SECOND SECTION
CASE OF
FAZLI KAYA v. TURKEY
(Application no.
24820/05)
JUDGMENT
STRASBOURG
17 September 2013
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 Fazlı Kaya v. Turkey,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Işıl Karakaş,
Paulo Pinto de Albuquerque,
Helen Keller, judges
and Stanley Naismith, Section Registrar,
Having deliberated in private on 27 August 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
24820/05) 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 Fazlı Kaya (“the applicant”),
on 13 June 2005.
The applicant was represented by Mr Ö.
Kılıç, a lawyer practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
On 18 January 2011 the application was declared
partly inadmissible and the complaints concerning the lack of legal assistance
during the applicant’s police custody and his inability to question some of the
witnesses were communicated to the Government. It was also decided to rule on
the admissibility and merits of the application at the same time (Article 29 §
1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1960 and is currently
serving a prison sentence in Edirne.
In June 1999, E.G. and A.S.S. were taken into
custody on suspicion of membership of an illegal organisation, namely the TDP
(Revolutionary Party of Turkey, Türkiye Devrim Partisi). In their
respective police statements, both of them stated that the applicant had been providing
logistical support to members in rural areas and E.G. further maintained that
the applicant had been one of the leaders of the organisation. Again in 1999, İ.H.,
who had also been arrested for membership of the illegal organisation,
identified the applicant from his photos and stated that the applicant had been
providing cell phones for members of the organisation in rural areas.
On 26 March 2001 the applicant was taken into
police custody in Istanbul, on suspicion of membership the TDP. He was
subsequently transferred to Giresun for interrogation.
On 28 March 2001 the applicant participated in an
identification parade and was identified by two persons, namely B.B. and
İ.H., as one of the leaders of the said illegal organisation. On 1 April
2001 the applicant was questioned by the police in the absence of a lawyer and
denied all the accusations against him.
On 2 April 2001 the applicant was questioned by
the Giresun public prosecutor in the absence of a lawyer. Later on the same
day, he was further questioned by the investigating judge, still in the absence
of a lawyer. Both before the public prosecutor and the investigating judge, the
applicant denied the charges against him. At the end of the questioning, the
judge ordered his pre-trial detention.
On 27 April 2001 the public prosecutor at the
Erzurum State Security Court filed an indictment with that court, accusing the applicant
and nine others of membership of an illegal organisation.
During the proceedings the applicant was
represented by a lawyer, and in his defence submissions he categorically denied
all the accusations against him. Although two of the co-accused, namely B.B.
and İ.H., identified him as one of the leaders of the TDP, the applicant
denied the allegations and stated that he had never seen them before. The
applicant maintained that B.B. and İ.H. had been giving false information
about him, in order to be able to benefit from the Reintegration of Offenders
into Society Act (Law no. 4959).
At the hearing of 5 June 2001, the police
statements of A.S.S., E.G. and İ.H dated June 1999 were read out to the
applicant. The applicant contested the allegations, and claimed that he was
innocent.
On 14 November 2002 the Erzurum State Security
Court found the applicant guilty as charged and sentenced him to twelve years
and six months’ imprisonment under Article 168 of the former Criminal Code. In
delivering its decision, amongst other items of evidence, the trial court
relied on the statements of the co-accused, and also took into consideration
the statements of İ.H., E.G. and A.S.S.
On 7 May 2003 the Court of Cassation quashed the
judgment of the first-instance court.
The case resumed before the Erzurum State
Security Court and on 6 April 2004 the court once again found the
applicant guilty of membership of an illegal organisation and sentenced him to
twelve years and six months’ imprisonment. In convicting the applicant, the
court relied on the statements of E.G., A.S.S., İ.H. and B.B. and found it
established that the applicant was a member of the illegal organisation.
On 1 December 2004 the Court of Cassation, after
holding a hearing on the merits of the case, rejected the applicant’s appeal.
This decision was deposited with the registry of the first instance court on 5
January 2005.
II. RELEVANT DOMESTIC LAW
A description of the relevant domestic law
regarding legal assistance in police custody may be found in Salduz
v. Turkey ([GC] no. 36391/02, §§ 27-31, 27 November 2008).
