CASE OF YİĞİTDOĞAN v. TURKEY (No. 2)

SECOND SECTION

CASE OF YİĞİTDOĞAN v. TURKEY

(Application no. 72174/10)

JUDGMENT

STRASBOURG

3 June 2014

FINAL

03/09/2014

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

In the case of Yiğitdoğan v. Turkey,

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

Guido Raimondi, President,
Işıl Karakaş,
András Sajó,
Helen Keller,
Paul Lemmens,
Robert Spano,
Jon Fridrik Kjølbro, judges,
and Abel Campos, Deputy Section Registrar,

Having deliberated in private on 6 May 2014,

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

PROCEDURE

1. The case originated in an application (no. 72174/10) 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 Yüksel Yiğitdoğan (“the applicant”), on 7 October 2010.

2. The applicant was represented by Mrs G. Tuncer, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3. On 14 January 2013 the application was communicated to the Government.

THE FACTS

4. The applicant was born in 1968 and is currently serving a prison sentence in Kocaeli.

5. On 25 July 1999, at 11.30 a.m., the applicant was arrested on suspicion of being a member of an illegal organisation, namely the Turkish Revolutionary Communist Union, Türkiye İhtilalci Komünistler Birliği, “the TIKB”. The arrest records held by the police stated that they had had to use force to arrest the applicant, who had tried to escape when officers approached him to conduct an identity check.

6. On the same day he underwent a medical examination at 1.30 p.m. at Atatürk Hospital in Izmir. The report drawn up afterwards stated that no indication of ill-treatment had been observed on the applicant’s body.

7. The applicant was examined again later that day, at 5.45 p.m. at the same hospital. The report issued following that examination noted that the applicant had a healing, scabbed scratch measuring 2 x 2 cm on his right elbow. It concluded that there was no indication of physical violence on his body.

8. Following the medical examinations, the applicant was transferred to Istanbul, where he was placed in police custody at the Anti-Terrorist Branch of the Istanbul Security Headquarters. According to his submissions, he was subjected to ill-treatment during his time there.

9. On 27 July 1999 the applicant’s residence in Istanbul was searched by the police, who found several guns and cartridges, which were later sent to the Istanbul Criminal Police Laboratory for ballistic examination.

10. On 28 July 1999 the applicant was examined by a doctor at Haseki Hospital, who noted a swelling, a bruise and a scratch measuring 1 x 2 cm on his right elbow, as well as another scratch measuring 0,5 x 1 cm on his arm. The doctor recommended that the applicant undergo an orthopaedic examination.

11. At the request of the public prosecutor, on 29 July 1999 the Istanbul State Security Court decided to extend the applicant’s police custody by three days.

12. On 30 July 1999 the applicant was examined again at Haseki Hospital. This time, two scars on his gluteal region were noted.

13. On an unspecified date the applicant made statements to the police, in the absence of a lawyer.

14. On the last day of his police custody, namely on 1 August 1999 the applicant underwent another medical examination at Haseki Hospital. The report drawn up afterwards indicated a scar measuring 1 x 1 cm on his right elbow. The doctor also noted that the applicant’s medical condition was generally good, and recommended that he should undergo a urological consultation to follow up his complaint of rectal pain. He stated that a final report would be issued by the Forensic Medicine Institute.

15. On the same day the applicant was heard by the public prosecutor at the Istanbul State Security Court. He was not legally represented when he made his statements.

16. Subsequently, the applicant was brought before the investigating judge at the Istanbul State Security Court; he was remanded in custody. In the presence of a lawyer appointed by the Bar association, he retracted his previous statements and maintained that he had been subjected to ill‑treatment during his time in police custody. In response to a question by the investigating judge, the applicant maintained that he did not object to the content of the medical report drawn up earlier that day.

17. According to the applicant’s submissions, on 2 August 1999 he was examined by a doctor at Haydarpaşa Numune Hospital. The Government stated that there had been no such examination.

