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Case of Canşad & Others v/s Turkey

    Application No. 7851 of 05

    Decided On, 13 March 2018

    At, European Court of Human Rights

    By, THE HONOURABLE MR. PRESIDENT ROBERT SPANO
    By, THE HONOURABLE MR. JUSTICE PAUL LEMMENS
    By, THE HONOURABLE MR. JUSTICE LEDI BIANKU
    By, THE HONOURABLE MR. JUSTICE IŞIL KARAKAŞ
    By, THE HONOURABLE MR. JUSTICE NEBOJ?A VUČINIĆ
    By, THE HONOURABLE MR. JUSTICE JON FRIDRIK KJØLBRO & THE HONOURABLE MR. JUSTICE STÉPHANIE MOUROU-VIKSTRÖM

    For the Appearing Parties: --------------



Judgment Text

PROCEDURE

1. The case originated in an application (no. 7851/05) 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 three Turkish nationals, Mr Murat Canşad, Mr Orhan Bingl and Mr Abidin Doğan ("the applicants"), on 4 February 2005.

2. The applicants were represented by Mr F. Karakaş Doğan, a lawyer practising in Istanbul. The Turkish Government ("the Government") were represented by their Agent.

3. The applicants alleged, in particular, that they had not had a fair trial on account of the absence of a lawyer during the pre-trial stage and the use by the trial court of statements which they had given in the absence of a lawyer. They further alleged that the length of the criminal proceedings against them had been excessive, and that they had not had an effective remedy in respect of that complaint. Lastly, the first applicant alleged that he had not been able to examine an important witness who had given evidence before the trial court.

4. On 1 December 2009 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1974, 1973 and 1972 respectively.

6. On 4 May 1995 a group of about fifteen individuals carrying banners from the Kurdistan Workers' Party (PKK), an illegal armed organisation, and chanting slogans in favour of the organisation marched in a street in the Kkekmece district of Istanbul. The members of the group threw Molotov cocktails at various shops. Several of the shops caught fire and three teenage girls were killed in one of these establishments, namely a shop called Nazlım.

A. The preliminary investigation, arrest and detention of the first applicant

7. On the same day, Mr Canşad ("the first applicant") was arrested and taken into custody at the Anti-Terrorism Department of the Istanbul Security Directorate.

8. The police obtained evidence from several witnesses. One of those witnesses, a certain A.A., who had been working on the street where the events had taken place, indicated that he had seen a group of about twenty people marching in the streets, chanting slogans and throwing Molotov cocktails at shops, and that the group had dispersed after several shops had caught fire. He further stated that he had seen two individuals: a woman with curly hair wearing a jacket and white jeans, and a short-haired man who was approximately 1.80 meters tall wearing a green jacket and jeans. He added that, having seen the man from afar, he could not describe his face. However, he indicated that he would be likely to recognize the individuals concerned, and that in any event the man had already been apprehended by uniformed police officers.

9. A second witness, a certain .L.A., stated that he had seen an individual dressed in jeans and a green jacket, and that he would not be likely to recognise his face, but the ma

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n had been arrested by police officers.

10. A third witness, a certain Y.K., an employee at Nazlım, identified the first applicant as the man who had thrown Molotov cocktails at the shop where she worked, where three people had been killed. In addition, an identification parade was carried out, at the end of which .L.A. and A.A. identified the first applicant as one of the individuals who had thrown Molotov cocktails at that shop.

11. On 11 May 1995 the first applicant was interrogated by the police in the absence of a lawyer, pursuant to section 31 of Law no. 3842, as he was accused of committing an offence falling within the jurisdiction of the State Security Courts. He admitted having had sympathy towards the illegal organisation and having been involved in the march. However, he stated that he had only acted as a lookout at the entrance to the street, and denied having thrown Molotov cocktails.

12. On 15 May 1995 the first applicant participated in a reconstruction of the events (yer gsterme) in the absence of a lawyer. According to the record drafted by police officers and signed by the applicant, he admitted his involvement in the march but denied having thrown Molotov cocktails.

13. On 16 May 1995 the first applicant took part in a photo identification procedure, again in the absence of a lawyer. According to a report drawn up by the police and signed by the applicant, he identified Mr Bingl ("the second applicant") as one of the accomplices.

