SECOND SECTION
DECISION
Application no. 34176/11
Remziye YARDIMCI
against Turkey
The European Court of Human Rights (Second Section), sitting on 14 December 2021 as a Committee composed of:
Carlo Ranzoni, President,
Egidijus Kūris,
Pauliine Koskelo, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 22 April 2011,
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
1. The applicant, Ms Remziye Yardımcı, is a Turkish national who was born in 1980 and is detained in Van T-Type Prison. She was represented before the Court by Mr M. Rollas and Ms G. Uçar, lawyers practising in İzmir. By a letter dated 23 November 2020, the applicant informed the Court that her last name had been changed to Tezgel following her marriage. The Court advised the parties on 31 May 2021 that it would continue processing the application under the case name of Yardımcı v. Turkey. This corresponded to the applicant’s name as referred to in the domestic court proceedings in issue and in her application lodged with the Court.
2. The Turkish Government (“the Government”) were represented by their co-Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey.
The circumstances of the case3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 7 April 2006 a certain S.O., with the codename “Serhat”, was arrested within the scope of operations against the PKK/KONGRA‑GEL armed terrorist organisation in Mardin. In his statement at Mardin police station, S.O. provided information about the activities of the terrorist organisation and identified several of its members including the applicant, stating that her codename was “Norşin” and that she had participated in the bomb attack carried out in Kuşadası in April 2005. S.O. described the applicant physically and identified her from her photograph.
5. On 11 August 2006 police arrested V.T. and conducted a search at his hotel room, which yielded the discovery of the following items: (i) a bomb which was ready to explode; (ii) a large number of explosives; and (iii) material used for making bombs. In his interview, V.T. stated that he had been planning to carry out further attacks on behalf of the PKK with the applicant and a certain M.Ç.
6. On 12 August 2006, at 7 a.m., the police officers arrested the applicant and M.Ç. at Alanya Bus Terminal. When the applicant asked for a lawyer, a legal aid lawyer, A.A., was appointed to represent her. According to a report signed by the applicant and her lawyer, they had a meeting between 6 p.m. and 6.15 p.m.
7. Subsequently, the applicant made statements to the police in the presence of her lawyer and admitted to being a member of the PKK. She gave a detailed account of the activities in which she had taken part. In that connection, the applicant confessed that she had perpetrated, together with another member of the illegal organisation (M.T.), the bomb attack on 30 April 2005 in Kuşadası which had claimed the life of one police officer and had injured six others. The applicant went on to state that she and M.Ç. had been planning to carry out bomb attacks in cities in Turkey that were popular with tourists. The first page of the statement record indicated the applicant’s education level as “ignorant” (“cahil”) and every page of the record was signed by the applicant, who also placed her thumbprint thereon, and by her lawyer.
8. On 13 August 2006, at 2.55 p.m,. the applicant participated in a reconstruction of events in the presence of another lawyer appointed to represent her, namely M.K., and the public prosecutor; she gave an account of her acts in relation to the bomb attack in Kuşadası. The record of the reconstruction of events – signed by both the applicant and her lawyer – indicated that the applicant had met her lawyer and had been reminded of her rights.
9. On 14 August 2006 the applicant took part in a photo identification procedure in the presence of her lawyer, A.A., and identified M.T. from his photograph, stating that they had carried out the Kuşadası bomb attack together. The official report was signed by the applicant, who also placed her thumbprint thereon, and by her lawyer.
10. According to the medical reports drawn up at the beginning and end of the applicant’s police custody, there were no signs of assault or coercion on her body.
11. On 14 August 2006 the public prosecutor reminded the applicant of her basic rights before taking her statements in the presence of another lawyer, E.G.A. The applicant briefly reiterated the statements she had made to the police, adding that she regretted her actions. The statement record was signed by the public prosecutor, his clerk, the applicant and her lawyer.
