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

Judgment

SECOND SECTION
CASE OF ERİŞ v. TURKEY
(Application no. 20458/17)

JUDGMENT
STRASBOURG
13 July 2021

This judgment is final but it may be subject to editorial revision. In the case of Eriş v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Carlo Ranzoni, President, Valeriu Griţco, Marko Bošnjak, judges,and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 20458/17) 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 Yaşar Eriş (“the applicant”), on 22 February 2017;
the decision to give notice to the Turkish Government (“the Government”) of the complaints concerning the systemic restriction imposed on the applicant’s right to a lawyer and the Constitutional Court’s alleged failure to carry out a proper examination of that complaint and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 22 June 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the alleged unfairness of the criminal proceedings against the applicant, who complains of a violation of Article 6 §§ 1 and 3 (c) of the Convention as a result of the systemic restriction imposed on his right to a lawyer while in police custody and the trial court’s use in his conviction of the evidence given by the applicant without a lawyer being present. It further pertains, under Article 6 § 1 of the Convention, to the Constitutional Court’s alleged flawed examination of the above-mentioned complaints. THE FACTS
2. The applicant was born in 1971 and is currently serving his sentence in Tekirdağ F-Type Closed Prison. The applicant was represented by Ms M. Hanbayat Yeşil, a lawyer practising in Istanbul. 3. The Government were represented by their Agent. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 3 April 2001 the applicant was arrested on suspicion of involvement in the TKP‐ML/TIKKO (Communist Party of Turkey / Marxist‐Leninist / Turkish Workers and Peasants’ Liberation Army) in the context of a police operation carried out against that organisation. 6. On 8 April 2001 the applicant made statements to the police, in the absence of a lawyer, in which he explained his involvement in the TKP‐ML/TIKKO and the criminal acts he had carried out on its behalf. 7. In the course of his police custody, the applicant participated in seventeen different reconstructions of events (yer gösterme), during which he made self-incriminatory statements in the absence of a lawyer. 8. On 9 April 2001 the applicant made statements to the public prosecutor and then to the judge of the Istanbul State Security Court, on both occasions in the absence of a lawyer. He claimed in essence that he had been subjected to acts of torture and threats by the police and forced to sign the record of his statement and the reports of the reconstructions of events. 9. On 11 April 2001 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant with the Istanbul State Security Court, charging him under Article 146 of the then Criminal Code with attempting to undermine the constitutional order by force. The public prosecutor accused the applicant of carrying out armed acts and/or bombings on behalf of the TKP‐ML/TIKKO, hanging illegal banners attached to an item resembling a bomb, and carrying out acts of robbery in order to obtain money for that organisation. 10. At a hearing on 23 November 2001 the applicant gave evidence in person and pleaded not guilty, arguing that the evidence he had given while in police custody had been extracted under duress and coercion. Similarly, at a hearing on 23 March 2002, the applicant made his defence submissions in respect of each of the acts attributed to him and denied having carried out any of them, arguing that he had been made to sign all the documents during police custody and that he had been blindfolded when he did so. The applicant also denied the accuracy and veracity of the reports of the reconstructions of events, arguing that he had been subjected to duress and coercion during his police custody. 11. Between 2002 and 2008 numerous hearings were held before the trial court, during which witnesses were examined, further evidence was collected, certain forensic examinations were ordered (including, in particular, assessments of the applicant’s mental capacity) and the parties’ submissions were heard. 12. On 21 November 2011 the Istanbul Assize Court convicted the applicant as charged and imposed a life sentence without the possibility of parole. In finding the applicant guilty, the trial court relied, inter alia, on the evidence the applicant and other co-accused had given in the absence of a lawyer while in police custody, the expert reports, the inquiry reports, the crime-scene investigation reports, and physical surveillance reports. 13. On 10 December 2013 the Court of Cassation held a hearing during which it heard submissions, inter alia, from the applicant’s lawyer and upheld the first-instance court’s judgment. The applicant’s lawyer argued before the Court that she had handed in submissions, dated 20 November 2013, to the Court of Cassation at this hearing. In those pleadings she complained, inter alia, that the domestic courts’ reliance on evidence given by the applicant under duress and without a lawyer being present had breached his right to a fair trial. 14. On 10 January 2014 the applicant lodged an application with the Constitutional Court, complaining of a breach of his right to be tried within a reasonable time and of his right to a fair trial, as a result of the systemic restriction imposed on his right to a lawyer during police custody and the use by the domestic courts of the evidence he had given under duress and in the absence of a lawyer to convict him. 15. On 29 June 2016 the Constitutional Court delivered its judgment. While it found a violation of the applicant’s right to be tried within a reasonable time, it declared inadmissible the applicant’s complaint regarding the right to a fair trial, holding that the case file contained no information or document showing that he had raised his complaints in his appeal submissions or otherwise set them out during the hearing before the Court of Cassation. The Constitutional Court went on to hold that although the UYAP[1] (the National Judiciary Informatics System) contained two appeal submissions, dated 10 October 2013 and 21 October 2013, lodged by the applicant and his lawyer, those submissions contained no complaints regarding the absence of a lawyer, the alleged duress he had been subjected to while in police custody or the domestic courts’ use in convicting him of statements made without a lawyer being present. RELEVANT LEGAL FRAMEWORK AND PRACTICE