14. The first applicant's detention was extended until 17 May 1995, with the authorisation of the public prosecutor's office. On the same day he gave statements to the public prosecutor in the absence of a lawyer. He denied the content of the statements he had given to the police, claiming that his confession had been extorted under pressure and torture. He further stated that he had been arrested near the scene of the incident while on his way to his friend's home, that he had seen a group of about thirty or forty people, and that he had had nothing to do with the events in connection with which he had been arrested.

15. On the same day, the first applicant was brought before a judge of the Istanbul State Security Court, before whom he reiterated that he had not participated in the rally and had nothing to say about it. The judge ordered the first applicant's detention and, in the absence of the second applicant, issued a warrant for the latter's arrest.

B. The arrest and detention of the second applicant

16. The second applicant was arrested during an identity check on 27 April 1996 in the town of Gen in the south-eastern part of the country, and was held in custody. He was then handed over to the Istanbul Security Directorate.

17. On 9 May 1996 the second applicant took part in a photo identification procedure in the absence of a lawyer. According to a report drawn up by the police and signed by the applicant, he identified the first applicant. On the same day, he participated in a reconstruction of the events in the absence of a lawyer and admitted having thrown a Molotov cocktail at a shop on 4 May 1995.

18. On 10 May 1996 the second applicant was interrogated by the police in the absence of a lawyer, pursuant to section 31 of Law no. 3842, as he was accused of committing an offence falling within the jurisdiction of the State Security Courts. He gave a detailed account of his activities within the illegal organisation, including his participation in the events of 4 May 1995, and provided the names of various individuals who had also participated in that incident, including that of the first applicant.

19. On 10 May 1996 he was brought before the public prosecutor, where he accepted the statements which he had given to the police and admitted his participation in various activities of the organisation, including those of 4 May 1995. He stated that he had left the organisation and that he wished to have the benefit of Law no. 4959, which provided for amnesty and mitigation of sentence for members of terrorist organisations in exchange for information. That statement was also taken in the absence of a lawyer. Subsequently, he was brought before a judge, where he accepted the previous statements he had given. The judge ordered his detention.

C. The criminal proceedings against the applicants

20. The first hearing was held on 27 July 1995.

21. The applicants denied the charges against them during the criminal proceedings before the Istanbul State Security Court.

22. On 29 August 1995 the trial court held a hearing in which, in the absence of the applicants and their lawyers, it heard several witnesses who had been interviewed by the police. .L.A. indicated that, contrary to what was in the statement which he had given to the police, he had not seen anyone sufficiently clearly to be able to identify them. Y.K., an employee at Nazlım, also gave evidence in person, stating that she had seen a man and a woman set fire to the shop and had provided the police with a detailed description of the woman. As for the man, she indicated that she had not seen his face, but she had recognised him at the police station because of his clothes. At the end of the hearing the trial court issued a letter of request asking for evidence to be obtained from A.A. by his giving evidence at a court near his place of residence.

23. At a hearing on 7 October 1997 the trial court read out a statement by A.A. given before the Bursa Assize Court. The content of that statement is not included in the file. At that hearing, counsel for the first applicant requested that A.A. should be heard by the court in the presence of the applicant. In that connection, he stated that his testimony contained significant contradictions. According to the transcript of that hearing, the first applicant did not want to participate in the hearing.

24. At the end of each hearing the trial court decided to continue the applicants' detention.

25. On 22 October 1998 the applicants were sentenced to death.

26. On 13 May 1999 the Court of Cassation quashed the judgment on procedural grounds, without examining the merits of the case.

27. Following the judgment of the Court of Cassation, the proceedings before the trial court started again on 19 September 1999 and the composition of the trial court was changed several times. In addition, the first applicant repeatedly requested that the trial court summon A.A. in order for him to be cross-examined him directly. The trial court rejected his applications.

28. On an unspecified date A.A. sent a letter to the Istanbul State Security Court in which he retracted his previous testimony and stated that he had not identified anyone. That letter was read out at a hearing on 7 February 2002.

