Information Note on the Court’s case-law No. 127
February 2010
Yoldaş v. Turkey - 27503/04
Judgment 23.2.2010 [Section II]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Voluntary and unequivocal waiver of right to assistance of a lawyer while in police custody: no violation
Article 6-3-c
Defence through legal assistance
Absence of legal assistance during police spot check at roadside: no violation
Facts – The applicant was held in police custody from 18 to 24 December 2003 on charges of membership of an illegal organisation. He was then brought before a judge who remanded him in custody. After several hearings before a National Security Court and following the abolition of these courts, the applicant’s case was referred for trial to the Assize Court, which in 2006 sentenced him to life imprisonment. That judgment was upheld by the Court of Cassation.
In his application to the European Court the applicant complained that he had not been assisted by a lawyer while in police custody.
Law – Article 5: The Court did not accept that it had been necessary to detain the applicant for six days before bringing him before a judge.
Conclusion: violation (unanimously).
Article 6 §§ 1 and 3 (c): Unlike in the case of Salduz v. Turkey ([GC], no. 36391/02, 27 November 2008, Information Note no. 113), the absence of a lawyer during the applicant’s time in police custody had not resulted from systematic application of the relevant legal provisions. A law enacted in July 2003 had lifted the restriction on the accused’s right to be assisted by a lawyer in proceedings before the National Security Courts. Hence, the applicant had been entitled in principle to request the assistance of a lawyer. Furthermore, the police had drawn up a report setting out his rights while in police custody and in particular his right to be assisted by a lawyer. After the report had been read, the applicant had been given a copy signed by him. Accordingly, despite having the right to be assisted by a lawyer while in police custody and having been reminded of that right, the applicant had refused assistance. It was clear from the statements obtained from him while in police custody that his decision to waive his right was to be regarded as free and voluntary.Accordingly, the waiver of his rights had been unequivocal and attended by the minimum safeguards. Furthermore, the applicant had given the same testimony before the judge and the public prosecutor, without denying the charges against him or the content of his testimony. In its judgment in 2006, the Assize Court had also taken into account the applicant’s change of stance, after he had denied some of the charges. It had excluded six offences from the case file on the ground that they were based solely on the applicant’s testimony and were not backed up by any other evidence. Accordingly, it had convicted the applicant on the basis of the remaining charges, which were corroborated and supported by evidence. The trial court had therefore scrupulously protected the applicant’s defence rights and nothing in the proceedings gave grounds to suspect that the waiver by the applicant of his right to be assisted by a lawyer while in police custody had not been free and unequivocal. Accordingly, the applicant had not been deprived of a fair trial within the meaning of Article 6 § 1 taken in conjunction with Article 6 § 3 (c).
Conclusion: no violation (four votes to three).
Article 41: EUR 1,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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