16. 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). 17. The Government referred to two judgments delivered by the Court of Cassation in support of their observations of 22 February 2018. In the first judgment, dated 17 November 2009 (case no. 2009/7-160 and decision no. 2009/264, known as the “counterfeit rakı” judgment), the plenary criminal divisions of the Court of Cassation had examined whether evidence other than that obtained in the course of an unlawful search which took place in 2003 (during which substantial amounts of counterfeit alcohol had been found and seized), namely statements made by the applicant to the police, was sufficient to convict the applicant. The Court of Cassation had concluded that the case file did not contain any confession from the applicant, and even assuming that it did, confessions that had neither been made of his free will nor corroborated by other evidence could not be used in criminal proceedings. The offence the accused had been charged with had not been amongst those that fell within the jurisdiction of the state security courts: hence, it did not appear that the accused’s right to benefit from legal assistance had suffered from a systemic restriction pursuant to Law no. 3842. In fact, it was not clear from the wording of the judgment whether the accused had asked for a lawyer before making any statements to the police and if so, whether that request had been granted or rejected. While it was true that – in describing the relevant provisions of the new Code of Criminal Procedure (Law no. 5271 entered into force on 1 June 2005) –, the Court of Cassation held that the statements the suspect had made could only be read out at a hearing if they had been given in the presence of a lawyer, its findings in respect of the former Code of Criminal Procedure (Law no. 1412), which had been in force when the search had taken place, did not contain any element implying that this was true in respect of police statements made in the absence of a lawyer when that Code had been in force. 18. In the second judgment dated 21 April 2016 (case no. 2015/4672 and decision no. 2016/2330, known as the “Ergenekon[2]” judgment), the 16th Division of the Court of Cassation examined numerous issues raised by one hundred and seventeen appellants and their lawyers. These included the unlawfulness of statements obtained through prohibited methods. The Court of Cassation held that evidence obtained through torture, the administration of drugs, deception, duress or other attacks on the physical and psychological dignity of the individual could not constitute the basis of a judgment and that such unlawfulness should be considered as breaching the fundamental rights of the accused. THE LAW
19. The applicant complained that he had not had a fair trial on account of the systemic restriction imposed on his right to a lawyer during his time in police custody and the use by the trial court of the evidence he had given during that period in the absence of a lawyer to convict him. Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, reads 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;”
1. The parties’ submissions
(a) The Government
20. The Government argued at the outset that the case file concerning the criminal proceedings against the applicant did not contain any submission dated 20 November 2013, drawn up by either the applicant or his lawyer. The fact that the applicant had been unable to provide a copy of a submission dated 20 November 2013 that had been countersigned or stamped by a judge or official at the Court of Cassation had given rise to a suspicion as to whether he had in fact handed in any such submission to the Court of Cassation. The Government also submitted that the Constitutional Court had dismissed the applicant’s individual application on account of non-exhaustion of domestic remedies, given that none of the submissions he had lodged with the Court of Cassation, whether in physical or electronic format, contained his complaints regarding the absence of legal assistance and the use by the trial court, in his conviction, of the evidence he had given in the absence of a lawyer. On that basis, the Government firmly rejected the contention that the Constitutional Court had carried out a flawed examination in the applicant’s case. 21. The Government further argued, in the light of the two above-cited Court of Cassation judgments, that confessions which had been made by the accused in the absence of a lawyer had been considered as unlawful evidence when the accused had subsequently retracted them before a judge and that convictions rendered on the basis of such evidence had been quashed by the Court of Cassation. Thus, it had been all the more necessary for the applicant to raise his complaints in his appeal submissions; by failing to do so he had simply failed to exhaust the effective domestic remedies in respect of those complaints. (b) The applicant
22. The applicant argued that his lawyer had handed in a submission dated 20 November 2013 to the Court of Cassation at the hearing held before it on 11 December 2013, but that – in the circumstances prevailing in a hearing – it had not been possible to obtain a countersignature from the judges of that court and its inclusion in the case file. In any event, responsibility for registering and filing submissions presented at a hearing lay with the authorities. Moreover, when the applicant’s lawyer attempted to obtain a copy of the above submission from the file after the Government’s observations on the admissibility and merits of the present case, she had been informed that the High Council of Judges and Prosecutors were conducting an examination of it. For that reason, the applicant had not been able to produce a copy of his submissions that had been countersigned or stamped by the judge(s) of the Court of Cassation. 2. The Court’s assessment
23. The Court notes at the outset that, in view of the Government’s plea of non‐exhaustion, the legal question it is called upon to address is whether the applicant’s complaints concerning the systemic restriction on his right to a lawyer and the use by the domestic courts of the evidence he had given in the absence of a lawyer were duly raised before the domestic courts, and whether the failure to do so would mean that the applicant had failed to exhaust the domestic remedies in respect of those complaints. In addressing that question, the Court will be guided by its well-established case-law in order to ascertain whether the applicant was required to raise before the Court of Cassation the complaint concerning the systemic restriction imposed on his right to a lawyer. 