29. On 27 February 2002 the trial court sentenced the applicants to death, but commuted this to life imprisonment (mebbet ağır hapis).

30. On 9 October 2002 the Court of Cassation quashed the judgment again on procedural grounds, without examining the merits of the case.

31. On 9 March 2004 the Istanbul State Security Court found the applicants guilty of the offence provided for in Article 125 of the Criminal Code and sentenced them to life imprisonment.

32. The applicants appealed against that judgment and alleged, inter alia, that A.A. had not been heard by the trial court in their presence.

33. On 6 December 2004 the Court of Cassation dismissed the applicants' appeal and upheld the trial court's judgment.

II. RELEVANT DOMESTIC LAW

34. 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).

35. 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. AS REGARDS THE APPLICANT ABİDİN DOĞAN

36. In a letter dated 22 May 2006, the applicant's lawyer informed the Court that Mr Abidin Doğan no longer wished to pursue his application and asked the Court to strike the application out of the list in so far as it concerned him.

37. In light of the foregoing and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention or its Protocols, the Court considers that Mr Abidin Doğan does not intend pursuing his application within the meaning of Article 37 1 (a) of the Convention.

38. The Court therefore decides to strike this part of the application out of its list of cases under Article 37 1 (a) of the Convention.

II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION IN RESPECT OF MURAT CANŞAD AND ORHAN BINGL

39. The applicants complained that they had not had a fair trial on account of the absence of a lawyer during their time in police custody and the use by the trial court of their statements and other evidence taken in the absence of a lawyer to convict them. They also complained that the criminal proceedings against them had not been concluded within a reasonable time. Lastly, the first applicant alleged that he had not been able to question an important witness, namely A.A., before the trial court. The applicants relied on Article 6 of the Convention, which, in so far as relevant, provides as follows:

"1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

...

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;"

40. The Government contested that argument.

A. Admissibility

41. 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

1. Access to a lawyer during police custody

42. The applicants complained that they had been deprived of legal assistance pursuant to section 31 of Law no. 3842, as they were accused of committing an offence that fell within the jurisdiction of the State Security Courts.

43. The Government submitted that the applicants had been represented by lawyers during the proceedings before the Istanbul State Security Court and the Court of Cassation. Moreover, they maintained that the trial court had convicted the applicants on the basis of the criminal file as a whole. The Government therefore invited the Court to reject their complaints.

44. The Court notes that the applicants' access to a lawyer was restricted by virtue of Law No. 3842, and was as such a systematic restriction applicable at the time of the applicants' arrest (see Salduz, cited above, 56). The Court does not consider it necessary to examine whether the systematic nature of the restriction on the applicants' right of access to a lawyer was, in 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, cited above, 274) In that respect, the Court notes that, in convicting them, the first-instance court relied on the applicants' statements to the police. Moreover, it did not examine the admissibility of evidence at the trial. Likewise, the Court of Cassation dealt with this issue in a formalistic manner and failed to remedy this shortcoming (see Bayram Ko v. Turkey, no. 38907/09, 23, 5 September 2017).

45. 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.

2. Length of proceedings

46. The applicants complained that the length of the proceedings had been incompatible with the "reasonable time" requirement laid down in Article 6 1 of the Convention.

47. The Government contended that there had been no period of inactivity attributable to the domestic authorities, given the overall duration of the proceedings and the length of the proceedings before each level of jurisdiction. Moreover, they submitted that cases relating to terror offences were generally more complex than cases involving ordinary crimes. In that connection, they argued that the length of the proceedings could not be considered unreasonable in view of the complexity of the case, the number of accused, and the seriousness of the charges against the applicants.

48. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants, and the conduct of the relevant authorities (see, among many other authorities, Plissier and Sassi v. France [GC], no. 25444/94, 67, ECHR 1999-II).

49. As regards the first applicant, the Court observes that the period to be taken into consideration began on 4 May 1995 with his arrest, and ended on 6 December 2004 with the final decision delivered by the Court of Cassation. It thus lasted a little more than nine years and seven months for two levels of jurisdiction, and the case was examined three times at each level.

50. As for the second applicant, that period began on 27 April 1996 with his arrest, and ended on 6 December 2004 with the final decision delivered by the Court of Cassation. It thus lasted a little more than eight years and seven months for two levels of jurisdiction, and the case was examined three times at each level.