18. On 9 August 1999 the public prosecutor at the Istanbul State Security Court filed an indictment with that court, accusing the applicant of membership of an illegal armed organisation and of involvement in activities which undermined the constitutional order of the State, pursuant to Article 146 of the Criminal Code in force at the time (Law no. 765). In this respect, the public prosecutor noted that the applicant had taken part in several armed acts of the illegal organisation, including murder.

19. On 7 August 2000 the applicant informed the Istanbul State Security Court that he would not attend the hearing that was to be held that day, as he had had no opportunity to have prior consultation with his lawyer. The court asked the public prosecutor’s office to ensure the applicant’s attendance at the subsequent hearing.

20. At a hearing dated 7 February 2001, during which the applicant’s lawyer was present, the court noted that although it had requested that the applicant be brought before the court, it had received no response from the public prosecutor concerning the matter. At the same hearing the case was joined to another one, in which the applicant was being tried together with some others.

21. During subsequent hearings, which were conducted in the absence of the applicant, the court heard submissions from some of the co-accused and some witnesses. At one of these hearings, on 24 January 2002, the applicant’s lawyer asked the court to obtain the medical reports issued at Haydarpaşa Numune Hospital in 1999. He also stated that the applicant had been transferred to another prison and that the order for him to attend the hearing had not been sent there.

22. On 28 March 2002 the court noted that the applicant could not be brought to the hearing as he had been transferred once again.

23. On 30 May 2002 the Istanbul State Security Court gave an interlocutory decision, holding that the applicant should be brought before the court for the subsequent hearings, and that failure to do so would result in those responsible for his absence being subject to a criminal investigation.

24. On an unspecified later date the applicant’s lawyer submitted a letter to the court, noting that the applicant had not been brought before the court following its interlocutory decision dated 30 May 2002. He argued that the prison personnel and police officers concerned should be prosecuted for this.

25. On 24 October 2002 the applicant was brought before the court. He submitted his defence, indicating that he had been severely beaten during his arrest in Izmir and had been subjected to electric shocks, hung by the arms, hosed with cold water and sexually assaulted during his seven-day police custody at the Istanbul Security Headquarters. He claimed that although his right arm had been broken and he had developed facial paralysis, he had not been taken to the Forensic Medicine Institute. In that respect, he asked the court to obtain the medical reports issued following his examination at Haydarpaşa Numune Hospital, where he said a plaster cast had been put on his broken arm.

26. At hearings on 6 February, 17 April and 17 June the applicant and his lawyer submitted additional defence statements.

27. During those proceedings, in 2004 State Security Courts were abolished following a constitutional amendment, and the case was transferred to the Istanbul Assize Court.

28. At a hearing on 27 February 2007 the applicant informed the court that his lawyer had failed to attend the hearings, and asked for time to appoint a new lawyer.

29. On 11 December 2007 the applicant’s new lawyer reiterated the applicant’s allegations of ill-treatment and asked the court to assess the medical reports on him. In that connection, she maintained that the applicant had not undergone urological or orthopaedic consultations, although the doctors at Haseki Hospital had recommended that he should. The lawyer added that the applicant had never been taken to the Forensic Medicine Institute, and that the court had not obtained the reports from Haydarpaşa Numune Hospital, despite the applicant’s request for them. She also stated that the applicant had not been present at the hearings when the court had heard certain key witnesses.

30. On 11 June 2008 the applicant’s lawyer submitted a request to Haydarpaşa Numune Hospital for the medical reports on the applicant’s medical examination on 2 August 1999. However, the hospital administration informed her that the records for that year had been destroyed in 2006, as a result of a sewage pipe explosion above the archives.

31. On 12 September 2008, on the basis of several items of evidence, including the applicant’s police statements, the guns found at his home, and ballistic reports on those guns, the Istanbul Assize Court found the applicant guilty as charged and sentenced him to life imprisonment.

32. The applicant’s lawyer appealed against the judgment, arguing that the applicant had been subjected to ill-treatment while in police custody and had been convicted on the basis of statements extracted under duress.