24. In the circumstances of the present case, the Court considers that it is not required to solve in a definitive manner the question whether the applicant had indeed handed in the impugned submission at the hearing before the Court of Cassation. This is because, in line with the Court’s well-established case-law, a complaint regarding a systemic restriction on an applicant’s right to a lawyer before the national authorities is devoid of any prospect of success, given that the restriction stemmed from a legal provision and thus applied to anyone held in police custody in connection with an offence falling within the jurisdiction of the State Security Courts (see, among many other authorities, Mehmet Zeki Çelebi v. Turkey, no. 27582/07, §§ 38-41, 28 January 2020; Taşçıgil v. Turkey, no. 16943/03, §§ 30 and 32, 3 March 2009; Halil Kaya v. Turkey, no. 22922/03, § 14, 22 September 2009; and Özel v. Turkey, no. 2739/98, § 25, 7 November 2002). 25. This being so, the Government challenge that case-law in the present case by praying in aid two judgments delivered by the Court of Cassation in 2009 and 2016. In their view, the first judgment, which had been delivered by the plenary criminal divisions of the Court of Cassation, was proof that confessions could only be admitted as evidence when made to the police or to the public prosecutor in the presence of a lawyer. 26. However, the Court observes that the above judgment did not concern any systemic restriction imposed on the accused’s right to a lawyer pursuant to Law no. 3842. Indeed, the legal question was not the absence of a lawyer; it was, as the Court of Cassation put it, whether the statements the accused had made in the aftermath of the unlawful search – in the course of which unlicensed alcoholic beverages had been found – was sufficient for his conviction. In answering this question in the negative, the Court of Cassation found that the case file had contained no confession by the applicant and that in any event it was not possible to use in criminal proceedings confessions that had not been made of one’s own free will or were not supported by other evidence. In other words, the Court of Cassation did not examine any legal question concerning the systemic restriction imposed on a suspect’s right to have legal assistance under Law no. 3842, the relevant provisions of which were repealed on 15 July 2003. Nor did that decision establish a practice whereby the Court of Cassation quashed a lower court’s judgment on the basis that the individual in question had been deprived of the assistance of a lawyer as a result of the application of Law no. 3842. 27. As to the second judgment referred to by the Government, the Court observes that not only was it rendered some three years after the applicant’s conviction became final in 2013 but, unlike the present case, it concerned the provisions of the new Code of Criminal Procedure, in which no systemic restriction on an accused’s right to a lawyer has been envisaged. 28. In view of the above considerations, the Court is unable to conclude on the basis of the judgments furnished by the Government that, had the applicant raised the complaint concerning the systemic restriction on his right to a lawyer in his appeal before the Court of Cassation, he would have had a prospect of success at the material time. In those circumstances, the Court discerns no reason to depart from its well-established case-law and dismisses the Government’s preliminary objection based on the non-exhaustion of domestic remedies. 29. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
(a) The applicant
30. The applicant argued that he had been deprived of legal assistance while in police custody, as a result of Law no. 3842, and that the criminal proceedings against him had been overshadowed by the use of the evidence collected during that period, in the absence of a lawyer. In that connection, the applicant pointed out that the Government did not deny that no lawyer had been present when he had been required to participate in numerous reconstructions and house searches and that he had given very long statements to the police. Accordingly, the applicant asserted that the evidence he had given in the absence of a lawyer had formed the basis of his conviction and had thus caused him significant disadvantage. (b) The Government
31. The Government argued that there had been compelling reasons to restrict the applicant’s right to legal assistance during his police custody, given the gravity of the acts perpetrated by the members of TKP‐ML/TIKKO and the severity of the applicant’s own acts. They further submitted that although the applicant had been deprived of assistance by a lawyer as a result of a legal provision, that fact had neither caused irreparable harm to his defence rights nor adversely affected the overall fairness of the criminal proceedings against him. In that connection, the Government argued that in convicting the applicant the trial court had had regard to the defence submissions made by the applicant in the presence of his lawyers during the trial and had relied on the reconstructions of events in which he had participated, criminal examination reports, incident scene reports and other evidence that had been confirmed by the witnesses who had testified against the applicant. Accordingly, the Government submitted that the applicant’s inability to benefit from legal assistance while in police custody had not prejudiced the fairness of the proceedings. 2. The Court’s assessment
32. As to the applicant’s complaint regarding the systemic restriction imposed on his right to a lawyer and the subsequent use by the trial court of the evidence he had given during his police custody and in the absence of a lawyer, the Court reiterates that in Beuze v. Belgium ([GC], no. 71409/10, § 144, 9 November 2018) it affirmed that the test clarified in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, 13 September 2016) should also be applied in cases where the restriction on the applicant’s right to a lawyer stemmed from the statutory provisions and was hence systemic. Thus, the Court must examine the following factors when faced with such complaints; (i) whether there was a restriction on the right to a lawyer; (ii) whether there were compelling reasons for the restriction; and (iii) whether the proceedings were fair as a whole. 33. The Court has already examined the same legal problem and found violations of Article 6 §§ 1 and 3 (c) of the Convention in cases against Turkey both before and after the above-mentioned Ibrahim and Others judgment (for the Court’s approach prior to the Ibrahim and Others judgment, see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008; no. 20564/10, 12 January 2016; Galip Doğru v. Turkey, no. 36001/06, 28 April 2015; Eraslan and Others v. Turkey, no. 59653/00, 6 October 2009; Halil Kaya, cited above; Ditaban v. Turkey, no. 69006/01, 14 April 2009; and İbrahim Öztürk v. Turkey, no. 16500/04, 17 February 2009; and for the Court’s approach following the Ibrahim and Others judgment, see Mehmet Duman v. Turkey, no. 38740/09, 23 October 2018; Ömer Güner v. Turkey, no. 28338/07, 4 September 2018; Canşad and Others v. Turkey, no. 7851/05, 13 March 2018; Girişen v. Turkey, no. 53567/07, 13 March 2018; İzzet Çelik v. Turkey, no. 15185/05, 23 January 2018; Bayram Koç v. Turkey, no. 38907/09, 5 September 2017; and Mehmet Zeki Çelebi, cited above). 