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SECOND
SECTION
CASE OF DEMİRKAYA v. TURKEY
(Application
no. 31721/02)
JUDGMENT
STRASBOURG
13 October 2009
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 Demirkaya v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Dragoljub Popović,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31721/02) 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 a Turkish national, Mr Hasan Demirkaya (“the
applicant”), on 13 May 2002.
- The
applicant was represented by Mr M. Rollas, a lawyer practising in
İzmir. The Turkish Government (“the Government”)
were represented by their Agent.
- On
18 January 2008 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
- The
applicant was born in 1978 and lives in İzmir.
- On
8 October 2001, the applicant was taken into police custody in İzmir
on suspicion of aiding and abetting an illegal organisation, namely
the PKK (Kurdistan Workers' Party). During his police custody,
the applicant signed a form explaining arrested persons' rights,
whereby he was reminded of his right to remain silent. On 9 October
2001 the police officers interrogated the applicant at the
Anti-Terrorism department of the Izmir Security Directorate, in the
absence of a lawyer. The applicant admitted that he had aided and
abetted the PKK and acted as courier for the organisation. Another
accused, N.S. was also arrested in the course of the operation. In
his police statement, N.S. stated that he was a member of the PKK and
that he had stayed at the applicant's house when he had come to Izmir
and maintained that the applicant had acted as a PKK courier and
helped him in certain illegal activities.
- On
12 October 2001 the applicant was questioned by the public prosecutor
and he denied that he had been involved in the PKK. He also claimed
that he had signed his police statement without reading it.
- On
the same day, the applicant was brought before the investigating
judge, who questioned him and sixteen other suspects in relation to
their involvement in the PKK. The applicant's lawyer was also present
during the questioning. In his statement to the investigating judge,
the applicant denied all the charges against him. After the
interrogation, the applicant was placed in pre-trial detention on the
order of the judge.
- In
an indictment dated 19 October 2001, the Public Prosecutor at the
Izmir State Security Court charged the applicant and fifteen others
with aiding and abetting an illegal organisation. The charges were
brought under Article 169 of the Criminal Code and Article 5 of Law
no. 3713 (the anti-terrorist law).
- During
the trial, the applicant denied any connection with the PKK.
Furthermore N.S., one of the co-defendants, admitted to being a PKK
member before the court, but stated that although he had stayed at
the applicant's house when he had come to Izmir, the applicant did
not know that he was a PKK member. In this connection, N.S. rejected
his police statement, alleging that it had been taken under duress.
On 20 June 2002 the Izmir State Security Court convicted the
applicant as charged and sentenced him to three years and nine
months' imprisonment. In convicting the applicant, the Izmir State
Security Court relied on the applicant's police statement, which had
been taken in the absence of a lawyer. The court further took into
consideration the police statement of N.S. who had given evidence
that the applicant had been involved in the activities of the PKK. It
therefore concluded that the applicant's police statement, in which
he had admitted to his involvement in the PKK, had been confirmed by
other evidence in the case file.
- On
10 October 2003 the Court of Cassation dismissed the applicant's
appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- Relying
on Article 6 § 3 (c) of the Convention, the applicant complained
that he had been denied the assistance of a lawyer during his police
custody.
- The
Government argued in the first place that the applicant had failed to
comply with the six months time-limit. In their view, the six months
period should start running from 9 October 2001, the date on which
the applicant's police statement was taken. As regards the merits,
the Government submitted that the applicant had been assisted by a
lawyer during his questioning before the investigating judge on 12
October 2001 and thereafter during the subsequent criminal
proceedings.
- The Court recalls that, in
assessing whether or not a trial was fair, regard should be had to
the entirety of the proceedings (John
Murray v. the United Kingdom, 8
February 1996, § 63, Reports of
Judgments and Decisions 1996 I).
In the present case, the applicant lodged his application with the
Court within six months following the final decision of the Court of
Cassation that had been delivered on 10 October 2003, in accordance
with Article 35 § 1 of the Convention. Consequently, the
Government's objection cannot be upheld.
- The
Court further notes that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It also notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
- The
Court observes that the applicant's right of access to a lawyer was
restricted during his police custody pursuant to Section 31 of Law
no. 3842, as he was accused of committing an offence falling within
the jurisdiction of the State Security Courts. As a result, he did
not have access to a lawyer during his interrogation by the police
and the public prosecutor. Moreover, the Court observes that during
his police interrogation, the applicant accepted the charges against
him and this statement was subsequently used for his conviction by
the trial court. The Court takes note of the fact that the applicant
had legal representation during his questioning by the investigating
judge. However, in the present case, the applicant was undoubtedly
affected by the absence of a lawyer when his statement had been taken
by the police as, although the applicant repeatedly denied his police
statement, the State Security Court used this statement as the main
evidence. The Court further finds it significant that the police
statement of N.S., although retracted subsequently during the trial,
was also used to confirm the applicant's police statement.
- In
view of the foregoing, the Court considers that neither the
assistance provided by a lawyer during the interrogation by the
investigating judge, nor the adversarial nature of the subsequent
criminal proceedings could cure the defects which occurred during the
applicant's questioning by the police.
- The
Court therefore concludes that, even though the applicant had the
opportunity of being represented by a lawyer during his interrogation
by the investigating judge, the absence of a lawyer during his police
interrogation irretrievably affected his defence rights as his police
statement was used for his conviction (Salduz v. Turkey
[GC], no. 36391/02, §§56-62), 27 November 2008).
- There
has therefore been a violation of Article 6 § 3 (c) of the
Convention in conjunction with Article 6 § 1 in the present
case.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Relying
on Article 5 of the Convention, the applicant alleged that his family
was not informed of his arrest, that he had not been informed about
the reasons of his arrest, that he had not been able to challenge the
lawfulness of his police custody and that he had been held in police
custody for a long time. The applicant further invoked Article 13 of
the Convention and stated that Law no. 466 pertaining
to the payment of compensation to persons unlawfully arrested or
detained was not an effective remedy for his Article 5 complaints.
- The Court finds nothing
whatsoever in the case file which might 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
- The applicant requested 5,000
euros (EUR) in respect of pecuniary damage and EUR 10,000 in respect
of non-pecuniary compensation. He further claimed EUR 1,000 for costs
and expenses incurred before the domestic courts and EUR 3,800 for
legal fees, solely referring to the Izmir Bar Association's scale of
fees. The Government contested the claims.
- The Court does not discern any
causal link between the violation found and the pecuniary damage
alleged; it therefore rejects this claim. In respect of non-pecuniary
damage, ruling on an equitable basis, it awards EUR 1,000 to the
applicant.
- The
Court further considers that the most appropriate form of redress
would be the re-trial of the applicant in accordance with the
requirements of Article 6 § 1 of the Convention, should the
applicant so request (see, Salduz,
cited above, § 72).
- As
regards costs and expenses, aAccording
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the applicant has not
established that he actually incurred the costs claimed. Accordingly,
the Court makes no award under this head.
- 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 the
lack of legal assistance to the applicant during his police custody
admissible and the remainder of the application inadmissible;
- Holds that there has been
a violation of Article 6 § 3 (c) of the Convention in
conjunction with Article 6 § 1, on account of the lack of legal
assistance to the applicant when he was in police custody;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Turkish liras at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise
Elens-Passos Françoise
Tulkens
Deputy Registrar President
