no. 21980/04, §§ 110-120, 12 May 2017).

(b)  Application to the present case

43.  The Court notes that already on 16 February 2004, when the applicant was being questioned by the police about the shooting and participated in the photo identification and later in the reconstruction of the events, the applicant was “charged” of a criminal offence within the meaning of Article 6 of the Convention, and thus entitled to the assistance of a lawyer as well as to be informed of his rights thereof (see, Simeonovi, cited above, § 121).

44.  The Court further notes that at the material time, there was no restriction in law on the availability of legal assistance for those in custody (see, by contrast, Salduz v. Turkey [GC], no. 36391/02, § 14, ECHR 2008, and the relevant domestic law in §§ 32-36) because the restriction on an accused’s right of access to a lawyer in proceedings before the State Security Courts had already been repealed.

45.  In the instant case, the Court is called upon to assess whether the applicant unequivocally waived his right to be assisted by a lawyer at the pre-trial stage. As such, the Court must ascertain whether the applicant’s waiver was unequivocal, ran counter to any important public interest and was attended by minimum safeguards commensurate with its importance (see Simeonovi, cited above, § 115).

46.  The Court makes the following findings as to the sequence of events concerning the applicant’s waiver. The applicant was arrested on 16 February 2004 in Antalya on suspicion of having been involved in the shooting of K.G. in 1992. According to the police reports, the applicant turned himself in at approximately 1 p.m. to the Antalya Security Directorate. At between 1 and 4 p.m. the same day, and prior to his questioning, the applicant confessed to his involvement in the shooting of K.G. some twelve years after the incident. He also told the police that he was able to identify his accomplices in the shooting and show them the crime scene.

47.  The Court further observes that following his confession and before he was reminded of his rights, the applicant participated in an identification procedure via photographs (fotoğraftan teşhis tutanağı) and a reconstruction of the events (ifadeli yer gösterme tutanağı). He again confessed to his involvement in K.G.’s shooting. However, all those investigative steps were taken in the absence of a lawyer and without informing the applicant of his basic rights under the domestic law then in force. Moreover, the Government have not submitted any other document showing that the applicant was informed of his rights when confessing to a very serious offence during the course of those investigative measures.

Subsequently, at 6.30 p.m. on 16 February 2004 the police informed the applicant of his rights, but only after he had already confessed to his involvement in K.G.’s shooting. For the Court, these findings undoubtedly weaken the “unequivocal” character of the applicant’s waiver.

48.  The Court further notes that according to the record of the police questioning on 16 February 2004, any instructions as regards the applicant’s procedural rights were given to him via the first pages of the pre-printed forms on which his pre-trial statements had been transcribed. Such instructions went only as far as informing the applicant, without providing any commentary or further explanation, that he had the right to remain silent and the right to choose a lawyer. Conversely, there has been no allegation or other indication that any individualised advice about his situation and rights was provided to him (see Zachar and Čierny v. Slovakia, nos. 29376/12 and 29384/12, § 70, 21 July 2015). Thus, the first page of the applicant’s statement to the police includes the pre-printed phrase “No lawyer is requested” and the applicant’s signature at the bottom.

49.  Moreover, the Court notes that at the material time there was no statutory basis for a so-called “reconstruction of the events” under the former Code of Criminal Procedure. That fact supports the view that that method of collecting evidence was not accompanied by the relevant procedural safeguards. As a result, prior to his questioning by the police, the applicant made incriminating statements in circumstances where he had not been allowed access to a lawyer and informed of his basic rights. The fact that the practice of carrying out a reconstruction of the events became an accepted one by the domestic courts does not remedy the absence of the minimum safeguards required in order for a waiver to be considered valid for the purposes of a fair trial under Article 6. The Government did not make any submissions in this respect.