34. The Court reiterates that restrictions on access to a lawyer for “compelling reasons” are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see Beuze, cited above, § 142). 35. Moreover, the Court considers that, where a procedural defect has been identified, it falls to the domestic courts in the first place to carry out the assessment as to whether that procedural shortcoming has been remedied in the course of the ensuing proceedings, the lack of an assessment to that effect in itself being prima facie incompatible with the requirements of a fair trial within the meaning of Article 6 of the Convention. In the absence of any such assessment, the Court must nevertheless make its own determination. However, the onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer (see Ibrahim and Others, cited above, § 265, and Beuze, cited above, § 145). 36. Turning to the circumstances of the present case, the Court notes that the applicant’s access to a lawyer was restricted by virtue of Law no. 3842 and applied to anyone held in police custody in connection with an offence falling under the jurisdiction of the State Security Courts, irrespective of the individual assessment of the particular circumstances of each case. Reiterating that the existence of exceptional circumstances which satisfy the substantive requirement of compelling reasons does not automatically provide adequate justification for limiting suspects’ access to legal advice, the Court notes that a statutory restriction of this kind, which excludes any individual assessment, cannot stand up to scrutiny in relation to the procedural requirements of the concept of “compelling reasons” (see Beuze, cited above, § 138). Furthermore, the Government have not established any compelling reasons either, and it is not for the Court to ascertain such circumstances of its own motion (see Beuze, cited above, § 163). Hence, the Court considers that in the present case there were no compelling reasons to restrict the applicant’s right to a lawyer while in police custody. 37. The Court notes that although the applicant rejected the incriminating evidence he had given to the police in his subsequent statements, the domestic courts neither examined the admissibility of the evidence given by the applicant in the absence of a lawyer nor the effects of this structural shortcoming on the overall fairness of the criminal proceedings against him (see Beuze, cited above, §§ 171-174 where the Court held that this examination lay at the heart of the second stage of the test set out in the Salduz and Ibrahim and Others judgments; see also Mehmet Duman, cited above; § 41; Ömer Güner, cited above, § 36; Canşad and Others, cited above, § 44; Girişen, cited above, § 60; İzzet Çelik, cited above, § 38; and Bayram Koç, cited above, § 23). Moreover, although the Government referred to the strength of the other evidence, separate from that provided by the applicant in the absence of a lawyer, the Court considers that they have not sufficiently demonstrated that the absence of legal assistance at the initial stage of the investigation, exceptionally and in the specific circumstances of the case, did not irretrievably prejudice the applicant’s defence rights. 38. The foregoing considerations are sufficient for the Court to conclude that the overall fairness of the criminal proceedings against the applicant was prejudiced to an extent that is incompatible with Article 6 of the Convention. 39. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention. 40. In view of the above finding, the Court does not consider it necessary to give a separate ruling on the admissibility and merits of the complaint regarding the Constitutional Court’s alleged failure to examine the applicant’s complaint about his right to legal assistance. 41. 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.”
42. The applicant claimed 20,000 euros (EUR) in respect of non‐pecuniary damage. 43. The Government contested the amount claimed, finding it excessive in the light of the awards made in similar cases. 44. As for the claim 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. 45. The applicant also claimed 7,080 Turkish liras (TRY) (approximately EUR 1,433 on the basis of the exchange rate at the time), corresponding to the legal fee for his representation before the Court, arguing that he had agreed that he would pay that sum to his lawyers following delivery of the Court’s judgment. The applicant further claimed TRY 485 in respect of the expenses incurred before the Court, consisting of TRY 400 for translation, TRY 50 for photocopies and TRY 35 for postal expenses. While the applicant did not submit any documentary proof in support of his claims, he argued that the claims had been genuine, reasonable and necessary. 46. The Government contested the applicant’s claims for costs and expenses and invited the Court to reject them having regard to his failure to produce any documents to support those claims. Moreover, no details as regards the work carried out by the applicant’s lawyers had been provided and the amount of the legal fee had not reflected the truth owing to it being higher in comparison to similar proceedings. 47. According to 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 were 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 allows the applicant’s claim for legal fees in full and awards him EUR 1,433. However, the Court dismisses the remainder of his claim, related to expenses, on account of his failure to provide any supporting documents. C. Default interest
48. 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,
(a) that the respondent State is to pay the applicant, within three months, EUR 1,433 (one thousand four hundred and thirty-three euros), plus any tax that may be chargeable, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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;
Done in English, and notified in writing on 13 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Carlo RanzoniDeputy Registrar President
[1] An eJustice portal where the contents of all case files are stored in electronic format. It contains, in particular, the submissions made by the parties to a case via this system or the scanned versions of the submissions which they have physically handed in to the courts or to the public prosecutor’s office. For further information on the UYAP, see Alada v. Turkey, (dec.), no.67449/12, 7 July 2015. [2] For a short description of the events surrounding the Ergenekon trial, see Şık v. Turkey, no. 53413/11, § 10, 8 July 2014. SECOND SECTION
CASE OF ERİŞ v. TURKEY
(Application no. 20458/17)

JUDGMENT
STRASBOURG
13 July 2021