12. On 15 August 2006 the Alanya Magistrate’s Court questioned the applicant and other suspects. The applicant was once again informed of her rights and she was questioned in the presence of yet another lawyer, D.A. The applicant briefly reiterated the statements she had made previously and stated that she felt remorseful. After questioning, the applicant was placed in pre-trial detention for, inter alia, membership of a terrorist organisation and undermining the unity and territorial integrity of the State. The applicant and her lawyer signed the record of her questioning. The back of the detention order contained the applicant’s name, surname and signature, as well as the following handwritten sentence in Turkish: “I request that my father, H. Yardımcı, be informed of my detention.”
13. On 25 August 2006 the İzmir public prosecutor’s office filed an indictment against the applicant, alleging that she had taken part in the Kuşadası bombing which had caused the death of one person and injuries to six others, and in the attempted bombing of a bar in Alanya on 21 July 2006. On that basis, the public prosecutor charged the applicant with the following offences:
(i) disruption of the unity and territorial integrity of the State (Article 302 § 1 of the Criminal Code);
(ii) possessing and carrying explosive materials without permission (Article 174 §§ 1 and 2 of the Criminal Code) and endangering public safety with intent (Article 170 § 1 (c) of the Criminal Code).
14. On an unspecified date the proceedings were commenced before the Tenth Division of the İzmir Assize Court (hereinafter “the trial court”), which had special jurisdiction to try a number of aggravated crimes enumerated in Article 250 § 1 of the Code of Criminal Procedure, as in force at the material time.
15. On 2 October 2006 the applicant’s lawyer, Mr Mustafa Rollas, filed a submission with the trial court and requested that the applicant be assigned an interpreter who spoke the Kurmanji dialect of Kurdish at an academic level to assist her at the trial stage, arguing that she was illiterate in Turkish.
16. On 27 October 2006 the applicant’s lawyers, Mr Rollas and T.Ç., submitted a power of attorney to the trial court authorising them to act as the applicant’s defence lawyers in the criminal proceedings. The power of attorney, which was in Turkish, contained the applicant’s signature and thumbprint along with the stamp of the relevant notary and the signature of the notary’s clerk. It appears that no interpreter was present during this act despite the fact that section 74 of the Notary Act requires the presence of an interpreter in cases where the person who is to give the power of attorney does not speak Turkish.
17. At the first hearing, held on 6 November 2006, the applicant gave evidence in the presence of her lawyer, Mr Rollas, and an interpreter, submitting that she had signed her police statements after the police officers had put pressure on her and pulled her hair. However, she had not understood the statements because she could not speak Turkish. In the same vein, the applicant stated that she had not participated in any investigative act, but that the police had brought pre-prepared documents, had taken her clothes off and had coerced her into signing the documents, stating that they would otherwise rape her in front of her fiancé and send naked photographs of her to her family. According to the hearing minutes, the applicant cried for a short while after describing her experience in the police station. Similarly, the applicant stated at the hearing that she had been obliged to sign her statements before the public prosecutor and the Magistrate’s Court owing to the presence of the police officers on both occasions. At the end of her oral evidence, the applicant further requested the trial court to arrange a confrontation with S.O.
18. When the judge asked her whether she had filed any complaint in respect of the civil servants, the police officers, the lawyers, the public prosecutor and the judge of the Magistrate’s Court involved in the investigation stage of the proceedings, the applicant answered in the negative. At the end of the hearing, the trial court decided to summon the persons who had drawn up the relevant reports at the investigation stage, in order to examine them as witnesses, and further ordered the collection of the relevant documents from the criminal proceedings against S.O.
19. At a hearing held on 29 December 2006 the applicant’s lawyer, Mr Rollas, submitted that he had filed official complaints against the police officers who had interviewed the applicant. He requested the trial court to revoke its decision to examine the persons who had signed the reports, arguing that no person would make any statement contradicting the reports drawn up by themselves. The trial court rejected that request.
