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

Judgment

SECOND SECTION
CASE OF ÇİÇEKLER v. TÜRKİYE
(Application no. 37637/18)

JUDGMENT

STRASBOURG
17 January 2023
This judgment is final but it may be subject to editorial revision. In the case of Çiçekler v. Türkiye,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Pauliine Koskelo, President, Lorraine Schembri Orland, Davor Derenčinović, judges,and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 37637/18) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 July 2018 by a Turkish national, Mr Ergül Çiçekler (“the applicant”), born in 1976 and living in Kocaeli, who was represented by Ms M. Hanbayat Yeşil, a lawyer practising in Istanbul;
the decision to give notice of the application to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye;
the parties’ observations;
Having deliberated in private on 13 December 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The application concerns the alleged unfairness of criminal proceedings against the applicant owing to the use made of evidence given in police custody – allegedly under torture and in the absence of a lawyer – by the individuals C.B., U.B., O.K., Ö.Ö. and E.K. who were tried and convicted in a separate set of criminal proceedings. 2. In Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 114-124 and 138-149, ECHR 2004‐IV (extracts)), the Court found a violation of the substantive aspect of Article 3 of the Convention in respect of U.B., O.K. and Ö.Ö. in that they were subjected to torture during their police custody in February 1996 in order to extract information about offences from them. 3. In Dağdelen and Others v. Turkey (nos. 1767/03 and 2 others, §§ 80‐91, 93-97 and 118-125, 25 November 2008), the Court found a violation of both the substantive and the procedural aspects of Article 3 of the Convention and a violation of Article 6 §§ 1 and 3 of the Convention in respect, inter alia, of the present applicant, notably because he had been ill-treated in police custody in May 1996 and because his conviction had been based, inter alia, on police statements and evidence obtained by this ill-treatment and in the absence of a lawyer. The Court also found a violation of Article 3 of the Convention in respect of the applicant’s co-defendant S.Ö. on the grounds that he had also been ill-treated while in police custody. The criminal proceedings that were the subject of this judgment and those in the case of Batı and Others (cited above) concerned the same illegal armed organisation, namely the TKEP/L (Communist Labour Party of Türkiye/Leninist). 4. Subsequently, the Istanbul Assize Court reopened the criminal proceedings against the applicant pursuant to a request he had made based on the Court’s above-mentioned judgment in respect of him. On 14 May 2013 the Istanbul Assize Court, after conducting twelve hearings, decided to uphold the applicant’s previous conviction under Article 146 of the former Criminal Code and his sentence to life imprisonment. In doing so, the trial court decided not to admit into evidence the police statements of the defendants, including that of the applicant, but it did consider that his previous conviction should be upheld in view of the police statements made by C.B., U.B., O.K., Ö.Ö. and E.K., holding that they had not been obtained under duress. On 30 June 2014 the Court of Cassation upheld the trial court’s judgment. 5. On 26 December 2017 the Constitutional Court held that the applicant’s complaint concerning the unfairness of the criminal proceedings was aimed at challenging the outcome of those proceedings and declared it inadmissible, taking the view that there was no apparent arbitrariness in the way the domestic courts had established the facts and applied the relevant legal provisions in his case. 6. The applicant complains that his right to a fair trial was breached owing to the use by the trial court in the reopened criminal proceedings against him of the evidence given by certain other persons (who had been tried and convicted in a different set of criminal proceedings) under alleged duress and in the absence of a lawyer. THE COURT’S ASSESSMENT
7. The Government raised an objection of non-exhaustion of domestic remedies, arguing that the applicant had failed to raise his complaint concerning the use of evidence given by C.B., U.B., O.K., Ö.Ö. and E.K. as result of ill-treatment and in the absence of a lawyer for his conviction before the domestic courts. In the Government’s view, the applicant had only complained before the Constitutional Court of the domestic courts’ failure to collect evidence other than that relied on for his conviction. 8. The applicant asserted that he had raised the factual basis of the complaints he has submitted to the Court before the domestic courts. 9. The Court notes that the application form the applicant lodged with the Constitutional Court contained a complaint regarding the use of evidence given by C.B., U.B., O.K., Ö.