European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

 

CASE OF BOZKAYA v. TURKEY

 

(Application no. 46661/09)

 

 

 

 

 

 

 

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 Bozkaya 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. 46661/09) 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 a Turkish national, Mr Ayhan Bozkaya (“the applicant”), on 18 August 2009.

2.  The applicant was represented by Mr V. Akay, a lawyer practising in İzmir. 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 lack of legal assistance available to him during his police custody and the excessive length of the criminal proceedings.

4.  On 25 November 2010 the application was communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1975 and is detained in Kahramanmaraş.

6.  On 19 November 2003 the applicant was taken into police custody on suspicion of membership of an illegal organisation, namely the PKK/KADEK (Workers’ Party of Kurdistan/Kurdistan Freedom and Democracy Congress). It appears that at some point the applicant confessed to committing an armed attack on a prison vehicle in Adana and, as a result, on 21 November 2003 at 3 p.m. was required to participate 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 attack on a prison vehicle in Adana and indicated how he had opened fire on that vehicle.

7.  On the same day, he was taken to the Dörtyol police station for questioning. The questioning took place between 8.10 p.m. and 11.50 p.m. the same day and 10 a.m. and 3.45 p.m. the following day. The applicant’s statements to the police were transcribed on pre-printed forms, the relevant part of which was filled in to indicate, inter alia, that the applicant was suspected of membership of an illegal organisation and of carrying out armed activities on behalf of that organisation. On the first page of the forms there was a pre-printed message stating, inter alia, that the person being questioned had the right to remain silent and the right to choose a lawyer. It appears from the form that the applicant had refused legal assistance since the first page of the record includes a pre-printed phrase stating “No lawyer sought” with the applicant’s signature underneath. He was thus questioned in the absence of a lawyer.

8.  In his statement, the applicant admitted that he was a member of the PKK/KADEK and that he was active in the organisation. In particular, he gave detailed information about, inter alia, an armed attack on a prison vehicle in Adana. He also stated that his code name was “Hüseyin”.

9.  On 23 November 2003 he was brought before the Dörtyol public prosecutor, where he partly confirmed and partly denied the content of his statements to the police made in the absence of a lawyer. Prior to this he had been told his rights, including the right to benefit from the assistance of a lawyer. He further stated that he was a member of the PKK/KADEK and had been involved in some of its activities in northern Iraq but had not taken part in any political or armed activities in Turkey.

10.  On the same day, an investigating judge of the Adana State Security Court took statements from the applicant. Prior to the interview, the applicant was informed of his rights under Article 135 of the former Code of Criminal Procedure. He did not ask for a lawyer. During the interview, the applicant stated that his statements made to the police and the public prosecutor had been correct. He maintained, in particular, that his statements made to the police in respect of the armed attack in Adana had been entirely correct. The court ordered the applicant’s pre-trial detention.

11.  During the applicant’s period in custody, specifically from 19 to 23 November 2003, he was examined six times by doctors. The medical examinations conducted before and at the end of his custody period revealed no signs of ill-treatment on his body.

12.  Prior to the applicant’s arrest, on 27 October 2003, a certain H.K., who was a co-accused, had claimed during questioning that he had organised the armed attack, acting with someone whose code name was “Hüseyin”. Later, at the first court hearing, he retracted his statements to the police, alleging that they had been extracted under duress.

13.  On 23 December 2003 the Adana public prosecutor lodged an indictment, charging the applicant with the offence of breaking up the unity of the State and seeking to remove part of the national territory from the State’s control, under Article 125 of the former Criminal Code.

14.  On 16 March 2004, at the first hearing in the case, the applicant retracted his statements made to the police, the public prosecutor and the investigating judge, alleging that they had been obtained through coercion and death threats by the police. He admitted that he was a member of the PKK/KADEK while denying involvement in the armed attack in Adana. When asked about the reports of the reconstruction of events, the applicant submitted that he had not accepted the evidence against him.

15.  State Security Courts were abolished on 16 June 2004 pursuant to Law no. 5190. The case was therefore transferred to the Adana Assize Court.

16.  On 10 February 2005 the applicant’s lawyer applied to the court to have a certain F.Y. summoned as a witness and to hold a confrontation with the applicant, as F.Y. had stated in his witness statements dated 16 October 2003 that he had seen the perpetrators of the attack. He also asked the court to enquire of the banks as to whether there had been any money transferred between the applicant’s father and H.K. The court dismissed the application concerning the attendance of a witness, on the grounds that the witness would not remember the incidents given the long time which had elapsed and that he would not tell the truth owing to the nature of the incident. It further dismissed the other request concerning the transfer of money, considering it not to be essential for the purposes of the case.

17.  On 11 December 2005 the applicant sent a letter to the trial court in which he explained the threats and coercion he had been subjected to in detail and asked the court not to take his co-accused’s statements into consideration.

