BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF ÇİMEN v. TURKEY
(Application
no. 19582/02)
JUDGMENT
STRASBOURG
3 February 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 Çimen v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 13 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19582/02) 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 Ali Çimen (“the
applicant”), on 8 December 2001.
- The
applicant was represented by Mr M. İşeri, a lawyer
practising in Izmir. The Turkish Government (“the Government”)
were represented by their Agent.
- On
13 March 2007 the Court declared the application partly inadmissible
and decided to communicate to the Government the complaints
concerning the lack of legal assistance to the applicant during his
police custody and the non-communication of the written opinion of
the Principal Public Prosecutor at the Court of Cassation. It also
decided to examine the merits of the application at the same time as
its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Izmir.
- On
17 April 2000 the applicant was taken into custody by police officers
from the Anti-Terrorist Branch of the Izmir Security Directorate on
suspicion of his involvement in the activities of an illegal armed
organisation.
- On
the same day, the applicant was interrogated at the Anti-Terrorist
branch in the absence of a lawyer. According to a form explaining
arrested persons' rights which the applicant had signed, he had been
reminded of the charges against him and of his right to remain
silent. In his statement, the applicant admitted to his involvement
in the illegal armed organisation.
- On
20 April 2000 the applicant was brought before the public prosecutor
and subsequently the investigating judge at the Izmir State Security
Court. Before the public prosecutor and the judge, again in the
absence of a lawyer, the applicant admitted that he had participated
in certain activities of the illegal armed organisation.
- On
the same day, the applicant's lawyer requested to visit him; however
this request was rejected by the Public Prosecutor.
- On
2 May 2000 the Public Prosecutor at the Izmir State Security Court
filed a bill of indictment with that court, accusing the applicant of
aiding and abetting an illegal organisation. He requested that the
applicant be sentenced and convicted under Article 169 of the
Criminal Code and Section 5 of the Prevention of Terrorism Act
(Law no. 3713).
- On
5 December 2000 the Izmir State Security Court convicted the
applicant as charged and sentenced him to three years and nine
months' imprisonment. In its decision, the court attached particular
importance to the applicant's statements to the investigating judge.
- On
25 December 2000 the applicant appealed. On an unspecified date, the
Principal Public Prosecutor at the Court of Cassation submitted his
written opinion. This opinion was not served on the applicant or his
representative. On 11 June 2001, the Court of Cassation, upholding
the reasoning and assessment of the Izmir State Security Court,
dismissed the applicant's appeal.
II. RELEVANT DOMESTIC LAW
- A
description of the relevant domestic law may be found in Salduz
v. Turkey judgment ([GC], no. 36391/02, §§ 27-31,
27 November 2008) and Göç v. Turkey judgment
([GC], no. 36590/97, §§ 27-32, ECHR 2002 V).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 §§ 1 and 3 (c) of the
Convention that the written opinion of the Principal Public
Prosecutor at the Court of Cassation had not been communicated to
him, and that he had been denied the assistance of a lawyer while in
police custody. Article 6 §§ 1 and 3 (c) of the
Convention, in so far as relevant, 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: ...
(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. The
non-communication of the written opinion of the Principal Public
Prosecutor at the Court of Cassation
- Relying
on Article 6 § 1 of the Convention, the applicant complained
that the written opinion of the Principal Public Prosecutor at the
Court of Cassation had not been communicated to him.
- The
Government submitted that the written opinion of the Principal Public
Prosecutor was not binding on the Court of Cassation, as it was free
to decide on appeals regardless of the Prosecutor's opinion. They
further maintained that the applicant's representative had had the
right to consult the case file and examine the documents. Finally,
the Government pointed out that, on account of the recent amendment
of 27 March 2003, Article 316 of the Code of Criminal Procedure
now provides that the written opinion of the Principal Public
Prosecutor of the Court of Cassation must be sent to the parties.
1. Admissibility
- The
Court notes in the first place that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
- It
further observes that it has already examined the same grievance in
the case of Göç and found a violation of Article 6
§ 1 of the Convention (cited above, §§ 55-58). In that
judgment, the Court held that, having regard to the nature of the
principal public prosecutor's submissions and to the fact that the
applicant had not been given an opportunity to make written
observations in reply, there had been an infringement of the
applicant's right to adversarial proceedings.
