I incorrectly predicted that there's no violation of human rights in ILISAL v. TURKEY.

Judgment

SECOND SECTION

CASE OF ILISAL v. TURKEY
(Application no. 16896/11)

JUDGMENT

STRASBOURG
12 January 2021
This judgment is final but it may be subject to editorial revision. In the case of Ilısal v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Aleš Pejchal, President,Egidijus Kūris,Carlo Ranzoni, judges,and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 16896/11) 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 Mehmet İhsan Ilısal (“the applicant”), on 7 December 2010;
the decision to give notice of the application to the Turkish Government (“the Government”);
the parties’ observations;
Having deliberated in private on 1 December 2020,
Delivers the following judgment, which was adopted on that date:
THE FACTS
1. The applicant was born in 1961 and lives in Istanbul. 2. The Government did not object to the examination of the application by a Committee. 3. On 25 May 1999 the Head Office of the Ziraat Bank (“the Bank”) drafted a commission report indicating that some of the documents were forged in respect of vehicle loans used by Arı Otomotiv Company from the Taksim Branch of the Bank. The commission decided to initiate criminal proceedings against those responsible at the Company. 4. Upon the official complaint lodged by the representative of the Bank, on 6 July 1999 the applicant was arrested in his office on suspicion of forgery of official documents and of bank fraud. On the same day at 6.30 p.m., he gave a detailed account of his involvement in those offences and his relationship with the co-accused A.Ç. in the absence of a lawyer as, according to his statement form, he did not ask for a lawyer. His subsequent statements had been taken in the presence of a lawyer and had not been incriminatory. 4. On 7 July 1999 the applicant met his lawyer. According to the record drafted on the same day, the representative wished to be present during the questioning of his client. The record was signed by an officer, the applicant and the representative. 5. On 17 June 2009 the Istanbul Assize Court found the applicant guilty of embezzlement and sentenced the applicant to ten years, ten months and twenty-five days’ imprisonment. In reaching that finding, the trial court relied on the prosecution’s claim, the expert report and the case-file as a whole. Although the trial court did not explicitly rely on the statements the applicant had made to the police, it referred to the case-file as a whole, which also included those statements to convict the applicant. The trial court neither subjected the applicant’s police statements to scrutiny nor examined their inadmissibility or the circumstances surrounding his waiver. Importantly, the trial court delivered six judgments in which it convicted the applicant and in four of them it directly relied on the statements he had made to the police in the absence of a lawyer. The Court of Cassation quashed those judgments five times for different reasons. 6. On 16 June 2010 the Court of Cassation upheld the judgment. RELEVANT LEGAL FRAMEWORK AND PRACTICE
7. The relevant domestic law in force at the material time, as well as the case-law of the Constitutional Court on the issue of waiver of the right to a lawyer, may be found in Ruşen Bayar v. Turkey, (no. 25253/08, §§ 41‐6, 19 February 2019). THE LAW
8. The applicant complained that he had not had a fair trial because he had not been provided with a lawyer when he had given his statements to the police officers. Article 6 §§ 1 and 3 (c) of the Convention, reads, in so far as relevant, 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 [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.”
9. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. 10. The applicant argued that he had not been given the assistance of a lawyer when he had given his statements to the police, which were later used by the trial court to convict him. 11. The Government asserted that the applicant had validly waived his right to a lawyer in the light of the documents he had signed just before his statements were taken. In any event, the overall fairness of the criminal proceedings had not been prejudiced by the absence of a lawyer during his police interview arguing, notably, that the trial court had not used his statements when convicting him. 12. The Court is called upon to examine whether the applicant validly waived his right of access to a lawyer when giving statements to the police on 6 July 1999, given that it is not disputed between the parties that the applicant was represented by a lawyer when making statements to the investigating judge. 13. The general principles with regard to access to a lawyer, the right to remain silent, the privilege against self-incrimination, the waiver of the right to legal assistance and the relationship of those rights to the overall fairness of the proceedings under the criminal limb of Article 6 of the Convention can be found in the recent judgment in the case of Simeonovi v. Bulgaria ([GC], no. 21980/04, §§ 110-20, 12 May 2017). The Court reiterates that it examines complaints concerning the restriction of the access to a lawyer in the light of a three pronged test which consists of the following steps: (i) whether the applicant waived his right to legal assistance in an unequivocal manner and whether the waiver was attended by minimum safeguards commensurate with its importance; (ii) whether there were “compelling reasons” to restrict access to a lawyer; and (iii) whether despite the temporary absence of a lawyer the overall fairness of the proceedings was ensured. 