51. The Court further notes that the case before the criminal court was not particularly complex. Furthermore, no delays can be imputed to the applicants. As to the conduct of the authorities, the Court observes that it took nearly three years and three months for the trial court to render its first judgment. Furthermore, it took nearly two years and three months for the trial court to obtain the statement of A.A. The trial court also took two years and five months to render a decision following the Court of Cassation's first quashing of its decision, and another one year and five months to render a decision following the Court of Cassation's second quashing of its decision. Thus, the case was pending before the trial court for approximately eight years and one month during the course of the proceedings.

52. The Court has frequently found violations of Article 6 1 of the Convention in cases raising issues similar to the one in the present case (see Şuyur v. Turkey, no. 13797/02, 25, 23 May 2006).

53. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that, in the instant case, the length of the proceedings was excessive and failed to meet the "reasonable time" requirement (Daneshpayeh v. Turkey, no. 21086/04, 28, 16 July 2009, and Grbz and zelik v. Turkey, no. 11/05, 24, 2 February 2016).

54. There has accordingly been a breach of Article 6 1.

3. The first applicant's inability to hear A.A.'s evidence in person

55. The first applicant further complained under Article 6 3 (d) of the Convention that he had been unable to question a key witness before the trial court, namely A.A.

56. The Court considers that this complaint may be declared admissible. However, having regard to the facts of the case and its finding of a violation of Article 6 1 and 3 (c) of the Convention, the Court considers that there is no need to give a separate ruling on the merits of the first applicant's complaints under this head (see, mutatis mutandis, Trk v. Turkey, no. 22744/07, 61, 5 September 2017).

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

57. The applicants further complained that there had been no effective remedy under Turkish law whereby they could have contested the length of the proceedings brought against them. They relied on Article 13 of the Convention, which reads as follows:

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

58. The Government maintained that an effective domestic remedy in respect of the applicants' complaints had existed, namely an administrative action under section 13 of Law no. 2577 taken in conjunction with Article 125 of the Constitution. However, the applicants had failed to use that remedy. As a result, the Government invited the Court to declare this complaint inadmissible, owing to non-exhaustion of domestic remedies.

59. The Court notes that the remedy referred to by the Government is, in principle, not available against a judicial decision, since an administrative act only concerns administrative acts and decisions. In these circumstances, the Court considers that the applicants were not required to make use of the remedy indicated by the Government in order to comply with Article 35 1 of the Convention.

60. The Court notes that this complaint is linked to the one examined above regarding the length of the proceedings, and must therefore likewise be declared admissible.

61. 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 at the material time whereby the applicants in question could contest the length of the proceedings at issue (see Daneshpayeh, cited above, 35-38; mmhan Kaplan v. Turkey, no. 24240/07, 56-58, 20 March 2012; and Beşerler Yapı San. ve Tic. A.Ş. v. Turkey [Committee], no. 14697/07, 12-26, 24 September 2013). It finds no reason to depart from that conclusion in the present case.

62. The Court accordingly concludes that there has been a violation of Article 13 of the Convention.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

A. Article 5 of the Convention

63. The applicants further complained that their pre-trial detention had been excessive, and that there had been no reasonable suspicion justifying their detention.

64. The Court observes that the first and the second applicant were taken into police custody on 4 May 1995 and 27 April 1996 respectively and that their detention ended on 9 March 2004 when the Istanbul State Security Court convicted both applicants. However, the applicants did not lodge their application with the Court until 4 February 2005, that is, more than six months later.

65. It follows that this part of the application was lodged out of time and must be rejected in accordance with Article 35 1 and 4 of the Convention.

B. Article 6 of the Convention

66. The applicants also complained under Article 6 1 of the Convention that the Istanbul State Security Court had lacked independence and impartiality.

