CASE OF İBRAHİM GÜLER v. TURKEY

SECOND SECTION

CASE OF İBRAHİM GÜLER v. TURKEY

(Application no. 1942/08)

JUDGMENT

STRASBOURG

15 October 2013

FINAL

17/02/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of İbrahim Güler v. Turkey,

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

Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, judges,

and Stanley Naismith, Section Registrar,

Having deliberated in private on 24 September 2013,

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

PROCEDURE

1. The case originated in an application (no. 1942/08) 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 İbrahim Güler (“the applicant”), on 3 December 2007.

2. The applicant was represented by Ms A. Pamukçu Yördem, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.

3. On 29 September 2010 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4. The applicant, Mr İbrahim Güler, is a Turkish national who was born in 1973 and is currently serving a prison service in Diyarbakır.

5. On 5 November 1996 the applicant was taken into police custody during an operation carried out against Hizbullah, an illegal organisation.

6. On an unspecified date the applicant was questioned in the absence of a lawyer by police officers, who asked him about his affiliation to Hizbullah and events in which he was alleged to have taken part.

7. On 12 November 1996 the applicant was brought before the Mardin Public Prosecutor. He confirmed the content of his police statements before the prosecutor in the absence of a lawyer.

8. On the same day, an investigating judge at the Mardin Magistrate’s Court ordered the applicant’s pre-trial detention, again in the absence of a lawyer. He accepted the allegations against him and confirmed the statements he had made before the police and the public prosecutor.

9. According to two reports in the case file, dated 10 and 12 November 1996 respectively, the applicant was medically examined by a doctor who noted that there were no signs of physical violence on the applicant’s body.

10. By way of an application dated 30 December 1996, the applicant retracted his statements made before the police and the public prosecutor and requested his release from the Diyarbakır Public Prosecutor’s office. He maintained that he had been tortured in police custody and that he had been threatened whilst being taken to the public prosecutor.

11. On 26 November 1996 the Diyarbakır Public Prosecutor lodged an indictment before the Diyarbakır State Security Court, charging the applicant under Section 146 of the former Turkish Criminal Code with attempting to undermine the constitutional order of the State.

12. On 28 January 1997 at the first court hearing in the applicant’s case, the applicant retracted his statements made to the police, the public prosecutor and the investigating judge, alleging that they had been made under duress.

13. State Security Courts were abolished on 16 June 2004 by Law no. 5190. The case was accordingly transferred to the Diyarbakır Assize Court.

14. Throughout the proceedings, the applicant denied all the accusations against him.

15. On 31 March 2005 the first-instance court convicted the applicant as charged.

16. On 11 December 2006 the Court of Cassation quashed the conviction.

17. On 9 November 2007 the Diyarbakır Assize Court once again convicted the applicant as charged and sentenced him to life imprisonment.

18. On 21 January 2009 the Court of Cassation upheld the conviction.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

19. Relying on Article 5 § 3 of the Convention, the applicant complained that the length of his pre-trial detention had been excessive.

20. Article 5 § 3 of the Convention reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

21. The Government maintained that, as the applicant had lodged his complaint under Article 5 § 3 of the Convention on 3 December 2007, the time he had spent in detention between 5 November 1996 and 31 March 2005, that is, the period starting with the applicant’s arrest and ending with the conviction of the first-instance Court, should be rejected for having been introduced outside the six-month time-limit laid down in Article 35 § 1.

22. The Court refers to the principles adopted in the Solmaz v. Turkey judgment (no. 27561/02, § 36, ECHR 2007‑II (extracts)), where it was held that, if the applicant is in effect imprisoned throughout, the multiple, consecutive detention periods should be regarded as a whole and the six-month period should start running only from the end of the last period. Bearing in mind that the applicant’s pre-trial detention came to an end on 9 November 2007 after his conviction by a competent court within the meaning of Article 5 § 1 (a) of the Convention, the Court dismisses the Government’s objection.

23. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it inadmissible on any other grounds. It must therefore be declared admissible.

24. As regards the merits of the complaint, the Government submitted that the applicant’s detention had been based on the existence of reasonable grounds of suspicion that he had been involved in an illegal organisation. Having regard to the seriousness of the offence, there was a genuine requirement of public interest for the detention of the applicant during the trial.

25. The Court observes that the applicant’s pre-trial detention started on 5 November 1996 with his arrest and ended on 9 November 2007 with his conviction by the Diyarbakır Assize Court. After deducting the period during which the applicant was detained after conviction in accordance with Article 5 § 1 (a) of the Convention (namely the period between 31 March 2005 and 11 December 2006) from the total time of the applicant’s detention, the period that the applicant was held in pre-trial detention lasted for nine years and four months (see Solmaz, cited above, §§ 36-37).

