SECOND SECTION
CASE OF SERTKAYA v. TURKEY
(Application no. 37315/10)
JUDGMENT
STRASBOURG
27 February 2018
This judgment is final but it may be subject to editorial revision.
In the case of Sertkaya 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. 37315/10) 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 Abbas Sertkaya (“the applicant”), on 12 April 2010.
2. The applicant was represented by Mr İ. Akmeşe, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3. On 27 March 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1974 and lives in Muş.
7. On 30 October 2001 the applicant was arrested and taken into custody on suspicion of membership of an illegal organisation, namely the PKK (the Kurdistan Workers’ Party).
8. On 1 November 2001 the applicant’s statement was taken by the police in the absence of a lawyer. During his interrogation, he confessed being a member of the PKK and gave a detailed account of his acts within the illegal organisation.
9. On 3 November 2001 the applicant was heard by the public prosecutor and the investigating judge at the Istanbul 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. On the same day, upon the order of the investigating judge, the applicant was placed in pre-trial detention.
10. On 6 November 2001 the Public Prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicant under Article 168 of the former Criminal Code, with membership of an illegal armed organisation.
11. The state security courts were later abolished by Law no. 5190 of 16 June 2004, and the case was transferred to the Istanbul Assize Court.
12. On 6 October 2006 the Istanbul Assize Court, relying on, inter alia, the applicant’s statements to the police, convicted him of membership of an illegal organisation under Article 314 § 2 of the new Criminal Code and sentenced him to seven years and six months’ imprisonment.
13. On 15 December 2009 the Court of Cassation upheld the judgment of the first‑instance court.
II. RELEVANT DOMESTIC LAW
14. 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).
15. 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
16. The applicant complained under Articles 6 § 3 (b) and (c) of the Convention 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, allegedly taken under duress, had been used in convicting him by the trial court.
17. 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
18. 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
19. 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.
20. Referring to the Court’s judgment in the case of Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008), and Dayanan v. Turkey (no. 7377/03, § 32, 13 October 2009), the Government submitted that they were aware of the Court’s case-law under Article 6 § 3 (c) of the Convention.
21. 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 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 v. the United Kingdom ([GC], nos. 50541/08 and 3 others, § 274, ECHR 2016). 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).
22. 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
23. The applicant further complained that the length of the criminal proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
24. 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).
25. 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.
26. 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. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
27. The applicant complained under Article 13 of the Convention that there had been no effective remedy in relation to his complaints under Article 6 of the Convention.
28. The Court notes at the outset that the applicant complained that there had been no effective remedy in domestic law to challenge the length of criminal proceedings against him.
29. The Government argued that the complaint was inadmissible in the light of the establishment of the above-mentioned Compensation Commission.
30. The Court notes that in its Turgut and Others decision (cited above) it held that the Compensation Commission established by Law no. 6384 provides an effective remedy within the meaning of Article 13 of the Convention with regard to complaints about the length of proceedings under Article 6 § 1. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
31. Lastly, the applicant argued that there was no effective remedy in relation to his complaint of lack of legal assistance available to him during the preliminary investigation.
32. The Court considers that this complaint may be declared admissible. However, having regard to its reasoning which led it to conclude Article 6 §§ 1 and 3 (c) was breached in the present case, the Court deems it unnecessary to examine this complaint separately on the merits (see Güveç v. Turkey, no. 70337/01, §§ 134-135, ECHR 2009 (extracts).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
33. The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage. He also claimed 4,672 Turkish Liras (TRY) (approximately EUR 1,750) in respect of lawyers’ fees and TRY 800 (approximately EUR 300) for other costs and expenses incurred before the Court, such as travel expenses, stationery, translation, postage. In support of his claim the applicant submitted the Turkish Bar Association’s scale of fees. The remaining expenses were not supported with any documents.
34. The Government contested the applicant’s just satisfaction claims as well as his claims for legal fees, submitting that they were excessive and unsubstantiated.
35. 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).
36. 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).
37. 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 there is no need to examine the complaint under Article 13 of the Convention in relation to the applicant’s complaint concerning denial of access to a lawyer during the preliminary investigation;
4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;
5. 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;
6. 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
Full & Egal Universal Law Academy