This judgment is final but it may be subject to editorial revision. In the case of Eriş v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Carlo Ranzoni, President, Valeriu Griţco, Marko Bošnjak, judges,and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 20458/17) 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 Yaşar Eriş (“the applicant”), on 22 February 2017;
the decision to give notice to the Turkish Government (“the Government”) of the complaints concerning the systemic restriction imposed on the applicant’s right to a lawyer and the Constitutional Court’s alleged failure to carry out a proper examination of that complaint and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 22 June 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the alleged unfairness of the criminal proceedings against the applicant, who complains of a violation of Article 6 §§ 1 and 3 (c) of the Convention as a result of the systemic restriction imposed on his right to a lawyer while in police custody and the trial court’s use in his conviction of the evidence given by the applicant without a lawyer being present. It further pertains, under Article 6 § 1 of the Convention, to the Constitutional Court’s alleged flawed examination of the above-mentioned complaints. THE FACTS
2. The applicant was born in 1971 and is currently serving his sentence in Tekirdağ F-Type Closed Prison. The applicant was represented by Ms M. Hanbayat Yeşil, a lawyer practising in Istanbul. 3. The Government were represented by their Agent. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 3 April 2001 the applicant was arrested on suspicion of involvement in the TKP‐ML/TIKKO (Communist Party of Turkey / Marxist‐Leninist / Turkish Workers and Peasants’ Liberation Army) in the context of a police operation carried out against that organisation. 6. On 8 April 2001 the applicant made statements to the police, in the absence of a lawyer, in which he explained his involvement in the TKP‐ML/TIKKO and the criminal acts he had carried out on its behalf. 7. In the course of his police custody, the applicant participated in seventeen different reconstructions of events (yer gösterme), during which he made self-incriminatory statements in the absence of a lawyer. 8. On 9 April 2001 the applicant made statements to the public prosecutor and then to the judge of the Istanbul State Security Court, on both occasions in the absence of a lawyer. He claimed in essence that he had been subjected to acts of torture and threats by the police and forced to sign the record of his statement and the reports of the reconstructions of events. 9. On 11 April 2001 the public prosecutor at the Istanbul State Security Court filed a bill of indictment against the applicant with the Istanbul State Security Court, charging him under Article 146 of the then Criminal Code with attempting to undermine the constitutional order by force. The public prosecutor accused the applicant of carrying out armed acts and/or bombings on behalf of the TKP‐ML/TIKKO, hanging illegal banners attached to an item resembling a bomb, and carrying out acts of robbery in order to obtain money for that organisation. 10. At a hearing on 23 November 2001 the applicant gave evidence in person and pleaded not guilty, arguing that the evidence he had given while in police custody had been extracted under duress and coercion. Similarly, at a hearing on 23 March 2002, the applicant made his defence submissions in respect of each of the acts attributed to him and denied having carried out any of them, arguing that he had been made to sign all the documents during police custody and that he had been blindfolded when he did so. The applicant also denied the accuracy and veracity of the reports of the reconstructions of events, arguing that he had been subjected to duress and coercion during his police custody. 11. Between 2002 and 2008 numerous hearings were held before the trial court, during which witnesses were examined, further evidence was collected, certain forensic examinations were ordered (including, in particular, assessments of the applicant’s mental capacity) and the parties’ submissions were heard. 12. On 21 November 2011 the Istanbul Assize Court convicted the applicant as charged and imposed a life sentence without the possibility of parole. In finding the applicant guilty, the trial court relied, inter alia, on the evidence the applicant and other co-accused had given in the absence of a lawyer while in police custody, the expert reports, the inquiry reports, the crime-scene investigation reports, and physical surveillance reports. 13. On 10 December 2013 the Court of Cassation held a hearing during which it heard submissions, inter alia, from the applicant’s lawyer and upheld the first-instance court’s judgment. The applicant’s lawyer argued before the Court that she had handed in submissions, dated 20 November 2013, to the Court of Cassation at this hearing. In those pleadings she complained, inter alia, that the domestic courts’ reliance on evidence given by the applicant under duress and without a lawyer being present had breached his right to a fair trial. 14. On 10 January 2014 the applicant lodged an application with the Constitutional Court, complaining of a breach of his right to be tried within a reasonable time and of his right to a fair trial, as a result of the systemic restriction imposed on his right to a lawyer during police custody and the use by the domestic courts of the evidence he had given under duress and in the absence of a lawyer to convict him. 15. On 29 June 2016 the Constitutional Court delivered its judgment. While it found a violation of the applicant’s right to be tried within a reasonable time, it declared inadmissible the applicant’s complaint regarding the right to a fair trial, holding that the case file contained no information or document showing that he had raised his complaints in his appeal submissions or otherwise set them out during the hearing before the Court of Cassation. The Constitutional Court went on to hold that although the UYAP[1] (the National Judiciary Informatics System) contained two appeal submissions, dated 10 October 2013 and 21 October 2013, lodged by the applicant and his lawyer, those submissions contained no complaints regarding the absence of a lawyer, the alleged duress he had been subjected to while in police custody or the domestic courts’ use in convicting him of statements made without a lawyer being present. RELEVANT LEGAL FRAMEWORK AND PRACTICE