Ö. and E.K. without a lawyer being present and regarding the trial court’s failure to inquire whether they had indeed made those statements without duress, before concluding that it was so. That being the case, the Court cannot uphold the Government’s preliminary objection based on non-exhaustion of domestic remedies. 10. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 11. The applicant asserted that the trial court had impinged on his right to a fair trial by relying on the statements that certain defendants from another case had made under torture and without a lawyer being present. 12. The Government argued that the domestic courts had convicted the applicant on the basis of evidence other than the statements he had made to the police, which were in and of themselves sufficient to find him guilty. There had thus been no violation of Article 6 of the Convention. 13. The general principles regarding the use in criminal proceedings of evidence obtained in breach of Article 3 of the Convention may be found in Gäfgen v. Germany ([GC], no. 22978/05, §§ 165-167, ECHR 2010). 14. The general principles concerning the use of evidence given by co‐defendants or witnesses in the absence of a lawyer have been summarised in Beuze v. Belgium ([GC], no. 71409/10, §§ 119-150, 9 November 2018); Stephens v. Malta (no. 3) (no. 35989/14, §§ 64-67, 14 January 2020); and Erkapić v. Croatia (no. 51198/08, §§ 72-73, 25 April 2013). In such cases, the Court’s task under Article 6 of the Convention primarily focuses on the assessment of domestic courts regarding the impact that the absence of a lawyer may have had on the overall fairness of criminal proceedings and, on that basis, to ascertain whether it was such as to render the proceedings incompatible with the guarantees of a fair trial. Ensuring that an applicant has been able to test the admissibility, reliability, authenticity and veracity of the evidence given without a lawyer being present constitutes the central pillar of the Court’s examination. 15. The Court notes that it has previously found a violation of Articles 3 and 6 §§ 1 and 3 of the Convention in respect of the present applicant in that, in the first set of criminal proceedings against him he had been ill-treated during his police custody and that he had been denied a fair hearing on account of the use, in his conviction, of the statements he had made and the evidence he had given under duress and without a lawyer being present (see paragraph 3 above). The Court has also found a violation of Article 3 in respect of his co-accused S.Ö. (see paragraph 3 above). Similarly, in Güvenilir v. Turkey (no. 16486/04, §§ 37-46, 13 October 2009), the Court also found a violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of another co-accused who had been tried and convicted in the same set of criminal proceedings as the applicant, on account of the systematic restrictions imposed on his right of access to a lawyer and the use of evidence obtained from another co-accused through ill-treatment, without ruling on the admissibility of such evidence. The Court also found a violation of Articles 3 and 6 §§ 1 and 3 (c) of the Convention in respect of the last co-accused in the applicant’s trial in Erdal Aslan v. Turkey (nos. 25060/02 and 1705/03, §§ 69‐73 and 88-93, 2 December 2008) on account of the systematic restrictions imposed on his right of access to a lawyer and the use during the trial of evidence obtained from him in breach of Article 3 of the Convention. 16. Subsequent to and on the basis of the above-mentioned judgments, the criminal proceedings against the applicant were reopened by the Istanbul Assize Court, which held that the applicant’s previous conviction should be upheld. In doing so, the trial court held that it would attach no value to the police statements of the defendants in view of the Court’s judgments mentioned above. While this is a welcome step which demonstrates the trial court’s willingness to engage in a meaningful manner with the Court’s judgment in respect of the applicant, the trial court appears to have persisted in using evidence obtained in breach of Article 3 of the Convention, without examining its admissibility or operating the necessary procedural safeguards entrenched in Turkish criminal law so as to offset the undesirable and harmful effects which the use of such evidence may entail for the legitimacy of criminal proceedings. 17. In that connection, the Court finds it particularly troubling that even though U.B., O.K. and Ö.Ö. were found to have been subjected to the most serious and cruel form of ill-treatment, namely torture, in order to extract statements from them in Batı and Others (cited above, §§ 114-124), the trial court assessed the evidence that they had given – in a manner incompatible with the fair trial guarantees under Article 6 of the Convention – and used it to convict the applicant in the newly reopened trial in 2013, a fact which remained unaddressed in the decisions of the superior courts which followed in 2014 and 2017. At this juncture, the Court finds it useful to reiterate that statements obtained in breach of Article 3 of the Convention can in no way be admitted into evidence against an accused in criminal proceedings and that the national authorities are under a positive obligation to assess whether evidence has been obtained in breach of Article 3 of the Convention, and, if so, to exclude it from the file or to refrain from relying on it in establishing the facts against an accused (compare paragraph 13 above). 