50.  Furthermore, the Court finds that the present case shows certain similarities to the case of Hakan Duman v. Turkey (no. 28439/03, § 50, 23 March 2010). In the latter case the Court noted that the applicant was neither subjected to ill-treatment nor coerced into making statements in police custody. Nonetheless, it was not convinced that the presence of an undated, pre-printed and signed document in the case file demonstrated with certainty that the applicant had been properly informed of his right to a lawyer and his right to remain silent prior to his confession and subsequent participation in a number of reconstructions of the events, which were later used to convict him.

51.  In the present case, the Court observes that there is no document at all that can even arguably demonstrate that the applicant was informed of his rights prior to confessing to a particularly grave offence, both before and during the reconstruction of the events and the photo identification (see Hakan Duman, cited above, § 50). As such, it does not appear that the applicant waived, even implicitly, his basic rights, including his right to remain silent and the right to legal assistance, either before or during the reconstruction of the events and the photo identification.

52.  The Court considers that the foregoing facts considerably weaken the value of the pre-printed phrase “No lawyer is requested” in demonstrating that the applicant unequivocally waived his right to a lawyer guaranteed by Article 6 of the Convention (see Savaş v. Turkey, no. 9762/03, § 70, 8 December 2009). In such circumstances, it cannot be said that the applicant unequivocally, knowingly and intelligently waived his rights under Article 6 (see, Simeonovi, cited above, § 115).

53.  The Court reiterates that it was in the first place the trial court’s duty to establish in a convincing manner whether or not the applicant’s confessions and waivers of legal assistance had been voluntary (see Ogorodnik v. Ukraine, no. 29644/10, § 108, 5 February 2015). It must therefore be further examined whether that flaw was rectified during the subsequent trial and whether the proceedings as a whole can be considered as fair within the meaning of Article 6 § 1 of the Convention (see Zachar and Čierny, cited above, § 75).

54.  For the Court, the İzmir Assize Court’s failure to examine the circumstances surrounding the applicant’s waiver, despite the procedural safeguards provided for by the Code of Criminal Procedure, was tantamount to depriving the applicant of a possibility of remedying a situation contrary to the requirements of the Convention (see Yunus Aktaş and Others v. Turkey, no. 24744/03, § 51, 20 October 2009).

55.  The Court notes that under Article 135 (a) of the Code of Criminal Procedure in force at the time, impairing the will of the accused by means of deception was proscribed and statements obtained by such a method could not be used in evidence at trial. Moreover, Article 238 of the same Code empowered the criminal courts to refuse inadmissible evidence pursuant to the law. Lastly, Article 254 of the same Code explicitly stated that evidence that had been obtained unlawfully could not be used by the courts. However, the İzmir Assize Court failed to examine the admissibility of the evidence in the case file before going on to examine the merits of the case, despite the fact that the applicant was being tried for an offence carrying the heaviest penalty in the Turkish criminal law system (see, by contrast, Ibrahim and Others, cited above, § 282).

Likewise, the Court of Cassation dealt with the applicant’s complaints about the violation of his procedural rights in a formalistic manner.

56.  What is more, the İzmir Assize Court relied, to a decisive extent, on the applicant’s pre-trial statements when convicting him of K.G.’s shooting, despite the fact that it had not carried out an examination of either the admissibility or the reliability of his statements.

57.  Hence, the Court is not satisfied that the applicant’s grievance received an appropriate response from the national courts and considers that fair procedures for assessing the issue of legal assistance proved non-existent in the present case (see, mutatis mutandis, Vanfuli v. Russia, no. 24885/05, § 103, 3 November 2011, and Nechto v. Russia, no. 24893/05, § 111, 24 January 2012).

58.  Against such a background, the Court is of the view that the absence of close scrutiny by the national courts of the circumstances surrounding the applicant’s waiver and the fact that that flaw was not remedied by any other procedural safeguards during the proceedings coupled with the use of those statements by the trial court to convict the applicant, rendered the trial as a whole unfair.

59.  Accordingly, the Court considers that there has been a violation of Article 6 §§1 and 3 (c) of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) OF THE CONVENTION

60.  The applicant further complained that he had been unable to question, confront and examine a key witness, namely M.N.A., whose statements were relied on by the domestic court to convict him.

