SECOND SECTION
DECISION
Applications nos. 51920/10 and 61632/10
Şerafettin DENIZ against Turkey
and Halil MALAK against Turkey
(see appended table)
The European Court of Human Rights (Second Section), sitting on 11 June 2020 as a Committee composed of:
Ivana Jelić, President,
Arnfinn Bårdsen,
Darian Pavli, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the declarations submitted by the respondent Government requesting the Court to strike the applications out of the list of cases,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The list of applicants is set out in the appended table.
The applicants were represented by Mr M. Terzi, a lawyer practising in İzmir.
The applicants complained under Article 6 §§ 1 and 3 (c) of the Convention about the unfairness of the criminal proceedings due to the systemic restriction imposed on their right of access to a lawyer during the pre-trial stage and the use of the statements they had made in the absence of a lawyer to convict them. The applicants further complained under Article 6 § 1 of the Convention of the alleged lack of adequate and proper opportunity to challenge the documentary evidence against them and the alleged failure of the trial court to request the production of the original documents on which it based its judgment when convicting them (compare Georgios Papageorgiou v. Greece, no. 59506/00, ECHR 2003-VI (extracts)).
The applicants’ above complaints were communicated to the Turkish Government (“the Government”).
THE LAW
Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
After unsuccessful friendly-settlement negotiations, the Government informed the Court that they proposed to make unilateral declarations with a view to resolving the issues raised by these complaints. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.
The separate declarations the Government submitted in respect of each applicant provided as follows:
“The Government of Turkey acknowledge that in the present case there has been a violation of the applicant’s rights under Articles 6 §§ 1 and 3 of the Convention in the light of the well-established case-law of the Court.
The Government also recalls that Law no. 4928 on 15 July 2003 repealed the provision concerning the systemic restriction on the right of access to a lawyer.
The Government further emphasises that Article 311 § 1 (f) of the Code on Criminal Procedure, as amended by Law no. 7145 of 31 July 2018, now requires reopening of criminal proceedings in cases where the European Court of Human Rights decides to strike an application out of its list of cases following a friendly settlement or a unilateral declaration. The Government considers that the aforementioned remedy is capable of providing redress in respect of the applicant’s complaints under Article 6 of the Convention.
The Government thus offer to pay the applicant EUR 500 (five hundred euros) to cover any pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant with a view to resolving the above-mentioned case pending before the European Court of Human Rights.
This sum will be converted into Turkish liras at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case before the European Court of Human Rights.”
By a letter of 17 April 2020 the applicants’ representative indicated that the applicants were not satisfied with the terms of the unilateral declarations as, in their view, it had not contained the detailed explanation that their right to a fair trial had been breached on account of (i) the absence of a lawyer when they had made their statements to the police; (ii) the use made by the trial court of those statements when convicting them; and (iii) the trial court’s failure to produce the originals of the customs declarations (gümrük çıkış beyannameleri). Furthermore, the amounts offered by the Government were too low.
The Court observes that Article 37 § 1 (c) enables it to strike a case out of its list if:
“... for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
Thus, it may strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the cases to be continued (see, in particular, the Tahsin Acar v. Turkey judgment (preliminary objections) [GC], no. 26307/95, §§ 75‑77, ECHR 2003-VI).
The Court has established clear and extensive case-law concerning complaints relating to the systemic restriction on the right of access to a lawyer and the use of statements made in the absence of a lawyer to convict individuals (see, among other authorities, Mehmet Duman v. Turkey, no. 38740/09, 23 October 2018; Ömer Güner v. Turkey, no. 28338/07, 4 September 2018; Girişen v. Turkey, no. 53567/07, 13 March 2018; Canşad and Others v. Turkey, no. 7851/05, 13 March 2018; İzzet Çelik v. Turkey, no. 15185/05, 23 January 2018; and Bayram Koç v. Turkey, no. 38907/09, 5 September 2017).
In the above-mentioned cases, the Court, without examining whether the systemic 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, held that the use of the applicant’s statements to the police by the trial court, without examining the question of their admissibility and the Court of Cassation’s subsequent failure to remedy that shortcoming, had constituted a violation of that Article. Moreover, in all of the above cases, the Court considered that the finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention constituted sufficient just satisfaction for the non-pecuniary damage sustained by the applicants.
The Court observes that the Government have explicitly acknowledged in their unilateral declarations a violation of Article 6 §§ 1 and 3 of the Convention.
The Court would further like to draw attention to the fact that on 31 July 2018 the Turkish Law No. 7145 entered into force. Articles 4, 17, 18 and 19 of this new law provide for a right to request the reopening of domestic court proceedings or the investigation following the Court’s decision to strike out a case on the basis of a friendly settlement or unilateral declaration. According to the Court’s case-law and practice, the reopening of the domestic proceedings is the most appropriate way to provide an effective solution to an alleged breach. In this connection, bearing in mind the Court’s subsidiary role in protecting the rights and freedoms guaranteed by the Convention and its protocols, it is recalled that it falls in the first place to the national authorities to redress any violation of the Convention.
Noting the admissions contained in the Government’s declarations as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the applications (Article 37 § 1 (c)).
In the light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications (Article 37 § 1 in fine). That decision is without prejudice to the possibility for the applicants to exercise any other available remedies in order to obtain redress (see Jeronovičs v. Latvia [GC], no. 44898/10, §§ 116‑118, 5 July 2016).
Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declarations, the applications may be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
In view of the above, it is appropriate to strike this part of the applications out of the list.
The applicants also raised other complaints under Article 6 § 1 of the Convention.
The Court reiterates that as the applicants are entitled to lodge an application for the reopening of criminal proceedings following the entry into force of Law no. 7145 on 31 July 2018, a fresh examination of the case would be possible, and that the aforementioned remedy is capable of providing redress in respect of their complaints under Article 6 § 1 of the Convention.
As a result, the Court considers that there is no need to examine the admissibility or the merits of these complaints.
For these reasons, the Court, unanimously,
Decides to join the applications;
Takes note of the terms of the respondent Government’s declarations under Article 6 §§ 1 and 3 of the Convention, and of the arrangements for ensuring compliance with the undertakings referred to therein;
Decides to strike this part of the applications out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Decides that there is no need to examine the admissibility or the merits of the applicants’ complaints under Article 6 § 1 of the Convention.
Done in English and notified in writing on 2 July 2020.
Liv TigerstedtIvana Jelić
Acting Deputy RegistrarPresident
APPENDIX
List of applications raising complaints under Article 6 §§ 1 and 3 of the Convention
No.
Application no.
Date of introduction
Applicant’s name
Year of birth
Representative’s name and location
Date of receipt of Government’s declaration
Date of receipt of applicant’s comments
Amount awarded for pecuniary
and non-pecuniary damage
and costs and expenses
per applicant
(in euros)[1]
51920/10
30/07/2010
Şerafettin DENIZ
1948
Terzi Mehmet Nur
İzmir
06/04/2020
17/04/2020
500
61632/10
30/07/2010
Halil MALAK
1956
Terzi Mehmet Nur
İzmir
06/04/2020
17/04/2020
500
[1] Plus any tax that may be chargeable to the applicant
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