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SECOND
SECTION
CASE OF SAPAN v. TURKEY
(Application
no. 17252/09)
JUDGMENT
STRASBOURG
20 September 2011
This
judgment is final but it may be subject to editorial revision.
In the case of Sapan v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a
committee composed of:
Dragoljub Popović,
President,
András Sajó,
Paulo Pinto
de Albuquerque, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 30 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17252/09) 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 Lokman Sapan (“the
applicant”), on 4 March 2009. The applicant was represented by
Mr İ. Akmeşe, a lawyer practising in Istanbul.
The Turkish Government (“the Government”) were
represented by their Agent.
- On
26 May 2010 the President of the Second Section decided to give
notice of the application to the Government. In accordance with
Protocol No. 14, the application was allocated to a Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1978 and lives in Istanbul.
- On
11 March 2003 the applicant was taken into police custody by police
officers from the Anti-Terrorism Branch of the Istanbul Security
Directorate on suspicion of membership of an illegal organisation,
namely the KADEK (the Kurdistan Freedom and Democracy Congress).
- On
13 March 2003 he was interrogated at the Anti-Terrorism 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, he admitted his membership of DEHAP (the Democratic
People’s Party) and his involvement with the youth branch of
HADEP (the People’s Democracy Party). He further stated that in
2000 he had attempted to go to the camps of the PKK (the Kurdistan
Workers’ Party) in Iran, but was caught by the gendarmerie in
Van before he could cross the border. The applicant admitted that he
had participated in a number of demonstrations organised by DEHAP,
where he had chanted slogans in support of Öcalan and the PKK.
However, he refused to make a statement regarding his involvement in
an illegal demonstration organised in Bahçelievler, Istanbul,
on 12 March 2003, where the demonstrators had shouted
slogans in support of the PKK and had vandalised banks and shops.
- In
the meantime, on 13 March 2003 the applicant saw his lawyer from
10.30 to 10.55 a.m. It is not possible to ascertain from the
documents in the case file whether this meeting took place prior to
or after the police questioning or what the meeting involved.
- On
15 March 2003 the applicant was brought before the Public Prosecutor
at the Istanbul State Security Court in the absence of a lawyer,
where he only partially verified his police statement. He explained
that, although he was a member of DEHAP, he had never undertaken any
actions to aid and abet KADEK and that he disapproved of the violent
acts carried out by this organisation. He denied having chanted
illegal slogans in any of the demonstrations in which he had
participated in the past. He also denied having taken part in the
demonstration of 12 March 2003.
- On
the same day the applicant’s lawyer requested to see the
applicant and to examine the investigation file. The Istanbul State
Security Court dismissed the lawyer’s requests, relying on the
relevant provisions of the Code of Criminal Procedure in force at the
material time (Law no. 1412), which denied these rights to persons
accused of offences falling within the jurisdiction of State Security
Courts at that stage of the proceedings.
- Later
on the same day the applicant was interrogated by a single judge at
the Istanbul State Security Court, in the presence of his lawyer,
where he repeated the statements he had made before the public
prosecutor. Denying all the accusations against him, the applicant
retracted his statement to the police, which had allegedly been
extracted under duress. His lawyer added that the demonstrations
about which the applicant had been questioned had all been lawful
events. After the questioning was over, the judge ordered the
applicant’s pre-trial detention.
- On
20 March 2003 the Public Prosecutor at the Istanbul State Security
Court filed an indictment with that court, accusing the applicant and
six other persons with membership of the PKK and KADEK, an offence
under Article 168 (2) of the former Criminal Code (Law no. 765) and
Section 5 of the Prevention of Terrorism Act (Law no. 3713).
- On
11 June 2003 the State Security Court held its first hearing, in the
presence of the applicant and his lawyer. It heard evidence from the
applicant in person, who denied the charges against him. He also
rejected his police statement, alleging that it had been extracted
from him under duress. The State Security Court ordered the
applicant’s release at the end of this hearing.
- By
Law no. 5190 of 16 June 2004, published in the Official Gazette on 30
June 2004, State Security Courts were abolished. The case against the
applicant was therefore transferred to the Istanbul Assize Court.