18. Even though the above findings were sufficient by and of themselves to give rise to a violation of Article 6 § 1 of the Convention, the Court further notes that the trial court did not assess the impact of the absence of a lawyer when U.B., O.K. and Ö.Ö. made their statements to the police before relying on those statements to convict the applicant in the newly reopened criminal proceedings. Nor did the trial court assess the admissibility, reliability, authenticity and veracity of the evidence given by U.B., O.K. and Ö.Ö. The Court of Cassation also failed to address those crucial points when upholding the trial court’s judgment. Similarly, the applicant’s complaint before the Constitutional Court about the use of statements made without a lawyer being present as evidence went unnoticed. 19. In view of the foregoing considerations, the Court holds that there has been a violation of Article 6 § 1 of the Convention in the present case owing to the use by the trial court of the statements made by U.B., O.K. and Ö.Ö. to convict the applicant. 20. On the basis of the finding of a violation of Article 6 § 1 of the Convention, the Court does not consider it necessary to examine whether the fairness of the criminal proceedings was also tainted on account of the use of evidence given by C.B. and E.K. 21. The applicant claimed 30,000 euros (EUR) in respect of non‐pecuniary damage and 12,450 Turkish liras (TRY) in respect of costs and expenses, including lawyer’s fees. 22. The Government argued that the applicant’s claim for non-pecuniary damage was excessive and that his claim regarding costs and expenses had neither been sufficiently itemised nor substantiated with any documentary proof. 23. The Court awards the applicant 6,000 EUR in respect of non‐pecuniary damage, plus any tax that may be chargeable, but rejects his claim in respect of costs and expenses, owing to his failure to submit any supporting documents. It further notes that Article 311 of the Code of Criminal Procedure allows for reopening of domestic proceedings in the event that the Court finds a violation of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 17 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Dorothee von Arnim Pauliine Koskelo Deputy Registrar President

SECOND SECTION
CASE OF ÇİÇEKLER v. TÜRKİYE
(Application no. 37637/18)

JUDGMENT

STRASBOURG
17 January 2023
This judgment is final but it may be subject to editorial revision. In the case of Çiçekler v. Türkiye,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Pauliine Koskelo, President, Lorraine Schembri Orland, Davor Derenčinović, judges,and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 37637/18) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 26 July 2018 by a Turkish national, Mr Ergül Çiçekler (“the applicant”), born in 1976 and living in Kocaeli, who was represented by Ms M. Hanbayat Yeşil, a lawyer practising in Istanbul;
the decision to give notice of the application to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye;
the parties’ observations;
Having deliberated in private on 13 December 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The application concerns the alleged unfairness of criminal proceedings against the applicant owing to the use made of evidence given in police custody – allegedly under torture and in the absence of a lawyer – by the individuals C.B., U.B., O.K., Ö.Ö. and E.K. who were tried and convicted in a separate set of criminal proceedings. 2. In Batı and Others v. Turkey (nos. 33097/96 and 57834/00, §§ 114-124 and 138-149, ECHR 2004‐IV (extracts)), the Court found a violation of the substantive aspect of Article 3 of the Convention in respect of U.B., O.K. and Ö.Ö. in that they were subjected to torture during their police custody in February 1996 in order to extract information about offences from them. 3. In Dağdelen and Others v. Turkey (nos. 1767/03 and 2 others, §§ 80‐91, 93-97 and 118-125, 25 November 2008), the Court found a violation of both the substantive and the procedural aspects of Article 3 of the Convention and a violation of Article 6 §§ 1 and 3 of the Convention in respect, inter alia, of the present applicant, notably because he had been ill-treated in police custody in May 1996 and because his conviction had been based, inter alia, on police statements and evidence obtained by this ill-treatment and in the absence of a lawyer. The Court also found a violation of Article 3 of the Convention in respect of the applicant’s co-defendant S.Ö. on the grounds that he had also been ill-treated while in police custody. The criminal proceedings that were the subject of this judgment and those in the case of Batı and Others (cited above) concerned the same illegal armed organisation, namely the TKEP/L (Communist Labour Party of Türkiye/Leninist). 