SECOND
SECTION
CASE OF
ŞİRAY v. TURKEY
(Application no.
29724/08)
JUDGMENT
STRASBOURG
11 February 2014
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 Şiray v. Turkey,
The European Court of Human
Rights (Second Section), sitting as a Committee composed of:
Guido Raimondi,
President,
Işıl Karakaş,
Peer Lorenzen,
Dragoljub Popović,
András Sajó,
Paulo Pinto de Albuquerque,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 21 January 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
29724/08) 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 Abdurrahman Şiray (“the
applicant”), on 6 June 2008.
The applicant was represented by Ms F. Danış,
a lawyer practising in Diyarbakır. The Turkish Government (“the
Government”) were represented by their Agent.
On 6 September 2010 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant, Mr Abdurrahman Şiray, is a
Turkish national who was born in 1972 and lives in Siirt.
On 20 June 2003 the applicant, who is of Kurdish
origin, was arrested in Mardin and taken into police custody with three other individuals
on suspicion of acting as a courier for an illegal armed organisation, namely
the PKK/KADEK. The applicant was in possession of a false identity card at the
time of his arrest.
On 21 June 2003 F.A., who was arrested with the
applicant on suspicion of attempting to participate in the armed activities of
the PKK/KADEK, was questioned at the Nusaybin police headquarters, in the
absence of a lawyer. F.A. claimed that he had met the applicant the day before
in Batman and that at the time they were arrested in Nusaybin the applicant was
taking him to the mountains to join members of the PKK/KADEK.
On 22 June 2003 the applicant was taken for questioning
at the Nusaybin police headquarters. Before his questioning the applicant
signed a form which explained the rights of arrested persons, by which he was informed
of the charges against him and his right to remain silent. In his statement, given
in the absence of a lawyer, the applicant denied any affiliation with the illegal
organisation and contested F.A.’s allegations. He also stated that he was a
shepherd and at the time of his arrest he was in the mountains looking for
sheep that he had lost. He also explained that he had been carrying a false
identity card as he was an army deserter. An interpreter was present during
this questioning.
A confrontation was held between the applicant
and F.A., without any legal assistance.
On 23 June 2003 the applicant was brought before
the Nusaybin Public Prosecutor, where he reiterated the statement he had made
to the police.
Later the same day the applicant was also questioned
at the Nusaybin Magistrates’ Court in the absence of a lawyer. At the end of that
questioning the judge remanded the applicant in pre-trial custody.
On the same day the applicant’s co-accused,
F.A., also made statements before the Nusaybin public prosecutor and the
Nusaybin Magistrates’ Court, in which he repeated his allegations about the
applicant.
On 7 July 2003 the Public Prosecutor at the
Diyarbakır State Security Court filed an indictment with that court
accusing the applicant of aiding and abetting the PKK/KADEK, and F.A. of membership
of that organisation.
On 19 August 2003 the Diyarbakır State
Security Court held its first hearing, at which the applicant informed the
court that he did not have sufficient knowledge of Turkish to follow the
hearings. The court bailiff, who spoke Kurdish, was therefore appointed as
interpreter. During the hearing, the applicant denied the charges against him, but
confirmed that the statements he had made during his detention in police
custody were accurate. He explained that those statements, which he had made in
Kurdish, had been translated into Turkish by Kurdish-speaking clerks.
F.A. was also heard by the State Security Court at
the same hearing, with the assistance of an interpreter. F.A. also denied all
charges against him, as well as retracting the statements he had made before
the police, the public prosecutor and the magistrates’ court. He asserted that
those statements had been extracted from him under duress. He further argued
that he had made his statements in Kurdish and had no way of knowing whether
they had been translated into Turkish accurately.
At the sixth hearing, held on 1 April 2004, the
applicant’s lawyer requested the applicant’s release, claiming that the only
piece of evidence found against him was F.A.’s statements made during the
preliminary investigation stage. The applicant’s lawyer further argued that
both the applicant’s and F.A.’s statements had been taken unlawfully and
without the assistance of an interpreter, despite their inadequate knowledge of
Turkish.
State Security Courts were abolished by Law no.
5190 of 16 June 2004, published in the Official Gazette on 30 June 2004. The
case against the applicant was therefore transferred to the Diyarbakır
Assize Court.
On 31 August 2004 the Diyarbakır Assize
Court found the applicant guilty as charged and convicted him pursuant to
Article 169 of the former Criminal Code and Section 5 of the Prevention of
Terrorism Act for aiding and abetting the PKK/KADEK. The applicant appealed.
On 14 February 2006 the Principal Public
Prosecutor at the Court of Cassation decided that the case file should be
remitted to the Diyarbakır Assize Court for examination, to decide whether
the new Criminal Code which had entered into force on 1 June 2005 (Law no.
5237) had provisions which would be more favourable for the applicant. The case
was thus once again examined by the Diyarbakır Assize Court in view of the
recent legislative changes.
On 11 May 2006 the Diyarbakır Assize Court
once again convicted the applicant of aiding and abetting the PKK/KADEK, under Article
169 of the former Criminal Code and Section 5 of the Prevention of Terrorism
Act, and sentenced him to four years and six months’ imprisonment. The assize
court held that under the new Criminal Code the act of aiding and abetting an
illegal organisation constituted the offence of membership of an illegal
organisation and thus carried a higher sentence. It stated that the applicant
was therefore being convicted under Article 169 of the former Criminal Code,
which was more favourable to him than the corresponding provisions of the new
Criminal Code. In delivering its judgment, the first-instance court mainly
relied on the statements made by F.A. in respect of the applicant during the
preliminary investigation stage.
On 22 December 2008 the Court of Cassation upheld
the judgment of the Diyarbakır Assize Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic law and practice in force
at the material time in respect of the right to legal assistance during
detention in police custody, as well as recent developments, can be found in Salduz
v. Turkey ([GC], no. 36391/02, §§ 27-44, 27 November 2008).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that his conviction had
been based entirely on allegations made by his co-accused, F.A., which had been
extracted from the latter under duress during the preliminary investigation
stage, and which he had subsequently retracted. He further complained that his
defence rights had been violated as he had been denied access to a lawyer while
in police custody. In respect of these complaints the applicant relied on
Article 6 §§ 1 and 3 of the Convention, the relevant part of which provides 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.”
The Government contested the applicant’s complaints.
A. Admissibility
The Court notes that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
The applicant complained that he had not been
provided with legal assistance at the early stages of the criminal proceedings.
The Government contested those allegations,
arguing that the applicant’s conviction was not solely based on his statement
taken in police custody, and maintained that the authorities had fully complied
with the domestic legislation which was in force at the time.
The Court notes that it is not in dispute
between the parties that the applicant was denied legal assistance while in custody.
The restriction imposed on the applicant’s right of access to a lawyer was
systemic and applied to anyone held in custody in connection with an offence
falling under 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.
In view of this, the Court holds that there has
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 35 below, the Court, without taking a position on the complaint
raised by the applicant regarding the fairness of the proceedings in respect of
the use of the statement of his co-accused, F.A., which had allegedly been
obtained by ill-treatment, considers that it is unnecessary to examine it. It
nevertheless considers it appropriate to affirm that if a statement obtained in
breach of the principles established in the Salduz judgment were the sole and
decisive evidence used in securing the conviction of a third person, this would
normally constitute a breach of the right to a fair trial. The reopening of the
proceedings, as being the most appropriate form of redress, would allow the
clarification of all these circumstances (see Geçgel and Çelik v. Turkey,
nos. 8747/02 and 34509/03, § 16, 13 October 2009, and Tezcan
Uzunhasanoğlu v. Turkey, no. 35070/97, § 23, 20 April 2004).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
In the application form the applicant further
complained under Article 5 §§ 1 (c), 3 and 5 of the Convention that there had
been no reasonable suspicion giving grounds for his arrest, that the length of
his pre-trial detention was excessive, and that there was no right to
compensation in domestic law for such violations of Article 5 of the
Convention. The applicant further complained under Article 6 §§ 1 and 3 (e) of
the Convention that he had been denied a fair hearing by an independent and
impartial tribunal and that he had not been provided with an interpreter during
the preliminary investigation stage despite his insufficient knowledge of
Turkish. He further complained under Article 7 of the Convention that at the
time of his conviction the acts which had given rise to his conviction had
ceased to be classified as “aiding and abetting an illegal organisation” under
the new Criminal Code. The applicant lastly contended that he faced
discrimination in the exercise of his fundamental rights on account of his
Kurdish ethnic origin.
In the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court considers that the remainder of the complaints do not
disclose any appearance of a violation of any of the above Articles of the
Convention. It follows that these complaints are inadmissible as 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 claimed 10,000 Turkish liras (TRY)
(approximately 4,000 euros (EUR)) in compensation for pecuniary damage, and TRY 30,000
(approximately EUR 12,000) in compensation for non-pecuniary damage. He
further claimed TRY 10,950 (approximately EUR 4,300) for legal fees and
TRY 1,500 (approximately EUR 600) for stationery and postal expenses. He did
not submit any copies of invoices, and referred to the Diyarbakır Bar
Association’s tariff of lawyers’ fees.
The Government contested those claims.
The Court does not discern any causal link
between the violation 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 compensation for 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, in accordance
with the Court’s case-law an applicant is entitled to 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 demonstrated that he actually incurred the costs claimed.
In particular, he has failed to submit documentary evidence, such as bills,
receipts, a contract, a fee agreement or a breakdown of the hours spent by his
lawyer on the case. Accordingly, the Court makes no award 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 complaints concerning the
denial of access to a lawyer and the use of unlawfully obtained evidence admissible
and the remainder of the application inadmissible;
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
complaint concerning the use of unlawfully obtained evidence under Article 6 §§
1 and 3 of the Convention;
4. 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, the
following amount:
(i) EUR 1,500 (one thousand five hundred euros),
plus any tax that may be chargeable, in respect of non- pecuniary damage;
(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;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 February
2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
