SECOND SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 12822/02
by Mehmet Emin ÖZKAN
against Turkey
The European Court of Human Rights (Second Section), sitting on 21 November 2006 as a Chamber composed of:
MrJ.-P. Costa, President,
MrI. Cabral Barreto,
MrR. Türmen,
MrM. Ugrekhelidze,
MrsA. Mularoni,
MrsE. Fura-Sandström,
MrD. Popović, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 13 March 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the partial decision of 4 October 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mehmet Emin Özkan, is a Turkish national who was born in 1939 and lives in Ceyhan. He was represented before the Court by Ms Y. Dora Şeker, a lawyer practising in Adana.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 11 November 1996 the applicant was taken into custody by police officers from the Mersin Security Directorate, on suspicion of being a member of the PKK (the Kurdistan Workers’ Party). The applicant was of Kurdish ethnic origin and illiterate. He thus had a poor command of Turkish. In the statement drafted by the police officers, and fingerprinted by the applicant, he gave a detailed account of his role in the activities of the PKK.
On 19 November 1996 he was brought before the Mersin Public Prosecutor. In his fingerprinted statement which was read out loud to him, he had accepted that he had provided food and shelter for some PKK members as they had threatened to kill his family and burn down their house. He refuted the statement given at the Security Directorate.
Later the same day, the applicant was brought before an investigating magistrate at the Mersin Magistrates Court. The accusations were explained to him through the assistance of an interpreter, who was a police officer by profession. In his submissions, the applicant denied being a member of the PKK. The court ordered his detention on remand.
On 15 November 1996 the applicant showed the police the residences of some PKK members. On the same day the applicant fingerprinted an on-site inspection report, drafted by the police officers.
On 3 December 1996 the Public Prosecutor at the Konya State Security Court filed an indictment against the applicant and eleven others, accusing them of being involved in the activities of the PKK, whose aim was to undermine the sovereignty of the Turkish State and to separate a part of its territory. He sought the death penalty for the applicant, under Article 125 of the Criminal Code.
On 19 May 1997 the Konya State Security Court was closed in accordance with the Law no. 4210, and the case was transferred to the Adana State Security Court.
At the initial five hearings held before the Adana State Security Court, the applicant was not present due to his poor state of health; however he was represented by his lawyer. The latter invited the court to arrange for an interpreter to be present at the subsequent hearings as his client did not know any Turkish. The court requested the office of the Chief Public Prosecutor to provide the applicant with the assistance of an interpreter who could translate between Kurdish and Turkish, at each hearing. It further held that all documents which had already been admitted to the case file had to be translated for the applicant.
On 24 March 1998 the applicant appeared before the Adana State Security Court for the first time. He replied in Turkish to all questions put by the judge regarding his personal data. The applicant’s lawyer reassured the court that, even though he himself had communicated with his client in Turkish, the applicant had difficulty to defend himself effectively in that language.
During the hearing the applicant was assisted by an interpreter, who was in fact a police officer from the Adana State Security Court. The interpreter translated for the applicant the statements of the co-accused, given at different stages of the proceedings, the minutes and reports concerning the alleged events and the statements of witnesses. The applicant refuted those documents containing allegations against him. He denied having any relations with the PKK. The applicant’s lawyer contended that all allegations against his client were based on mere assumptions. The applicant expressed, with the assistance of his interpreter, his agreement with his lawyer’s statements. The court held that the presence of the interpreter was necessary during all forthcoming hearings.
At the hearing of 21 May 1998, the applicant’s lawyer requested the court to extend the investigation. In his statements taken with the assistance of an interpreter, the applicant agreed with his lawyer’s request and continued to deny all allegations against him. The court rejected the lawyer’s request. It further held that, as it was intended to conclude the case at the next hearing, all the accused, as well as the interpreter, should be present.
On 18 June 1998 all the accused, except the applicant, were present before the court. The applicant, without presenting any justification, informed the court that he would not be present at the hearing. The Adana State Security Court found the applicant guilty as charged. It first sentenced him to death, pursuant to Article 125 of the Criminal Code, and then commuted the sentence to life imprisonment as there were mitigating circumstances.
