SECOND SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 38827/02
by Ahmet YAVUZ and Others
against Turkey
The European Court of Human Rights (Second Section), sitting on 21 November 2006 as a Chamber composed of:
MrJ.-P. Costa, President,
MrA.B. Baka,
MrI. Cabral Barreto,
MrR. Türmen,
MrM. Ugrekhelidze,
MrsA. Mularoni,
MsD. Jočienė, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application lodged on 30 September 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 January 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Ahmet Yavuz, Mr Abdurrahman Işık and Ms Behiye Öner, are Turkish nationals who were born in 1966, 1957 and 1957, respectively, and live in Izmir. They were represented before the Court by Mr S. Çetinkaya, a lawyer practising in Izmir. The Turkish Government did not designate an Agent for the purpose of the proceedings before the Court.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 29 July 2002 the applicants were taken into police custody by policemen from the Anti-Terrorism Department of the Izmir Security Directorate on suspicion of membership of the illegal PKK (the Kurdistan Workers’ Party). Subsequently, their houses were searched and the incident reports were signed by the applicants. During the search, the police found documents relating to the PKK. Magazines published by the PKK were also found in the first applicant’s house.
On the same day the applicants signed forms whereby their rights as detainees were explained to them. The forms included their right to inform one of their relatives about their detention and their right to request the assistance of a lawyer.
According to the custody records (nezaret kayıt defteri), the police informed Ms Sadiye Yavuz (the wife of the first applicant), Ms Türkan Işık (the wife of the second applicant) and Mr Metin Öner (the brother of the third applicant) about the applicants’ detention. Moreover, it was noted in these records that the applicants did not request the assistance of a lawyer.
In their police statements, the applicants accepted the charges against them. The first applicant gave a detailed description of his role in the PKK.
On 31 July 2002 the applicants were questioned by the Izmir State Security Court Public Prosecutor. Before the public prosecutor, the applicants denied the charges against them and refuted the statements they had made to the police. The same day the applicants were brought before an investigating judge at the Izmir State Security Court. They confirmed the statements which they had made to the public prosecutor. The court ordered the detention on remand of the first two applicants and released the third applicant.
By an indictment dated 5 August 2002, the public prosecutor initiated criminal proceedings against the applicants in the Izmir State Security Court. The first applicant was accused of membership of the PKK and the last two applicants were accused of aiding and abetting that organisation. The applicants were represented by their lawyers during the domestic proceedings.
On 19 December 2002, taking into account the illegal documents found in his house, the witness testimonies that confirmed his involvement in the illegal organisation and recalling the fact that he had been previously convicted of aiding and abetting the PKK in 1997, the Izmir State Security Court found the first applicant guilty of being a member of the PKK. It accordingly sentenced him to twelve years and six months’ imprisonment under Article 168 of the Criminal Code. The court further acquitted the second and third applicants of the charges against them.
The first applicant appealed. On 9 June 2003 the Court of Cassation, upholding the State Security Court’s reasoning and assessment of evidence, rejected the applicant’s appeal.
B. Relevant domestic law
The third paragraph of Article 128 of the Code of Criminal Procedure, as amended by Law no. 4744 of 6 February 2002, provides that, when a person is arrested, a family member or another person designated by the arrested person shall be promptly informed of the arrest or the prolongation of the custody period by the public prosecutor.
COMPLAINTS
The applicants complained that their families were not informed of their police custody.
The first applicant alleged under Article 6 § 3 of the Convention that he was deprived of his right to have legal assistance during his police custody.
THE LAW
A. The Government’s preliminary objection
The Government submitted that the applicants have failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. In this respect, they argued that the application was introduced while the domestic proceedings were still pending. They further maintained that the applicants could have sought compensation pursuant to Law no. 466 on the Payment of Compensation to Persons Unlawfully Arrested or Detained.
The Court does not consider it necessary to decide whether the applicants may be considered to have complied with the requirements of Article 35 § 1 of the Convention since the application should be declared inadmissible as being manifestly ill-founded for the following reasons:
B. Article 6 § 3 of the Convention in respect of the first applicant
The first applicant alleged under Article 6 § 3 of the Convention that he was deprived of his right to legal assistance while in police custody.
The Government contended that the applicant did not request legal assistance during the preliminary investigation.
The Court recalls that Article 6 § 3 applies even at the stage of the preliminary examination into an offence by the police. Accordingly, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of the police investigation. However, this right might be restricted for good cause. The question in each case is whether the restriction, 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, p. 54, § 63).
In the instant case, the first applicant’s right to have access to a lawyer during his police custody was restricted pursuant to domestic legislation. However, it is clear from the case file that, when brought before the public prosecutor and the investigating judge, the first applicant denied the charges against him and refuted the statement he had made to the police. It is also noted that the first applicant was represented at his trial and on appeal by his lawyer and had the opportunity to challenge the charges against him. The Court further observes that, when delivering its judgment, the State Security Court did not base itself solely on the applicant’s police statement but also took into account the several witness testimonies which confirmed his involvement in the illegal organisation, the illegal documents found in his house and his previous conviction for aiding and abetting the PKK.
As a result, the Court concludes that the first applicant’s lack of access to legal assistance during the preliminary investigation cannot be considered to have deprived him of a fair hearing within the meaning of Article 6 §§ 1 and 3 (c) of the Convention.
It follows that this complaint is manifestly-ill founded, and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Article 8 of the Convention
The applicants complained that their families were not informed of their police custody. They invoked Article 5 of the Convention in this respect.
The Government contended that the applicants were informed of their right to contact their relatives. Furthermore, they submitted copies of the custody records which indicate that the applicants’ relatives were indeed informed about the detention of the applicants.
The Court finds it more appropriate to examine the applicants’ complaint under Article 8 of the Convention.
The Court recalls that when a person is arrested, his ability to communicate rapidly with his family may be of great importance. The unexplained disappearance of a family member, even for a short period of time, may provoke great anxiety (see McVeigh and Others, O’Neill, and Evans v. the United Kingdom, nos. 8022/77, 8025/77 and 8027/77, Commission’s report of 18 March 1981, Decisions and Reports (DR) 25, p. 52, § 237).
However, in the instant case, the Court observes that at no stage during their custody did the applicants make a request to contact their families (see, Ahmet Mete v. Turkey, no. 77649/01, § 31, 25 April 2006). Furthermore, the the applicants did not bring any convincing explanation or any other opposing evidence which could call into question the accuracy of the custody records submitted by the Government.
The Court therefore concludes that the applicants’ complaint concerning the authorities’ alleged interference with their right to contact their family members during their police custody is unsubstantiated, and should be declared inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
Finally, having regard to the conclusions above, Article 29 § 3 of the Convention should no longer be applied to the case.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
S. DolléJ.-P. Costa
RegistrarPresident
Full & Egal Universal Law Academy