- On
25 April 2007 the Eleventh Chamber of the Istanbul Assize Court
convicted the applicant as charged.
- On
16 June 2009 the Court of Cassation upheld the judgment of the
first-instance court.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law and practice in force at the material time can
be found in Salduz v. Turkey ([GC], no. 36391/02, §§
27-44, 27 November 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 3 (c) OF THE
CONVENTION
- Relying
on Article 6 §§ 1 and 3 of the Convention, the applicant
complained that he had been denied the assistance of a lawyer during
his detention in police custody, as well as before the public
prosecutor, and that his police statement which had been taken in the
absence of a lawyer and which had involved self-incriminating
statements had been used in his conviction by the trial court.
- The
Government argued that the applicant could not claim to be a victim
within the meaning of Article 34 of the Convention because, despite
his allegations to the contrary, he had seen his lawyer on 13 March
2003 prior to his questioning by the police, albeit briefly. In the
alternative, the Government asked the Court to reject this complaint
for failure to comply with the requirement of exhaustion of domestic
remedies under Article 35 § 1 of the Convention
on the ground that the applicant had failed to raise it before the
domestic courts.
-
As regards the Government’s first preliminary objection, the
Court notes that the question whether the applicant can be considered
to have lost his victim status with respect to his complaint under
Article 6 § 3 (c) of the Convention on account of his apparently
brief meeting with his lawyer while in police custody is closely
linked to the substance of the applicant’s complaint. The Court
therefore joins the Government’s objection on this point to the
merits (see, mutatis mutandis, Ümit Gül v.
Turkey, no. 7880/02, § 63, 29 September 2009).
- As
to the Government’s plea of non-exhaustion, the Court
reiterates that it has already examined and rejected the Government’s
preliminary objections in similar cases (see, in particular, Halil
Kaya v. Turkey, no. 22922/03, § 14, 22 September 2009).
The Court finds no particular circumstances in the instant case which
would require it to depart from its findings concerning the
above-mentioned application.
- The
Court notes that this part of the application 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.
- As
regards the merits, the Court observes from the documents in the case
file that the applicant indeed saw a lawyer on 13 March 2003 for a
short period of time, between 10.30 and 10.55 a.m. It is not,
however, possible to discern from the documents in the case file
whether this meeting took place before or after the applicant made
his police statement, or what it involved. What is, however, clear to
the Court is that the applicant’s lawyer had not been allowed
to examine the investigation file at that point (see paragraph 8
above), which would seriously hamper her ability to provide any sort
of meaningful legal advice to the applicant. The Court further notes
that it is undisputed between the Parties that the applicant had no
legal assistance at the time of making his police statement or during
the interrogation before the public prosecutor. In this connection,
the Court recalls that in its Salduz judgment (cited above, §§
54-55), it underlined the importance of the investigation stage for
the preparation of the criminal proceedings, as the evidence obtained
during this stage determines the framework in which the offence
charged will be considered at the trial. In order for the right to a
fair hearing to remain sufficiently “practical and effective”,
Article 6 § 1 requires, as a rule, access to a lawyer as from
the first interrogation of a suspect by the police, unless it is
demonstrated in the specific circumstances of the particular case
that there are compelling reasons to restrict this right. Having
regard to the foregoing, and bearing in mind that at the time of the
applicant’s detention in police custody the restriction imposed
concerning access to a lawyer was systemic, pursuant to 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, the Court concludes that although the
applicant met his lawyer during police custody for a brief period,
this meeting cannot be considered to have been sufficient by
Convention standards (see for similar cases, Fatma Tunç v.
Turkey (no. 2), no. 18532/05, § 14, 13 October 2009;
Hüseyin Habip Taşkın v. Turkey, no. 5289/06,
§ 21, 1 February 2011).
- In
the light of the foregoing factors and conclusions, the Court
dismisses the Government’s objection that the applicant lacked
victim status.
- The
Court further observes that it has already examined the issue
concerning the lack of legal assistance in police custody in the case
of Salduz (cited above, §§ 56-62) and found a
violation of Article 6 § 3 (c) of the Convention in conjunction
with Article 6 § 1. It finds no particular circumstances which
would require it to depart from its findings in the aforementioned
Salduz judgment.