On 3 February 1999 the Court of Cassation quashed the decision of the State Security Court.
On 29 July 1999 the trial was resumed before the Adana State Security Court. The applicant was present in court and submitted his written observations.
At the hearing of 21 October 1999, the applicant requested the court to appoint an interpreter to assist him during the hearings. However, at the following hearing, there was no interpreter. The court emphasised that, as the applicant “was not capable of pronouncing Turkish properly”, it was indispensable to have an interpreter present during the forthcoming hearings. The public prosecutor submitted his opinion on the case.
At the hearing of 23 December 1999, the court designated another police officer as the applicant’s interpreter. The applicant’s lawyer claimed that his client feared that the interpreter was not impartial due to his profession. The judge asked the applicant whether he would like to have the court appoint another interpreter. However, he approved the interpreter.
In his statements given with the assistance of the interpreter, the applicant denied the charges brought against him. He reiterated his lawyer’s and his own written and oral submissions, and requested to be acquitted.
On 10 February 2000 the interpreter translated for the applicant the written opinion of the public prosecutor. The applicant reiterated his previous statements and refuted the public prosecutor’s allegations. At the end of the hearing, the court convicted the applicant and sentenced him as before.
On 30 January 2001 the Court of Cassation quashed the decision of the State Security Court once again, maintaining that one of the incidents for which the applicant had been convicted was not included in the indictment. It also quashed the decision in relation to three of the co-accused.
On 3 May 2001 the case was once again resumed before the Adana State Security Court. On 28 June 2001 the Public Prosecutor filed an additional indictment with the court, accusing the applicant of being responsible for the killing of a brigadier general, under Article 125 of the Criminal Code. During the six initial hearings, the applicant, who was detained in prison, was not brought before the court. The applicant’s lawyer requested the court to ensure his client’s presence at the next hearing. Subsequently, without taking any substantial or procedural decision, the court rescheduled the hearing for a later date and ordered the prison authorities to bring the applicant to the court room.
At the hearing of 6 September 2001, both the applicant and his lawyer maintained that he no longer needed the help of an interpreter as he had learned Turkish during the years spent in detention on remand. The trial judge questioned the applicant and decided that the applicant had a good command of Turkish. The applicant therefore submitted his opinion in reply to the additional indictment dated 28 June 2001, without the assistance of an interpreter.
At the hearing of 25 October 2001 the applicant submitted his written observations. However, after listening to the opinion of the public prosecutor, he refused to make any oral submissions as his lawyer was not present.
On 8 November 2001 the judge enquired once again whether the applicant needed the assistance of an interpreter. The applicant maintained that he knew Turkish and submitted once again his written observations in which he refuted all allegations.
On 15 November 2001, in view of the statements of another accused, the court considered that it was necessary to file an additional indictment in relation to the applicant’s involvement in “the Lice incident” which had occurred on 22 September 1993.
On 12 December 2001 the Public Prosecutor filed an additional indictment against the applicant in relation to his involvement in armed clashes which had taken place between members of the PKK and the security forces, as well as his participation in terrorist raids on public buildings.
On 7 March 2002, relying on the statements and confessions of other accused, witness statements and the on-site inspection report, the court convicted the applicant under Article 125 of the Criminal Code and sentenced him to life imprisonment.
On 24 September 2002 the Court of Cassation upheld the decision of the Adana State Security Court. On 1 April 2004 the applicant’s lawyer was notified of the decision of the Court of Cassation.
COMPLAINTS
The applicant complained under Article 6 § 3 (c) of the Convention that he was not allowed to consult his lawyer during the preliminary stage of the proceedings. Similarly, he complained that the fact that he was not present before the court during most of the hearings was in breach of his defence rights.
The applicant further alleged, under Article 6 § 3 (e) of the Convention, that even though he did not know Turkish he was deprived of the assistance of an interpreter during most of the hearings held by the Adana State Security Court.
