CASE OF MAĞIN v. TURKEY

SECOND SECTION

CASE OF MAĞIN v. TURKEY

(Application no. 58593/09)

JUDGMENT

STRASBOURG

27 February 2018

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

.

In the case of Mağın v. Turkey,

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

Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 6 February 2018,

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

PROCEDURE

1. The case originated in an application (no. 58593/09) 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 Hasan Mağın (“the applicant”), on 19 October 2009.

2. The applicant was represented by Mr N. Yıldırım, a lawyer practising in Diyarbakır. The Turkish Government (“the Government”) were represented by their Agent.

3. On 20 February 2013 the application was communicated to the Government.

4. On 12 October 2016 the Vice-President of the Second Section invited the Government to submit further observations, if they wish, in the light of the judgment in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, ECHR 2016)

5. The Government objected to the examination of the application by a Committee. After having considered the Government’s objection, the Court rejects it (see Yivli v. Turkey, no. 12723/11, 14 November 2017).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1977 and lives in Istanbul.

7. On 16 June 1999 the applicant was arrested and taken into custody on suspicion of belonging to an illegal organisation, namely Hizbullah.

8. On 21 June 1999 the applicant’s statements were taken by the police in the absence of a lawyer. During his interrogation, he confessed being a member of the Hizbullah and gave a detailed account of his acts within the illegal organisation.

9. On 22 June 1999 the applicant was heard by the Diyarbakır public prosecutor and the investigating judge at the Diyarbakır State Security Court, again in the absence of a lawyer. In his statements before both the public prosecutor and the investigating judge, the applicant denied the accusations and maintained that his statements to the police had been given under duress. On the same date, upon the order of the investigating judge, the applicant was placed in pre-trial detention.

10. On 30 June 1999 the public prosecutor at the Diyarbakır State Security Court filed an indictment with that court, charging the applicant under Article 168 § 2 of the former Turkish Criminal Code, namely for membership of an illegal armed organisation.

11. On 9 November 1999 the applicant was released pending trial.

12. The State Security Courts were later abolished by Law no. 5190 of 16 June 2004, and the case was transferred to the Diyarbakır Assize Court.

13. On 12 June 2008, relying on, inter alia, the applicant’s statements to the police, the Diyarbakır Assize Court convicted the applicant under Article 314 § 2 of the new Turkish Criminal Code and sentenced him to six years and three months’ imprisonment. In convicting the applicant, the Assize Court further took into consideration information on computer hard disks and print-outs, which had been seized in a house belonging to the illegal organisation, as well as the statements of several witnesses who had testified against the applicant.

14. On 4 June 2009 the Court of Cassation upheld the judgment of the first-instance court.

II. RELEVANT DOMESTIC LAW

15. 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).

16. On 15 July 2003 Law no. 4928 repealed Section 31 of Law no. 3842, whereby the restriction on an accused’s right of access to a lawyer in proceedings before the State Security Courts was lifted.

THE LAW

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

A. Lack of legal assistance available to the applicant during the preliminary investigation

17. The applicant complained under 6 § 3 (c) that his defence rights had been violated as he had been denied access to a lawyer during the preliminary investigation stage and that his statements to the police, which had been allegedly taken under duress, had been used in convicting him by the trial court.

18. The Court decides to examine the complaint under Article 6 §§ 1 and 3 (c) of the Convention, the relevant parts of which provide:

“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;

...”

1. Admissibility

19. 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.

2. Merits

20. The applicant complained that he had been deprived of legal assistance pursuant to section 31 of Law no. 3842, as he was accused of committing an offence that fell within the jurisdiction of the State Security Courts and that his statements taken by the police in the absence of a lawyer had been used for his conviction.

21. Referring to the Court’s judgment in the case of Salduz v. Turkey ([GC] no. 36391/02, ECHR 2008) and Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, ECHR 2016), the Government suggested in a broad manner that there were compelling reasons for delaying access to legal assistance arising from the potential loss of life on a large scale and the urgent need to obtain information on possible planned attacks as well as the severe practical constraints under which the police were operating. However, the Government did not refer to any specific circumstances of the case.