18.  On 22 December 2005 the Adana Assize Court convicted the applicant as charged.

19.  On 28 December 2005 the applicant’s lawyer appealed against that judgment and alleged, inter alia, that the applicant’s statements had been taken without notifying him of his rights and as a result of coercion and death threats by the police. The applicant’s lawyer gave detailed accounts of such treatment and asked the Court of Cassation not to rely on these statements which had been obtained by impairing the applicant’s will.

20.  On 12 October 2006 the Court of Cassation quashed the conviction for procedural shortcomings.

21.  At a hearing on 22 June 2007, the applicant’s lawyer once again maintained that the applicant’s confessions had taken by coercion and that the applicant had been forced by the police to sign his statements. He asked the trial court not to rely on those statements. At the same hearing, the first-instance court again convicted the applicant under Article 125 of the Criminal Code then in force, and sentenced him to life imprisonment. It relied, inter alia, on the consistent confessions of the applicant and H.K. made during questioning, which were later repeated before the public prosecutor and the investigating judge, and the record of the reconstruction of events. It also took into account the weapons, bullets and explosives seized by the judicial authorities and the organisational documents as well as the incident report, hotel records, an autopsy and expert reports, photographs, witness statements and investigation reports. The trial court’s reasoned judgment did not contain any pronouncements as regards the admissibility of the applicant’s pre-trial statements.

22.  On the same day, the applicant’s lawyer appealed against that judgment and alleged, inter alia, that the applicant’s statements had been taken without notifying him of his rights and as a result of coercion and death threats by the police. The applicant’s lawyer gave detailed accounts of such treatment and asked the Court of Cassation not to rely on these statements which had been obtained by impairing the applicant’s will.

23.  On 12 February 2009 the Court of Cassation upheld the conviction.

24.  On 18 February 2009 the judgment was pronounced in the absence of the applicant and his lawyer.

II.  RELEVANT DOMESTIC LAW

25.  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).

26.  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.

27.  According to Article 135 (a) of the Code of Criminal Procedure then in force, the statement of the accused had to be based on his or her own free will. Methods such as ill-treatment, torture, induced fatigue, the administration of drugs, torment and deception that impaired the will of the accused were not be used. Statements that were obtained through such methods could not be used in evidence even if the accused had agreed to their use.

28.  According 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) then in force, 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

29.  The applicant complained that his right to a fair trial, guaranteed by Article 6 of the Convention, had been infringed by the use of the confession extracted from him as a result of coercion in police custody, during which he had been denied access to a lawyer. He further contended that his conviction had been based on statements that had been taken unlawfully from him and the other co-accused H.K. despite the fact that they had later been retracted. Furthermore, the applicant complained that the Adana Assize Court had not taken any steps to test the veracity of these statements. Lastly, he argued that the length of the criminal proceedings had been excessive. The Court will examine his complaints under Article 6 §§ 1 and 3 (c), which, in so far as relevant, provides:

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

30.  The Government contested that argument.

A.  Admissibility

31.  The Government maintained in the first place that the application had been introduced outside the six-month time-limit, since the applicant had been represented by a lawyer during his trial after 16 March 2004 and so the time-limit for making his complaint should have run from that point. In the alternative, they considered that the six-month time-limit should run from 12 February 2009, the date on which the Court of Cassation had delivered its decision.

32.  The applicant contested the Government’s objections and stated that he had been served with a copy of the decision of the Court of Cassation on 2 April 2009 and submitted that the application had been introduced within the six-month time-limit.

33.  As regards the first limb of the Government’s objection, the Court reiterates that it has already examined and rejected similar objections in previous cases (see Çimen v. Turkey, no. 19582/02, § 22, 3 February 2009, and Özcan Çolak v. Turkey, no. 30235/03, § 38, 6 October 2009). The Court finds no particular circumstances in the instant case which would require it to depart from its findings concerning the above-mentioned applications. In view of the above, the Court rejects the Government’s objection.

34.  As to the second objection concerning the failure of the applicant to comply with the six-month time-limit, the Court notes the absence in the case file of any document indicating either the date on which the decision of the Court of Cassation was deposited with the registry of the first-instance court or the date of the service of that decision on the applicant’s representative. However, given that the Court of Cassation pronounced judgment on 18 February 2009 and that the application was lodged with the Court on 18 August 2009, the application was in any event lodged within the six-month time-limit, as required by Article 35 § 1 of the Convention. The Government’s preliminary objection should therefore be dismissed.

35.  Moreover, the Court considers that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  Access to a lawyer during police custody

(a)  The parties’ submissions

(i)  The applicant

36.  The applicant complained that he had not had a fair trial on account of the fact that he had been denied legal assistance during police custody and had been coerced into making incriminating statements which had later been used to convict him. The applicant further complained that the domestic courts had not taken any steps to test the veracity of either his or his co-accused H.K.’s statements before relying on them for the conviction. He complained of a violation of his right to a fair trial under Article 6.