16. 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). 17. The Government referred to two judgments delivered by the Court of Cassation in support of their observations of 22 February 2018. In the first judgment, dated 17 November 2009 (case no. 2009/7-160 and decision no. 2009/264, known as the “counterfeit rakı” judgment), the plenary criminal divisions of the Court of Cassation had examined whether evidence other than that obtained in the course of an unlawful search which took place in 2003 (during which substantial amounts of counterfeit alcohol had been found and seized), namely statements made by the applicant to the police, was sufficient to convict the applicant. The Court of Cassation had concluded that the case file did not contain any confession from the applicant, and even assuming that it did, confessions that had neither been made of his free will nor corroborated by other evidence could not be used in criminal proceedings. The offence the accused had been charged with had not been amongst those that fell within the jurisdiction of the state security courts: hence, it did not appear that the accused’s right to benefit from legal assistance had suffered from a systemic restriction pursuant to Law no. 3842. In fact, it was not clear from the wording of the judgment whether the accused had asked for a lawyer before making any statements to the police and if so, whether that request had been granted or rejected. While it was true that – in describing the relevant provisions of the new Code of Criminal Procedure (Law no. 5271 entered into force on 1 June 2005) –, the Court of Cassation held that the statements the suspect had made could only be read out at a hearing if they had been given in the presence of a lawyer, its findings in respect of the former Code of Criminal Procedure (Law no. 1412), which had been in force when the search had taken place, did not contain any element implying that this was true in respect of police statements made in the absence of a lawyer when that Code had been in force. 18. In the second judgment dated 21 April 2016 (case no. 2015/4672 and decision no. 2016/2330, known as the “Ergenekon[2]” judgment), the 16th Division of the Court of Cassation examined numerous issues raised by one hundred and seventeen appellants and their lawyers. These included the unlawfulness of statements obtained through prohibited methods. The Court of Cassation held that evidence obtained through torture, the administration of drugs, deception, duress or other attacks on the physical and psychological dignity of the individual could not constitute the basis of a judgment and that such unlawfulness should be considered as breaching the fundamental rights of the accused. THE LAW
19. The applicant complained that he had not had a fair trial on account of the systemic restriction imposed on his right to a lawyer during his time in police custody and the use by the trial court of the evidence he had given during that period in the absence of a lawyer to convict him. Article 6 §§ 1 and 3 (c) of the Convention, which, in so far as relevant, reads 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;”
1. The parties’ submissions
(a) The Government
20. The Government argued at the outset that the case file concerning the criminal proceedings against the applicant did not contain any submission dated 20 November 2013, drawn up by either the applicant or his lawyer. The fact that the applicant had been unable to provide a copy of a submission dated 20 November 2013 that had been countersigned or stamped by a judge or official at the Court of Cassation had given rise to a suspicion as to whether he had in fact handed in any such submission to the Court of Cassation. The Government also submitted that the Constitutional Court had dismissed the applicant’s individual application on account of non-exhaustion of domestic remedies, given that none of the submissions he had lodged with the Court of Cassation, whether in physical or electronic format, contained his complaints regarding the absence of legal assistance and the use by the trial court, in his conviction, of the evidence he had given in the absence of a lawyer. On that basis, the Government firmly rejected the contention that the Constitutional Court had carried out a flawed examination in the applicant’s case. 21. The Government further argued, in the light of the two above-cited Court of Cassation judgments, that confessions which had been made by the accused in the absence of a lawyer had been considered as unlawful evidence when the accused had subsequently retracted them before a judge and that convictions rendered on the basis of such evidence had been quashed by the Court of Cassation. Thus, it had been all the more necessary for the applicant to raise his complaints in his appeal submissions; by failing to do so he had simply failed to exhaust the effective domestic remedies in respect of those complaints. (b) The applicant
22. The applicant argued that his lawyer had handed in a submission dated 20 November 2013 to the Court of Cassation at the hearing held before it on 11 December 2013, but that – in the circumstances prevailing in a hearing – it had not been possible to obtain a countersignature from the judges of that court and its inclusion in the case file. In any event, responsibility for registering and filing submissions presented at a hearing lay with the authorities. Moreover, when the applicant’s lawyer attempted to obtain a copy of the above submission from the file after the Government’s observations on the admissibility and merits of the present case, she had been informed that the High Council of Judges and Prosecutors were conducting an examination of it. For that reason, the applicant had not been able to produce a copy of his submissions that had been countersigned or stamped by the judge(s) of the Court of Cassation. 2. The Court’s assessment
23. The Court notes at the outset that, in view of the Government’s plea of non‐exhaustion, the legal question it is called upon to address is whether the applicant’s complaints concerning the systemic restriction on his right to a lawyer and the use by the domestic courts of the evidence he had given in the absence of a lawyer were duly raised before the domestic courts, and whether the failure to do so would mean that the applicant had failed to exhaust the domestic remedies in respect of those complaints. In addressing that question, the Court will be guided by its well-established case-law in order to ascertain whether the applicant was required to raise before the Court of Cassation the complaint concerning the systemic restriction imposed on his right to a lawyer. 24. In the circumstances of the present case, the Court considers that it is not required to solve in a definitive manner the question whether the applicant had indeed handed in the impugned submission at the hearing before the Court of Cassation. This is because, in line with the Court’s well-established case-law, a complaint regarding a systemic restriction on an applicant’s right to a lawyer before the national authorities is devoid of any prospect of success, given that the restriction stemmed from a legal provision and thus applied to anyone held in police custody in connection with an offence falling within the jurisdiction of the State Security Courts (see, among many other authorities, Mehmet Zeki Çelebi v. Turkey, no. 27582/07, §§ 38-41, 28 January 2020; Taşçıgil v. Turkey, no. 16943/03, §§ 30 and 32, 3 March 2009; Halil Kaya v. Turkey, no. 22922/03, § 14, 22 September 2009; and Özel v. Turkey, no. 2739/98, § 25, 7 November 2002). 