Legal summary
February 2024
Mehmet Zeki Doğan v. Türkiye (no. 2) - 3324/19
Judgment 13.2.2024 [Section II]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Upholding of applicant’s previous conviction and sentence in reopened criminal proceedings based decisively on his co-defendants’ incriminating statements made in the absence of a lawyer and later retracted: violation
Facts – In 2010 criminal proceedings against the applicant were reopened following a judgment delivered by the Court finding a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of his lack of access to a lawyer while in police custody in 1998 (Mehmet Zeki Doğan v. Turkey). On 14 February 2013 the trial court upheld his previous conviction for attempting to disrupt or subvert the constitutional order under Article 146 of the former Criminal Code and confirmed his sentence of life imprisonment. That judgment was upheld by the Court of Cassation and the applicant’s subsequent individual application to the Constitutional Court was dismissed as inadmissible.
Law – Article 6 § 1:
(a) Scope of the case – Whilst all the guarantees of the criminal limb of Article 6 were fully applicable to newly reopened proceedings, the Court’s examination in respect of Article 6 § 1 in the present case solely encompassed the particular aspects in respect of which the applicant had lodged a complaint, namely to the use made by the trial court of the statements made by two of his co‑defendants, V.Ç. and M.K., allegedly under duress and without a lawyer being present. Nevertheless, the Court noted that it would take due account of the impact of any procedural shortcomings complained of on the overall fairness of the reopened proceedings.
(b) Admissibility –
(i) Whether the Court lacks jurisdiction ratione materiae under Article 46 of the Convention to examine the present application – The process of the determination of the criminal charge against the applicant in the newly reopened proceedings had been revived because of the fresh assessment carried out by the trial and thus necessarily entailed a “new issue” which had not been decided by the Court’s previous judgment in respect of the applicant. Accordingly, the Court was not prevented by Article 46 of the Convention from examining his new complaint concerning the alleged unfairness of the reopened criminal proceedings resulting in the trial court’s judgment of 14 February 2013.
(ii) Applicability of the criminal limb of Article 6 § 1 to the reopening of criminal proceedings – Having regard to the procedure before the trial court concerning the reopening of the proceedings and having regard to the nature of the trial court’s assessment, as well as the applicant’s complaint concerning the fairness of the reopened proceedings, the Court concluded that the guarantees of Article 6 had been applicable in their entirety to the proceedings from, at least, the trial court’s decision on 10 May 2011 ruling the application for reopening admissible. That decision, after which the proceedings were reopened, was likely to be decisive for the determination of a criminal charge, given that from that point onwards the trial court was required to assess the previous conviction in the light of the Court’s judgment in respect of the applicant and thus make a fresh determination of it, which it eventually did on 14 February 2013.
(iii) Alleged non-observance of the six-month time-limit – The trial court had carried out a fresh assessment of the criminal charge against the applicant reviving the process of determining that charge. In that respect, the Court laid particular emphasis on the fact that in the newly reopened criminal proceedings, the trial court had explicitly relied, arguably for the first time, on the evidence given by V.Ç. and M.K. The previous trial court and Court of Cassation decisions had not cited or specifically relied on that evidence. Consequently, the six-month time‑limit had restarted in respect of the complaint concerning the use of those statements. To hold otherwise would risk creating a legal loophole that would enable a procedural shortcoming which had occurred during previous criminal proceedings to be used in ostensibly remedying another shortcoming, thereby giving rise to a situation that would not only impair the practical and effective nature of the right to a fair trial but would also be incompatible with the spirit of the Convention and the Protocols thereto.
The applicant had duly exhausted the domestic remedies in respect of his complaint following the Constitutional Court’s decision and had lodged his application within six months after that decision. Consequently, as he had complied with the six-month time-limit then applicable under Article 35, the Government’s objection on the six-month time-limit was dismissed.
(c) Merits – In the reopened criminal proceedings, the guilt of the accused had to be assessed afresh based on the evidence presented within the framework of those new proceedings and in a manner compatible with the requirements of Article 6 which applied fully to them, given they concerned the “determination of a criminal charge” against the accused. Thus, for instance, the restrictions and safeguards relating to the use of any incriminating evidence by witnesses whose statements had not been examined, and cross-examined, before the trial court applied in the context of the new proceedings as in the original trial.
The applicant had solely submitted that the essence of his right to a fair trial had been breached in the reopened proceedings by the domestic courts’ use of the evidence and the police statements given by his co-defendants, who had also been held in police custody in the same conditions as him – without the benefit of legal assistance. The Court limited its assessment accordingly, without, however, losing sight of the fact that what was in any event ultimately at stake was the overall fairness of the reopened proceedings.