- The
Court has examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned Göc judgment.
- Accordingly,
there has been a violation of Article 6 § 1 of the Convention.
B. Access to a lawyer during police custody
1. Admissibility
- The
Government maintained in the first place that the applicant had not
exhausted domestic remedies as required by Article 35 § 1 of the
Convention, since at no stage of the domestic proceedings did he rely
on the fact that he had been deprived of his right to legal
assistance during police custody. In the alternative, they stated
that this part of the application was introduced outside the six
months time-limit, since the applicant's police custody had ended on
20 April 2000, whereas the application was introduced on 8 December
2001 with the Court.
- The
Court notes that the restriction imposed on the applicant's right of
access to a lawyer was in accordance with section 31 of Law no. 3842,
and applied to anyone held in police custody in connection with an
offence falling under the jurisdiction of the State Security Courts.
Furthermore, the Court observes from the documents in the case file
that, on 20 April 2000, the applicant's lawyer applied to the Public
Prosecutor at the Izmir State Security Court for permission to see
the applicant; however this request was rejected. Moreover, in his
petition submitted to the Izmir State Security Court on 4 December
2000, the applicant's lawyer stated that the restriction on the
applicant's right to legal assistance had constituted a breach of
Article 6 of the Convention. Accordingly, the Court rejects the
Government's preliminary objection regarding remedies.
- As
to the objection concerning the failure of the applicant to comply
with the six months time-limit, the Court recalls that, in assessing
whether or not the trial was fair, regard should be had to the
entirety of the proceedings (see 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 of the
delivery of the final decision by the Court of Cassation. He
therefore lodged his application to the Court within the six months
time-limit, as required by Article 35 § 1 of the Convention. In
conclusion, this objection cannot be upheld either.
2. Merits
- The
applicant stated that the restriction on his right to legal
assistance during his police custody had breached his right to a fair
trial. He argued that the domestic court judgment was based on his
statement given before the investigating judge, which was taken in
the absence of a lawyer.
- The
Government argued that the applicant had been represented by a lawyer
during the proceedings and his statement to the investigating judge
was not the sole basis for his conviction.
- The
Court reiterates the basic principles laid down in the case of Salduz
(cited above, §§ 50-55). It will examine the present case
in the light of those principles.
- The
Court repeats that, in the present case, the restriction imposed on
the applicant's right of access to a lawyer was systematic and
applied to anyone held in police custody in connection with an
offence falling under the jurisdiction of the State Security Courts.
Even though the applicant repeatedly denied the content of his
statements taken during this initial period of detention, the Izmir
State Security Court used his statement taken before the
investigating judge for his conviction. Thus, in the present case,
the applicant was undoubtedly affected by the restrictions on his
access to a lawyer. Therefore, neither the assistance provided
subsequently by a lawyer not the adversarial nature of the ensuing
proceedings could cure the defects which had occurred earlier.
- In
sum, even though the applicant had the opportunity to challenge the
evidence against him at the trial and subsequently on appeal, the
absence of a lawyer while he was in police custody irretrievably
affected his defence rights.
- 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. 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.”
- The
Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part”.
- In
the instant case, the applicant failed to submit his claims for just
satisfaction within the prescribed time-limit, and they were not,
therefore, admitted to the file.
- Nevertheless,
where the Court finds that an applicant has been convicted in
criminal proceedings which were found to be in breach of Article 6
§ 1 of the Convention, it considers that, in principle, the most
appropriate form of relief would be to ensure that the applicant, as
far as possible, be put in the position in which he would have been
had this provision not been disregarded (see Şirin v. Turkey,
no. 47328/99, § 30, 15 March 2005). The
Court therefore 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, mutatis mutandis, Gençel
v. Turkey, no. 53431/99, § 27, 23 October 2003,
and Salduz, cited above, § 72).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention, in respect of the non-communication to
the applicant of the written opinion of the Principal Public
Prosecutor at the Court of Cassation;
- 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 while
he was in police custody;
- Dismisses the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 3 February 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