(ii)  The Government

37.  The Government considered that the applicant’s statement had not been the sole basis for his conviction and that the applicant had been represented by a lawyer throughout the domestic proceedings and had enjoyed the rights guaranteed under domestic law. For the Government, a single shortcoming had not violated the rights provided in Article 6 of the Convention in so far as it could be concluded that the trial had been fair taken as a whole. They submitted that the domestic court decision had been in conformity with the Court’s case-law.

(b)  The Court’s assessment

(i)  General principles

38.  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).

 (ii) Application to the present case

39.  The Court notes from the outset 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 for national legislation, see §§ 27-29). In other words, at the material time the restriction on an accused’s right of access to a lawyer in proceedings before the State Security Courts had already been lifted.

40.  The Court notes that already on 19 November 2003, when the applicant was arrested by the police, he was “charged” with 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).

41.  In the instant case, the applicant was arrested at around 9 p.m. on 19 November 2003 in Adana. On 21 November 2003 at 3 p.m., prior to his statement being taken, the applicant was taken for a reconstruction of events with the police at the crime scene, where he confessed to the armed attack on the prison vehicle. According to the records of the reconstruction of events, the applicant was not informed of any of his rights under the former Code of Criminal Procedure (Law no. 1412), including his right to legal assistance. The parties did not submit any other document showing that the applicant had been informed of his rights when confessing to a very serious crime during the course of the reconstruction of events. As such, the applicant was not informed of his rights at the time of his arrest as required by the provisions of domestic law.

Accordingly, the applicant was only advised of his rights on 21 November 2003 at 8.10 p.m., when he had been taken to the police station, where he repeated the incriminating statements he had previously made. In other words, the applicant was informed of his rights only after he confessed to his involvement in the armed attack on a prison vehicle in Adana.

42.  The Court further observes that according to the record of the police questioning on 21 November 2003, 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 statements were transcribed. Such instructions went 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 was no assertion or other indication that any individualised advice about his situation and rights had been provided to the applicant (see, Zachar and Čierny v. Slovakia, nos. 29376/12 and 29384/12, § 70, 21 July 2015). In such a context, the first page of the applicant’s statement made before the police includes the pre-printed phrase “No lawyer sought” and the applicant’s signature at the bottom of each page.

43.  On 23 November 2003 the applicant was taken before the public prosecutor and reminded of his right to legal assistance. He expressed his wish to defend himself in person and admitted his membership of an illegal organisation, but he denied that he had taken part in any political or armed activities in Turkey. However, according to the records, the applicant’s next sentence was that he accepted the description of his acts as given by him before the police. On the same day, he was brought before the investigating judge. Still waiving his right to legal assistance, the applicant repeated the statement he had given to the police. Before the trial court, however, the applicant retracted his pre-trial statements and consistently claimed thereafter that he had been subjected to coercion by the police.

44.  Therefore, in the light of the facts of the case and the parties’ submissions, the Court must determine whether the applicant unequivocally waived his right to be assisted by a lawyer and if such a waiver was attended by the minimum safeguards commensurate with its importance (see, Simeonovi, cited above, § 115).

45.  The Court notes in the first place that the medical reports drawn up during the applicant’s arrest indicated no signs of ill-treatment. As such, the applicant seemed prima facie to have freely waived his right to legal assistance. For the Court, though, the absence of any elements suggesting that the applicant was subjected to ill-treatment or was otherwise coerced into making incriminating statements is not, in itself, sufficient to conclude that the waiver in a given case is valid for the purposes of a fair trial under Article 6 of the Convention.

46.  The Court, in Hakan Duman v. Turkey (no. 28439/03, § 50, 23 March 2010), after having noted that the applicant had been neither subjected to ill-treatment nor coerced into making statements in police custody, 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 events which were later used to convict him.

47.  In the view of the Court, the case at hand shows certain similarities with the case of Hakan Duman. However, unlike in Hakan Duman, the Court notes that there is no document at all in the present case that can even arguably demonstrate that the applicant was at least informed of his basic rights before confessing to the attack on a prison vehicle during the reconstruction of events (see Hakan Duman, cited above, § 50). The fact that the applicant was subsequently informed of his rights and decided not to act on them immediately does not alter this finding.

48.  The Court further observes that at the material time there was no statutory basis for the so-called “reconstruction of events” under the former Code of Criminal Procedure, a factor that 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 reconstruction of events became an accepted practice by the domestic courts does not remedy the absence of the minimum safeguards required for a waiver to be valid for the purposes of a fair trial under Article 6. The Government did not comment on these points. The Court considers that those facts considerably weaken the value of the pre-printed phrase “No lawyer sought” in demonstrating the unequivocal character of the waiver by the applicant of a right guaranteed by the Article 6 of the Convention (see Savaş v. Turkey, no. 9762/03, § 69, 8 December 2009). In such circumstances, it cannot be said, therefore, that the applicant had unequivocally, knowingly and intelligently waived his rights under Article 6 (see Simeonovi, cited above, § 115).