Furthermore, Law no. 4959 on the Reintegration
of Offenders into Society Act applies to members of terrorist organisations who
surrender to the authorities without armed resistance, either directly, on
their own initiative, or through intermediaries, those who can be considered to
have left a terrorist organisation, and those who have been arrested. The law
also applies to those who, despite being aware of the aims pursued by the
terrorist organisation, provided shelter, food, weapons, ammunition or any
other kind of assistance. An important feature of the rehabilitation law is
that it provides the possibility of reducing the sentences of those who wish to
take advantage of the law by providing relevant information and documents on
the structure and activities of the terrorist organisation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant alleged that his defence rights
had been violated as he had been denied access to a lawyer during his police
custody. He further maintained that he had not been given an opportunity to
question some of the witnesses. In this respect, he relied on Article 6 § 3 (c)
and (d) of the Convention, which in so far as relevant read as follows:
“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;
(d) to examine or have examined
witnesses against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him; ...”
The Government contested that argument.
A. Admissibility
The Government argued that the application had
been introduced outside the six-month time-limit. In this respect, they stated
that the Court of Cassation’s decision had been pronounced on 1 December 2004,
whereas the application was introduced with the Court on 13 June 2005, more
than six months later.
The Court notes that the decision of the Court
of Cassation was deposited with the Registry of the first-instance court on 5
January 2005. It reiterates that where an applicant is not entitled to be
served ex officio with a written copy of the final domestic decision and
if he or she was represented by a lawyer during the domestic proceedings, as in
the present case, the date on which the final domestic decision was deposited
with the registry of the first-instance court should be taken as the starting-point
under Article 35 § 1 of the Convention, being the latest date by which the
applicant or his or her representative was definitively able to find out about
the content of the final decision (see İpek v. Turkey (dec.),
no. 39706/98, 7 November 2000, Okul v. Turkey (dec.), no.
45358/99, 4 September 2003). Accordingly, in the present case the
applicant lodged his application to the Court within the six-month time-limit,
as required by Article 35 § 1 of the Convention. The Government’s preliminary
objection should therefore be dismissed.
The Court further notes that the remainder of
the application is not manifestly ill-founded within the meaning of Article 35
§ 3 (a) of the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. 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 also alleged that his right to a fair trial had been breached as
he had not been given an opportunity to confront the witnesses who had
testified against him.
The Government contested the allegations. In
particular, they stated that the restriction imposed on the applicant’s access
to a lawyer during his police custody had not infringed his right to a fair
trial under Article 6 of the Convention and that the conviction of the
applicant had not been based on witness statements.
The Court observes at the outset that, at the
material time, the restriction imposed on the applicant’s right to legal
assistance was systemic and applied to anyone held in custody in connection
with an offence falling within the jurisdiction of the State Security Courts
(see Salduz, cited above, §§ 56-63; Dayanan v. Turkey, no. 7377/03, § 30-34, 13 October 2009). The Court has examined the present case
and finds no particular circumstances which would require it to depart from its
findings in the aforementioned Dayanan 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.
Having regard to its finding above and referring
to paragraph 31 below, the Court, without taking a position on the remaining
complaint raised by the applicant regarding the fairness of the proceedings,
considers that it is unnecessary to examine it (see Geçgel and Çelik
v. Turkey, nos. 8747/02 and 34509/03, § 16, 13 October 2009, Tezcan
Uzunhasanoğlu v. Turkey, no. 35070/97, § 23, 20 April 2004).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
The applicant claimed 8,000 euros (EUR) in
respect of pecuniary damage and EUR 15,000 in respect of non-pecuniary damage.
Referring to the Istanbul Bar Association’s scale of costs, he further claimed
EUR 3,720, covering twenty-eight hours’ legal work spent in the
preparation of the present case before the court. He also claimed EUR 600 for
costs and expenses, without submitting an invoice.
The Government contested the claims.
The Court does not discern any causal link
between the violations found and the pecuniary damage alleged; it therefore
rejects this claim. However, the Court considers that the applicant must have
suffered some non-pecuniary damage and therefore, taking into account the
circumstances of the present case, and ruling on an equitable basis, it awards
him EUR 1,500 in respect of non-pecuniary damage.
The Court further considers that the most
appropriate form of redress would be the retrial of the applicant in accordance
with the requirements of Article 6 of the Convention, should he so request (see
Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003).
As regards 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 are reasonable as to quantum. Taking into account the
awards made in comparable cases (see Şaman v. Turkey, no. 35292/05, § 45, 5 April 2011; Gürova
v. Turkey, no. 22088/03, § 21, 6
October 2009; Salduz, cited above, § 79), the Court
finds it reasonable to award the applicant EUR 1,000 under this head.
The Court considers it appropriate that the
default interest rate 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
1. Declares the remainder of the application
admissible;
2. 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;
3. Holds that there is no need to examine the
remaining complaint raised under Article 6 § 3 (d) of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following amounts, to be
converted into the currency of the respondent State at the rate applicable at
the date of settlement:
(i) EUR 1,500 (one thousand five hundred euros)
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand 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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 17 September
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