61.  The Court considers that this complaint may be declared admissible. However, having regard to the facts of the case and its finding of a violation of Articles 6 § 1 and 6 §§ 3 (c) of the Convention, and referring to paragraph 72 below, the Court considers that there is no need to give a separate ruling on the merits of the applicant’s complaints under this head (see, mutatis mutandis, Abdulgafur Batmaz v. Turkey, no. 44023/09, § 54, 24 May 2016).

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

62.  The applicant also complained under Article 6 § 1 of the Convention that the State Security Court and the Assize Court, which took over the case following the abolition of the former, lacked independence and impartiality.

63.  The Court notes that following the amendments made by Law no. 4390 on 22 June 1999, the military judges sitting on the bench of the State Security Courts were replaced by civilian judges. In the present case, the proceedings commenced before the İzmir State Security Court following an indictment filed by the public prosecutor on 10 March 2004, that is, after the removal of the military judge from the bench. Accordingly, the applicant was tried by a panel of three civilian judges. The Court acknowledges that the case was examined by the Assize Court for the most part, except for the first two hearings. Furthermore, the Court notes that, although the applicant complained generally that the State Security Court and the Assize Court were not independent and impartial, he did not substantiate his claim. The Court therefore concludes that the applicant cannot be regarded as having been deprived of a fair hearing on account of the composition of the court (see Sever and Aslan v. Turkey (dec.), no. 33675/02, 12 April 2007; Şaman v. Turkey, no. 35292/05, § 39, 5 April 2011; and Karaatay v. Turkey (dec.), no. 13350/09, 28 January 2014).

64.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

65.  Lastly, without submitting any document in respect of his complaint, the applicant alleged under Article 14 of the Convention that he had faced discrimination on account of the fact that his co-accused, who had previously been tried before the Izmir State Security Court in a different set of criminal proceedings, had been acquitted of the charges against them. In the absence of any documents supporting this allegation, the Court considers this complaint unsubstantiated.

66.  It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

67.  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

68.  The applicant claimed 30,000 euros (EUR) in respect of non-pecuniary damage. He did not submit a claim for pecuniary damage.

69.  The Government contested the applicant’s claim, submitting that the amount was unsubstantiated and excessive. The Court considers that the finding of a violation constitutes sufficient just satisfaction (see Dvorski v. Croatia [GC], no. 25703/11, § 117, ECHR 2015). It further considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 of the Convention, should he so request (see Salduz, cited above, § 72). It therefore rejects the applicant’s claim.

B.  Costs and expenses

70.  The applicant also claimed EUR 5,284 for the costs and expenses incurred both in the domestic proceedings and before the Court, giving a breakdown of the number of hours of work for which his lawyer needed to be paid.

71.  The Government contested the applicant’s claims, submitting that the amounts requested were unsubstantiated and not supported by adequate documentary evidence.

72.  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 this connection, the Court reiterates that time sheets have been accepted in the past as supporting documents in a number of cases (see Beker v. Turkey, no. 27866/03, § 68, 24 March 2009; Çoşelav v. Turkey, no. 1413/07, § 89, 9 October 2012; Amine Güzel v. Turkey, no. 41844/09, § 50, 17 September 2013; and Yiğitdoğan v. Turkey (no. 2), no. 72174/10, § 76, 3 June 2014). 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 2,000, covering costs under all heads.

C.  Default interest

73.  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 complaints under Article 14 and Article 6 § 1 of the Convention in as much as it concerns the independence and impartiality of the State Security Court and the Assize Court inadmissible and the remainder of the application admissible;

 

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

 

3.  Holds that there is no need to examine the complaint under Article 6 §§ 1 and 3 (d) of the Convention;

 

4.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction in respect of any non-pecuniary damage that may have been sustained by the applicant;

 

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 amount, 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 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 amount 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 5 September 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith                                                                    Robert Spano
       Registrar                                                                              President