25. This being so, the Government challenge that case-law in the present case by praying in aid two judgments delivered by the Court of Cassation in 2009 and 2016. In their view, the first judgment, which had been delivered by the plenary criminal divisions of the Court of Cassation, was proof that confessions could only be admitted as evidence when made to the police or to the public prosecutor in the presence of a lawyer. 26. However, the Court observes that the above judgment did not concern any systemic restriction imposed on the accused’s right to a lawyer pursuant to Law no. 3842. Indeed, the legal question was not the absence of a lawyer; it was, as the Court of Cassation put it, whether the statements the accused had made in the aftermath of the unlawful search – in the course of which unlicensed alcoholic beverages had been found – was sufficient for his conviction. In answering this question in the negative, the Court of Cassation found that the case file had contained no confession by the applicant and that in any event it was not possible to use in criminal proceedings confessions that had not been made of one’s own free will or were not supported by other evidence. In other words, the Court of Cassation did not examine any legal question concerning the systemic restriction imposed on a suspect’s right to have legal assistance under Law no. 3842, the relevant provisions of which were repealed on 15 July 2003. Nor did that decision establish a practice whereby the Court of Cassation quashed a lower court’s judgment on the basis that the individual in question had been deprived of the assistance of a lawyer as a result of the application of Law no. 3842. 27. As to the second judgment referred to by the Government, the Court observes that not only was it rendered some three years after the applicant’s conviction became final in 2013 but, unlike the present case, it concerned the provisions of the new Code of Criminal Procedure, in which no systemic restriction on an accused’s right to a lawyer has been envisaged. 28. In view of the above considerations, the Court is unable to conclude on the basis of the judgments furnished by the Government that, had the applicant raised the complaint concerning the systemic restriction on his right to a lawyer in his appeal before the Court of Cassation, he would have had a prospect of success at the material time. In those circumstances, the Court discerns no reason to depart from its well-established case-law and dismisses the Government’s preliminary objection based on the non-exhaustion of domestic remedies. 29. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. B. Merits
1. The parties’ submissions
(a) The applicant
30. The applicant argued that he had been deprived of legal assistance while in police custody, as a result of Law no. 3842, and that the criminal proceedings against him had been overshadowed by the use of the evidence collected during that period, in the absence of a lawyer. In that connection, the applicant pointed out that the Government did not deny that no lawyer had been present when he had been required to participate in numerous reconstructions and house searches and that he had given very long statements to the police. Accordingly, the applicant asserted that the evidence he had given in the absence of a lawyer had formed the basis of his conviction and had thus caused him significant disadvantage. (b) The Government
31. The Government argued that there had been compelling reasons to restrict the applicant’s right to legal assistance during his police custody, given the gravity of the acts perpetrated by the members of TKP‐ML/TIKKO and the severity of the applicant’s own acts. They further submitted that although the applicant had been deprived of assistance by a lawyer as a result of a legal provision, that fact had neither caused irreparable harm to his defence rights nor adversely affected the overall fairness of the criminal proceedings against him. In that connection, the Government argued that in convicting the applicant the trial court had had regard to the defence submissions made by the applicant in the presence of his lawyers during the trial and had relied on the reconstructions of events in which he had participated, criminal examination reports, incident scene reports and other evidence that had been confirmed by the witnesses who had testified against the applicant. Accordingly, the Government submitted that the applicant’s inability to benefit from legal assistance while in police custody had not prejudiced the fairness of the proceedings. 2. The Court’s assessment
32. As to the applicant’s complaint regarding the systemic restriction imposed on his right to a lawyer and the subsequent use by the trial court of the evidence he had given during his police custody and in the absence of a lawyer, the Court reiterates that in Beuze v. Belgium ([GC], no. 71409/10, § 144, 9 November 2018) it affirmed that the test clarified in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, 13 September 2016) should also be applied in cases where the restriction on the applicant’s right to a lawyer stemmed from the statutory provisions and was hence systemic. Thus, the Court must examine the following factors when faced with such complaints; (i) whether there was a restriction on the right to a lawyer; (ii) whether there were compelling reasons for the restriction; and (iii) whether the proceedings were fair as a whole. 33. The Court has already examined the same legal problem and found violations of Article 6 §§ 1 and 3 (c) of the Convention in cases against Turkey both before and after the above-mentioned Ibrahim and Others judgment (for the Court’s approach prior to the Ibrahim and Others judgment, see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008; no. 20564/10, 12 January 2016; Galip Doğru v. Turkey, no. 36001/06, 28 April 2015; Eraslan and Others v. Turkey, no. 59653/00, 6 October 2009; Halil Kaya, cited above; Ditaban v. Turkey, no. 69006/01, 14 April 2009; and İbrahim Öztürk v. Turkey, no. 16500/04, 17 February 2009; and for the Court’s approach following the Ibrahim and Others judgment, see Mehmet Duman v. Turkey, no. 38740/09, 23 October 2018; Ömer Güner v. Turkey, no. 28338/07, 4 September 2018; Canşad and Others v. Turkey, no. 7851/05, 13 March 2018; Girişen v. Turkey, no. 53567/07, 13 March 2018; İzzet Çelik v. Turkey, no. 15185/05, 23 January 2018; Bayram Koç v. Turkey, no. 38907/09, 5 September 2017; and Mehmet Zeki Çelebi, cited above). 