SECOND SECTION
CASE OF DAVUT ABO v. TURKEY
(Application no. 22493/07)
JUDGMENT
STRASBOURG
26 November 2013
This judgment is final but it may be subject to editorial revision.
In the case of Davut Abo v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Dragoljub Popović, President,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Seçkin Erel, Acting Deputy Section Registrar,
Having deliberated in private on 5 November 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 22493/07) 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 Davut Abo (“the applicant”), on 15 May 2007.
2. The applicant was represented by Ms E. Akgül, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.
3. On 2 November 2010 the application was communicated to the Government.
THE FACTS
4. The applicant, Mr Davut Abo, is a Turkish national who was born in 1975 and is currently serving his prison sentence in Diyarbakır.
5. On 1 October 2000 the applicant was arrested by gendarmerie forces on the suspicion of his membership of an illegal organisation, namely the PKK (the Workers’ Party of Kurdistan).
6. Between 2 and 4 October 2000 the applicant was questioned by police officers from the Anti-Terrorism Branch of the Beytülşebap Security Directorate. All of the interviews were conducted in the absence of a lawyer. In his statements, the applicant acknowledged that he was a member of the PKK and gave details of certain events in which he had taken part.
7. On 5 October 2000 the Beytülşebap Public Prosecutor took statements from the applicant. The applicant confirmed the contents of his police statements and gave detailed information about the events, again in the absence of a lawyer.
8. On the same day, an investigating judge at the Beytülşebap Magistrate’s Court ordered the applicant’s pre-trial detention, without the assistance of a lawyer. The applicant repeated the statements he had made to the police and public prosecutor.
9. On 1, 2, 4 and 5 October 2000, the applicant was medically examined by a doctor who noted that there were no sign of physical violence on the applicant’s body.
10. On 22 December 2000 the Diyarbakır Public Prosecutor lodged an indictment with the Diyarbakır State Security Court, composed of three civilian judges, accusing the applicant of carrying out activities with the aim of bringing about the secession of part of the national territory, pursuant to Article 125 of the Criminal Code in force at the time.
11. In his written submissions to the Diyarbakır State Security Court lodged on 6 February 2001, the applicant explained in detail the treatment to which he had allegedly been subjected.
12. On 22 February 2001 the Diyarbakır State Security Court heard the applicant at its first hearing. He denied all the accusations against him and retracted his statements given to the police, the public prosecutor and the investigating judge. He maintained that he had been threatened by the police whilst being taken to both the public prosecutor and the investigating judge, and he further stated that he thought that he was being brought before police officers when he had been taken to the offices of the prosecutor and judge. He complained that he had been subjected to torture in police custody. During the hearing, the applicant read out his written submissions.
13. State Security Courts were abolished by Law no. 5190 of 16 June 2004. The case was accordingly transferred to the Diyarbakır Assize Court.
14. On 22 September 2005, the applicant’s recently appointed lawyer requested the court for a fresh medical examination to be ordered in order to determine whether the applicant had been subjected to ill-treatment five years ago during his detention in police custody. The court dismissed this request, having based its rejection on the content of the case file and the state of the evidence.
15. On 9 November 2006 the Diyarbakır Assize Court convicted the applicant as charged. The court emphasised the consistency of the applicant’s statements during the preliminary investigation with the investigation reports obtained from another case file related to the offence in question. It further found the applicant’s allegation of ill-treatment implausible in the light of the medical reports in the case file. Subsequently, the court sentenced him to aggravated life imprisonment.
16. On 10 November 2006 he appealed against the judgment without raising a complaint into ill-treatment.
17. On 10 May 2007 the Court of Cassation upheld the conviction.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 6 §§ 1 AND 3 (C) AND 13 OF THE CONVENTION
1. Right of access to a lawyer
18. The applicant alleged Article 6 § 3 (c) of the Convention that his defence rights had been violated as he had been denied access to a lawyer during his police custody.
19. 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.”
20. The Government contested the allegations.
21. 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.
22. 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.
23. 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.
2. Length of the criminal proceedings
24. The applicant complained that the length of the proceedings had exceeded the “reasonable time” requirement and alleged that there had been no domestic remedy available under Turkish law whereby he could challenge the length of the criminal proceedings in question. He relied on Articles 6 § 1 and 13 of the Convention, which reads as follows:
Article 6 § 1
“In the determination of ... any criminal charge against him everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
Article 13
“Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority...”
25. The Government contested the claims.
26. The Court notes that the criminal proceedings commenced on 1 October 2000 with the applicant’s arrest and ended on 10 May 2007 with the final decision delivered by the Court of Cassation. They thus lasted for six years and seven months before two levels of jurisdiction.
27. 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.
28. 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.
29. 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.
30. The Court notes that this part of the application 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.
31. As regards Article 6 § 1, 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.
32. 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, 20 March 2012).
33. Having examined all the material submitted to it and 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).
34. The Court therefore holds that there has accordingly been a breach of Article 6 § 1 of the Convention.
35. In view of the above (see paragraphs 27-28 above) the Court considers that it is unnecessary to examine the complaint raised under Article 13 of the Convention (see Rifat Demir v. Turkey, no. 24267/07, § 41, 4 June 2013).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
1. Article 3 of the Convention
36. The applicant complained under Articles 3 and 13 of the Convention that he had been tortured while in police custody and that the domestic authorities had not conducted an adequate investigation into his allegations of ill-treatment.
37. The Court considers that these complaints should be examined from the standpoint of Article 3 of the Convention alone.
The Court observes that the applicant did not provide any concrete evidence in support of his allegations of ill-treatment, demonstrating that he had been subjected to any physical or psychological pressure while in police custody. Nor did he argue that he had been unable to obtain, or had been prevented from obtaining, any such evidence. On the contrary, the medical reports drafted on 1, 2, 4 and 5 October 2002 did not reveal any signs of physical violence on his body. The Court therefore considers that the applicant has failed to substantiate his complaint with appropriate evidence and to lay the basis of an arguable claim that he was ill-treated in police custody (see Yıldırım v. Turkey (dec.) no.33396/02, 30 August 2007; Tanrikolu and Others v. Turkey (dec.), no. 45907/99, 22 October 2002; and Kesik v. Turkey (dec.), no. 18376/09, 24 August 2010).
This complaint is therefore inadmissible for being manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
2. Article 5 §§ 1 (c), 3 and 4 of the Convention
38. The applicant complained under Article 5 §§ 1 (c), 3 and 4 of the Convention that there had been no reasonable suspicion for his arrest. He further maintained that the length of his police custody and pre-trial detention was excessive, and there was no effective remedy in domestic law to challenge the lawfulness of his detention on remand.
39. The Court reiterates that pursuant to Article 35 § 1 of the Convention, the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. When the acts of an authority are not open to any effective remedy, the six-month period runs from the date on which the act took place.
The Court observes that the applicant was taken into police custody on 1 October 2000 and that his detention in police custody ended on 5 October 2000, when the judge ordered his detention on remand. He notes that the applicant’s detention on remand continued until the final judgment of the Assize Court of 9 November 2006. Following that date, the applicant was detained “after conviction by a competent court”. However, the application was lodged with the Court on 15 May 2007, which is more than six months from the end of the detention period complained of.
The Court considers that these complaints are introduced out of time and should be rejected for non-compliance with the six-month rule under Article 35 § 1 of the Convention.
3. Article 6 § 1 of the Convention (the use of unlawful evidence and the independence of the tribunal)
40. As regards the applicant’s allegation that he had been convicted on the basis of statements extracted from him while being ill-treated by the police, the Court notes that it has not been established that the applicant was subjected to ill-treatment in police custody. This complaint should therefore be rejected for being manifestly ill-founded (see Musa Karataş v. Turkey, no. 63315/00, § 84-86, 5 January 2010).
41. Concerning the applicant’s complaint 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, the Court notes that the military judges in the state security courts were replaced by civilian judges in June 1999. In the present case, the proceedings commenced before the Diyarbakır State Security Court only after the public prosecutor’s indictment dated 22 December 2000, that is, after the removal of the military judge from the bench. Accordingly, the applicant was tried by a tribunal consisting of three civilian judges.
The Court considers that this complaint should be rejected for being manifestly ill-founded under Article 35 § 4 of the Convention (see Sever and Aslan v. Turkey (dec.), no. 33675/02, 12 April 2007; and Şaman v. Turkey, no. 35292/05, § 39, 5 April 2011).
4. The remaining complaints
42. The applicant also made certain complaints under Article 6 of the Convention concerning the unfairness of the proceedings, the principle of equality of arms and the right to be presumed innocent.
43. The Court considers that none of the remaining complaints seem to disclose any appearance of a violation of the rights and freedoms set out in the Convention. These complaints are therefore inadmissible for being manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
44. The applicant claimed 40,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage. He further claimed EUR 2,178 for legal fees and EUR 242 for translation and postal expenses. He did not submit any copies of invoices, but referred to the Diyarbakır Bar Association’s tariff of fees for attorneys.
45. The Government contested these claims.
46. Deciding on an equitable basis, the Court awards the applicant EUR 3,900 in respect of non-pecuniary damage.
47. The Court further considers that the most appropriate form of redress would be the re-trial of the applicant in accordance with the requirements of Article 6 §§ 1 and 3 (c) of the Convention, should he so request (see Salduz, cited above, § 72).
48. As regards the costs and expenses, according to the Court’s case‑law, an applicant is entitled to 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, the applicant has not substantiated that he actually incurred the costs claimed. In particular, he failed to submit documentary evidence, such as bills, receipts, a contract, a fee agreement or a breakdown of the hours spent by his lawyer on the case. Accordingly, the Court makes no award under this head.
49. The Court further considers it appropriate that the default interest 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 criminal proceedings against the applicant, the absence of an effective remedy for undue length of proceedings 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 6 § 3 (c) of the Convention in conjunction with Article 6 § 1, on account of the lack of legal assistance available to the applicant while in police custody;
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;
4. Holds that there is no need to examine the complaint raised under Article 13 of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 3,900 (three thousand nine hundred euros), to be converted into Turkish liras at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(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 26 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Seçkin ErelDragoljub Popoviċ
Acting Deputy RegistrarPresident
Full & Egal Universal Law Academy