- 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. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE
CONVENTION
- The
applicant complained under Articles 6 § 1 and 13 of the
Convention that the length of the criminal proceedings against him
had been incompatible with the “reasonable time”
requirement and that there had been no effective remedies in domestic
law in respect of his Convention grievances.
- The
Government argued that the applicant had failed to exhaust domestic
remedies within the meaning of Article 35 § 1 of the Convention
as he had not raised the substance of his complaints before the
national authorities.
- The
Court notes that the Government’s objection is closely linked
to the merits of the applicant’s complaint under Article 13 of
the Convention that there had not been an effective domestic remedy
whereby he could challenge the excessive length of the proceedings in
dispute. It follows therefore that this issue should be joined to the
merits of the case (see Daneshpayeh v. Turkey, no. 21086/04, §
24, 16 July 2009).
- The
Court further notes that these complaints are not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. Nor are they inadmissible on any other grounds. They must
therefore be declared admissible.
- As
regards the merits of the complaint under Article 6 § 1 of the
Convention, the Government submitted that the length of the
proceedings could not be considered to be unreasonable in view of the
complexity of the case, the number of the accused and the nature of
the offence with which the applicant was charged.
- The
Court notes that the criminal proceedings in question commenced on
11 March 2003 when the applicant was taken into police custody,
and ended on 16 June 2009 when the Court of Cassation delivered its
final decision. They thus lasted six years, three months and eight
days before two levels of jurisdiction.
- Having
examined all the material submitted to it, the Court considers that
the length of the proceedings was excessive and failed to meet the
“reasonable time” requirement (see Daneshpayeh,
cited above, § 28; Yer and Güngör v.
Turkey, no. 21521/06 and 48581/07, § 20,
7 December 2010).
- There
has accordingly been a breach of Article 6 § 1 of the
Convention.
- As
regards the merits of the complaint under Article 13 of the
Convention, the Court has examined similar issues in previous
applications and has found violations of Article 13 of the Convention
in respect of the lack of an effective remedy under Turkish law
whereby the applicants could have contested the length of the
proceedings at issue (see Daneshpayeh, cited above, §§
35-38). It finds no reason to depart from that conclusion in the
present case.
- The
Court accordingly dismisses the Government’s preliminary
objection and concludes that there has been a violation of Article 13
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- The
applicant claimed 20,000 euros (EUR) in respect of non-pecuniary
damage. He further claimed 2,950 Turkish liras (TRY) (equivalent of
approximately EUR 1,500) for legal fees and TRY 800 (equivalent
of approximately EUR 405) for translation, stationery and postal
expenses. He submitted a fee agreement signed with his lawyer and an
invoice in the amount of TRY 2,950 as proof of payment made to
his lawyer.
- The
Government contested these claims.
- Deciding
on an equitable basis, the Court awards the applicant EUR 3,900
in respect of non-pecuniary damage.
- 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 he so
request (see, Salduz, cited above, § 72).
- As
regards the costs and expenses, the Court reiterates that 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 were reasonable as to quantum. Regard being
had to the documents in its possession and to its case-law, the Court
finds it reasonable to award EUR 1,500 under this head.
- The
Court further 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
- Joins to the merits the Government’s
preliminary objection on the issue of the applicant’s victim
status in respect of the complaint under Article 6
§ 3 (c) that the applicant had no legal assistance while in
police custody and dismisses it;
2. Joins to the merits the Government’s
preliminary objection on the issue of exhaustion of domestic remedies
in respect of the complaint under Articles 6 § 1 and 13
regarding the length of proceedings and dismisses it;
3. Declares the application admissible;
- 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 available to the
applicant while in police custody;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the criminal proceedings;
- Holds that that there has been a violation of
Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months the
following amounts, to be converted into Turkish liras at the rate
applicable at the date of settlement:
(i)
EUR 3,900 (three thousand nine hundred euros) plus any tax that may
be chargeable, in respect of non-pecuniary damage;
(ii)
EUR 1,500 (one thousand five hundred euros) plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 20 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Dragoljub
Popović
Deputy Registrar President