THE LAW
The applicant complained that he did not receive legal assistance during the preliminary stages of the proceedings and that he was deprived of the assistance of an interpreter during most of the hearings. He further complained that the prison authorities’ failure to bring him to the hearings had prevented him from exercising his defence rights properly. Article 6 provides, in so far as relevant:
“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; ...
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
The Court will examine the applicant’s complaints under Article 6 § 1 in conjunction with paragraph 3 (c) and (e).
a) lack of legal assistance during the preliminary investigation
The Government contended that this complaint should be dismissed for failure to exhaust domestic remedies.
The Court observes that the Government did not indicate the remedies which the applicant should have pursued. It therefore dismisses this preliminary objection.
The Government further argued that the applicant’s lack of access to legal assistance during the preliminary investigation was compensated at the later stage of the proceedings when he was represented by a lawyer before the domestic courts. The applicant contested this argument.
The Court has already had occasion to deal with similar cases in which applicants complained that they had been denied access to a legal adviser during the initial police questioning (see, among many others, Ahmet Mete v. Turkey, no. 77649/01, §§ 23- 28, 25 April 2006). The Court reiterates that Article 6 – especially paragraph 3 - may be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see, Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, p. 13, § 36). The manner in which Article 6 §§ 1 and 3(c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. The question is whether the lack of legal representation during the preliminary investigation, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing (John Murray v. the United Kingdom, judgment of 8 February 1996, Reports of Judgments and Decisions 1996‑I, § 63).
Turning to the facts of the present case, the Court notes that the applicant was represented by a lawyer before the State Security Court as well as the Court of Cassation and had the opportunity to challenge the allegations of the prosecution (see, mutatis mutandis, Mamaç and Others v. Turkey, nos. 29486/95, 29487/95 and 29853/96, § 48, 20 April 2004, Sarıkaya v. Turkey, no. 36115/97, § 67, 22 April 2004). It notes that there is no element in the case file to suggest that the fairness of the applicant’s trial was prejudiced on account of the fact that he did not have access to a lawyer during his period in custody. The State Security Court’s decision was not solely based on the applicant’s police statements, but on his statements given at a later stage of the proceedings, the statements and confessions of the co-accused and on the testimony of witnesses. It is clear from the case file that both the State Security Court and the Court of Cassation examined the case thoroughly before delivering their decisions on the basis of domestic law and the particular circumstances of the case.
The foregoing considerations are sufficient to enable the Court to conclude that the lack of legal assistance during the preliminary investigation did not deprive the applicant of a fair hearing within the meaning of Article 6 § 1. It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
b) prison authorities’ failure to bring the applicant before the court
The Government argued that it was the applicant’s wish not to be present at a number of hearings due to his poor state of health. They also alleged that, for some of the hearings at which the applicant was not present before the court, he had not submitted any justification for his absence.
The applicant argued that his poor state of health had prevented him from attending the court hearings on three occasions only. He further claimed that his state of health has deteriorated due to prison conditions.
The Court observes that more than thirty hearings were held before the Adana State Security Court. It notes that the prison authorities failed to bring the applicant before the court for a total of six consecutive hearings which were held between May and September 2001. It observes, however, that during these hearings his lawyer was present. Moreover, as a result of the applicant’s absence, the domestic court rescheduled the hearings without taking any substantial or procedural decision and requested that the applicant be present at the following hearing. In light of the above, the applicant’s absence during some of the hearings cannot, therefore, be considered to have deprived him of a fair trial within the meaning of Article 6 §§ 1 and 3 (c) of the Convention.
The Court concludes that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
c) lack of adequate interpretation at the applicant’s disposal
The Government alleged that, considering that the applicant gave his statements in Turkish during the preliminary investigation, it could be construed that his command of Turkish was sufficient to understand the charges brought against him and to participate effectively in the trial proceedings. Furthermore, they maintained that the applicant had been able to participate fully in the hearings with the help of the interpreter and his lawyer, and had said everything he wished to say in his defence.