20. On 31 January 2007 the Alanya Assize Court heard evidence from the police officers who had interviewed the applicant, the lawyer A.A. who had acted as the applicant’s lawyer during her police interview, the public prosecutor who had taken her statements, the clerk at the public prosecutor’s office, and the lawyer E.G.A. who had acted as the applicant’s lawyer during the interview before the public prosecutor. The witnesses testified that the applicant had spoken Turkish fluently and comprehensibly in the interviews and that she had not mentioned any inability to speak Turkish nor had she requested the assistance of an interpreter. The public prosecutor who had taken the applicant’s statements testified that the applicant had given detailed statements regarding the facts of the case, which he remembered very well owing to the significant nature of the events, and that it would be contrary to the ordinary course of life to allege that such lengthy and detailed information had been fabricated and recorded as her statements. Prior to giving evidence as witnesses, all the persons concerned were reminded, pursuant to Article 48 of the Code of Criminal Procedure, of their right not to testify owing to the risk of self-incrimination. However, they waived that privilege and opted to give evidence.
21. On 8 March 2007 the Diyarbakır Assize Court heard the applicant’s witnesses. Essentially, those witnesses stated that they did not know whether the applicant had participated in any terrorist activity, but that she had worked in the fields in the summer of 2005.
22. At a hearing held on 13 October 2009, the applicant’s lawyer submitted his defence submissions on the merits of the case, arguing, in particular, that the applicant did not acknowledge the evidence she had given during the investigation stage because at that point in time she had not been able to speak Turkish. The lawyer further requested that S.O. identify the applicant again.
23. On 25 December 2009 the trial court rendered its decision and convicted the applicant under Article 125 of the then Criminal Code for carrying out acts designed to bring about the secession of part of Turkey’s territory, finding it established that she had carried out the Kuşadası bombing. In so doing, the trial court relied on the statements the applicant had made to the police, the public prosecutor and the Magistrate’s Court in the presence of her respective lawyers, as well as on the report of the reconstruction of events together with the incident report, stressing that they were consistent with the applicant’s statements at the pre-trial stage. The trial court also found the applicant guilty of unlawful possession of explosives but acquitted her in respect of the attempted bombing in Alanya on the grounds of insufficient evidence.
24. Although the trial court reproduced in its decision the evidence given by S.O., it does not appear that it placed any reliance on it in convicting the applicant for the Kuşadası bombing and of possessing and carrying explosive materials without permission. As regards the applicant’s claim that she could not speak Turkish, the trial court noted that the allegations were not credible given that the individuals heard as witnesses had testified that they had heard her speaking fluently and comprehensibly in Turkish during the investigation. Accordingly, the trial court sentenced the applicant to life imprisonment under Article 125 of the then Criminal Code and to an additional term of imprisonment of nine years eight months and twenty days and a fine under Article 174 of the same Code.
25. On 26 December 2009 the applicant appealed against the trial court’s judgment, arguing, in particular, that she could not speak Turkish and did not accept the investigation proceedings, including her confession. The applicant also requested that S.O. should identify her again.
26. On 9 November 2010 the Court of Cassation upheld the trial court’s judgment.
Relevant domestic law27. A description of the relevant domestic law concerning the hearing of witnesses under the Code of Criminal Procedure (Law no. 5271) may be found in Süleyman v. Turkey (no. 59453/10, §§ 41-43, 17 November 2020).
28. Article 202 §§ 1 and 3 of the Code of Criminal Procedure, entitled “Cases where the presence of an interpreter is required”, reads as follows:
“(1) If the accused does not speak sufficient Turkish in order to express himself or herself, the essential points of the accusation and the defence shall be translated by an interpreter appointed by the court.”
“(3) The provisions of this Article are also applicable at hearings of the suspect, victim and witnesses in the investigation phase. The interpreter shall be appointed by the judge or the public prosecutor during this phase.”
29. Section 74 of the Notary Act (Law no. 1512) reads as follows:
“If the person concerned does not know Turkish, a certified interpreter shall also be present.”
THE LAW
Alleged violation of Article 6 §§ 1 and 3 (e) of the Convention30. Relying on Article 6 §§ 1 and 3 (a) and (e) of the Convention, the applicant complained that she had not been provided with an interpreter when she had made statements to the police, the public prosecutor and the judge of the Magistrate’s Court at the pre-trial stage.