67. The Court notes that, although the applicants were convicted by the Istanbul State Security Court, whose composition included a military judge, that judgment was subsequently quashed by the Court of Cassation on 13 May 1999. In the meantime, in June 1999 the Constitution had been amended, and the military judge sitting on the bench of the Istanbul State Security Court had been replaced by a civilian judge. As a result, following the decision of the Court of Cassation, the applicants were tried afresh before the Istanbul State Security Court - which was composed of three civilian judges - with all of the procedural safeguards provided for by the ordinary criminal procedure (see Uysal and Osal v. Turkey, no. 1206/03, 24, 13 December 2007, with further references therein).

68. In the light of the foregoing, the Court finds that this complaint should be rejected as manifestly ill-founded, pursuant to Article 35 3 and 4 of the Convention.

C. Articles 13 and 14 of the Convention

69. Lastly, the applicants submitted under Article 13 that there was no effective remedy in respect of any of their complaints. In their case, the main reason for that was the existence of different legal provisions which were applicable to different types of offences. Since they had been tried for offences against the State, they alleged that they had been subjected to more restrictive legal provisions. As a result, they also claimed a violation of Article 14 of the Convention on account of their being subjected to a different set of legal provisions.

70. The Court finds that these complaints should be rejected as manifestly ill-founded, pursuant to Article 35 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

71. 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

72. The applicants each claimed 5,000 euros (EUR) in respect of pecuniary damage and EUR 7,500 in respect of non-pecuniary damage, with an additional payment of 4.26 % in interest.

73. The Government contested those claims, submitting that the requested amounts were unsubstantiated and not supported by any documents.

74. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim.

75. However, the Court finds that the applicants must have suffered pain and distress which cannot be compensated for solely by the Court's finding of a violation in respect of the length of the proceedings and the absence of an effective remedy in this respect. It therefore finds it appropriate to award the first applicant EUR 5,500 and the second applicant EUR 4,400.

76. As for the finding of a violation of Article 6 1 and 3 (c), the Court considers that the finding of a violation constitutes sufficient just satisfaction (see Dvorski v. Croatia [GC], no. 25703/11, 117, ECHR 2015). It further considers that the most appropriate form of redress would be a retrial of the applicants in accordance with the requirements of Article 6 of the Convention, should they so request (see Aydın etinkaya v. Turkey, no. 2082/05, 119, 2 February 2016). It therefore makes no award under this head.

B. Costs and expenses

77. The applicants each claimed EUR 6,000 for legal fees. They also claimed EUR 2,000 jointly for expenses relating to translation, communication via post, telephone and fax, stationery, and travel which they had incurred before the Court. In support of their claim, the applicants' lawyer submitted the Turkish Bar Association's scale of fees and a copy of the contract with the applicants. Their lawyer also asked for an additional payment of 4.26 % in interest.

78. The Government contested the claims, arguing that they were unjustified.

79. In accordance with the Court's case-law, 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. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000 for costs and expenses relating to the proceedings before the Court.

C. Default interest

80. 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. Decides to strike the case out of the list insofar as it was brought on behalf of Abidin Doğan;

2. Declares the complaints of Murat Canşad and Orhan Bingl concerning the absence of access to a lawyer during the pre-trial stage; the use by the trial court of the evidence obtained in the absence of a lawyer; the excessive length of the proceedings and the absence of an effective mechanism to challenge that shortcoming; and the first applicant's inability to question A.A. before the trial court admissible, and the remainder of the application inadmissible;

3. Holds that there has been a violation of Article 6 1 and 3 (c) of the Convention;

4. Holds that there has been a violation of Article 6 1 of the Convention with regard to the length of the proceedings;

5. Holds that there has been a violation of Article 13 of the Convention;

6. Holds that there is no need to examine the complaint under Article 6 3 (d) of the Convention in relation to the first applicant's inability to question A.A. before the trial court;

7. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants in relation to their complaint concerning denial of access to a lawyer during police custody;

8. Holds

(a) that the respondent State is to pay the applicants, within three months from 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 5,500 (five thousand five hundred euros) to the first applicant, and EUR 4,400 (four thousand four hundred euros) to the second applicant, plus any tax that may be chargeable, in respect of non-pecuniary damage in connection with the duration of the proceedings;

(ii) EUR 2,000 (two thousand euros), jointly, plus any tax that may be chargeable to the applicants, 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;

9. Dismisses the remainder of the applicants' claim for just satisfaction.

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