The applicant disputed the Government’s allegation, maintaining that his lack of understanding of Turkish was taken into account by the authorities, since both the Mersin Magistrates Court and the Adana State Security Court had appointed an interpreter to assist him.
The Court reiterates that the interpretation right guaranteed by Article 6 § 3 (e) extends to all those documents or statements in the criminal proceedings which it is necessary for the accused to understand or to have rendered into the court’s language in order to have the benefit of a fair trail. The interpretation assistance provided should be such as to enable the accused to have knowledge of the case against him and to defend himself, notably by being able to put before the court his version of the events (see, among other authorities, Kamasinski v. Austria, judgment of 19 December 1989, Series A no. 168, p. 35, § 74).
The Court accepts that, as the applicant was of Kurdish ethnic origin and illiterate, his knowledge of Turkish might have been somewhat limited, despite the fact that he had lived in Turkey all his life. However, the fact that he had a certain command of the Turkish language was noted by the judge at the Adana State Security Court and confirmed by the applicant’s lawyer at the hearing of 24 March 1998. The Court also notes that, although the applicant was illiterate, he understood spoken Turkish, since he refuted his statement to police officers, when it was read out to him on 19 November 1996, at the office of the Public Prosecutor.
The Court observes that the applicant’s alleged lack of proficiency in Turkish became a live issue for the first time during the preliminary investigation, when the applicant was brought before the Mersin Magistrates Court and where he gave his statements with the assistance of an interpreter. Moreover, on 24 March 1998, at the first hearing at which the applicant was present, he was again assisted by an interpreter.
The interpretation between Turkish and Kurdish was arranged at most of the hearings. During these hearings the applicant made oral submissions and all the documents which were admitted to the case file were translated for him. The interpreter was not present in the court room to assist the applicant at three hearings, held between July and December 1999. During these three hearings, at which the applicant’s lawyer was also present, the applicant put forward written submissions in Turkish.
Furthermore, the Court notes that the applicant also complained in his application to the Court about the impartiality of the interpreter who was a police officer by profession. It observes that, after being assisted by a police officer acting as an interpreter on several occasions, at the hearing of 23 December 1999 the applicant’s lawyer claimed that his client feared that the interpreter was not impartial. According to the trial record, the applicant was asked by the court if he wished to change his interpreter. The applicant explicitly stated that he did not wish to do so. The proceedings therefore continued with the same interpreter.
The Court reiterates that waiver of the exercise of a right guaranteed by the Convention, insofar as such waiver is permitted in domestic law, must be established in an unequivocal manner (see Colozza v. Italy, judgment of 12 February 1985, Series A no. 89, pp. 14-15, § 28). The Court considers that the applicant, who was represented by legal counsel throughout the trial, could have been expected to agree with his lawyer and request the court to change his interpreter if he had really doubted his impartiality. The applicant did not do so, however, and the Court therefore finds that he can reasonably be considered to have waived his right (see, mutatis mutandis, Ozerov v. Russia (dec.), no. 64962/01, 3 November 2005). It follows that the applicant was afforded sufficient opportunity, with the assistance of an interpreter and through his defence counsel, to state his case and contest the allegations against him.
Additionally, the Court observes that, at the hearing of 6 September 2001, the applicant decided to submit his arguments without the assistance of an interpreter, claiming that he had learned Turkish during his years spent in detention on remand. By questioning the applicant, the judge verified that the applicant had sufficient language skills to participate effectively in the criminal proceedings.
In these circumstances, the Court finds that the interpretation assistance to the applicant was adequate for the purposes of Article 6 § 1 and 3 (e) of the Convention. It considers that the applicant was able to participate effectively in his trial and that, therefore, the criminal proceedings, taken as a whole, cannot be regarded as unfair.
Accordingly, the Court concludes that this complaint is also manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
Consequently, it is appropriate to end the application of Article 29 § 3 of the Convention to the present case.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy