SIMSEK v. TURKEY - 48719/08 (Judgment : Article 6+6-1 - Right to a fair trial : Second Section Committee) [2018] ECHR 928 (13 November 2018)

In the case of Şimşek v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Ledi Bianku, President,
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 16 October 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 48719/08) 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 İdris Şimşek ("the applicant"), on 3 September 2008.

2. The applicant was represented by Mr M. Özbekli, a lawyer practising in Diyarbakır. The Turkish Government ("the Government") were represented by their Agent.

3. On 18 March 2014 the complaints concerning the ill-treatment of the applicant while in custody and the systemic denial of legal assistance, were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4. On 17 February 2017 the Vice-President of the Second Section invited the Government to submit further observations, if they so wish, following the judgment in Ibrahim and Others v. the United Kingdom [GC], (nos. 50541/08and 3 others, ECHR 2016).

5. The Government objected to the examination of the application by a Committee. After having considered the Government's objection, the Court rejects it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1973 and is detained in Sivas.

7. According to a report drawn up by the police officers and signed by the applicant, on 19 November 2002 at 1.30 p.m., the applicant was taken into police custody on suspicion of membership of an illegal organisation, namely the Hizbullah following an hour long armed conflict with the police officers during which he had resisted, had thrown a grenade and had fired back at the police officers.

8. On the same day at 1.50 p.m. the applicant was examined at the Silvan State Hospital, in Diyarbakır, by a doctor who observed the following on the applicant's body: 2 cm-long scrape on his lower left chest, handcuff marks on his wrists, a traumatic scrape on the front side of his right leg. The doctor observed no unfitness for work. Also on the same day at 5.45 p.m. the applicant was examined at the Diyarbakır State Hospital by another doctor who made similar findings as those mentioned in the first medical report.

9. On 22 November 2002 the applicant was interviewed by police in the absence of a lawyer in the course of which he had allegedly sustained both physical and psychological ill-treatment. According to the applicant's submissions, he was allegedly forced to sign some documents, as well as a declaration to waive his right to legal assistance. He further maintained that when he had wished to read the documents that he had been made to sign he had been threatened with further ill-treatment.

10. On 23 November 2002 at the end of his police custody, the applicant was examined at the Diyarbakır State Hospital by a doctor who noted that there were no new signs of ill-treatment on the applicant's body. According to the applicant, during the examination the police officers intervened and ordered the doctor to write that the applicant had some grazes on his wrists and ankles.

11. On 23 November 2002 the applicant gave a statement to the public prosecutor in the absence of a lawyer in which he accepted the accusations against him. On the same day the applicant was brought before the investigating judge at the Diyarbakır State Security Court, who took his statements in the absence of a lawyer in which he had accepted most of the statements he had given to the police. According to his submissions before the Court, the applicant claimed that he had admitted being a member of the Hizbullah before the public prosecutor and the judge on account of the duress and the intimidation exerted on him by the police. He further claimed that the police officers had threatened him with excessive length of proceedings and had told him that if he had accepted the charges they would help him and release him from detention.

12. On 27 November 2002 the Diyarbakır public prosecutor filed a bill of indictment, charging the applicant under Article 146 of the former Turkish Criminal Code with attempting to undermine the constitutional order of the State.

13. On 19 March 2003 the Diyarbakır State Security Court held the first hearing on the merits of the case. During the hearing, the applicant gave evidence without a lawyer in which he denied his previous statements and the accusations. He further stated, without providing any details, that he had been subjected to pressure while in police custody and that he had pressurised to sign his police statements without reading them.

When asked about his statements before the public prosecutor and the investigating judge, the applicant stated that he had given self-incriminating statements as a result of the pressure from the police officers.

14. At a hearing held on 18 September 2003 the applicant submitted, without providing any details, that he had been tortured during the preliminary investigation.

15. By Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004, State Security Courts were abolished. Therefore, the Diyarbakır Assize Court acquired jurisdiction over the case.

16. On 22 June 2007 the Diyarbakır Assize Court found that, inter alia , on the basis of the applicant's statements to the police, the public prosecutor and the investigating judge that the applicant had committed the offence under Article 146 of the former Criminal Code and sentenced him to life imprisonment. Relying on the medical report dated 23 November 2002, it also rejected the applicant's contention that he had been tortured while in police custody.

17. On 10 April 2008 the Court of Cassation upheld the trial court's judgment.

II. RELEVANT DOMESTIC LAW

18. A description of the relevant domestic law concerning the right of access to a lawyer may be found in Salduz v. Turkey ([GC] no. 36391/02, §§ 27-�31, ECHR 2008).

19. On 15 July 2003 Law no. 4928 repealed Section 31 of Law no. 3842, thus the restriction on an accused's right of access to a lawyer in proceedings before the State Security Courts was lifted.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

20. The applicant complained that he had been subjected to ill-treatment during his police custody between 19 and 23 November 2002. Article 3 of the Convention, which reads as follows:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

21. The Government contested that claim and submitted that the applicant had failed to comply with the six-month time-limit. In that connection, they argued that the applicant had raised his complaint of ill-treatment for the first time in his statement at the hearing held on 12 December 2002, after which time he had remained totally passive for six years. They also pointed out that the applicant had failed to lodge a formal complaint with the public prosecutor's office. In their view, the six-month period should be taken to have started shortly after 2002 pursuant to the case-law of the Court.

22. The applicant did not make any submissions on this point.

23. The Court observes that the applicant raised his ill-�treatment allegations not only on 12 December 2002, but also at the hearing held on 18 September 2003. However, in none of those hearings had the applicant put forward any detailed explanations as to the nature of the ill-treatment he had allegedly been subjected to. After those hearings, the Diyarbakır State Security Court took certain procedural decisions in which no mention was made of the allegations of ill-treatment. Nevertheless, in its reasoned judgment, it rejected the applicant's contention that he had been ill-treated during his time in police custody in the light of the medical report dated 23 November 2002.

24. The Court further notes that it does not have any document in its possession demonstrating that the applicant raised his ill-treatment allegations before the Court of Cassation (see Karabulut v. Turkey , no. 56015/00, § 30, 24 January 2008).

25. Therefore, in the light of these considerations, the Court considers that the applicant, who failed to reiterate his ill-treatment allegations before the Court of Cassation, should have been aware of the ineffectiveness of remedies in domestic law by 22 June 2007, the date on which the Diyarbakır State Security Court delivered its judgment (see İçöz v. Turkey (dec.), no. 54919/00, 9 January 2003, and compare Ahmet Engin Şatır v. Turkey , no. 17879/04, §§ 35-6, 1 December 2009). Accordingly, the six-�month period provided for in Article 35 § 1 of the Convention should be considered to have started running no later than 22 June 2007. On that account, his application should have been introduced no later than December 2007, whereas it was not lodged until 3 September 2008.

26. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) OF THE CONVENTION

27. The applicant complained under Article 6 § 1 of the Convention that he had been denied a fair hearing as a result of the domestic courts' use of his statements obtained under duress and in the absence of a lawyer during the preliminary investigation stage. Article 6 of the Convention, in so far relevant, reads as follows:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time 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;

..."

28. The Government contested that argument.

A. Admissibility

29. The Court considers 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 and must therefore be declared admissible.

B. Merits

30. The applicant maintained under Article 6 of the Convention that he was convicted on the basis of unlawful evidence in that the domestic court relied on his statements which had been taken under duress and in the absence of a lawyer.

31. The Government submitted that the applicant's complaint concerning the use of evidence allegedly obtained under duress to convict him must be rejected in the light of the medical reports and the applicant's failure to substantiate his ill-treatment allegations. As regards the complaint concerning the right to have legal assistance, the Government submitted that they were aware of the Court's case-law under Article 6 § 3 (c) of the Convention.

32. The Court notes that the applicant's complaint raised under Article 3 of the Convention is to be declared inadmissible for non-compliance with the six-month time-limit. However, it reiterates that the absence of an admissible Article 3 complaint does not, in principle, preclude it from taking into consideration the applicant's allegations that the police statements had been obtained using methods of coercion or oppression and from holding that the admission of such evidence to the case file, relied upon by the trial court, therefore constituted a violation of the fair trial guarantee of Article 6 (see Örs and Others v. Turkey , no. 46213/99, § 58, 20 June 2006, and Özcan Çolak v. Turkey , no. 30235/03, § 43, 6 October 2009).

33. In the instant case, the Court observes that the medical reports drawn up on 19 and 23 November 2002 indicated the following findings: 2 cm-�long scrape on his lower left chest, handcuff marks on his wrists, a traumatic scrape on the front side of his right leg. The other report drawn up on 19 November 2002 at 5.45 p.m. also corroborated those findings.

34. The Court also observes that the applicant submitted his ill-treatment allegations in very brief and general terms alleging that he had been physically and psychologically tortured, beaten up and threatened. He did not provide any details as regards the manner in which the beatings were inflicted upon him which could confirm or match the findings noted in the medical report (see Fomin v. Russia (dec.), no. 15524/08, 6 March 2018). According to the documents in the Court's possession, the applicant did not describe the alleged ill-treatment before the domestic courts either (see Satık v. Turkey (no. 2) , no. 60999/00, § 34, 8 July 2008, and compare Osman Karademir v. Turkey , no. 30009/03, § 55, 22 July 2008).

35. Moreover, although the applicant challenged the veracity of the medical reports before the Court alleging that the police officers had intervened and ordered the doctor to write that he had some grazes on his wrists and ankles, the Court considers it significant that he had not lodged a formal complaint with the public prosecutor's office, a remedy which was capable of shedding light on the origin of the findings noted in the medical reports and the circumstances surrounding his medical examinations (see Aydın Çetinkaya v. Turkey , no. 2082/05, § 84, 2 February 2016, with further references therein).

36. In view of the above and on the basis of the material before it, the Court is unable to conclude, beyond reasonable doubt that the applicant's statements during the preliminary investigation stage were taken under duress. As such, the Court considers that the examination of this part of the application should be confined to the use by the trial court of the statements made at the pre-�trial stage in the absence of a lawyer (see Öngün v. Turkey , no. 15737/02, § 32, 23 June 2009).

37. In that connection, the Court reiterates that the applicant's access to a lawyer was restricted by virtue of Law No. 3842 and was as such a systemic restriction applicable at the time of his arrest (see Salduz v. Turkey [GC], no. 36391/02, § 56, ECHR 2008).

38. The Court does not consider it necessary to examine whether the systematic nature of the restriction on the applicant's right of access to a lawyer was, in and of itself, sufficient to find a violation of Article 6 §§ 1 and 3 (c) of the Convention, as, in any event, the Government have not offered any compelling reasons for the restriction or demonstrated that the absence of legal assistance at the initial stage of the investigation did not irretrievably prejudice the applicants defence rights (see Salduz , cited above, § 58, and Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08and 3 others, § 274.) In that regard, the Court notes that in convicting him the first-instance court relied on the applicant's statements to the police. Moreover, it did not examine the admissibility of evidence obtained in the absence of a lawyer at the trial. Likewise, the Court of Cassation failed to remedy this shortcoming (see Bayram Koç v. Turkey, no. 38907/09 , § 23, 5 September 2017).

39. The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

40. In his observations dated 29 September 2014, the applicant submitted a number of new complaints. In particular, he complained that his detention and the criminal proceedings against him had been excessively long and that he had been tried by a court whose composition included a military member until 2003. He invoked Article 6 §§ 1 and 3 (a), (c) and (d) of the Convention.

41. The Court reiterates that the running of the six-month time-limit for those complaints not included in the initial application is not interrupted until the date when the complaint is first submitted to the Court. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Yüksektepe v. Turkey , no. 62227/00, § 50, 24 October 2006).

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

42. 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."

A. Damage

43. The applicant claimed 30,000 euros (EUR) in respect of pecuniary and EUR 30,000 non-pecuniary damage. However, he did not submit any invoices in support of his claims.

44. The Government contested those claims.

45. In so far as pecuniary damage is concerned, the Court does not discern any causal link between the violation found and the pecuniary damage alleged and it accordingly rejects that claim.

46. As for non-pecuniary damage, the Court considers that the finding of a violation of Article 6 § 1 and of Article 6 §§ 1 and 3 (c) of the Convention in the instant case can be regarded as sufficient just satisfaction. Given the possibility under Article 311 of the Code of Criminal Procedure of the reopening of the domestic proceedings in the event that the Court finds a violation of the Convention, the Court makes no award under this head (see Bayram Koç , cited above § 29).

B. Costs and expenses

47. The applicant claimed reimbursement of the costs and expenses he had incurred in the proceedings before the national courts; postal, translation and personal expenses whilst in prison; and his family's travel expenses to visit him in prison. However, he neither quantified them nor submitted any supporting documents and left it to the Court's discretion to determine the amount to be awarded under this head.

48. The Government invited the Court to dismiss the claims since they had not been based on documents or invoices.

49. In the present case, the Court observes that the applicant has not substantiated his claim in any way as he has neither quantified his costs nor submitted any supporting documents. It therefore decides not to award him anything under this head (see Girişen v. Turkey , no. 53567/07, § 79, 13 March 2018).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the denial of legal assistance to the applicant during the pre-trial stage admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention on account of the denial of legal assistance to the applicant during the pre-trial stage;

3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

4. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 13 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Ledi Bianku
Deputy Registrar President

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