14. Applying those criteria, the Court has already found in cases against Turkey that a waiver was not valid where an applicant had neither admitted his guilt nor accepted his statements to the police after he had been granted access to a lawyer and had consistently repudiated his confession throughout the ensuing proceedings, in which he had been represented by a lawyer (see Akdağ v. Turkey, no. 75460/10, §§ 48-61, 17 September 2019, and Ruşen Bayar v. Turkey, no. 25253/08, §§ 113-123, 19 February 2019 with further references therein). The Court has also had regard to the indications showing that an applicant had asserted before the domestic courts that he had made an explicit request for legal assistance (contrast Kaytan v. Turkey, no. 27422/05, § 31, 15 September 2015, and Gür v. Turkey (dec.), no. 39182/08, 14 January 2014). 15. The Court observes that those two conditions are also present in the instant case. Firstly, the applicant denied the content of his police statements the next day as soon as he had access to a lawyer and maintained that position throughout the trial. Secondly, there is some indication that he had requested to see a lawyer before giving statements to the police. Thus, the Court cannot establish beyond any reasonable doubt that the applicant unequivocally, knowingly and intelligently waived his rights under Article 6 of the Convention. 16. The Court notes that the Government have not offered any compelling reasons for restricting the applicant’s access to a lawyer before the police. Furthermore, the domestic legislation in force at the material time did not provide for any reasons for such a restriction, let alone a compelling one (see Ruşen Bayar, cited above, § 125). In this situation, the Court must apply a very strict scrutiny to its fairness assessment. More importantly, the onus is on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the trial was not irretrievably prejudiced by the restriction on access to legal advice (see Ruşen Bayar, cited above, § 126). 17. In the light of the circumstances of the present case and the above considerations, the Court considers that, contrary to the Government’s argument, the domestic court based its judgment on the case file as a whole, which had also included the statements the applicant had made to the police in the absence of a lawyer, to convict him. The Court therefore cannot accept the Government’s submissions that the trial court had not made any reference to those statements (see Aydın Çetinkaya v. Turkey, no. 2082/05, § 102, 2 February 2016). 18. When that procedural shortcoming has been examined against the overall fairness of the criminal proceedings, the Court notes that the trial court neither attempted to inquire into the circumstances surrounding the applicant’s waiver nor subjected his incriminatory police statements to scrutiny or examined their admissibility before convicting him to life imprisonment (see Yunus Aktaş and Others v. Turkey, no. 24744/03, § 51, 20 October 2009). Similarly, the Court of Cassation did not remedy the shortcoming either. 19. The absence of the aforesaid procedural safeguards has already been found by the Court to have violated the overall fairness of the criminal proceedings in respect of the same legal question and in a situation where an applicant’s statements were used by the national courts to convict him (see, Bozkaya v. Turkey, no. 46661/09, §§ 49-54, 5 September 2017; Türk v. Turkey, no. 22744/07, §§ 53-9, 5 September 2017; Ruşen Bayar, cited above, §§ 126-136; and Akdağ, cited above, §§ 64-71). That is also the case in the present application. As a result, the Court is unable to conclude that the impugned procedural shortcoming was remedied by the operation of the necessary safeguards at the national level. 20. Accordingly, the Court concludes that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention. 21. 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.”
22. The applicant invited the Court to award him 100,000 euros (EUR) in respect of pecuniary damage and 100,000 euros (EUR) in respect of non‐pecuniary damage. 23. The Government contested those claims. 24. The Court rejects the claim in so far as it concerns the pecuniary damage as it discerns no causal link between the violation found and the pecuniary damage alleged. 25. As for non-pecuniary damage, the Court considers that the finding of a violation of Article 6 §§ 1 and 3 (c) of the Convention in the instant case constitutes sufficient just satisfaction. It further considers that in the circumstances of the present case a retrial of the applicant in accordance with the requirements of Article 6 of the Convention would consist of an appropriate form of redress, should he so request. Given the possibility under Article 311 of the Code of Criminal Procedure to have the domestic proceedings reopened in the event that the Court finds a violation of the Convention, the Court makes no award under this head. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Done in English, and notified in writing on 12 January 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Aleš PejchalDeputy RegistrarPresident