After holding several hearings in the reopened criminal proceedings, the trial court had decided to uphold the applicant’s previous conviction and his consequent sentence to life imprisonment. In that connection, the trial court appeared to have demonstrated its willingness to meaningfully engage with the Court’s finding of a violation in respect of the applicant by excluding the evidence he had given during his police interview. However, the evidence given by M.K. during the investigation and trial stages and V.Ç. during his police interview (held on the same day the applicant had made his police statements) and the reconstruction of events (in which he had taken part with the applicant) had been decisive for its decision to uphold his previous conviction. Given that neither V.Ç. nor M.K. had had the assistance of a lawyer when giving their statements, which had been a structural problem giving rise to a violation of Article 6 §§ 1 and 3 (c) in respect of the applicant in Mehmet Zeki Doğan, the question arose as to whether the trial court had subjected the evidence that had been given by them to proper scrutiny in conformity with the requirements of a fair trial under Article 6 § 1. The Court was unable to conclude that that had been the case.
The trial court had explained that there had been no indication that V.Ç. and M.K. had been subjected to duress; its finding on that point had been in keeping with the right to remain silent and the privilege against self-incrimination and had thus been capable of constituting a crucial procedural safeguard that would have offset the procedural shortcoming in the case, namely the absence of a lawyer when V.Ç. and M.K. had given the above-mentioned evidence. However, the trial court had relied on the statements they had made in their interviews by the police which had contained, inter alia, incriminating remarks concerning the applicant notwithstanding the fact that they had subsequently retracted them when they had appeared before the investigating judge. Although that gave rise to some doubt about the veracity of those statements, the trial court neither attempted to dispel that doubt nor did it substantiate its preference for taking into consideration only the witnesses’ police statements when upholding the applicant’s previous conviction. Furthermore, neither V.Ç. nor M.K had appeared to testify before the trial court at any stage of the proceedings. The Court also noted that the trial court had not provided any assessment of whether the other evidence could have been sufficient to establish the applicant’s guilt in terms of the charges brought against him. Under such circumstances, and as the domestic courts had failed to assess the overall fairness of the criminal proceedings against the applicant, an assertion by the Government of the strength of the other evidence could not on its own serve to ensure that the proceedings were as a whole “fair” as required under Article 6 § 1. The Court had to base its assessment on the evidence which formed part of the domestic courts’ examination, as reflected in their judgments. Even where the domestic courts found that an applicant’s conviction had been justified on the basis of evidence other than statements given in the absence of a lawyer, that was not a substitute for their failure to assess whether the overall fairness of the proceedings had been prejudiced by the absence of a lawyer.
While the trial court had concluded that the applicant’s right of access to a lawyer under Article 6 § 3 (c) of the Convention had been violated and did not rely on the evidence which he had given in his police interview, it appeared to have denied the applicant the same procedural safeguard in respect of the evidence given by V.Ç. and M.K. in the absence of a lawyer. That was apparent from the court’s failure to duly justify its decisions to, on the one hand, exclude the applicant’s police statements and the evidence given by him at the reconstruction of events, because he had had no access to legal assistance, while on the other hand relying on the police statements of V.Ç. and the evidence that V.Ç. had given at the same reconstruction of events as the applicant, despite the fact that V.Ç. had likewise not had legal assistance while in police custody. In any event, the trial court did not appear to have addressed that issue; nor had the Court of Cassation or the Constitutional Court drawn the necessary inferences to remedy the prejudice stemming from the trial court’s approach, with the result that the opportunity given to the applicant to challenge the evidence had been merely nominal and had not been capable of ensuring the practical and effective exercise of his rights under Article 6 § 1.
The Court also reiterated that the absence of an appropriate response from the domestic courts to a substantiated claim that a certain piece of evidence had been obtained in breach of statutory requirements or of the rights and freedoms protected by the Convention and the Protocols thereto would, in principle, be incompatible with the requirements of a fair trial, particularly where the evidence had been of decisive importance in the conviction.
In view of the above, the Court took the view that when the requisite procedural review had not been carried out by the domestic courts, the mere existence of other evidence could not be regarded as sufficient by and of itself to justify the trial court’s decision to afford a procedural safeguard to the applicant in the form of excluding the statements he had given in the absence of a lawyer while denying him the very same procedural safeguard in respect of the evidence given by his co-accused, also in the absence of a lawyer, in particular when that had evidence played an important role in his conviction – as the statements of M.K. and V.Ç. had done in the present case. In the instant case, that shortcoming had been further exacerbated by the trial court’s decision to attach weight to those statements, without duly addressing or properly scrutinising the doubt stemming from their subsequent withdrawal.
Accordingly, the domestic courts had failed to apply the necessary procedural safeguards in line with the fair-trial guarantees under Article 6 § 1 in respect of the police statements and the evidence given by M.K. and V.Ç. In other words, the procedural defect identified in the first case – namely the trial court’s use of statements made by the applicant without any legal assistance – had been replaced by another defect in the reopened proceedings in the second case, which had undermined the overall fairness of the criminal proceedings against the applicant.
Conclusion: violation (five votes to two).
Article 41: EUR 7,800 in respect of non-pecuniary damage. Retrial most appropriate form of redress should the applicant so request.
(See also Mehmet Zeki Doğan v. Turkey, 38114/03, 6 October 2009; Moreira Ferreira v. Portugal (no. 2) [GC], 19867/12, 11 July 2017, Legal summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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