33. On 18 March 2010 the Court of Cassation upheld the judgment of the Istanbul Assize Court. This judgment was pronounced on 7 April 2010.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

34. The applicant alleged that he had been subjected to ill-treatment during his time in police custody in both Izmir and Istanbul. He maintained that although he had been beaten, subjected to electric shocks, hung by the arms and sexually assaulted, he had not had a thorough medical examination. In this connection, he argued that the domestic court had failed to obtain the medical reports which would have proved his allegations, and that the authorities had not conducted any investigation into the matter. He relied on Articles 3 and 13 of the Convention.

The Court considers that these complaints should be examined from the standpoint of Article 3 of the Convention, which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

35. The Government argued that the applicant’s complaints under Article 3 of the Convention had been lodged outside the six-month period, in that he must have become aware by 12 September 2008 at the latest that there would not be an effective investigation, when the Istanbul Assize Court delivered its judgment without taking account of his allegations of ill‑treatment.

36. The Court notes that during the criminal proceedings instigated against him the applicant brought his allegations of ill-treatment to the attention of the domestic court several times, but to no avail. In his appeal against the Istanbul Assize Court’s judgment of 12 September 2008, which did not refer to those allegations in any way, the applicant raised the matter once again. However, the higher court did not refer to them either. The Court considers that the applicant’s expectation that the Court of Cassation would respond to his allegations was justifiable. Accordingly, it cannot uphold the Government’s objection, as the applicant lodged his application with the Court within six months of the date on which the Court of Cassation pronounced its judgment.

37. 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.

B. Merits

1. The substantive aspect of Article 3

38. The applicant argued that the medical reports proved that physical violence had been inflicted on him during his arrest and while he was in police custody. He submitted that the initial medical report drawn up immediately after his arrest, which observed no sign of ill-treatment on his body, refuted the Government’s assertion that force had been used during the arrest, and demonstrated that the ill-treatment had occurred following his arrest.

39. The Government maintained that the findings of the reports drawn up following the applicant’s medical examinations, which noted only minor injuries, had not established beyond reasonable doubt that the applicant had been subjected to any physical violence by police officers while in police custody. They argued that the injuries caused to the applicant had resulted from his own conduct, in that the police officers had had to exercise their statutory power of arrest when he tried to escape. They concluded therefore that there had been no violation of Article 3 of the Convention.

40. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Talat Tepe v. Turkey, no. 31247/96, § 48, 21 December 2004). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Labita v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV). Where the events in issue lie wholly or in large part within the exclusive knowledge of the authorities, as in the case of persons who are under their control, strong presumptions of fact will arise when injuries are sustained by people who are in that situation. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000‑VII).

41. The Court further reiterates that, according to its case-law, Article 3 does not prohibit the use of force to effect an arrest. However, such force may be used only if unavoidable, and must not be excessive (see Gazioğlu and Others v. Turkey, no. 29835/05, § 41, 17 May 2011, and Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007 and the cases cited therein).

42. The Court observes at the outset that the first medical report obtained on 25 July 1999 at 1.30 p.m. did not reveal any signs of ill‑treatment on the applicant’s body. Subsequently, when the applicant underwent a second medical examination at 5.45 p.m. on the same day, before his transfer to Istanbul, the only injury found on his body was a healing scabbed scratch wound, measuring 2 x 2 cm. on his right elbow. Further to his transfer to Istanbul, and namely on the third day of his custody, the applicant underwent another medical control and the relevant report revealed that there was a swelling, a bruise and a scratch measuring 1 x 2 cm on his right elbow and a scratch measuring 0,5 x 1 cm on his right arm. The subsequent report taken on 30 July 1999 indicated that the applicant had two scars on the gluteal region and finally the fifth report, taken on the last day of his custody revealed merely a scar measuring 1 x 1 cm.

43. As far as the applicant’s custody in İzmir is concerned, the Court notes that according to the first two medical examinations, certain superficial injuries appeared on the applicant’s body. Such superficial injuries can be considered to be consistent with the force used during the arrest (see paragraph 5 above).