31. Being the master of the characterisation to be given in law to the facts of a case (see S.M. v. Croatia [GC], no. 60561/14, § 243, 25 June 2020), the Court considers that these complaints must be assessed solely under Article 6 §§ 1 and 3 (e) of the Convention, which provides:
“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:
...
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”
The parties’ submissions(a) The applicant
32. The applicant complained that she had not been assisted by an interpreter when her statements had been taken during the pre-trial stage, alleging that at the time of her arrest she could neither speak Turkish nor read or write it. In support of that contention, the applicant pointed out that her level of education was indicated as “ignorant” in her police statement. She maintained that the documents drawn up during the investigation stage, which bore her signature and thumbprint, had not been written by her; thus, she had been unaware of their content. Similarly, she had not been able to communicate with her lawyers because she had been illiterate in Turkish. Lastly, the handwritten sentence on the back of the detention order had not been written by her.
33. The applicant further alleged that the trial court had accepted that she was illiterate in Turkish and had assigned her an interpreter as soon as she had asked for one. The trial court’s decision to obtain the testimonies of the persons who had taken part in the investigative acts carried out during the investigation stage had been incompatible with the Code of Criminal Procedure because it was not possible for a person to give a statement contradicting his or her earlier statements as contained in the official reports, since to do so would constitute an offence. As to the power of attorney that had been drawn up in Turkish, she had had no right to alter its content because it was a printed document and there had been no possibility to print it in a language other than Turkish. Lastly, the applicant submitted that she had completed two courses in Turkish literacy (beginner and intermediate level) while in prison (in 2009 and 2019), which proved conclusively that she had not spoken Turkish at the time of her arrest or initial detention.
(b) The Government
34. The Government argued that the applicant had been informed of her statutory rights as soon as she had been arrested and that she had availed herself of her right to legal assistance at all stages of the proceedings. The applicant had met her lawyer on 12 August 2005 from 6 p.m. to 6.15 p.m. prior to her police interview. The interview record had been drawn up in Turkish and signed by both the applicant and the lawyer. On the back page of the detention order of 15 August 2006, the applicant’s request that her father be informed of her detention had been handwritten in Turkish and, underneath that statement, the applicant’s name was written together with her signature. The applicant had neither alleged that she could not speak Turkish nor had she requested the assistance of an interpreter until 2 October 2006. In that connection, and as soon as she had requested an interpreter from the trial court, she had been provided with one who had assisted her throughout the remainder of the proceedings.
35. The Government also argued that the applicant had been defended by four different lawyers during the pre-trial stage and that she had not told any of them that she wished to be assisted by an interpreter. The trial court had obtained witness statements from the public officials, including the public prosecutor and the two lawyers who had taken part in the investigation, and all those witnesses had testified that the applicant could speak fluent and comprehensible Turkish. The Government further argued that the applicant had sent handwritten petitions containing her name and signature to the trial court on various dates. Lastly, the applicant had also given a power of attorney, which had been drawn up in Turkish and did not meet the criteria provided for by law in relation to powers of attorney given by persons who did not speak Turkish.
The Court’s assessment36. The general principles with regard to the right to an interpreter as protected by Article 6 § 3 (e) of the Convention may be found in Hermi v. Italy ([GC], no. 18114/02, §§ 68-72, ECHR 2006‑XII) and, more recently, in Vizgirda v. Slovenia (no. 59868/08, §§ 75-87, 28 August 2018).
37. The Court notes that it was the applicant’s contention that when she had made self-incriminatory statements and had taken part in certain investigative acts, she had not been assigned an interpreter despite being illiterate and unable to speak Turkish. In support of her allegation the applicant pointed out, firstly, that her education level had been indicated as “ignorant” (“cahil”) in the record of her police interview and that she had marked some of the reports drawn up during the investigation stage with her thumbprint. Secondly, the fact that she had followed and completed a Turkish literacy course in prison was proof that she had not known Turkish at the investigation stage.