4. Subsequently, the Istanbul Assize Court reopened the criminal proceedings against the applicant pursuant to a request he had made based on the Court’s above-mentioned judgment in respect of him. On 14 May 2013 the Istanbul Assize Court, after conducting twelve hearings, decided to uphold the applicant’s previous conviction under Article 146 of the former Criminal Code and his sentence to life imprisonment. In doing so, the trial court decided not to admit into evidence the police statements of the defendants, including that of the applicant, but it did consider that his previous conviction should be upheld in view of the police statements made by C.B., U.B., O.K., Ö.Ö. and E.K., holding that they had not been obtained under duress. On 30 June 2014 the Court of Cassation upheld the trial court’s judgment. 5. On 26 December 2017 the Constitutional Court held that the applicant’s complaint concerning the unfairness of the criminal proceedings was aimed at challenging the outcome of those proceedings and declared it inadmissible, taking the view that there was no apparent arbitrariness in the way the domestic courts had established the facts and applied the relevant legal provisions in his case. 6. The applicant complains that his right to a fair trial was breached owing to the use by the trial court in the reopened criminal proceedings against him of the evidence given by certain other persons (who had been tried and convicted in a different set of criminal proceedings) under alleged duress and in the absence of a lawyer. THE COURT’S ASSESSMENT
7. The Government raised an objection of non-exhaustion of domestic remedies, arguing that the applicant had failed to raise his complaint concerning the use of evidence given by C.B., U.B., O.K., Ö.Ö. and E.K. as result of ill-treatment and in the absence of a lawyer for his conviction before the domestic courts. In the Government’s view, the applicant had only complained before the Constitutional Court of the domestic courts’ failure to collect evidence other than that relied on for his conviction. 8. The applicant asserted that he had raised the factual basis of the complaints he has submitted to the Court before the domestic courts. 9. The Court notes that the application form the applicant lodged with the Constitutional Court contained a complaint regarding the use of evidence given by C.B., U.B., O.K., Ö.Ö. and E.K. without a lawyer being present and regarding the trial court’s failure to inquire whether they had indeed made those statements without duress, before concluding that it was so. That being the case, the Court cannot uphold the Government’s preliminary objection based on non-exhaustion of domestic remedies. 10. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 11. The applicant asserted that the trial court had impinged on his right to a fair trial by relying on the statements that certain defendants from another case had made under torture and without a lawyer being present. 12. The Government argued that the domestic courts had convicted the applicant on the basis of evidence other than the statements he had made to the police, which were in and of themselves sufficient to find him guilty. There had thus been no violation of Article 6 of the Convention. 13. The general principles regarding the use in criminal proceedings of evidence obtained in breach of Article 3 of the Convention may be found in Gäfgen v. Germany ([GC], no. 22978/05, §§ 165-167, ECHR 2010). 14. The general principles concerning the use of evidence given by co‐defendants or witnesses in the absence of a lawyer have been summarised in Beuze v. Belgium ([GC], no. 71409/10, §§ 119-150, 9 November 2018); Stephens v. Malta (no. 3) (no. 35989/14, §§ 64-67, 14 January 2020); and Erkapić v. Croatia (no. 51198/08, §§ 72-73, 25 April 2013). In such cases, the Court’s task under Article 6 of the Convention primarily focuses on the assessment of domestic courts regarding the impact that the absence of a lawyer may have had on the overall fairness of criminal proceedings and, on that basis, to ascertain whether it was such as to render the proceedings incompatible with the guarantees of a fair trial. Ensuring that an applicant has been able to test the admissibility, reliability, authenticity and veracity of the evidence given without a lawyer being present constitutes the central pillar of the Court’s examination. 15. The Court notes that it has previously found a violation of Articles 3 and 6 §§ 1 and 3 of the Convention in respect of the present applicant in that, in the first set of criminal proceedings against him he had been ill-treated during his police custody and that he had been denied a fair hearing on account of the use, in his conviction, of the statements he had made and the evidence he had given under duress and without a lawyer being present (see paragraph 3 above). The Court has also found a violation of Article 3 in respect of his co-accused S.