34. The Court reiterates that restrictions on access to a lawyer for “compelling reasons” are permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case (see Beuze, cited above, § 142). 35. Moreover, the Court considers that, where a procedural defect has been identified, it falls to the domestic courts in the first place to carry out the assessment as to whether that procedural shortcoming has been remedied in the course of the ensuing proceedings, the lack of an assessment to that effect in itself being prima facie incompatible with the requirements of a fair trial within the meaning of Article 6 of the Convention. In the absence of any such assessment, the Court must nevertheless make its own determination. However, the onus will be on the Government to demonstrate convincingly why, exceptionally and in the specific circumstances of the case, the overall fairness of the criminal proceedings was not irretrievably prejudiced by the restriction on access to a lawyer (see Ibrahim and Others, cited above, § 265, and Beuze, cited above, § 145). 36. Turning to the circumstances of the present case, the Court notes that the applicant’s access to a lawyer was restricted by virtue of Law no. 3842 and applied to anyone held in police custody in connection with an offence falling under the jurisdiction of the State Security Courts, irrespective of the individual assessment of the particular circumstances of each case. Reiterating that the existence of exceptional circumstances which satisfy the substantive requirement of compelling reasons does not automatically provide adequate justification for limiting suspects’ access to legal advice, the Court notes that a statutory restriction of this kind, which excludes any individual assessment, cannot stand up to scrutiny in relation to the procedural requirements of the concept of “compelling reasons” (see Beuze, cited above, § 138). Furthermore, the Government have not established any compelling reasons either, and it is not for the Court to ascertain such circumstances of its own motion (see Beuze, cited above, § 163). Hence, the Court considers that in the present case there were no compelling reasons to restrict the applicant’s right to a lawyer while in police custody. 37. The Court notes that although the applicant rejected the incriminating evidence he had given to the police in his subsequent statements, the domestic courts neither examined the admissibility of the evidence given by the applicant in the absence of a lawyer nor the effects of this structural shortcoming on the overall fairness of the criminal proceedings against him (see Beuze, cited above, §§ 171-174 where the Court held that this examination lay at the heart of the second stage of the test set out in the Salduz and Ibrahim and Others judgments; see also Mehmet Duman, cited above; § 41; Ömer Güner, cited above, § 36; Canşad and Others, cited above, § 44; Girişen, cited above, § 60; İzzet Çelik, cited above, § 38; and Bayram Koç, cited above, § 23). Moreover, although the Government referred to the strength of the other evidence, separate from that provided by the applicant in the absence of a lawyer, the Court considers that they have not sufficiently demonstrated that the absence of legal assistance at the initial stage of the investigation, exceptionally and in the specific circumstances of the case, did not irretrievably prejudice the applicant’s defence rights. 38. The foregoing considerations are sufficient for the Court to conclude that the overall fairness of the criminal proceedings against the applicant was prejudiced to an extent that is incompatible with Article 6 of the Convention. 39. There has accordingly been a violation of Article 6 §§ 1 and 3 (c) of the Convention. 40. In view of the above finding, the Court does not consider it necessary to give a separate ruling on the admissibility and merits of the complaint regarding the Constitutional Court’s alleged failure to examine the applicant’s complaint about his right to legal assistance. 41. 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.”
42. The applicant claimed 20,000 euros (EUR) in respect of non‐pecuniary damage. 43. The Government contested the amount claimed, finding it excessive in the light of the awards made in similar cases. 44. As for the claim 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. 45. The applicant also claimed 7,080 Turkish liras (TRY) (approximately EUR 1,433 on the basis of the exchange rate at the time), corresponding to the legal fee for his representation before the Court, arguing that he had agreed that he would pay that sum to his lawyers following delivery of the Court’s judgment. The applicant further claimed TRY 485 in respect of the expenses incurred before the Court, consisting of TRY 400 for translation, TRY 50 for photocopies and TRY 35 for postal expenses. While the applicant did not submit any documentary proof in support of his claims, he argued that the claims had been genuine, reasonable and necessary. 46. The Government contested the applicant’s claims for costs and expenses and invited the Court to reject them having regard to his failure to produce any documents to support those claims. Moreover, no details as regards the work carried out by the applicant’s lawyers had been provided and the amount of the legal fee had not reflected the truth owing to it being higher in comparison to similar proceedings. 47. According to 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 were 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 allows the applicant’s claim for legal fees in full and awards him EUR 1,433. However, the Court dismisses the remainder of his claim, related to expenses, on account of his failure to provide any supporting documents. C. Default interest
48. 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,
(a) that the respondent State is to pay the applicant, within three months, EUR 1,433 (one thousand four hundred and thirty-three euros), plus any tax that may be chargeable, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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;
Done in English, and notified in writing on 13 July 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Carlo RanzoniDeputy Registrar President
[1] An eJustice portal where the contents of all case files are stored in electronic format. It contains, in particular, the submissions made by the parties to a case via this system or the scanned versions of the submissions which they have physically handed in to the courts or to the public prosecutor’s office. For further information on the UYAP, see Alada v. Turkey, (dec.), no.67449/12, 7 July 2015. [2] For a short description of the events surrounding the Ergenekon trial, see Şık v. Turkey, no. 53413/11, § 10, 8 July 2014.