38. The Court notes that according to the documents furnished by the parties, the applicant asked for an interpreter for the first time on 2 October 2006 (prior to the first hearing held on 6 November 2006 before the trial court) – that is one month and twenty-one days after her arrest – and the trial court granted that request. In other words, the applicant’s grievance solely concerned the investigation stage, and more particularly her police custody, to which the right set forth in Article 6 § 3 (e) of the Convention clearly applies (see Hermi, cited above, § 69). In that connection, the Court notes that unlike the applicants in Şaman v. Turkey (no. 35292/05, 5 April 2011) and Amer v. Turkey (no. 25720/02, 13 January 2009), who did not have access to a lawyer during their time in police custody, the applicant in the present case was represented by four different lawyers while in police custody, which is in principle a strong safeguard capable of ensuring that the defence rights of the interviewed suspect are not prejudiced (see, mutatis mutandis, Soytemiz v. Turkey, no. 57837/09, §§ 43‑46, 27 November 2018).
39. Furthermore, the Court is not convinced that the mere fact that the applicant put her thumbprint on the record of her police interview and the photo identification report (see paragraphs 7 and 9) is conclusive, given that those two documents also bore her signature. As regards the detention order of 15 August 2006, the back page of which contained a handwritten sentence in Turkish along with the applicant’s full name and a signature appended on her behalf, the Court notes that the Government did not expressly argue that it was the applicant who had written that sentence on the back of the detention order and/or had signed it, and the applicant firmly denied having written anything or put her signature on that document. As a result, the Court is not required to resolve this matter in a definitive manner; thus, it will not attach any weight to this point in its assessment.
40. That being said, the Court further observes that the applicant issued her lawyer with a notarised power of attorney from prison on 26 October 2006. The power of attorney was drawn up in Turkish and signed by her in the absence of an interpreter, despite the fact that the presence of an interpreter is a statutory condition in the case of persons who do not speak Turkish (section 74 of the Notary Act). In the Court’s view, the applicant’s argument that a power of attorney could only be drawn up in Turkish appears to justify the legal requirement for an interpreter rather than to support her contention in that regard, and calls for an explanation on her part as to why she signed a document that was drawn up in a language she was unable to read, write or speak.
41. Be that as it may, the Court attaches decisive importance to the steps taken by the trial court to throw light on the applicant’s alleged inability to benefit from the assistance of an interpreter during the investigation stage, after being apprised thereof at the first hearing. Thereupon, the trial court summoned as witnesses: two of the lawyers who had represented the applicant when she had made statements to the police and the public prosecutor; the two police officers who had interviewed her; and the public prosecutor and his clerk, with a view to verifying the well-foundedness of her contention (compare Amer, cited above, § 83). Significantly, all those who testified confirmed that the applicant had been fluent in Turkish when she had given evidence during the investigation stage. On that basis, the trial court rejected the applicant’s contention after subjecting it to an individualised and meticulous assessment in an adversarial manner.
42. While the applicant argued that those witnesses could not in any event make any statement that would contradict the official reports containing their signatures, the Court observes that the persons in question had been reminded, prior to their examination as witnesses, of their right not to testify owing to the risk of self-incrimination, in accordance with Article 48 of the Code of Criminal Procedure. However, all the persons concerned waived that privilege and opted to give evidence. Accordingly, the applicant’s argument on this point is untenable and the Court rejects it.
43. Against this background, sight should also not be lost of the fact that the applicant did not file any formal complaints in respect of the lawyers who had represented her during the pre-trial stage, until after the trial court inquired about this issue at the first hearing. No satisfactory explanation was given for the length of time that elapsed before a complaint was made. Similarly, it does not appear that the applicant alleged that she had had any difficulty communicating with her lawyers. Moreover, it does not escape the Court’s attention that although the applicant alleged that she had been enrolled on a Turkish literacy course in prison, she failed to explain why she had done so without being able to speak that language.
44. In view of the foregoing considerations, the Court concludes that the applicant has failed to make out a credible and genuine claim as regards her alleged illiteracy or inability to speak Turkish during her time in police custody. This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
Alleged violation of Article 6 §§ 1 and 3 (d) of the Convention45. The applicant complained that she had been unable to confront and examine the witness S.O. during the criminal proceedings, contrary to her right to a fair trial. The relevant parts of Article 6 §§ 1 and 3 (d) of the Convention read as follows:
“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:
...