22. The Court notes that the applicant’s access to a lawyer was restricted by virtue of Law no. 3842 and was as such a systemic restriction applicable at the time of the applicant’s arrest (see Salduz, cited above, § 56). The Court does not consider it necessary to examine whether the systematic nature of the restriction on the applicant’s right of access to a lawyer was, in itself, sufficient to find a violation of Article 6 §§ 1 and 3 (c) of the Convention, as, in any event, the Government have not offered any compelling reasons specific to the circumstances of the case for the restriction or demonstrated that the absence of legal assistance at the initial stage of the investigation did not irretrievably prejudice the applicant’s defence rights (see Salduz, cited above, § 58, and Ibrahim and Others, cited above, § 274) In that respect, the Court notes that in convicting him, the first-instance court relied on the applicant’s statements to the police. Moreover, it did not examine the admissibility of evidence at the trial. Likewise, the Court of Cassation dealt with this issue in a formalistic manner and failed to remedy this shortcoming (see Bayram Koç v. Turkey, no. 38907/09, § 23, 5 September 2017).

23. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

B. Length of criminal proceedings against the applicant

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

25. The Government noted that, pursuant to Law no. 6384, a Compensation Commission has been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that the applicant had not exhausted the domestic remedies as he had not made an application to that Compensation Commission. This argument had also been recognised by the Court in its decision in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).

26. The Court notes that in its decision in the case of Ümmühan Kaplan (no. 24240/07, 20 March 2012) it stressed that it could pursue the examination of such complaints under the normal procedure in cases which had already been communicated to the Government prior to the entry into force of the new remedy.

27. However, taking account of the Government’s preliminary objection with regard to the applicants’ failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others (cited above). It therefore concludes that the complaint in regard to the excessive length of the criminal proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see Rifat Demir v. Turkey, no. 24267/07, § 35, 4 June 2013, and Yiğitdoğan v. Turkey (no. 2), no. 72174/10, § 59, 3 June 2014).

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

28. The applicant further complained under Article 6 that the trial court had failed in its interpretation of the domestic law as regards the statute of limitations and the sincere repentance (etkin pişmanlık). He further alleged that the trial court had taken into consideration some evidence which had not been promptly handed over the judicial authorities and secured by the trial court.

29. In the light of all the material in its possession and in so far as the matter complained of is within its competence, the Court concludes that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

30. Lastly, the applicant complained under Article 5 §§ 1 (c), 3, 4 and 5 of the Convention that there had been no reasonable suspicion for his arrest, that the length of his police custody and pre-trial detention had been excessive, and there was no effective remedy in domestic law to challenge the lawfulness of his detention on remand.

31. The Court considers that these complaints were introduced out of time and must be rejected for non-compliance with the six-month rule pursuant to Article 35 §§ 1 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

32. The applicant claimed 425,000 Turkish Liras (TRY) (approximately EUR 150,000) in respect of pecuniary damage and 100,000 euros (EUR) non-pecuniary damage. He also claimed TRY 5,750 (approximately EUR 2,030) in respect of lawyers’ fees and TRY 1000 (approximately EUR 350) for translation fees. In support of his claim the applicant submitted the Diyarbakır Bar Association’s scale of fees. However, he did not submit any receipts or other relevant document.

33. The Government contested the applicant’s just satisfaction claims as well as his claims for legal fees, submitting that they were excessive and unsubstantiated.

34. The Court observes that it has found a violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case. It cannot speculate as to the outcome of the proceedings against the applicant if there had been no breach of the Convention (see Ibrahim and Others, cited above, § 315).

35. The Court notes that Article 311 of the Code of Criminal Procedure allows the possibility to reopen proceedings. It considers that the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 of the Convention, should he so request (see Salduz, cited above, § 72, and Abdulgafur Batmaz v. Turkey, no. 44023/09, § 58, in fine, 24 May 2016). It further considers that in these circumstances the finding of a violation constitutes in itself sufficient just satisfaction (see Bayram Koç, cited above, § 29).

36. 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 its case-law, the Court considers it reasonable to award the sum of EUR 850 for costs incurred in the proceedings before the Court (see Bayram Koç, cited above, § 30-32).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning Articles 6 §§ 1 and 3 (c) of the Convention admissible and the remainder of the application inadmissible;

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

3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant in relation to his complaint concerning denial of access to a lawyer during the preliminary investigation stage;

4. Holds

(a) that the respondent State is to pay the applicant, within three months the following amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 850 (eight hundred fifty 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;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 27 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan BakırcıLedi Bianku
Deputy RegistrarPresident

 

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