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FORMER
SECOND SECTION
CASE OF KEMAL KAHRAMAN AND ALİ KAHRAMAN v. TURKEY
(Application
no. 42104/02)
JUDGMENT
STRASBOURG
26 April 2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Kemal Kahraman and Ali Kahraman v. Turkey,
The
European Court of Human Rights (Former Second Section), sitting as a
Chamber composed of:
Mr J.-P. Costa, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M.
Ugrekhelidze,
Mrs A. Mularoni,
Mrs E. Fura-Sandström,
Mr D.
Popović, judges,
and Mrs S. Dollé, Section
Registrar,
Having
deliberated in private on 5 December 2006 and 27 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42104/02) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Turkish nationals, Mr Kemal Kahraman and Mr Ali
Kahraman, on 21 October 2002.
- The
applicants were represented by Mr H. Tuna, Mr S. Kar, and Mr M.E.
Kaya, lawyers practising in Istanbul. The Turkish Government (“the
Government”) did not designate an Agent for the purposes of the
proceedings before the Court.
- On
8 April 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1967 and 1972 respectively. They are serving
sentences in Eskişehir Prison, Turkey.
- On
17 November 1999 the applicants, who were detained in Niğde
Prison for being members of the IBDA-C (Great East Islamic
Raiders-Front), allegedly incited an insurrection against the
prison administration. The prison officers together with soldiers
intervened in the uprising in order to bring it to an end. During the
incident the applicants and the security forces both sustained
injuries which were recorded in medical reports. The security forces
drew up an incident report after the operation.
- On
18 November 1999 the public prosecutor, prison director and prison
officers drew up a damage-assessment report concerning the incident.
- On
22 November 1999 the public prosecutor asked the applicants for their
statements. The applicants declared that they wished to make their
statements in the presence of their lawyers.
- On
18 and 23 November 1999, the public prosecutor took statements from
ten complainants who were prison officers and one complainant who was
a soldier.
- On
7 December 1999 the applicants gave their statements to the public
prosecutor with their lawyer present. The prosecutor asked the
applicants whether they had any arguments against the
damage-assessment report. The same day, an on-site investigation was
conducted inside the prison.
- On
28 December 1999 the public prosecutor filed an indictment with the
Niğde Criminal Court, accusing the applicants of insulting an
officer and of insurrection against the prison administration.
- On
3 January 2000 the Niğde Criminal Court held the first hearing
and demanded the presence of the complainants and the four accused,
including the applicants, at the following hearing.
- At
the second hearing on 21 March 2000, the Niğde Criminal Court
ascertained the applicants' identities and asked them to submit their
defence. The applicants maintained that they wished to make their
statements in the presence of their lawyers. Accordingly, the court
sent a letter to the public prosecutor's office requesting that
lawyers from the Niğde Bar Association be assigned to the
applicants. At the same hearing, the court took statements from the
prison officers who were involved in the incident.
- On
29 May 2000, two lawyers who were members of the Niğde Bar were
assigned to represent the applicants. However, they did not attend
any of the ensuing hearings.
- On
30 May 2000 the court noted that the applicants had been sent to
Bandırma Prison for administrative reasons. The court issued a
rogatory letter to the Bandırma Criminal Court, requesting that
the latter obtain the applicants' statements.
- On
2 November 2000 the Bandırma Criminal Court, acting under powers
delegated to it by the Niğde Criminal Court, pursuant to Article
226 § 4 of the Code of Criminal Procedure, took statements
from the applicants. According to the minutes of the Bandırma
Criminal Court, the applicants were reminded of their rights in
accordance with Article 135 of the Code of Criminal Procedure, which
also included the right to a lawyer. The applicants stated that they
were aware of their rights and would defend themselves.
- The
Niğde Criminal Court held six further hearings in the absence of
the applicants.
- On
24 October 2000 the Niğde Criminal Court noted that the
applicants' statements had been sent to it by the Bandırma
Criminal Court.
- On
22 November 2001 the Niğde Criminal Court, in absentia,
acquitted the applicants of insulting the prison officer, but
convicted them of insurrection against the prison administration. The
court relied on the applicants' statements, the statements of the
complainants, the on-site investigation report, the witness
statements and the experts' opinions. The applicants were each
sentenced to four years' imprisonment.
- On
14 March 2002 the applicants appealed against the judgment to the
Court of Cassation. In their appeal petitions, they stated that they
were only brought before the Niğde Criminal Court once, at the
beginning of the proceedings, when the court had only ascertained
their identities. They further maintained that the public
prosecutor's indictment had not been previously served on them, thus
preventing them from submitting their defence, and that they had
requested legal representation, which had not been forthcoming. They
finally submitted that they were not asked to submit their final
statements and the judgment was pronounced in their absence.