Ö. (see paragraph 3 above). Similarly, in Güvenilir v. Turkey (no. 16486/04, §§ 37-46, 13 October 2009), the Court also found a violation of Article 6 §§ 1 and 3 (c) of the Convention in respect of another co-accused who had been tried and convicted in the same set of criminal proceedings as the applicant, on account of the systematic restrictions imposed on his right of access to a lawyer and the use of evidence obtained from another co-accused through ill-treatment, without ruling on the admissibility of such evidence. The Court also found a violation of Articles 3 and 6 §§ 1 and 3 (c) of the Convention in respect of the last co-accused in the applicant’s trial in Erdal Aslan v. Turkey (nos. 25060/02 and 1705/03, §§ 69‐73 and 88-93, 2 December 2008) on account of the systematic restrictions imposed on his right of access to a lawyer and the use during the trial of evidence obtained from him in breach of Article 3 of the Convention. 16. Subsequent to and on the basis of the above-mentioned judgments, the criminal proceedings against the applicant were reopened by the Istanbul Assize Court, which held that the applicant’s previous conviction should be upheld. In doing so, the trial court held that it would attach no value to the police statements of the defendants in view of the Court’s judgments mentioned above. While this is a welcome step which demonstrates the trial court’s willingness to engage in a meaningful manner with the Court’s judgment in respect of the applicant, the trial court appears to have persisted in using evidence obtained in breach of Article 3 of the Convention, without examining its admissibility or operating the necessary procedural safeguards entrenched in Turkish criminal law so as to offset the undesirable and harmful effects which the use of such evidence may entail for the legitimacy of criminal proceedings. 17. In that connection, the Court finds it particularly troubling that even though U.B., O.K. and Ö.Ö. were found to have been subjected to the most serious and cruel form of ill-treatment, namely torture, in order to extract statements from them in Batı and Others (cited above, §§ 114-124), the trial court assessed the evidence that they had given – in a manner incompatible with the fair trial guarantees under Article 6 of the Convention – and used it to convict the applicant in the newly reopened trial in 2013, a fact which remained unaddressed in the decisions of the superior courts which followed in 2014 and 2017. At this juncture, the Court finds it useful to reiterate that statements obtained in breach of Article 3 of the Convention can in no way be admitted into evidence against an accused in criminal proceedings and that the national authorities are under a positive obligation to assess whether evidence has been obtained in breach of Article 3 of the Convention, and, if so, to exclude it from the file or to refrain from relying on it in establishing the facts against an accused (compare paragraph 13 above). 18. Even though the above findings were sufficient by and of themselves to give rise to a violation of Article 6 § 1 of the Convention, the Court further notes that the trial court did not assess the impact of the absence of a lawyer when U.B., O.K. and Ö.Ö. made their statements to the police before relying on those statements to convict the applicant in the newly reopened criminal proceedings. Nor did the trial court assess the admissibility, reliability, authenticity and veracity of the evidence given by U.B., O.K. and Ö.Ö. The Court of Cassation also failed to address those crucial points when upholding the trial court’s judgment. Similarly, the applicant’s complaint before the Constitutional Court about the use of statements made without a lawyer being present as evidence went unnoticed. 19. In view of the foregoing considerations, the Court holds that there has been a violation of Article 6 § 1 of the Convention in the present case owing to the use by the trial court of the statements made by U.B., O.K. and Ö.Ö. to convict the applicant. 20. On the basis of the finding of a violation of Article 6 § 1 of the Convention, the Court does not consider it necessary to examine whether the fairness of the criminal proceedings was also tainted on account of the use of evidence given by C.B. and E.K. 21. The applicant claimed 30,000 euros (EUR) in respect of non‐pecuniary damage and 12,450 Turkish liras (TRY) in respect of costs and expenses, including lawyer’s fees. 22. The Government argued that the applicant’s claim for non-pecuniary damage was excessive and that his claim regarding costs and expenses had neither been sufficiently itemised nor substantiated with any documentary proof. 23. The Court awards the applicant 6,000 EUR in respect of non‐pecuniary damage, plus any tax that may be chargeable, but rejects his claim in respect of costs and expenses, owing to his failure to submit any supporting documents. It further notes that Article 311 of the Code of Criminal Procedure allows for reopening of domestic proceedings in the event that the Court finds a violation of the Convention. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 6,000 (six thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 17 January 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Dorothee von Arnim Pauliine Koskelo Deputy Registrar President