(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;
...”
The parties’ submissions(a) The applicant
46. The applicant complained that she had not been able to confront and examine S.O. during the criminal proceedings despite there having been no legal obstacle to it. According to the applicant, her conviction had rested on two elements: the evidence given by S.O. and the evidence she had given while in police custody. Her alleged codename “Norşin”, indicated in her police interview record, had also been obtained from the testimony of S.O. Not only had the trial court admitted in evidence the statements given by S.O. and the identification made by him, but it had also used them in its reasoned decision to convict her, in breach of her rights under Article 6 § 3 (d) of the Convention.
(b) The Government
47. The Government submitted that the applicant’s identification by S.O. and the statements he had made in respect of her had not been among the evidence relied on by the trial court to convict the applicant. Indeed, the trial court had delivered its decision mainly on the basis of the statements the applicant and V.T. (the co-accused) had made in the presence of their lawyers. Accordingly, when viewed in its entirety, the criminal trial against the applicant had been in compliance with Article 6 of the Convention.
The Court’s assessment48. The general principles with regard to complaints relating to the examination of absent witnesses and the use by the courts of the evidence given by those witnesses may be found in Schatschaschwili v. Germany ([GC], no. 9154/10, § 100-31, ECHR 2015) and Al-Khawaja and Tahery v. the United Kingdom ([GC], nos. 26766/05 and 22228/06, §§ 118‑47, ECHR 2011; see also Seton v. the United Kingdom, no. 55287/10, §§ 57‑59, 31 March 2016, for a concise summary of those principles). In sum, the above-mentioned principles lay down a tripartite test whereby the Court is required to examine: (i) whether there was a good reason for the non-attendance of the absent witness at the trial; (ii) whether the evidence given by the absent witness was the sole or decisive basis for the applicant’s conviction or carried significant weight in that regard; and (iii) whether there were sufficient counterbalancing factors to compensate for the handicaps under which the defence laboured vis‑à‑vis the evidence given by the absent witness. Moreover, the Court has also pointed out that, as with all complaints under Article 6 § 3 of the Convention, the defendant’s inability to examine a witness should be assessed in the light of the impact that it has had on the overall fairness of his trial (see Šmajgl v. Slovenia, no. 29187/10, § 61, 4 October 2016).
49. In the present case the Court notes that the trial court found the applicant guilty of placing a bomb on 30 April 2005 in Kuşadası which caused the death of one police officer and injuries to six others and of unlawful possession of explosives. In doing so, the trial court expressly referred to the statements which the applicant had made to the police, the public prosecutor and the Magistrate’s Court during the investigation stage, as well as the evidence she had given during the reconstruction of the events and the incident report concerning the bombing. Significantly, the trial court did not rely on the evidence given by S.O. to establish the applicant’s guilt in respect of the Kuşadası bombing or the charge of unlawful possession of explosives. In any event, the evidence given by S.O. as regards the Kuşadası bombing consisted merely of his relaying the information he had heard from the applicant. Moreover, S.O.’s statements did not contain any elements in addition to those acknowledged by the applicant in her statements made during her time in police custody and in the presence of the lawyers assigned to her.
50. In view of the above, the Court is free to dispense with the tripartite test – as established and developed in Al-Khawaja and Tahery and Schatschaschwili (both cited above) – in the present case, where the evidence of the absent witness was not used to secure the applicant’s conviction in respect of the bombing or the unlawful possession of explosives, despite its admission by the domestic courts (see Salogub v. Ukraine (dec.) [Committee], no. 21971/10, § 41, 10 December 2019). Consequently, the Court finds that the applicant’s inability to examine S.O. did not have any impact on the overall fairness of the criminal proceedings against her, let alone an irremediable one (see, mutatis mutandis, Mehmet Ali Eser v. Turkey, no. 1399/07, §§ 41 and 56-59, 15 October 2019).
51. This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 20 January 2022.
Hasan Bakırcı Carlo Ranzoni
Deputy Registrar President