- On
25 June 2002 the Court of Cassation upheld the judgment of the Niğde
Criminal Court.
- On
1 June 2005 the new Criminal Code came into force. Consequently, the
Nigde Assize Court has scheduled a hearing for 20 March 2007 with a
view to adjusting the applicants' sentences, pursuant to the
provisions of the new Criminal Code.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3(c)
OF THE CONVENTION
- The
applicants complained under Article 6 §§ 1 and 3(c) of the
Convention of a breach of the principle of a fair trial as they had
been unable to appear at the hearings before the Niğde Criminal
Court, and that they had not had legal representation. Article 6
reads, in so far as relevant, 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: ...
(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; ....”
A. Admissibility
- The
Government asked the Court to reject these complaints for failure to
exhaust domestic remedies, as required by Article 35 § 1 of the
Convention. They maintained that the applicants had not raised the
substance of their complaints before the domestic courts at any
stage. They further alleged that, in any case, the applicants should
have applied to the Court within six months from the date on which
the Bandırma Criminal Court took their statements on behalf of
the Niğde Criminal Court.
- The
applicants stated that it was unrealistic to expect them to raise
their complaints before the Niğde Criminal Court as they had
never been presented before that court. They further maintained that
they had put the substance of their complaints in their petitions to
the Court of Cassation.
- The
Court observes that the applicants had indeed raised the substance of
their complaints in their appeal petition to the Court of Cassation
(paragraph 19 above), and had lodged their application with the Court
within six months of the Court of Cassation's decision on 25 June
2002. It therefore rejects the Government's preliminary objections.
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
a) Failure to bring the applicants before
the trial court
- The
Government observed that the applicants had given their statements to
the public prosecutor in the presence of a lawyer. Furthermore, they
were reminded of their rights under Article 135 of the Code of
Criminal Code by the Bandırma Criminal Court. However, the
applicants had opted to defend themselves and had not requested a
lawyer before the Bandırma Criminal Court, which had taken their
statements under delegated powers, pursuant to Article 226 of the
Code of Criminal Procedure. They submitted that the applicants had
thus enjoyed their rights of defence. They further alleged that the
applicants' statements were not the only evidence on which the Niğde
Criminal Court had based its finding.
- The
applicants disputed this argument.
- The
Court reiterates that the object and purpose of Article 6 of the
Convention, taken as a whole, implies that a person charged with a
criminal offence is entitled to take part in the hearing. Moreover,
sub-paragraph (c) of paragraph 3 guarantees to “everyone
charged with a criminal offence” the right “to defend
himself in person” and it is difficult to see how these rights
could be exercised without the person concerned being present at the
actual trial (see the Colozza v. Italy judgment of 12 February
1985, Series A no. 89, p. 14, § 27; Monnell
and Morris v. the United Kingdom judgment of 2 March 1987,
Series A no. 115, p. 22, § 58).
- The
Court observes that in the instant case the applicants were not
invited to attend the hearings before the Niğde Criminal Court
which sentenced them to four years' imprisonment. In accordance with
Article 226 § 4 of the Code of Criminal Procedure, the
Bandırma Criminal Court had been asked to take evidence from
them in their defence, under the powers delegated to it by the former
(paragraph 15 above).
- The Court finds that, contrary to the Government's
contention, the fact that the applicants raised no objections when
the Bandirma Criminal Court took their statements does not signify
that they implicitly waived their right to defend themselves or to
appear before the Niğde Criminal Court, since the waiver of the
exercise of a right guaranteed by the Convention must be established
in an unequivocal manner (see the Colozza judgment cited
above, p. 14, § 28, and Zana v. Turkey,
judgment of 25 November 1997, Reports of Judgments and Decisions
1997 VII, § 70).
- Consequently,
the Court considers that such an interference with the rights of the
defence cannot be justified, regard being had to the prominent place
held in a democratic society by the right to a fair hearing within
the meaning of the Article 6 § 1 of the Convention.
b) Lack of legal assistance during the
trial
- The
Government noted that the applicants had requested legal assistance
during the proceedings before the Niğde Criminal Court at the
hearing on 21 March 2000. In compliance with this request, that court
had sent a letter to the public prosecutor's office requesting that
lawyers from the Niğde Bar Association be assigned to the
applicants. On 29 May 2000, two lawyers who were members of the Niğde
Bar were assigned to represent the applicants. Thus the applicants
were provided with legal assistance in accordance with the case-law
of the Court and the national law. They alleged that, from then on,
it was the duty of the representatives, who had powers of attorney,
to fulfil their obligations and responsibilities. Therefore the
applicants' allegation that they were not in receipt of legal
assistance during the criminal proceedings was unfounded.