44. As far as the applicant’s police custody at the Anti-Terrorist Branch of the Istanbul Security Headquarters is concerned, the Court observes that the applicant complained that he had been subjected to electric shocks, hung by the arms, hosed with pressurised water and subjected to sexual assaults. The Court considers that such a treatment, as described by the applicant, would have left more serious marks on his body other than the superficial injuries noted above (see Milan v. France, no. 7549/03, § 61, 24 January 2008; İz v. Turkey (dec.), no. 9830/07, 5 July 2011, and Nezir Adıyaman v. Turkey, no. 6042/09, § 41, 5 November 2013). At this point, the Court also takes note of the fact that the applicant did not challenge the veracity of the medical reports or allege that the doctors, who issued them, had failed to examine his injuries (see, Coşar v. Turkey, no. 22568/05, § 33, 26 March 2013, and Nezir Adıyaman, cited above, § 40). Nevertheless for the reasons explained below (see paragraphs 52-54 below) the applicant’s ill‑treatment allegations were not investigated effectively, as required by Article 3 of the Convention. Thus, the Court cannot conclude beyond reasonable doubt that the applicant was ill-treated while in police custody as alleged.

45. The Court further observes that the applicant claimed that he was also medically examined at Haydarpaşa Numune Hospital and had a cast applied to his broken arm. However the Government contested this allegation, stating that there had been no examination in that hospital. Although this fact is in dispute between the parties, the Court notes that it cannot establish with certainty whether the applicant was examined at that hospital, as the patient records were destroyed in 2006 as a result of the flooding of the hospital’s archives (see paragraph 30 above). It will assess the authorities’ failure to respond to the applicant’s requests to obtain information from that hospital under the procedural aspect of Article 3 below.

46. In the circumstances of the present case, the Court cannot establish beyond reasonable doubt that the minor injuries sustained by the applicant were the result of an alleged ill-treatment during his custody in Izmir and at the Anti-Terrorist Branch of the Istanbul Security Headquarters.

47. It follows that there has been no violation of Article 3 of the Convention under its substantive aspect.

2. The procedural aspect of Article 3

48. The applicant maintained that the authorities had failed to arrange urological and orthopaedic consultations for him, despite the recommendations of the doctors at the Haseki Hospital to that effect. He submitted moreover that he had never been examined at the Forensic Medicine Institute, which was the authority which should have drawn up the final report concerning his medical condition. The applicant claimed that he had been examined at the Haydarpaşa Numune Hospital but had been unable to obtain medical reports from there, as the domestic court had not taken his requests into account and the hospital records had eventually been destroyed. Finally, he stated that no investigation of his allegations of ill-treatment had been carried out, although he had brought the issue to the domestic court’s attention.

49. The Government stated that they were aware of the Court’s case‑law concerning the procedural aspect of Article 3.

50. The Court reiterates that Article 3 of the Convention requires the authorities to carry out an effective official investigation into allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see, in particular, Assenov and Others v. Bulgaria, 28 October 1998, §§ 101-02, Reports of Judgments and Decisions 1998‑VIII).

51. In the present case, the Court has not found it proved, owing to lack of evidence, that the applicant was ill-treated as alleged. Nevertheless, as it has held in previous cases, this does not preclude the applicant’s complaint in relation to Article 3 from being “arguable” for the purposes of the positive obligation to investigate (see Böke and Kandemir v. Turkey, nos. 71912/01, 26968/02 and 36397/03, § 54, 10 March 2009, and Aysu v. Turkey, no. 44021/07, § 40, 13 March 2012). In the light of the contents of the medical reports issued in respect of the applicant, the Court considers that the domestic authorities were under an obligation to conduct an effective investigation regarding his allegations of ill-treatment.

52. The Court notes however that although the applicant raised his complaint at all levels of the criminal proceedings against him, the authorities did not take any action in response to his allegations of ill‑treatment, and no investigation of the matter was launched. Nor did they take account of the medical reports which were issued in respect of the applicant.

