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

Judgment

SECOND SECTION

CASE OF BERK v. TURKEY
(Application no. 68496/10)

JUDGMENT

STRASBOURG
13 October 2020

This judgment is final but it may be subject to editorial revision. In the case of Berk v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Valeriu Griţco, President,Arnfinn Bårdsen,Peeter Roosma, judges,and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 68496/10) 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 Berk (“the applicant”), on 14 October 2010;
the decision to give notice of the application to the Turkish Government (“the Government”);
the parties’ observations;
Having deliberated in private on 22 September 2020,
Delivers the following judgment, which was adopted on that date:
THE FACTS
1. The applicant was born in 1975 and lives in Diyarbakır. The applicant was represented by Ms İpek Ulaş, a lawyer practising in Diyarbakır. 2. The Government were represented by their Agent. 3. The Government did not object to the examination of the application by a Committee. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant was taken into custody on 22 June 2004 and the following day he had given incriminatory statements concerning his involvement in the activities of the terrorist organisation 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. At a hearing held on 22 February 2005 the applicant’s lawyer submitted that despite his requests he had not been allowed to take part in the applicant’s police interview. 6. Relying on, inter alia, the applicant’s police statements and without subjecting them to scrutiny and examining their inadmissibility or the circumstances surrounding his waiver, the trial court convicted him under Article 125 of the former Criminal Code of breaking up the unity of the State and seeking to remove part of the national territory from the State’s control, and sentenced him to life imprisonment. On 15 April 2010 the Court of Cassation upheld that judgment. RELEVANT LEGAL FRAMEWORK AND PRACTICE
7. The relevant domestic law in force at the material time, as well as 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 during his time in police custody. 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 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 while in police custody. In any event, the overall fairness of the criminal proceedings had not been prejudiced by the absence of a lawyer during his police interview in the light of, notably, the strength of the remaining evidence for his conviction. 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 23 June 2004 given that it is not disputed between the parties that the applicant was represented by a lawyer when making statements to the public prosecutor and the investigating judge. 13. The Court reiterates that it examines complaints concerning the validity of the waiver of the right to a lawyer in the light of the three pronged test developed in Simeonovi (v. Bulgaria [GC], no. 21980/04, §§ 122‐144, 12 May 2017), which consists of the following steps: (i) whether the applicant waived his right to legal assistance; (ii) whether there were “compelling reasons” to restrict access to a lawyer; and (iii) whether the overall fairness of the proceedings was ensured. 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 Ruşen Bayar v. Turkey, no. 25253/08, §§ 113-123, 19 February 2019; and Akdağ v. Turkey, no. 75460/10, §§ 48-61, 17 September 2019; and contrast Aksin and Others v. Turkey, no. 4447/05, §§ 7, 8 and 19, 1 October 2013; Diriöz v. Turkey, no. 38560/04, § 36, 31 May 2012; and Yoldaş v. Turkey, no. 27503/04, § 53, 23 February 2010). 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). 14. The Court observes that those two conditions are also present in the instant case. Thus, it cannot establish beyond any reasonable doubt that the applicant unequivocally, knowingly and intelligently waived his rights under Article 6 of the Convention. 15. 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 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 them either. 16. The absence of the aforesaid procedural safeguards has already been found to have violated the overall fairness of the criminal proceedings in respect of the same legal question and where the applicants’ statements were used by the national courts to convict them. That is also the case in the present application (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). 17. Accordingly, the Court concludes that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention. 18. 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.”
Damage, costs and expenses
19. The applicant invited the Court to award him a “fair compensation” in respect of pecuniary and non-pecuniary damage as well as costs and expenses. 20. The Government contested those claims. 21. 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. It also dismisses the claim for costs and expenses as the applicant submitted no documentary proof in support of those claims. 22. 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 the most appropriate form of redress would be the retrial of the applicant in accordance with the requirements of Article 6 of the Convention, 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 13 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Hasan Bakırcı Valeriu GriţcoDeputy RegistrarPresident