- The
applicants maintained their allegation.
- The Court reiterates that the appointment of defence
counsel in itself does not necessarily settle the issue of compliance
with the requirements of Article 6 § 3 (c). The Convention is
intended to guarantee not rights which are theoretical or illusory,
but rights which are practical and effective. Thus, mere nomination
does not ensure effective assistance since a lawyer appointed for
legal aid purposes may be prevented from performing, or shirk his or
her duties. If they are notified of the situation, the authorities
must either replace or oblige the lawyer to fulfil those duties (see
the Airey v. Ireland judgment of 9 October 1979, Series A
no. 32, pp. 12-13, § 24; Artico v. Italy, judgment
of 13 May 1980, Series A no. 37, p. 16, § 33).
Nevertheless,
a State cannot be held responsible for every shortcoming of a lawyer
appointed for legal aid purposes. It follows from the independence of
the legal profession that the conduct of the defence is essentially a
matter between the defendant and his counsel, whether counsel be
appointed under a legal aid scheme or be privately financed. The
Court considers that the competent national authorities are required
under Article 6 § 3 (c) to intervene only if a failure by legal
aid counsel to provide effective representation is manifest or
sufficiently brought to their attention in some other way (Kamasinski
v. Austria, judgment of 19 December 1989, Series A no. 168, §
67).
- Turning
to the circumstances of the present case, the Court notes that, upon
the request of the Niğde Criminal Court, the Niğde Bar
Association appointed two lawyers on 29 May 2000 to assist the
applicants with their case (paragraph 13 above). The Court observes
from the minutes of the six hearings held by the Niğde Criminal
Court that the lawyers did not attend any of them. It therefore
considers that the Niğde Criminal Court must have been aware of
the lawyers' failure to fulfil their obligations. The Court further
notes that the domestic court did not take any measures to ensure
that the lawyers comply with their duties.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the proceedings before the Niğde Criminal Court
did not comply with the requirement of fairness.
There
has consequently been a breach of Article 6 §§ 1
and 3(c) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants further alleged violations of Articles 10 and 14 of the
Convention without specifying any reasons.
- An
examination by the Court of the material as it has been submitted
does not disclose any appearance of a violation of these provisions.
It follows that this part of the application is manifestly-ill
founded and must be rejected pursuant to Article 35 §§ 3
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed a total of 11,256 new Turkish liras (YTL),
equivalent to 6,082 euros (EUR), in respect of pecuniary damage. They
also claimed non-pecuniary damage, but left the assessment of the
amount to the discretion of the Court.
- The
Government contested these claims as excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it accepts that the applicants must have suffered some
non-pecuniary damage as a consequence of their absence from the trial
and the lack of effective legal representation, which cannot be
sufficiently compensated by the finding of a violation. Ruling on
equitable basis, it awards each of the applicants EUR 2,000 in
respect of non-pecuniary damage.
- Furthermore,
the Court considers that, where an individual, as in the instant
case, has been convicted by a court in proceedings which did not meet
the Convention requirement of fairness, a retrial or a reopening of
the case, if requested, represents in principle an appropriate way of
redressing the violation (see Öcalan v. Turkey, no.
46221/99 [GC], § 210, in fine, ECHR 2005 - IV). In
this connection, it notes that the domestic court has scheduled a
hearing for 20 March 2007 only with a view to readjusting the
applicants' sentences in accordance with the provisions of the new
Criminal Code.
B. Costs and expenses
- The
applicants also claimed EUR 5,000 for their costs and expenses.
- The
Government contested the claim.
- On
the basis of the material in its possession and ruling on an
equitable basis, the Court awards the applicants, jointly, EUR 1,000
in respect of cost and expenses, less the EUR 850 received in legal
aid from the Council of Europe.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 6 §§
1 and 3 (c) admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 §§ 1 and 3 (c) of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros), each, in respect of non-pecuniary damage and EUR
1,000 (one thousand euros), jointly, in respect of costs and
expenses, less the EUR 850 (eight hundred and fifty euros) received
in legal aid from the Council of Europe, plus any tax that may be
chargeable, to be converted into new Turkish liras at the rate
applicable of the date of settlement;
(b) that
from the expiry of the abovementioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 26 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé J.-P. Costa
Registrar President