26. The Court has frequently found violations of Article 5 § 3 of the Convention in cases disclosing comparable lengthy periods of pre-trial detention (see, for example, Tutar v. Turkey, no. 11798/03, § 20, 10 October 2006, and Cahit Demirel v. Turkey, no. 18623/03, § 28, 7 July 2009). 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 finds that in the instant case the length of the applicant’s pre-trial detention was excessive.

27. There has accordingly been a violation of Article 5 § 3 of the Convention.

II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

A. Right of access to a lawyer

28. The applicant complained under Article 5 § 2 of the Convention that he had been denied a fair hearing in the absence of a lawyer in police custody.

29. The Court finds it appropriate to examine these complaints under Article 6 §§ 1 and 3 (c) of the Convention, which reads:

“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.”

30. The Government contested the allegations.

31. 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 and must therefore be declared admissible.

32. The Court notes that it is not in dispute between the parties that the applicant was denied legal assistance during the custody period. The restriction imposed on the applicant’s right of access to a lawyer was systemic and applied to anyone held in custody in connection with an offence falling under the jurisdiction of the State Security Courts (see Salduz v. Turkey, [GC], no. 36391/02, §§ 56-63, 27 November 2008). The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the aforementioned Salduz judgment.

33. In view of this, the Court holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.

B. Length of the criminal proceedings

34. 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, which reads as follows:

“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

35. The Government contested that argument.

36. The Court notes that the criminal proceedings commenced on 5 November 1996 with the applicant’s arrest and ended on 21 January 2009 with the final decision delivered by the Court of Cassation. They thus lasted for twelve years and three months before two levels of jurisdiction.

37. The Court observes that a new domestic remedy has been established in Turkey after the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). The Court recalls 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 as a new domestic remedy had been envisaged. 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.

38. The Court further recalls that in its decision in the case of Ümmühan Kaplan v. Turkey (cited above, § 77) it stressed that it could pursue the examination of the applications of this type which were already communicated to the Government. It further notes that in the present case the Government did not raise an objection in respect of the new domestic remedy.

39. In light of the above, the Court decides to pursue the examination of the present application. However, it notes that this conclusion is without prejudice to an exception that may ultimately be raised by the Government in the context of other communicated applications.

40. 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.

41. As regards the merits of the complaint, the Government argued that the length of the proceedings in the present case had been reasonable, considering the complexity of the prosecution of crimes committed on behalf of an illegal organisation, the difficulty in collecting evidence and the number of accused, intervening and complainant parties involved in the proceedings. In this connection, the Government contended that there had been no delay in the proceedings which could be attributable to the national authorities.

42. 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 applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII, and Ümmühan Kaplan, cited above, § 49).

43. 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 (see Daneshpayeh, cited above, § 28).

44. In view of this, the Court holds that there has accordingly been a breach of Article 6 § 1 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

45. In the application form the applicant further complained under Article 3 of the Convention that he had been tortured while in police custody. He further complained under Article 5 §§ 1, 2 and 3 of the Convention that there had been no reasonable suspicion for his arrest, that he had not been informed of the reasons for his arrest and of the charges against him and that the length of his police custody had been excessive. The applicant further complained under Article 6 § 1 of the Convention that he had been denied a fair hearing by an independent and impartial tribunal on account of the presence of a military judge on the bench of the State Security Court which tried him. Lastly, without elaborating in what respect, the applicant alleged violations of Articles 6, 8, 9, 10 and 12 of the Convention and Article 2 of Protocol No. 1 to the Convention.

46. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that the remainder of the complaints do not disclose any appearance of a violation of any of the above Articles of the Convention. It follows that these complaints are inadmissible for being manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

47. The applicant claimed 75,000 Turkish liras (TRY) (approximately 29,000 euros (EUR)) in respect of pecuniary damage and TRY 50,000 (approximately EUR 20,000) in respect of non-pecuniary damage.

48. The Government contested the claims.

49. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. Deciding on an equitable basis, the Court awards the applicant EUR 12,200 in respect of non-pecuniary damage.

50. Having regard to the finding of a violation of the applicant’s right to a fair trial in the instant case, the Court considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 § 1 of the Convention, should he so request (see Salduz, cited above, § 72).

51. The applicant also claimed TRY 38,286.75 (approximately EUR 15,000) for costs and expenses. The applicant submitted an invoice for TRY 104 (approximately EUR 41) regarding translation expenses.

52. The Government contested these claims.

53. In the present case, regard being had to the documents in its possession and its case-law, the Court makes no award under this head.

54. 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 the length of the applicant’s detention pending trial, the length of the criminal proceedings against him, and the denial of access to a lawyer admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 5 § 3 of the Convention on account of the length of the applicant’s pre-trial detention;

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

4. Holds that there has been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance afforded to the applicant while in police custody;

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, EUR 12,200 (twelve thousand two hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement;

(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 15 October 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithGuido Raimondi
RegistrarPresident

 

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