SECOND SECTION
CASE OF IŞIK v. TURKEY
(Application no. 49009/09)
JUDGMENT
STRASBOURG
27 February 2018
This judgment is final but it may be subject to editorial revision.
In the case of Işık 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. 49009/09) 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, Ms Azime Işık (“the applicant”), on 10 August 2009.
2. The applicant was represented by Mr A. Erdoğan, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3. On 18 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 wished, 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 1977.
7. On 25 April 1999 the applicant was arrested and placed in police custody on suspicion of membership of an illegal organisation and the murder of thirteen persons. On the same day, she underwent a medical examination. The doctor who examined the applicant noted no sign of injury on her body.
8. On 26 April 1999 police officers at the Istanbul Security Directorate took statements from the applicant in the absence of a lawyer. The applicant confessed that she was a member of the illegal organisation and admitted having planned an attack on a shopping centre and having acted as a lookout while other co-accused started a fire by throwing Molotov cocktails at the shopping centre, killing thirteen persons in March 1999.
9. On 27 April 1999 the applicant was required to confront with two other co-accused before the police, in the absence of a lawyer. According to the record of the confrontation she admitted having carried out the attack on the shopping centre with those two and another co-accused.
10. On the same day an identification parade took place at the Istanbul Security Directorate, in the absence of a lawyer, where one of the eyewitnesses of the incident identified the applicant in front of police officers and the public prosecutor at the State Security Court.
11. On the same day the applicant was also 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 applicant described in detail what steps she had taken before the attack on the shopping centre and indicated how she had acted as a lookout while the other co-accused threw Molotov cocktails in the shopping centre.
12. On 30 April 1999 the applicant was seen by a doctor at the Forensic Medicine Institution who noted in his report that the applicant bore no traces of ill-treatment.
13. On the same day, the applicant was heard by the Istanbul Public Prosecutor and by the investigating judge, still in the absence of a lawyer. In her statements before both the public prosecutor and the investigating judge, the applicant denied the accusations and maintained that her statements to the police had been given under duress. Subsequently, the investigating judge ordered the applicant’s detention on remand.
14. On 6 May 1999 the public prosecutor at the Istanbul State Security Court filed an indictment with that court, and charged the applicant with carrying out activities for the purpose of bringing about the secession of part of the national territory, pursuant to Article 125 of the former Criminal Code.
15. 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.
16. On 7 May 2007 relying on, inter alia, the applicant’s statements to the police, the Istanbul Assize Court convicted the applicant as charged and sentenced her to life imprisonment for membership of an illegal organisation and the murder of thirteen people. In delivering its judgment, the Assize Court further took into consideration several items of evidence, such as the applicant’s statements to the police, public prosecutor and investigating judge, video recordings and written records of the crime scene visits, autopsy reports, eyewitness identifications, and the statements given by some of the accused persons.
17. On 7 May 2009 the Court of Cassation upheld the judgment of the first instance court.
II. RELEVANT DOMESTIC LAW
18. 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).
19. 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
20. The applicant complained under 6 § 3 (c) of the Convention that her defence rights had been violated as she had been denied access to a lawyer during the preliminary investigation stage and that her statements to the police, taken under duress, had been used in convicting her by the trial court. The applicant further complained that the statements taken during the reconstruction of the events and the identification parade, which had both been carried out in the absence of a lawyer, had also been used in convicting her.
21. 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
22. 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
23. The applicant complained that she had been deprived of legal assistance pursuant to section 31 of Law no. 3842, as she was accused of committing an offence that fell within the jurisdiction of the State Security Courts.
24. Referring to the Court’s judgment in the case of Salduz v. Turkey ([GC], no. 36391/02, ECHR 2008), the Government submitted that they were aware of the Court’s case-law under Article 6 § 3 (c) of the Convention.
25. 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 her, 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).
26. The Court further notes that by making such an assessment of the fairness of the domestic proceedings it also disposes of the applicant’s complaint regarding the use of her statements during the reconstruction of events and identification procedure by the trial court in convicting her.
27. 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
28. 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.
29. 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).
30. 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.
31. 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. 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
32. The applicant further complained under Article 3 of the Convention that she had been ill-treated during her detention in police custody and that the national authorities had failed to conduct an investigation into her allegations of ill-treatment. The Court recalls that on 3 April 2007 it delivered a decision in the case Azime Işık v. Turkey ((dec), no. 63900/00, 3 April 2007), which concerned the applicant’s complaint of ill-treatment under Article 3 and the alleged lack of domestic remedies under Article 13. It follows that this part of the application is substantially the same as a matter that has already been examined by the Court within the meaning of Article 35 § 2 (b) and must be rejected in accordance with Article 35 § 4.
33. The applicant further complained under Article 5 § 3 of the Convention that the length of his police custody and pre-trial detention was excessive.
34. 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.
35. The applicant further complained under Article 6 § 1 of the Convention that the trial court cannot be considered as impartial, as the judges sitting on the bench of the court had been changed several times. She also complained under the same article that the trial court failed to collect all relevant evidence and erred in establishing the facts of the case. Lastly, the applicant complained under Article 13 of the Convention that there was no effective remedy for the alleged violations of her Convention rights, and under Article 14 that the State Security Courts had procedural rules different from ordinary criminal courts.
36. 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.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
37. The applicant claimed 50,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 non-pecuniary damage. She also claimed EUR 8,000 in respect of lawyers’ fees and EUR 1000 for other costs and expenses incurred before the Court, such as translation, postage and communication. In support of her claim, the applicant submitted the Istanbul Bar Association’s scale of fees and an invoice in relation to translation expenses. The remaining expenses were not supported with any documents.
38. The Government contested the applicant’s just satisfaction claims as well as his claims for legal fees, submitting that they were excessive and unsubstantiated.
39. 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).
40. 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).
41. 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) 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 concerning the absence of a lawyer during the reconstruction of events and the identification parade;
4. 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 police custody;
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