49.  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; and, Simeonovi, cited above, § 132). 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 to have been fair within the meaning of Article 6 § 1 of the Convention (see Simeonovi v. Bulgaria, cited above, § 132, and Zachar and Čierny, cited above, § 75).

50.  The Court notes that the applicant was represented by defence lawyers throughout the proceedings and as such had the possibility to present his arguments and challenge those put forward by the prosecution. However, despite the fact that the applicant denied the accuracy of the contents of the statement taken from him in the absence of legal assistance, and alleged - giving detailed accounts - that he had been coerced into making incriminating statements in police custody, the Adana Assize Court did not take any steps in order to examine whether the circumstances surrounding the applicant’s waiver had been compatible with the requirements of the Convention. The Court finds it striking that the Adana Assize Court failed to conduct such an examination given that the applicant was being tried and would be punished for an offence with the heaviest penalty in the Turkish criminal-law system.

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

51.  What is more, the Adana Assize Court relied on the applicant’s pre-trial statements when convicting him of the attack on the prison vehicle despite the fact that it had not carried out an examination of either the reliability or the admissibility of his statements.

52.  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 making an assessment of 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).

53.  Against such a background, the Court is of the view that the absence of a close scrutiny by the national courts of the circumstances surrounding the applicant’s waiver and the fact that this flaw was not remedied by any other procedural safeguards during the proceedings rendered the trial as a whole unfair.

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

2.  Length of proceedings

55.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention.

56.  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 applicant.

57.  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.

58.  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).

59.  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, 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).

60.  In the present case, the Court observes that the period to be taken into consideration began on 19 November 2003 with the applicant’s arrest and ended on 18 February 2009 with the final decision delivered by the Court of Cassation. It thus lasted for nearly five 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. Furthermore, no delays can be imputed to the applicant. As to the conduct of the authorities, the Court observes that the first appeal examination conducted by the Court of Cassation took almost ten months. Following the second judgment given by the first-instance court on 22 June 2007, the Court of Cassation once again examined the appeal request and took almost two years. Thus, for almost half of the total period of time, the proceedings were pending before the Court of Cassation.

61.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Güngil v. Turkey, no. 28388/03, § 24, 10 March 2009).

62.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 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, and Gürbüz and Özçelik v. Turkey, no. 11/05, § 24, 2 February 2016).

63.  There has accordingly been a breach of Article 6 § 1.

II.  OTHER ALLEGED BREACHES OF THE FAIRNESS OF THE PROCEEDINGS

64.  Relying on Article 6 § 2 of the Convention, the applicant further alleged that the national authorities had been biased because they had failed to collect evidence in the applicant’s favour. In particular, the first-instance court had failed to allow F.Y. to give evidence as a witness and refused to enquire into the bank accounts.

65.  Having regard to the facts of the case, the submissions of the parties and its finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention above (see paragraph 58 above), the Court considers that there is no need to make a separate ruling on the admissibility and merits of the applicant’s remaining complaints under Article 6.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

66.  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

67.  The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. He did not make a claim in respect of pecuniary damage.

68.  The Government contested the claim for non-pecuniary damage, submitting that the requested amount was unsubstantiated and excessive.

69.  As for the finding of a violation of Article 6 §§ 1 and 3 (c), 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 Aydın Çetinkaya v. Turkey, no. 2082/05, § 119, 2 February 2016). It therefore makes no award under this head.

70.  The Court finds, however, that the applicant must have suffered pain and distress which cannot be compensated solely by the Court’s finding of a violation in respect of the length of the proceedings against him. It therefore finds it appropriate to award him EUR 2,000 in respect of non-pecuniary damage.

B.  Costs and expenses

71.  The applicant also claimed EUR 8,200 for the costs and expenses incurred before the domestic courts and the Court. In that connection, he submitted a time sheet showing that his legal representative had carried out eighty-two hours’ legal work and a legal fee agreement that he had concluded with his representative. However, he did not submit any invoices in support of his claims.

72.  The Government contested that claim as being excessive and unsubstantiated.

73.  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 1,000 covering costs under all heads.

C.  Default interest

74.  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 concerning access to a lawyer during police custody and the length of the proceedings admissible;

 

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 there is no need to examine separately the admissibility and merits of the applicant’s other complaints under Article 6 of the Convention;

 

5.  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 applicant in that connection;

 

6.  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 Turkish liras 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;

(ii)  EUR 1,000 (one 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;

 

7.  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