53. Moreover, the Istanbul State Security Court made no attempt to obtain records from Haydarpaşa Numune Hospital, where the applicant claimed to have been examined, although it was asked to do so by both the applicant and his lawyer during the proceedings. The Court notes that the applicant was eventually deprived of the opportunity to substantiate his claims, as the hospital records, which could have served as evidence of the medical examination alleged to have been performed there, had been destroyed as a result of a sewage flood in the archives.

54. Having regard to all these considerations, the Court concludes that the authorities failed to carry out an investigation into the applicant’s allegations of ill-treatment. There has therefore been a violation of the procedural aspect of Article 3 of the Convention.

II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION

55. The applicant argued that he had been denied a fair hearing, in that he had not benefited from legal assistance during the preliminary investigation stage. He complained that the domestic court had lacked independence and impartiality, and that it had relied on evidence obtained under duress. He also complained about the excessive length of the proceedings and added that he had not been able to attend hearings during the first years of the proceedings. Lastly, he argued that the domestic court had failed to hear certain key witnesses and that he had not had the opportunity to cross‑examine the witnesses against him.

The applicant relied on Article 6 §§ 1 and 3 (c) and (d) of the Convention, the relevant parts of which provide:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law ...

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.

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...”

A. Admissibility

56. As regards the applicant’s complaint of the excessive length of the criminal proceedings against him, the Government noted that pursuant to Law no. 6384 a new Compensation Commission had 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 domestic remedies, as he had not made any application to that Compensation Commission: this ground had also been recognised by the Court in its Müdür Turgut and Others decision ((dec.), no. 4860/09, §§ 19‑26, 26 March 2013).

57. The Court observes that, as pointed out by the Government, a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others (cited above), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies once a new domestic remedy had come into being. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.

58. The Court notes that in its decision in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could examine applications of this type which have already been communicated to the Government.

59. However, taking account of the Government’s preliminary objection with regard to the applicant’s 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 of 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.

60. The Court further notes that the remainder of the Article 6 complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Right to legal assistance

61. The applicant stated that the restriction on his right to legal assistance while he was in police custody had breached his right to a fair trial.

62. The Government maintained that they were aware of the relevant case-law of the Court.

63. The Court notes that it is not in dispute between the parties that the applicant was denied legal assistance during the custody period. It notes that at the time the applicant was taken into police custody, namely in July 1999, the restriction imposed on his right of access to a lawyer was systemic and applied to anyone held in police 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, ECHR 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.

64. There has therefore been a violation of Article 6 § 3 (c) of the Convention in conjunction with Article 6 § 1 in the present case.

2. Other complaints under Article 6 of the Convention

65. Having regard to its findings above and referring to paragraph 73 below, the Court, without taking a position on the remaining complaints raised by the applicant regarding the fairness of the proceedings, considers that it is unnecessary to examine them (see Geçgel and Çelik v. Turkey, nos. 8747/02 and 34509/03, § 16, 13 October 2009, and Hikmet Yılmaz v. Turkey, no. 11022/05, § 24, 4 June 2013).

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

66. The applicant further complained under Article 13 of the Convention that there was no effective remedy whereby he could challenge the length of the criminal proceedings against him.

67. The Government argued that the complaint was inadmissible in the light of the establishment of the above-mentioned Compensation Commission.

68. The Court notes that in its Müdür Turgut and Others decision 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.

69. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

70. The applicant claimed 80,000 euros (EUR) in respect of non‑pecuniary damage.

71. The Government contested these claims, considering the requested amount excessive.

72. The Court awards the applicant EUR 16,000 in respect of non-pecuniary damage.

73. The Court further 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 Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003).

B. Costs and expenses

74. The applicant also claimed a total of EUR 10,414 for the costs and expenses incurred before the Court, giving a breakdown of the number of hours of work for which their lawyer needed to be paid.

75. The Government contested this claim.

76. 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 this connection, the Court reiterates that time sheets have been accepted in the past as supporting documents in a number of cases (see Beker v. Turkey, no. 27866/03, § 68, 24 March 2009; Çoşelav v. Turkey, no. 1413/07, § 89, 9 October 2012; and Amine Güzel v. Turkey, no. 41844/09, § 50, 17 September 2013). It accordingly considers it reasonable to award the applicant the sum of EUR 2,000 for the costs and expenses incurred before it (see Gün and Others v. Turkey, no. 8029/07, § 92, 18 June 2013).

C. Default interest

77. 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

1. Declares, unanimously, the complaints under Article 3 and those under Article 6, except for the complaint concerning the length of the criminal proceedings, admissible and the remainder of the application inadmissible;

2. Holds, unanimously, that there has been no violation of Article 3 of the Convention under its substantive aspect;

3. Holds, unanimously, that there has been a violation of Article 3 of the Convention under its procedural aspect;

4. Holds, unanimously, 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, by six votes to one, that there is no need to examine the remaining complaints raised under Article 6 of the Convention;

6. Holds, unanimously,

(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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 16,000 (sixteen thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,000 (two thousand 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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 3 June 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel CamposGuido Raimondi
Deputy RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:

(a) concurring opinion of Judge Spano;

(b) dissenting opinion of Judge Lemmens.

G.R.A.
A.C.

CONCURRING OPINION OF JUDGE SPANO

1. In paragraph 63, the Court finds it unnecessary to examine the applicant’s remaining complaints under Article 6 in light of its finding of a violation of Article 6 § 3 (c), in conjunction with Article 6 § 1, and its considerations in paragraph 71 that the most appropriate form of redress would be a retrial of the applicant. I write separately to highlight my reasons for agreeing with this conclusion.

2. As I have previously stated (see my concurring opinion in Ahmet Eryilmaz v. Turkey, 23501/07, 3 June 2014), when, as in this case, a person has been accused of a crime, taken into police custody for questioning and has made incriminating statements without a lawyer being present, his subsequent conviction at trial for a criminal offence must, in principle, be considered unsafe and a retrial is the appropriate response. That is the logic behind the seminal Grand Chamber judgment in Salduz v. Turkey ([GC], 36391/02, ECHR 2008; see § 55, in fine). Hence, when the funda­mental fairness of criminal proceedings have been irremediably undermined due to a violation of this nature, there is no need, in general, for this Court to examine other complaints under Article 6 concerning the fairness of the same proceedings. My view on this issue is thus based on legal principle as well as on grounds of practical necessity.

PARTLY DISSENTING OPINION OF JUDGE LEMMENS

I voted with my colleagues on the findings with respect to Articles 3 and 6 § 3 (c) of the Convention. To my regret, however, I am unable to follow the majority in holding that there is no need to examine the remaining complaints raised under Article 6.

As indicated in paragraph 55 of the judgment, the applicant raised a number of complaints under Article 6. Apart from the complaint relating to a violation of the right to legal assistance, which the Court examined, he also raised complaints with respect to the lack of independence and impartiality of the domestic court, that court’s reliance on evidence obtained under duress, the unreasonable length of the proceedings, his inability to attend hearings during the first year of the proceedings, and his inability to hear and cross-examine witnesses against him.

The majority has decided that it is unnecessary to examine these other complaints for two reasons; first, because the Court has found a violation of Article 6 § 3 (c), and second, because there exists the possibility that the applicant will be retried following the finding of that violation (see paragraph 65). I do not find these reasons convincing. First, the complaint relating to the violation of the right to legal assistance is of a different nature to the other complaints. The finding of a violation of the right to legal assistance during the initial stage of the criminal proceedings does not necessarily imply that the applicant could not have had a trial before an independent and impartial tribunal, or a trial within a reasonable time. At least these two aspects of the right to a fair trial deserved, in my opinion, a separate examination. Second, it is not at all certain that the applicant will request a retrial (he is not obliged to do so), and even less that he will obtain one. However, what is certain is that at this stage he is unable to obtain just satisfaction in respect of the non-pecuniary damage allegedly caused by the violations that are the object of his additional complaints.

Although I can understand the practical reasons underlying the majority’s decision not to spend time and energy on examination of the additional complaints, I would have preferred that at least some of them be examined. I do not think that complicated reasoning would have been required to come to a conclusion on these complaints.

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